Police Case Diary and its use.

Case Law Reference

1. Khatri Vs. State of Bihar, AIR 1981 SC 1068

The Criminal Court holding an inquiry or trial of a case is therefore empowered by sub- section (2) of Section 172 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 it in such inquiry or trial. But, by reason of sub-section (3) of Section 172, 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.

If however the case diary is used by the police officer who has made it to refresh his memory or if the Criminal Court uses it for the purpose of contradicting such police officer in the inquiry or trial, the provisions of Section 161 of the Code or Section 145, as the case may be, of the 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.

It will thus be seen that the bar against production and use of case diary enacted in Section 172 is intended to operate only in an inquiry or trial for an offence and even this bar is a limited bar, because in an inquiry or trial, the bar does not operate if the case diary is used by the police officer for refreshing his memory or the Criminal Court uses it for the purpose of contradicting such police officer.

2. Mukund Lal Vs. Union of India, AIR 1989 SC 144

Under Sub-section (2) of Section 172 Cr.P.C. the Court itself has the unfettered power to examine the entries in the diaries. This is a very important safeguard. 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 of the case dairy, the Court can use the entries for the purpose of contradicting the Police Officer as provided in Sub-section (3) of Section 172 of the Cr.P.C.

Ultimately there can be no better custodian or guardian of the interest of justice than the Court trying the case. No Court will deny to itself the power to make use of the entries in the diary to the advantage of the accused by contradicting the police officer with reference to the contents of the diaries.

3. Md. Ankoos Vs. The Public Prosecutor, AIR 2010 SC 566

A Criminal Court can use the case diary in the aid of any inquiry or trial but not as an evidence This position is made clear by Section 172(2) of the Code. Section 172(3) places restrictions upon the use of case diary by providing that accused has no right to call for the case diary but if it is used by the police officer who made the entries for refreshing his memory or if the Court uses it for the purpose of contradicting such police officer, it will be so done in the manner provided in Section 161 of the Code and Section 145 of the Evidence Act.

Court’s power to consider the case diary is not unfettered. In light of the inhibitions contained in Section 172(2), it is not open to the Court to place reliance on the case diary as a piece of evidence directly or indirectly.

4. Sidharth Vs. State of Bihar, 2005 Criminal Law Journal 4499

Under Section 172 of the Criminal Procedure Code, every police officer making an investigation has to record his proceedings in a diary setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation.

It is specifically provided in Sub-clause (3) of Section 172 that 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 of the Cr.P.C. or the provisions of Section 145 of the Evidence Act shall be complied with.

The Court is empowered to call for such diaries not to use it as evidence but to use it as aid to find out anything that happened during the investigation of the crime. These provisions have been incorporated in the Code of Criminal Procedure to achieve certain specific objectives. The police officer who is conducting the investigation may come across series of information which cannot be divulged to the accused. He is bound to record such facts in the case diary.

But if the entire case diary is made available to the accused, it may cause serious prejudice to others and even affect the safety and security of those who may have given statements to the police. The confidentiality is always kept in the matter of criminal investigation and it is not desirable to make available the entire case diary to the accused.

In the instant case, we have noticed that the entire case diary was given to the accused and the investigating officer was extensively cross-examined on many facts which were not very much relevant for the purpose of the case. The learned Sessions Judge should have been careful in seeing that the trial of the case was conducted in accordance with the provisions of Cr.P.C.

5. Mahabir Singh Vs. State of Haryana, AIR 2001 SC 2503

A reading of the said sub-sections makes the position clear that the discretion given to the court to use such diaries is only for aiding the Court to decide on a point. It is made abundantly clear in Sub-section (2) itself that the Court is forbidden from using the entries of such diaries as evidence What cannot be used as evidence against the accused cannot be used in any other manner against him.

If the Court uses the entries in a case diary for contradicting a police officer, it should be done only in the manner provided in Section 145 of the Evidence Act i.e. by giving the author of the statement an opportunity to explain the contradiction, after his attention is called to that part of the statement which is intended to be so used for contradiction.

In other words, the power conferred on the Court for perusal of the diary under Section 172 of the Code is not intended for explaining a contradiction which the defence has winched to the fore through the channel permitted by law. The interdict contained in Section 162 of the Code, debars the Court from using the power under Section 172 of the Code for the purpose of explaining the contradiction.

6. Malkiat Singh Vs. State of Punjab, (1991) 4 SCC 341

It is manifest from its bare reading without subjecting to detailed and critical analysis that the case diary is only a record of day to day investigation of the Investigating Officer to ascertain the statement of circumstances ascertained through the investigation. Under sub-section (2) the Court is entitled at the trial or enquiry to use the diary not as evidence in the case, but as 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, nor shall he be entitled to use it as evidence merely because the Court referred to it. Only right given thereunder 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 161 of the Code and Section 145 of the Evidence Act, it shall be used for the purpose of contradicting the witness, i.e. Investigation Officer or to explain it in re-examination by the prosecution, with permission of 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 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.

 Court’s power of use of the case diary

There is no dearth of power on the part of a Criminal Court to call for and use the case diary in the aid of an inquiry or trial. Court can certainly peruse the case diary if any doubt creeps in regarding the sanctity of the investigation or bona fide conduct of investigating officer in investigating the case. However it does not give unfettered power to place reliance on the case diary as a piece of evidence directly or indirectly.

The investigating officer plays a very pivotal role in the dispensation of criminal justice and error in the investigation may result in miscarriage of justice. The police officers have been given great latitude under Code of Criminal Procedure to exercise their power to make a successful investigation. They have been given free liberty to collect necessary evidence in order to assist the court to arrive at a just decision of the case.

The duty of the investigating officer is to ascertain the correct set of facts and present truth before the Court of law. It is equally the responsibility of the investigating officer while deposing in Court, to the questions put by either the public prosecutor or the defense counsel or even by the Court, to make correct statement with reference to the case diary.

A misleading statement or a false statement by the investigating officer just out of sheer over anxiety for the success of the prosecution is unwarranted and it is not only playing fraud on the temple of justice but would also be detrimental to the interest of justice.

Also see Orissa High Court Judgment Panda @ Maheshwar Sanangi Vs. State of Orissa dated 5 January 2016 authored by Justice S.K. Sahoo}

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