By Jyoti Jangra,
Under the provision of Section 172 Cr.P.C., every Police Officer conducting the investigation shall maintain a record of investigation done on each day in a Case Diary in the prescribed Form. Case Diaries are important to record the investigation carried out by an Investigating Officer. Any Court may send for the Case Diaries of a case under inquiry or trial in such Court and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.
Facts to be incorporated in Case Diaries:
The Case Diary, which is a record of day by day investigation of a case, shall contain details of the time at which the information reached the Investigating Officer, time at which the investigation began and was closed, the place or places visited by him and a statement of the facts and circumstances ascertained through investigation.
Case Diaries should contain only particulars of actual steps taken or progress made in the investigation and such details of investigation which have bearing on the case. Addresses, both present and permanent of the witnesses and all other relevant details should be invariably recorded in the Case Diaries. The following shall not be incorporated in the Case Diaries:
• The opinion of Investigating Officer, the opinion of the Supervisory Officers and Law Officers.
• Any conflict of opinion between I.O., Law Officers, SP, DIG, and Head Office.
• Recommendations made in concluding report of the offence, comments of Law Officer(s) and Supervisory Officers.
• Any other facts/circumstances not relating to the investigation of the case.
Every Investigating Officer, to whom the part investigation of a case is entrusted, will also maintain a Case Diary for the investigation made by him. This may be called ‘Supplementary Case Diary’ (SCD). SCDs will be taken on record by the Chief I.O., who may incorporate the gist of important facts disclosed in such investigation in his own CD for the date when the SCD is received by him. It is important that SCD must be submitted without any delay. A copy of the CD submitted by I.O./Chief I.O. to the Superintendent of Police would invariably enclose the SCDs received by him.[i]
CONCEPT OF CASE DIARY
Section 172 Cr.P.C. lays down that every police officer making an investigation should maintain a diary of his investigation. Each State has its own police regulations or otherwise known as police standing orders and some of them provide as to the manner in which such diaries are to be maintained. These diaries are called case diaries or special diaries. Like in Uttar Pradesh, the diary under Section 172 is known as ‘special diary’ or ‘case diary’ and in some other States like Andhra Pradesh and Tamilnadu, it is known as ‘case diary’.
The Section itself indicates as to the nature of the entries that have to be made and what is intended to be recorded is what the police officer did, the places where he went and the places which he visited etc. and in general it should contain a statement of the circumstances ascertained through his investigation. Sub-section (2) is to the effect that a criminal court may send for the diaries and may use them not as evidence but only to aid in such inquiry or trial. The aid which the court can receive from the entries in such a diary usually is confined to utilizing the information given therein as the foundation for questions to be put to the witnesses particularly the police witnesses and the court may, if necessary, in its discretion use the entries to contradict the police officer who made them.
Coming to their use by the accused, Sub-section (3) clearly lays down that neither the accused nor his agents shall be entitled to call for such diaries nor he or they may be entitled to see them merely because they are referred to by the courts. But in case the police officer uses the entries to refresh his memory or if the court uses them for the purpose of contradicting such police officer then provisions of Section 161 or Section 145, as the case may be, of the Evidence Act would apply.
Section 145 of the Evidence Act provides for cross-examination of a witness as to the previous statements made by him in writing or reduced into writing and if it is intended to contradict him by the writing, his attention must be called to those parts of it which are to be used for the purpose of contradiction.
Section 161 deals with the adverse party’s rights as to the production, inspection, and cross-examination when a document is used to refresh the memory of the witness. It can, therefore, be seen that the right of accused to cross-examine the police officer with reference to the entries in the General Diary is very much limited in extent and even that limited scope arises only when the court uses the entries to contradict the police officer or when the police officer uses it for refreshing his memory and that again, is subject to the limitations of Sections 145 and 161 of the Evidence Act and for that limited purpose only the accused in the discretion of the court may be permitted to peruse the particular entry and in case if the court does not use such entries for the purpose of contradicting the police officer or if the police officer does not use the same for refreshing his memory, then the question of accused getting any right to use the entries even to that limited extent does not arise.[ii]
Section 172 deals with three clauses:
(1). Every police officer making an investigation under this chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.
(2). Any criminal court may send for the police diaries of a case under inquiry or trial in such court, and may use such court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.
(3). Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the court; but, if they are used by the police officer who made them to refresh his memory, or if the court uses them for the purpose of contradicting such police officer, the provisions of Section 161 or Section 145, as the case may be, of Indian Evidence Act, 1872, shall apply.
It means this section deals with or shows that what a “special” diary of a police-officer making an investigation should contain. Every police-officer making an investigation shall enter his proceedings in a diary which may be used at the trial or inquiry, not as evidence in the case but aid the court in such inquiry or an investigation started under section-174 of the code[iii]
The object of recording “case diaries” under this section is to enable courts to check the method of investigation by the police.[iv] The entries in a police diary should be made with promptness in sufficient details mentioning all significant facts on careful chronological order and with complete objectivity. The haphazard maintenance of a police case diary not only does no credit to those responsible for maintaining it but defeats the very purpose for which it required to be maintained.[v]
So we can say that this section does not deal with the recording of any statement made by witnesses. Oral statements of witnesses should not be recorded in the diary.[vi] Similarly, the court should not while recording the evidence of investigating office record anything which came to the knowledge of such an officer during the investigation of the other case.[vii]
A diary kept under this section cannot be used as evidence of any data,[viii] fact or statement contained therein, but it can be used for the purpose of assisting the court in inquiry or trial by enabling it to discover means for further elucidation of points which need clearing up before justice can be done.[ix]
USE OF CASE DIARY
In case of other purposes (Trial)
In case Shamushul Kanwar vs State of U.P
It is manifest from its bare reading without subjecting to detailed and critical analysis that the case diary is only a record of the day-to-day investigation of the investigating officer to ascertain the statement of circumstances ascertained through the investigation. Under sub-section (2) of Section 172, the Court is entitled at the trial or inquiry to use the diary not as evidence in the case, but as an aid to it in the inquiry or trial.
Neither the accused nor his agent, by operation of sub-section(3), shall be entitled to call for the diary, not shall he be entitled to use it as evidence merely because the Court referred to it. Only right given there under is that if the Police Officer who made the entries in the diary uses it to refresh his memory or if the Court uses it for the purpose of contradicting such witness, by operation of Section 145 of the Evidence Act, it shall be used for the purpose of contradicting such witness i.e., Investigation officer or the Court.
It is, therefore, clear that unless the investigating Officer or the Court uses it either to refresh the memory or contradicting the investigating Officer as the previous statement under Section 161 that too after drawing his attention thereto as is enjoined under Section 145 of the Evidence Act, the entries cannot be used by the accused as evidence.[x]
But the Gujarat high court has confirmed the order of special CBI court, which refused an accused in the Sohrabuddin Sheikh fake encounter case, access to the case diary.
Additional chief judicial magistrate AY Dave declined accused IPS officer Rajkumar Pandian’s plea seeking the case diary. The suspended officer had demanded that CBI place a certified copy of the full case diary in court in a sealed cover. But the magistrate observed that pending investigation, the probe agency can’t be expected to submit it in court.
Pandian, later, approached the High Court, but Justice AS Dave refused to interfere in the CBI court’s order. The high court noted that according to Section 172 of CrPC, an accused is not entitled to a copy of the case diary. The trial courts may use such diaries prepared by the investigating officer, but these documents can’t be used as evidence.
“Sub-section (3) of section 172 of CrPC mandates that neither the accused nor his agents shall be entitled to call for such diaries, nor he or they shall be entitled to see them merely because such diaries are referred to by the court. However, if such diaries or extracts therein are used by the police officer for refreshing the memory or if the court uses them for the purpose of contradicting such police officers, provisions of Evidence Act will apply,” the High Court observed.[xi]
The Supreme Court has ruled that no court should rely on a case diary as evidence and acquit or convict an accused on the basis of that. The judgment could protect the interests of witnesses in criminal cases while keeping under wraps the investigation done by police.
The judgment comes in a case in which the court set free 77 accused who had been convicted with sentences ranging from life term to smaller imprisonment by the Andhra Pradesh high court for killing six people.
The victims were suspected of doing black magic on animals and causing their death nine years ago. The accused hired an exorcist to hunt down the culprits. The trial court acquitted them saying the prosecution couldn’t substantiate the charges, and the high court called for the case diary that records the investigation.
It drew corroboration from the case diary, which is otherwise excluded from trial except when an investigation officer wants to consult it to refresh his memory or the court wants to examine it to find out whether the investigation had been conducted in accordance with the Criminal Procedure Code (CrPC).
A bench of Justices DK Jain and RM Lodha ruled that a criminal court can use the case diary to help an inquiry or trial but not as evidence. This position is made clear by Section 172(2) of the Code.[xii]
In the case of an investigation
A police officer, who investigated a criminal case either fully or partly, is entitled to look into the ‘case diary’ containing the details of the investigation and refresh his memory while deposing as a witness before the trial court, the Madras High Court has said.
However, the accused is also equally entitled to cross examine the police officer under Section 161 of the Indian Evidence Act whenever the investigating officer of the case looks into the case diary and deposes from its contents, Justice G.M. Akbar Ali clarified.
The judge said that a combined reading of Section 172 of the Code of Criminal Procedure and Sections 145,159 and 161 of the Indian Evidence Act made it clear a trial court too was empowered to call for the case diary to aid it in trying the criminal case.
The court could use the case diary, not as evidence, but only for the purpose of contradicting the police officer with regard to details such as dates, time and venue of the investigations conducted by him if there were disparities between the written records and the oral evidence adduced by him.
Further, no individual other than the police officer and the trial court judge could be allowed to look into the case diary. The role of the accused was limited to the extent of cross examining the officer when he happened to refresh his memory from the contents of the diary, the judge added.
Mr. Justice Akbar Ali also recalled a 113-year-old English judgment passed in Queen Empress Vs. Mannu (1897) wherein a Full Bench of the High Court dealt with, in detail, the importance of the case diary, its purpose and how it must be used by the trial courts.
“It is the absolute duty of judges and Magistrates to entirely disregard all statements and entries in special diaries as being in any sense legal evidence for any purpose, except for one solitary purpose of contradicting the police officer who made the special diary when they do afford such a contradiction.
“Even in that case, they are not evidence of anything except that such police officer made the particular entry which is at variance with his subsequently given evidence. They do not evidence that what is stated in the entry was true or correctly represents what was said or done,” the age-old judgment read. In the present case, a person caught red handed while accepting bribe had moved the High Court challenging an attempt made by a Central Bureau of Investigation officer to depose from the case diary during the trial of the corruption case before the Special Court for CBI cases in Chennai.[xiii]
A diary kept under this section cannot be used as evidence of any date, fact or statement contained therein, but it can be used for the purpose of assisting the court in the inquiry or trial by enabling it to discover means for further elucidation of points which need clearing up before justice can be done. It can be used as an aid in framing a charge though not for founding the charge. The magistrate cannot take cognizance or issue process against accused on the materials contained in the case diary alone unless facts contained in the report under section 173 constitutes an offense.
The Supreme Court has held that the police diaries of a case under inquiry or trial can be made use of by a criminal court only for aiding it, in such inquiry or trial. The court would be acting improperly if it uses them in its judgment or seeks confirmation of its opinion on the question of appreciation of evidence from statements contained in such diaries.[xiv]entries in police diaries cannot be used as evidence against the accused. They cannot, therefore, used to explain any contradiction in the evidence of a prosecution witness which the defense has brought forth for using any portion of his statement under section 161.
Personal diary of non-investigating officer excluded– Entries made in a personal diary by a police officer who did not investigate into a case do not fall within Section 172.
• Diaries to be properly kept. – Though police diaries are not evidenced against the accused, it is very essential for criminal trials that they should be properly kept in the manner provided by the Code. But the failure of the police witnesses to keep a diary as required by section 172(1) does not have the effect of making their evidence inadmissible although it lays it open to adverse criticism and may diminish its value.14
• Non-compliance with the provisions. – Failure on the part of the investigating officer to comply with the provisions of section 172 is a serious lapse which diminishes the value and credibility of the investigation. But it will not affect the finding of guilt unless prejudice to the accused is shown.15
• Diaries how to be maintained and entries on how to be made?- The haphazard maintenance of a document of the status of a case diary not only does no credit to those responsible for maintaining it but defeats the very purpose for which it is required to be maintained. Courts think it to be of the utmost importance that entries in a police case diary should be made with promptness, in sufficient detail, mentioning all significant facts in careful chronological order and with complete objectivity. Entries in case diaries must be made with scrupulous completeness and efficiency.
• Making false entries in diaries-Offence.- Where a public servant makes a false entry in a diary kept and sent to his superior in pursuance of a departmental order which that public servant is bound to obey, he is guilty of an offense under Section 177, I.P.C.
• Power of criminal court to send for diaries and use thereof [Sub-section (2)].- The prosecution is not expected to produce daily diary in courts as a matter of course. Such production would seriously impair the working of the police. If required for defense they can be summoned on the application of defense.
• No general order by Sessions Judge. – Sessions Judges should not issue general orders that police diaries should be sent to them along with the Magistrate’s records in all cases committed for trial, and in all criminal appeals. They can only order for diaries of cases under trial before them if they think it necessary to peruse them.
• The court may send for diary of counter-case.- Section 172 relates to the police diary made in respect of a case under inquiry or trial by the court which calls for it and, therefore, does not in terms apply where the diary relates to the counter-case, but the principles apply. There is no provision in the Code which would prevent the court from looking into the diary of the counter-case, or from using it in the way laid down in Section 172(2).
No use of police diaries as evidence. -Police diaries are not original evidence of the matters contained in them.21 But they can be put in evidence if the persons who wrote them are called as witnesses to prove the facts contained in such reports. A Judge should not take judicial notice of police papers, and he should not consult them ‘in order to test evidence’ in the case.
The diary kept under Section 172, cannot be used as containing entries which can by themselves be taken to be evidence of any date, fact or statement contained in it. Under section 172 the police diary cannot be used by any court as substantive evidence but is intended to be used only for the purpose of assisting the court in the appreciation of the evidence and to clear up any doubtful point arising in the course of the case. A Judge is in error in making use of the police diaries at all in his judgment and in seeking confirmation of his opinion on the question of appreciation of evidence from statements contained in those diaries.
To disbelieve the story of the defense only because it is nowhere mentioned in the Zimnis amounts to making use of the Zimnis in such a way as to strengthen the case for the prosecution and to show that the rival story told by the defense is untrue, a course forbidden by the provisions of the Cr.P.C. The court should not draw any inference from an inspection of the police papers. If any use is to be made of them, they should be brought on the record and an opportunity given to the party against whom they are to be used for meeting them. The case diary cannot be used as evidence as that is not the evidence.
The police case diary can be used within the limits of section 172. If there is no proof in the case, the police diary cannot take the place of proof. Any fact mentioned in the police diary cannot be used as evidence in the case. Entries in the diary can utmost be said secondary evidence and are neither substantive evidence nor corroborative evidence. The court is not justified in reading the confession and other statements from the police diary and to disbelieve the prosecution or the defense case on that ground.
Use only as an aid to court -The power of the court under section 172 to look into case diaries should be sparingly exercised and it is necessary for the court to be astute to avoid using it otherwise than as provided by law. Under section 172, any criminal court may send for the special police diary of a case under inquiry or trial in such court and may use the diary “not as evidence, but to aid it in such inquiry or trial”.
It may, for instance, be of importance in case that the court should know when a witness first made a statement in connection with the case, or whether any particular person made or did not make a statement. In Khatri, the Supreme Court observes that sub-section (2) of section 172, empowers a criminal court holding an inquiry or trial of a case to send for the police diary of the case and the criminal court can use such diary, not as evidence in the case, but to aid in such inquiry or trial.
The meaning of the phrase “to aid the court in an enquiry or a trial” in this section is that the court may see from the police diaries what is the general trend of evidence to be given and what witnesses are important and what not, and whether witnesses produced to give evidence as to all the facts which they formerly professed to know.
As pointed out by the Supreme Court in Shamsul Kanwar, where neither the prosecution witnesses nor the court uses the case diary, the free use thereof for contradicting the prosecution evidence is obviously illegal and it is inadmissible in evidence. Thereby the defense cannot place reliance thereon.
Permissible use of police diary -The police diary may be used by the court for the following purposes :
• The court is entitled to use the special diary to ascertain the sources and lines of inquiry and the names of persons that may be in a position to give material evidence. The special diary may be used by the court in inquiries or trials as suggesting means of further elucidating points which need clearing up and which are material for doing justice between the prosecution and the accused.
• The object of the police diary is to enable the court to see the information recorded from day to day and the lines of investigation of a particular case. The main purpose of the police diary is to aid the court in a trial. That shows when the investigation began when closed places visited and the circumstances ascertained in the investigation. Any other use of the entries in case diary is not undesirable.
• Though the entries in a case diary are not substantive evidence, the court may look into it for aid in the inquiry or trial. They are only to be used as is pointed out by the section, not as evidence, but to aid a court on the trial, so as to enable it to make a thorough inquiry on all material points by eliciting in the examination of the witness-and expecially of police witnesses-the real facts of the case.
• The court should discover out of the diary any matter which is important and then calls for the necessary witnesses or documents to prove that matter. The court should then deal with the case on all the evidence.
• The court may use the diaries for the purpose of clearing up obscurities in the evidence so as to bring out relevant facts in the interests of a fair trial. The aid which a court can receive from the entries in such a diary is usually confined to utilizing the information given therein as a foundation for questions to be put to the witness and in using the diary the court should always employ very great caution. Where after the verdict was given, the Judge stated that he would look at the police diaries before deciding whether he would refer the case under Section 307, and having done so, he accepted the verdict and convicted the accused, the reference to the police diaries was permitted, under section 172, and there was nothing illegal in the course adopted.
• Power of High Court under section 482 to look into police diaries.- When an application under Section 482 of the Code for quashing proceedings of the lower court is made to the High Court at an early stage of the proceedings, the High Court is entitled to look into the police diaries for determining whether any case has been made out or not, and that in order to determine the correctness of affidavits on record it is necessary to look into them.
• Use of recorded statement, not forbidden.- Section 172 does not forbid a recorded statement to be used at a trial for an offense not under investigation when it was made.
• Comparing with Confession recorded by Magistrate.- The confession recorded by a Magistrate cannot be compared with the record of it in the case diary to determine its value.
• Production of daily diary.- The prosecution cannot be expected to produce daily diaries as a matter of course in every prosecution case. Production of these diaries will impair the functioning of the police. It is neither desirable nor feasible to produce them. If needed they can be summoned.
Police diaries can be used to contradict police officer.- The special diary may be used by the court to contradict the police officer who made it and the police officer who made it may refresh his memory by referring to it. The object of Section 172(3) is to enable the court to direct the police officer who is giving his evidence to refresh his memory from the notes made by him or to question him as to contradictions which may appear between statements so recorded and the evidence he is giving in court.
The words ‘if the court uses them for the purpose of contradicting such police officer, the provisions of section 161 or section 145, as the case may be, of the Indian Evidence Act, 1872 shall apply’ used in Section 172(3) are important and they regulate the procedure and the power which can be exercised about the matter. Without confronting the police officer who had prepared the diary in terms of section 161 of the Evidence Act, the diary cannot be used.
In Mukand Lal, the Supreme Court has pointed out that the court is empowered to call for relevant case diary if there is any inconsistency or contradiction arising in the context of the case diary and the court can use the entries for the purpose of contradicting the police officer as provided in sub-section (3) of Section 172.
• No use by or against any witness other than a police officer- A special diary cannot be used by any other witness than the police officer who made it for the purpose of refreshing his memory, nor can it be used to contradict any witness other than such police officer.
• No use of police diary as corroborative evidence- The Code permits the court to use the diary for the limited purpose of contradicting the police officer and not for the purpose of corroborating him. Police diaries cannot be admitted as corroborative evidence against the accused in the case. Statements of witnesses made to the police and recorded in the special diary, can be used as corroborative evidence in the trial, only if the police officer who took them down, is called upon to give evidence of their purport, and of the time when and the circumstances in which, they were made, refreshing his memory from the diary if he desires to do so. Any fact mentioned in the police diary cannot be used to corroborate any evidence in the case.
• No use to prejudice of accused- The judge should not use the police diary to the prejudice of the accused. Even if the defense requests the Judge to examine the police diary, that would not justify him in using it to the prejudice of the accused.
• Police officer whether can be compelled to refresh memory?- An accused person is not entitled to require a police officer to refresh his memory during his examination in court, by referring to his diary. The use of the diary for refreshing memory is at the discretion of the witness and the Judge. It may be within the rights of the police officers not to refer to a diary, but the accused is entitled to the benefit of their refusal to refer to the diary and to disclose the source of their information.
The Court is, no doubt, not bound to compel a witness to look at the diary in order to refresh his memory. But if it invites him to refresh his memory with reference to the diary, the witness is under an obligation to do so, it is his duty to lay the whole truth before the court to the best of his ability.
Should the police officer refuse to assist the court in this way, he would not only be failing in his duty both as a witness and as an officer or public servant but would also be liable to exactly the same penalty as any other witness who refuses to give evidence which is within his knowledge and is not affected by any particular claim of privilege.
It is not open to witness to decide for himself whether or not he should disclose a material fact which might turn the scale in deciding whether an accused person was guilty or innocent when he is in a position to clear up a point by reference to his diary.
Where the investigating officer in his cross-examination was asked to state various dates on which he had examined prosecution witnesses in course of the investigation but he stated that it was not necessary to refer to the diary. The court should have compelled him to refer to the diary and on account of such conduct of investigating officer accused were somewhat prejudiced.
The right of accused to call for and inspect police diaries– It is the court alone which is entitled to use the special diary. Neither the accused nor his agent is entitled under section 172 to see the special diary for any purpose unless it has been used by the court for enabling the police officer who made it refresh his memory or for the purpose of contradicting him.
A party has a right to look into a document before or at the moment it is used by a witness to refresh his memory, and not exercising it at the proper moment, does not continue to retain it throughout the subsequent examination of the witness. In an Oudh case, it has been held that an accused had no right to inspect the original paper by which the police was refreshing his memory. It has been held that there is nothing in the law which entitles the defense to an inspection of anything more than that portion of the diary from which the witness refreshed his memory.
In Khatri, the Supreme Court clarifies that by reason of sub-section (3) of section 172, Cr.P.C. merely because the case diary is referred to by the criminal court, neither the accused nor his agents are entitled to call for such diary nor are they entitled to see it.
The accused can see the entries relating to the case made by the police officer in the case diary only when the police officer uses it for refreshing memory or when the court uses it to contradict the police officer. When the police diary is used for refreshing memory by the police officer or the court uses it for contradicting the police officer, then the provisions of sections 161 and 145 of the Evidence Act apply.
In Mukand Lal, the Supreme Court categorically states that the Legislature has reposed complete trust in the court which is conducting the inquiry or the trial. It has empowered the court to call for any such relevant case diary, if there is any inconsistency or contradiction arising in the context to the case diary, the court can use the entries for the purpose of contradiction. Ultimately there can be no better custodian or guardian of the interest of the justice than the court trying the case.
No court will deny to itself the power to make use of entries in the diary to the advantage of the accused by contradicting the police officer with reference to the contents of the diaries. In view of the safeguard, the charge of unreasonableness or arbitrariness cannot stand scrutiny.
If the accused claims an unfettered right to make roving inspection of the entries in the case diary regardless of whether the entries are used by the police officer to refresh his memory or regardless of the fact whether the court has used these entries for the purpose of contradicting such police officer, he cannot base his claim on sub-section (3) of the section. The accused can claim this right but only when the police officer uses the case diary for refreshing his memory or the court uses it for contradicting the police officer.
In Malkiat Singh, the Supreme Court points out that where the evidence on record clearly shows that the defense has freely used the entries in the case diary as evidence and marked some portions of the diary for contradictions or omissions in the prosecution case, it is clearly in negation of and in the teeth of section 173(3). To conclude, therefore, the accused can only see the diary if it is used by the police officer to refresh his memory or if the court uses it to contradict the police officer. If there is no special diary, there can be no case of refreshing memory or contradicting the police officer by the diary. The absence of the diary, therefore, cannot prejudice the accused.
Permitting defense counsel to see portions of police diary for use in defense of case–
Court’s discretion.- Though an accused person is not entitled as of right to see the case diary and his statement to the police recorded in it, there is no prohibition contained in Section 172(3) against the court permitting in its discretion defending counsel to see any portion of the case diary, which the court considers in the interests of justice he should see and use in the defense of the case.
There is no legal impediment to the committing court permitting in its discretion and in appropriate cases defending counsel at his request to look into a case diary to verify what the accused told the police as recorded there, before formulating his defense. Under the law, as it now stands, such permission cannot be claimed by the accused as a matter of right. It is comparatively of little use for defense counsel being permitted to look at the diary by the Sessions Judge at a belated stage of the trial. Defending counsel should know what the accused told the police in the first instance.
There is a heavy responsibility on the courts in the user of case diaries under Section 172(3) and on public prosecutors to bring to the notice of the trial Judge anything in the case diary favorable to the accused. In Khatri, the Supreme Court has laid down that if the case diary is used by the police officer who has made it refresh his memory or if the criminal court uses it for the purpose of contradicting such police officer in inquiry or trial, the provisions of Sections 161 and 145, as the case may be, of Indian Evidence Act would apply and the accused would be entitled to see the particular entry in the case diary which has been referred to for either of these purposes and so much of the diary as in the opinion of the court is necessary to a full understanding of the particular entry so used.
Statements of witnesses recorded in the special diary not covered by Section 172–
Where a police officer records in the special diary statements of witnesses, taken under section 161, the privilege is given by this section does not extend to those statements.80 Such statements can be used for the purposes of section 162. A police diary is normally meant for a police officer investigating a criminal case for recording therein his day to day noting regarding the investigation, but he is not debarred from recording the statement of any witness therein and so the privilege in the matter of calling a police diary by an accused person or his agent contemplated under section 172 of the Code extends only to the notings recorded by a police officer therein and not to the supply of copies of the statements of the witnesses recorded therein as those statements will be covered by sub-section (3) of section 161 of the Code.
Right to copy of statements in police diaries.- Section 172 does not forbid a recorded statement to be used at a trial for an offense not under investigation when it was made. There is, however, no doubt that the record of a statement heard by a police officer in exercise of the power conferred by section 161 of the Code and recorded either in the diary or separately in the course of investigation proceedings is an unpublished official record relating to an affair of State, evidence derived from which cannot be produced in a case to which the first proviso to section 162 is not applicable, except with the permission of the officer at the head of the police department. It cannot in any sense be termed a deposition and it is not evidence. It is not a document a copy of which must be given on demand under the provision of section 76, Evidence Act. Where the investigating agency has recorded the statement of a witness more than once, in that case, copies of every statement must be supplied to the accused, because there may be material contradictions in the same.84 But in AIR 1940 Lah 217 (224), the diary of a foot constable who was shadowing the movements of a suspect was held not an affair of the State.
Evidentiary Value Of Entries In The Police Diary
A police diary may be an official document, and the entries therein are worth what they are, but they cannot surely be accepted to be absolutely correct for all purposes, in the absence of any definite proof. There may be circumstances which might seriously challenge their correctness. An entry in a record or a document made by a person for his own benefit even if admissible should not always be taken without scanning; other circumstances have to be considered along with the entry. Entry as to the time of F.I.R. must be presumed to be true. Entries of the police diary are neither substantive nor corroborative
There are several cases which are discussing regarding the case diary and use of case diary:
In Shamshul Kanwar vs State Of U.P. on 4 May 1995 case also the High Court took the view that he was in a commanding position and he could have stopped the entire massacre and that he behaved with least reasonableness and therefore the death sentence has to be maintained.
Shri Rajendra Singh, learned senior counsel appearing for A-1 submitted that all the eye-witnesses are interested and they have not come forward with the real version and that there was only a fight between two parties and as to how it originated, the prosecution is silent and that no independent witness has been examined. Learned counsel mainly relied on the general diary entry.[xv]
In the case of Manoj Singh vs The State Of Bihar on 5 August 2010
This view to finding favor in decisions reported in A.I.R. 1959 S.C., 1012(Tahsildar Singh & Anr. vs. State of U.P.) and 1989 Cr.L.J., 1876 (Md. Badruddin vs. State of Assam) and A.I.R. 1926 Pat, 20 (Badri Chaudhary & Ors. vs. King Emperor). 29.
However, neither the attention of P.W. 8 has not been drawn by the accused or defense during the evidence of the witness with regard to his earlier statement made before police under Section 161 of the Criminal Procedure Code which is to be used for contradicting the evidence in Court nor the investigating officer in his evidence stated that this witness stated in his earlier statement under Section 161 of the Criminal Procedure Code recorded during investigation. Hence, what is needed to take the statement of police recorded under Section 161 of the Criminal Procedure Code as it is to establish contradiction between that stated as evidence in Court to see whether there is inconsistency between the two statements and also giving opportunity to accused to explain the inconsistency, but, to do otherwise to take contradiction between what is stated by the witness to have stated stated by this witness in his statement before police.
The investigating officer, P.W. 14, has only stated in his evidence that this witness has not stated before him that he identified Manoj Singh, Joginder Singh, Lathi Singh, and Arvind Singh, however, Section 162 of the Criminal Procedure Code read with Section 145 of the Indian Evidence Act, 1872, does not permit that the police officer be asked what the witness said to him during investigat8ion, but, what was recorded by the investigating officer, during investigation in the case diary, and not what witness actually made before the investigating officer and statement under Section 161 of the Criminal Procedure Code cannot be used for any purpose other than contradiction and that also in the manner as specified under Section 162 of the Criminal Procedure Code read with Section 145 of the Indian Evidence Act, 1872. However, nothing.
In Jairajsingh Temubha Jadeja vs. State of Gujarat case also deals with the Production of case diary – Petitioner called in question order passed by Additional Sessions Judge, on the application Exhibit 505, filed by Petitioner seeking production of case diary for purpose of effectively cross-examining prosecution witness 44
Held, entries of police diary are neither substantive nor corroborating evidence and they cannot be used by or against any other witness than the police officer and can only be used to limited extent – On a plain reading of Sub-section (3) of Section 172 of CrPC, it was amply clear that provisions of Section 161 or Section 145, as case may be, of Evidence Act, would be applicable to contents of case diary only in the contingencies laid down there under –
Hence, unless police officer who made entries in case diary uses them to refresh his memory or Court uses them for purpose of contradicting such police officer, provisions of Section 161 or Section 145 of the Evidence Act would not be applicable – Section 159 of Evidence Act which provides for ‘refreshing memory’ inter alia lays down that a witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned.
Hence, it could not be said that right of Petitioner-accused under Section 145 or Section 155(3) of Evidence Act was in any manner adversely affected by non-supply of extract of the case dairy – Petitioners claim an unfettered right to make roving inspection of entries in case diary -It could not be said that unless such unfettered right was conferred and recognized, embargo engrafted in Sub-section (3) of Section 172 of CrPC would fail to meet test of reasonableness – Proceeding taken by said witness, as narrated in deposition, could clearly be said to be during course of investigation and all proceedings taken by him had been noted down in case diary.
During the course of his cross-examination, he had stated that prior to recording his testimony, he had not referred to case diary and did not want to call for case diary to refer to the same – Application made by accused not being in consonance with provisions of law, it was not possible to grant the same – No infirmity could be found in view taken by Trial Court – Petition dismissed.[xvi]
We have seen that use of case diary in which purpose and in which manner case diary is used. We have also seen that the provision related to case diary basically discussed in Section 172 of the code of criminal proceeding. Which talk about case diary and try to defined and also deals the how can use the case diary. The diary referred to in this section is the “special diary” known as “station-house report.” All police officers in charge served on another person Mr. Y, and it was held that the informant Mr. G was entitled to be served with the notice and notice on another person was not sufficient.[xvii] Where the magistrate accepted the final report submitted by the investigating agency under this section and passed an order dropping the proceedings.
Without issuing any notice to the informant, it was held by the Supreme Court that the order was illegal. So we can say that as per section 172 casts a duty on every investigating officer to maintain a diary of his investigation known as “case diary” or “special diary” or “ police diary” or station- house report”. So basic object behind the “case diary” is to enable the court to check the method of investigation adopted by the police.[xviii]