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LAW OF CRIMES II

MAINTENANCE AND USE OF CASE DIARY IN


INVESTIGATION SECTION 172 OF THE CODE OF
CRIMINAL PROCEDURE ,1973

NAME : A.JONAH ELISA SHINY


STD & SEC : V A B.A.,B.L.,(Hons)
SUBJECT: LAW OF CRIMES II
REGISTER NO : H12022
SEMESTER : IX

CHAPTE
R NO

TABLE OF CONTENTS

ABSTRACT

INTRODUCTION
FACTS TO BE INCORPORATED IN CASE DIARIES

II

CONCEPT OF CASE DIARY


Personal Diary of Non- Investigating Officer Excluded
No use of Police Diaries as Evidence
Use only as Aid to Court
Permissible Use of Police Diary
Police Diaries can be used to contradict Police Officer
Right of Accused to call for and Inspect Police Diaries
Statements Of Witnesses recorded in Special Diary not covered by
Section 172
Right to copy of statements in police Diaries
Evidentiary value of entries in police Diary
CASE LAWS

III
LEGISLATIVE CHANGES
SCOPE AND APPLICATION
USE OF CASE DIARY
CASE- DIARY CANNOT BE USED AS EVIDENCE
LIMITATIONS AS TO USE
NON- PRODUCTION OF CASE DIARY

PAGE
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IV

GENERAL DIARY
NON-EXAMINATION OF INVESTIGATING OFFICER
WHEN INVESTIGATING OFFICER IS DEAD
INVESTIGATING OFFICER IS LIKE ANY OTHER WITNESS

INVESTIGATIONG OFFICER IS A MATERIAL WITNESS


DEFECTIVE INVESTIGATION
CONCLUSION & SUGGESTIONS

BIBLIOGRAPHY

ABSTRACT :
In the process of Investigation mainly Case Diary Plays an important role. Section 172 of the
Code of Criminal Procedure mainly elaborates the maintenance and use of Case Diary in
Investigation. The Diary mentioned in Section 172(1) of the Code is called Case Diary or
Special Diary. It is of utmost importance that the entries in such a diary are made with
promptness, in sufficient detail ,mentioning all significant facts, in careful chronological order
and with complete objectivity. Under the provision of section 172 of Code of Criminal Procedure
every police Officer conducting investigation shall maintain a record of Investigation done on
each day in a Case Diary in the Prescribed form. In this research Project, mainly I have
discussed about the facts to be incorporated in case diaries, Concept of case diary, Recent
Legislative changes, Scope and Application and use Of case- diary and Limitations as to use and
briefly elaborated the various methods and process of Investigation.

INTRODUCTION :
Under the Provision of Section 172 Cr.P.C every police officer conducting investigation shall
maintain a record of investigation done on each day in a case diary in the prescribed form. Case
Diaries are important record of 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. Section 172 deals with
Diary of Proceeding in Investigation(1) Every Police Officer making an investigation under this chapter shall day by day enter his
proceeding in the investigation 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.
(1A) The Statements of witnesses recorded during the course of investigation under Section
161 shall be inserted in the case Diary.
(1B) The diary referred to in subsection (1) shall be a volume and duly paginated.
(2) Any Criminal Court may send for the police diaries of a case under Inquiry or trial in
such Court ,and may use 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 be 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 the Indian Evidence Act ,1872 (1 of 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 to
aid the court in such inquiry or an investigation started under section-174 of the code.1
The object of recording case diaries under this section is to enable courts to check the method
of investigation by the police.2 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.3 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. 4 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. 5 A diary kept
under this section cannot be used as evidence of any data, 6 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
1 Palaniswamy, ( 1966) 68 Bom LR 941 : AIR 1968 Bom 127
2 Peary Mohan Das V D. Weston (1911) 16 CWN 1145
3 Bhagwat Singh V Commissioner Of Police , AIR 1983 SC 826, 1983 CrLJ 1080
4 Dadan Gazi (1906) 33 Cal 1023
5 Hamidulla V State of Gujarat ,1988 Cr LJ 981 (Guj)

discover means for further elucidation of points which need clearing up before justice can be
done.7

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 :
1. Opinion of Investigating officer ,Opinion of the Supervisory Officers and Law
Officers.
2. Any Conflict of opinion between Investigation Officer, Law Officers, Superintendent
of police, DIG and Head Office.
3. Recommendations made in Concluding report of the Officer, Comments of Law
Officer(s) and Supervisory Officers.
4. Any other Facts/ Circumstances not relating to investigation of the case.
Every Investigating officer, to whom 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). Supplementary Case Diary will be taken on record
6 A.N.Mogam thaka ,AIR 1967 ,Manipur 11
7 Ahmed Miya (1944) 1 Cal 133

by the chief Investigating Officer, who may incorporate the gist of important facts
disclosed in such investigation in his own Case Diary for the Date when the
Supplementary Case Diary is received by him.It is important that Supplementary
Case Diary must be submitted without any delay. A copy of the Case Diary submitted
by Investigating Officer / Chief Investigating Officer to the Superintendent of Police
would invariably enclose the Supplementary Case Diaries received by him.
Section 172 Cr.p.c mandates writing and maintenance of the case Diary. Sub- Section
(1) stipulates that Police Officer making investigation shall, on each day, enter
proceedings relating to Investigation in the diary including the time at which he began
and closed his investigation ,the place or places visited by him and a statement of
circumstances ascertained during his investigation, i.e Record of the proceedings.8
There were Judgments that hold that record of proceedings would not include
statements recorded under section 161 Cr.P.C, for the reason that the said, Statements
are not protected ,whereas the case diaries are made available to the accused only
when Pre-conditions are satisfied.Amendment made by the Code of Criminal
Procedure (Amendment ) Act,2008 , w.e.f 31 st December ,2009 inserting Subsection (1A) , therefore assumes Significance. The Sub-Section mandates that
statement of witnesses recorded during the course of investigation under Section 161
of Cr.P.C shall be inserted in the case Diary. The Said Sub-section has to be read
along with sub- section (1B) which mandates that the case diary would be a volume
and duly paginated.The phrase shall be a volume and duly paginated ensures
sanctity and purity of the case diary. The word, inserted used in Sub-section (1A)
does not refer to Physical insertion by Placing Copies of the Statements recorded
under Section 161 Cr.P.C in the Case diary. The expression inserted mandates
incorporation of the statement itself in the case diary, rather than a mere mention that
a statement under Section 161 Cr.p.C of a particular person has been recorded.
What the person had stated and alluded to in his statement under Section 161 Cr.P.C
must be inserted and recorded in the case diary itself. The Case Diary has to be a
volume and paginated, and cannot be a loose- leaf diary from which papers can be
removed ,changed or interpolated. This is the unambiguous legislative mandate of
Sub-section (1B).The aforesaid legislative amendments, w.e.f 3 December, 2009
reveal the importance and relevance of the case Diary as they assure solemnity and
inviolability of the record as to the manner in which the investigation was conducted.
The court can ascertain that the case as projected is true and false or misleading
statements are not made. It reflects the line of investigation.
8 Dalbir Bharti, The Constitution & Criminal Justice System 328 ( A.P.H. Publishing
Corporation, New Delhi,2005)

Statements under Section 161 Cr.p.c are not evidence. The depositions of witnesses
on oath in the court are evidence under the Evidence Act. Under section 172 (2) of the
Cr.p.c , a criminal court is empowered to send for the case diary and the diary can be
used by the Court not as evidence in the case but to aid it in such inquiry or trial.
Under sub-section (3) to Section 172, neither the accused nor his agents are entitled to
call for diaries or nor they entitled to see them ,but where the police officer makes
use of the case diary to refresh his memory or the court uses them for Purposes of
Contradicting the Police Officer, Provisions of Section 145 or 161 of the Evidence
Act apply.

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. 9Like 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 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 officer10 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.
9 Dr.K.N. Chandrasekharan Pillai ,Criminal Procedure 31 ( Eastern Book Company,
Lucknow ,5th, 2008
10 The Laws of India A Common mans Guide www.legalindia.com

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 partys 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 11 and that
again is subject to the limitations of Section 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 per use 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 extend does not arise.
In case Shamushul Kanwar vs State of U.P
Held:
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)
of Section 172, 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, 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
11 Justice C.K. Takwani & M.C. Thakker Code of Criminal Procedure ,20 th Edition

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 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.12

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 Pandians 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 cant be expected to submit it in court. Pandian later approached the high court, but
Justice AS Dave refused to interfere in the CBI courts 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 cant 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.13
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.

12 (1995) 4 SCC 430


13 41st Report ,P.120 , para 15.125

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 couldnt 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.
In the case of 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 in to 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 are not evidence
that what is stated in the entry was true or correctly represents what was said or done, the ageold 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.14
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 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 offence.
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 seek confirmation of its opinion on the question of
appreciation of evidence from statements contained in such diaries. 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.
14 See 41st Report,P.115,para 15.112

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 evidence 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.

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.

Diaries how to be maintained and entries 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 offence under section 177, I.P.C..

Power of criminal court to send for diaries and use thereof [Sub-section (2)].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 Magistrates 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.

Court may send for diary of counter-case.- Section 172 relates to the police diary made
in respect of a case under enquiry 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. 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 a 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 of 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 aid to court . -The power of 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 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 enquiry
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 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 trial. That shows when 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, but 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 thorough
enquiry on all material points by eliciting in the examination of the witness-and
especially of police witnesses-the real facts of the case.

The court should discover out of the diary any matter which is important, and then call
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 offence 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.- 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 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 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. Judge should not use the police diary to the prejudice of
the accused. Even if the defense requests the Judge of 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 being 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 investigation but he stated that it was
not necessary to refer to 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.

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 to refresh his memory or for the purpose of
contradicting him. A party having 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 caseCourts 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 a permission cannot be claimed by the accused as a matter of right. It is
comparatively of little use for defending 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 to 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 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 given by this section does not extend to those statements. 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 noting 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 offence 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.

Evidentiary value of entries in 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 time of F.I.R. must be presumed to be true. Entries of the police diary
are neither substantive nor corroborative evidence.

CASE LAWS :

There are several cases which are discussed regarding the case diary and use of case diary:
In Shamshul Kanwar v 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 eyewitnesses 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.15

In the case of Manoj Singh vs The State Of Bihar on 5 August, 2010


This view to find favor in decisions reported in (Tahsildar Singh & Anr. Vrs. State of U.P 16.)
and

(Md. Badruddin Vrs. State of Assam 17) and


18

Emperor ).

(Badri Chaudhary & Ors. Vrs. King

However, neither the attention of P.W. 8 has not been drawn by the accused or

defence during the evidence of the witness with regard to his earlier statement made before
police under Section 161 of the Criminal Procedure Code which are to be used for contradicting
15 41 st Report ,P.119,para 15.122
16 AIR 1959 SC 1012
17 1989 CrLJ 1876
18 AIR 1926 Pat 20

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 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, Jogindra 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 witness said to him during investigation, 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.

In Jairajsinh 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 Evidence Act would not be applicable
Section 159 of Evidence Act which provides for refreshing memory interalia 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 tentries 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 course of his crossexamination, 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 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.19

LEGISLATIVE CHANGES :
Cr.P.C Amendment Act,2008 (5 Of 2009 )- In section 172,after sub-sec(1), New Subsec (1A) and (1B) have been inserted ,by Section 15 of the Cr.P.C ( Amendment )
Act,2008 ( 5 Of 2009) .Section 172,relates to diary of proceedings in investigation.
Two new sub- sections (1A) and (1B) have been inserted so as to provide that the
statements of witnesses recorded during the course of investigation under Section 161
shall be recorded in the case Diary and that such Diary shall be a bound volume and
duly paginated.
SCOPE AND APPLICATION :

19 41st Report,p.27 ,Para 15.144

This Section shows 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 to aid the court in such inquiry or trial.20
The provisions of this Section do not apply to an inquiry or an investigation started
under Section 174 of the code.21 Section 172 (3) does not limit the Jurisdiction of the
court under Section 91 of the Code.22 The Object of recording Case Diaries under
this section is to enable Courts to check the method of Investigation by the Police. 23
Under the new code, the law governing the case diary has undergone a great change.
The section does not deal with the recording of any statement made by witnesses.
Oral Statements of witnesses should not be recorded in the diary.24 In case, the
investigating agency and the prosecution withhold any evidence in favor of the
accused from the accused, they are not being fair, Just and reasonable with the
accused. Therefore ,their action would be in violation Of Article 14 of the
Constitution of India.25 A procedure which permits the withholding of evidence,
which is in favor of the accused from the court and from the accused, cannot be
termed as Fair and Reasonable.26

USE OF CASE DIARY :


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
20 Dal Singh V Emperor (1917) 19 Bom LR 510 : 44 Cal 876,44
21 Palaniswamy V State,(1966) 68 Bom LR 941 : AIR 1968 Bom 127
22 Dhananjay Kumar Singh V State Of Rajasthan,2006 CrLJ 3873 (3881): 2006 (2)
Raj LR 245 (Raj)
23 Peary Mohan Das V D. Weston,(1911) 16 CWN 145
24 Ganakanta Das V State Of Assam,1990 CrLJ 219 (Gau DB)
25 Dadan Gazi V Emperor, (1906) 33 cal 1023
26 Dhananjay Kumar Singh V State Of Rajasthan,2006 CrLJ 3873 (3884)

Investigation.27 Neither the accused nor his agent is entitled to call for such case-diary
and also not entitled to call for such case-diary and also not entitled to see them
during the course of enquiry or trial. The diaries can be used for refreshing memory
by investigating officer and court can use it for the purpose of contradicting such
police Officer as per Provision under Section 161 or Section 145 of the Indian
Evidence Act,1872.28
Under Section 172 (2), the court itself has unfettered power to examine the entries in
the case diary. But the accused cannot claim unfettered right to make inspection of
the case Diary, and the denial of such right cannot be characterized as unreasonable
or arbitrary.29
The court would refrain from disclosing in its order, material contained in the casediary and General diary and statements especially when the investigation in the case
is in progress.30 The entries in a police case diary should be made with promptness
with full details mentioning all significant facts in careful and chronological order
and with complete objectivity. 31Case diary may be used for determining the nature
and bonafides of an investigation.32 At the stage of sections 226/227 meticulous
examination of the statement of the witnesses which exist in the case diary is not
permissible. 33Where the investigation has been highly suspect and important steps in
the course of investigation had not been mentioned in the case diary, the case diaries
had not been written out as and when the investigation had progressed and steps
regarding the investigation had not been written out simultaneously, but subsequently

27 Malkiat Singh V State Of Punjab,(1991) 4 SCC 341 : 1991 (2) Crimes 191,199(SC)
28 G.P.Sharma V State Of M.P (2002),3 MPLJ 291 :2002 CRLJ 3104 (3106)(MP)
29 Mukund Lal V Union Of India ,AIR 1989 SC 144 : 1989 SCC (Cri) 606 : 1989 crLJ
872 (874): 1988 Supp (1) Scc 622
30 Director ,CBI V Niyamavedi (1995) 3 SCC 601 : 1995 crLJ 2917 (2918) : 1995 SCC
(cri) 558
31 Shri Bhagwant Singh V Commissioner Of Police, Delhi AIR 1983 SC 826
32 Gouranga Naik V State ,1986 CrLJ 583 (Ori- DB)
33 Kamal Singh V Reshman Singh, 1991 CrLJ 1114 (ALL)

the inconsistencies, improbabilities and suspicious features would entitle acquittal of


the accused.34

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 it is enjoined under Section 145 of the
Evidence Act, the entries cannot be used by the accused as evidence. 35 A Division
Bench of the Patna High Court 36has summed up the use and perusal of case Diary by
a court subject to the following limitations. This was followed and quoted with
approval by a later Division Bench of the Same High Court.37
(a) It is for aiding an enquiry or trial
(b) It shall not be used for corroboration or adopting of certain facts transplanted like
by conduit pipe.
(c) Use should be sparingly but not as a matter or rule on the principle as at (a)
(d) If investigating officer is not examined, prejudice to the accused as claimed by
the defense has to be considered ,and looked into and even after perusal of the
diary so permitted, the element of prejudice persists, benefit should be given to
the accused of course depending upon the facts and circumstances of each case.
A complaint case must succeed on independent evidence and it would be an illegality on the part
of trial court to borrow materials from the finally reported case diary without firstly intimating
the accused, that such materials would be considered, and even if the trial court for the interest of
Justice and assigning special circumstance and reasons for doing so the court must firstly bring
it to the notice of the accused by furnishing copy of such materials statements from the finally
reported case diary and then the same must be proved by examining the investigating officers as
court witness giving full opportunity to the accused to cross- examine him and then such
evidence must be put to the accused during examination under Section 313.Without observing all
such procedure ,the consideration of the materials from finally reported case diary to base a

34 Harihar Ray V State Of Orissa ,1986 (1) Crimes 656,675 (Ori- DB)
35 Malkiat Singh V State of Punjab ,(1991) 4 SCC 341 : 1991 (2) Crimes 191 ,199
(SC)
36 Basant Singh V State Of Bihar ,(1984) CrLJ 1406 (Pat-DB)
37 Nagina Sharma V State Of Bihar ,1991 (2) Crimes 453 , 481 (pat- DB)

conviction is bad in law.38 Neither the accused nor his agent is entitled to see the case diary39 nor
his entitled to summon the same under Section 91 Cr.P.C.40

An accused is entitled to cross- examine an investigating officer with reference to the case
Diary /General Diary only when it is used by the investigating officer to refresh his memory or it
is used by the court for the purpose of contradicting the investigating officer. 41The
confidentiality is always kept in the matter of investigation and it is not desirable to make
available the entire case diary to the accused.42
The evidence of an investigating officer is not rendered inadmissible because he has failed to
maintain the case diary.43 The embargo on the right of the accused in calling for the case diary or
seeing any part of it is only a partial one and not absolute because if a part of the dairy has been
used by police officer to refresh his memory or the court uses it for contradicting the officer, the
provisions of section 162 of the code ,and section 145 of the Evidence Act will be applicable.44
CASE DIARY CANNOT BE USED AS EVIDENCE:

38 Rafiquddin V State of Assam,1991 (1) Crimes 726 (Gau)


39 Siva V State ,2000 CrLJ 4465 (mad); G.P. Sharma V State of M.P. (2002) 3 MPLJ
291 : 2002 CrLJ 3104 (3106)(MP)
40 Alagesen V State , 2008 CrLJ 3300 (3302) (Mad)
41 Shamshul Kunwar V State,AIR 1995 SC 1748 (1755,1756): (1995) 4 SCC 430 :
1995 SCC (Cri ) 753 : 1995 (2) Crimes 487 : Sidarth V State Of Bihar ,2005 CrLJ
4499 (4509) (SC)
42 Sidharth V State of Bihar ,2005 CrLJ 4499 (4509) (SC)
43 Shamsul Kunwar V State,AIR 1995 SC 1748
44 Subhash Chandra V Union Of India,1988 CrLJ 1077 (Raj): 1987 (1) WLN 220

A Court is within its competence to read a police diary as an aid and that can be done to satisfy
its conscience in appreciating the legal evidence available on the record but not beyond. It cannot
be used as evidence against the interest of accused for upholding a conviction on any charge. 45
Case Diary is only a secondary evidence. 46 A case diary cannot assume the character of either
substantive evidence or the corroborate evidence. Neither the accused nor his agent is entitled to
see the case-diary, although the court may call for the diary and refer to it.47 The entries in casediary are not evidence nor can they be used by the accused or the court unless the case comes
under Section 173(2) Cr.P.C. The Court is entitled for perusal to enable it to find out if the
investigation has been conducted on the right lines.48
Unless the investigating officer or the court uses it either to refresh the memory or contradicting
the investigating officer as a previous statement under Section 161 that too after drawing his
attention under Section 145,the entries cannot be used by the accused as evidence. 49Any part of
a statement of a witness before the investigating officer can be brought on record only by way of
contradiction as per Section 162 of the Code. What came to the knowledge of the investigating
officer while recording the statement of a witness cannot be allowed to be brought on record.50

LIMITATIONS AS TO USE :
The only use of the diary is to aid the court in the trial, ascertain the time at which the
investigation was begun and closed on each day, the places visited by the officer and the
circumstances ascertained through investigation. It is not a substitute for evidence in the case for

45 Ajodhya Singh V State Of Bihar ,1988 (1) crimes 749 ,754 (Pat-DB), Md.Sukhen
Ali v State Of Assam,2005 (25) AIC 598 (Gauh).
46 Brahmdeo Hazra V State Of Bihar,1988 CrLJ 734 (Pat- DB)
47 Siva V State,2000 CrLJ 4465 (4466) (Mad); G.P.Sharma V State Of M.P (2002) 3
MPLJ 291
48 State of Bihar V P.P.Sharma,AIR 1991 SC 1260 : 1992 SCC (Cri) 192 (225) : 1992
Suppl(1) SCC 222
49 Malkiat Singh V State Of Punjab, 1991 SCC (Cri) 976 (986): (1991) 4 SCC 341:
(1991) 2 Crimes 191
50 Hamidulla Bismillakhan Navab V State Of Gujarat ,1988 CrLJ 981

the purpose of making a comparison with the testimonies of witnesses or Judicial dying
declarations or Judicial dying declarations or Judicial confessions.51
A diary kept under this section cannot be used as evidence of any date 52, fact or statement
contained therein, but it can be used for the purpose of assisting the court in the Enquiry or trial
by enabling it to discover means for further elucidation of points which need clearing up before
Justice can be done.53 It can be used as aid in framing a charge though not for founding the
charge. 54The Magistrate cannot take cognizance or issue process against the accused on the
materials contained in the case diary alone, unless facts contained in the report under Section 173
constitute an offence. 55The 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.56

If the Court peruses any material in the case diary and uses to its aid in trial, this must go in
black and white as part of the Judgment. The only limitation is that the court cannot use any
portion of the case-diary as evidence.57 Inadequate cross- examination in serious offence casts a
duty on the Court to peruse the Case Diary and the Statements under Section 164 to discover the
truth of the allegation for the interest of Justice.58

51 State Of Kerala V Ammini ,AIR 1988 Ker 1 (FB) : 1988 CrLJ 107 ,122
52 A.N.Mogam Thaka ,AIR 1967 Manipur 11
53 Ahmed Miya (1944) 1 Cal 133
54 Joti Jiban Ghosh V State,AIR 1964 Cal 59 : 1964 crLJ 184
55 A.K.Roy V State Of W.B,AIR 1962 cal 135 FB: 66 CWN 697
56 Habeeb Mohammed V State of Hyderabad,(1954 ) SCR 475
57 Nagina Khatoon V State Of Bihar ,2003 (3) crimes 173 (179) (Pat-DB)
58 Abdul Hamid V State Of Assam , 1988 (2) crimes 437 , 440 (Gau DB)

NON-PRODUCTION OF CASE-DIARY :
If the case diary is not submitted by the Investigating Officer, it is the matter between the public
prosecutor and the Government, Court is nothing to do so far as the administration of the police
department is concerned.59

GENERAL DIARY :
It is ordinarily difficult to fabricate false entries in the general diary as entries are made in the
general diary60 about all the events that take place in the police station in chronological order.61 It
cannot be said that contents of General Diary would under all circumstances furnish an
intractable assurance that there had been no Omission to record any incident taking place in the
police station, especially when there is a charge of assaults on an inmate of the lock up by the
police personnel attached thereto.

NON EXAMINATION OF INVESTIGATING OFFICER:


Investigating officer is an important witness, but cannot be substituted for an inevitable witness.
If on account of certain compelling circumstance his attendance could not be procured ,the extent
of impact upon the prosecution case on account of absence of the Investigating officer shall
depend upon the facts and circumstances of each case. Non- examination of the Investigating
officer will not make the place of occurrence vague and doubtful where the evidence of the
witnesses are sufficient to fix the place of occurrence as unfolded by the prosecution. 62 Nonexamination of the investigating officer is a serious lapse on the part of the prosecuting agency.63
59 Jai Singh V State Of Rajasthan,1988 (1) Crimes 286 (Raj)
60 Sadhu Singh V State Of U.P ,AIR 1978 SC 1506,1509 : (1978) 4 SCC 428
61 Jan chaukidar (peoples Watch ) V Union Of India & ors 2004 (2)BLJR 985
62 Alok Deb Roy V State Of Assam,2004 CrLJ 3048 (3071 ) (Gauh-DB)
63 Basant Singh V State Of Bihar,1985 CrLJ 1406 (Pat- DB)

Non- examination of investigating officer is not necessarily fatal to the prosecution. A court has
to see whether the evidence of the investigating officer is not necessarily fatal to the prosecution.
A Court has to see whether the evidence of the investigating officer is essential for the case of
the prosecution to succeed or not. The court has to see at the same time that the accused is not
unnecessarily harassed and unless it sees that for inevitable reasons the prosecution fails to
produce the investigating officer, it may pronounce the judgment without the evidence of the
investigating officer.64
The non-examination of the investigating officer does not per se vitiate a criminal trial. A
criminal case would not fail merely because an investigating officer has not been examined, the
case of prejudice to the accused has to be made out.65
The investigating officer is a material witness as he investigates the case, maintains the case
diary , goes to the place of occurrence, sends the dead body after preparing inquest report for
post-mortem examination and also sends the injured for medical examination and then gets the
post-mortem report and the injury report as the case may be, he collects the materials and
evidence for the prosecution so that on the basis thereof the prosecution may stand on its own
legs. It is he who has to explain each and every action at every stage of the Investigation .His
objective findings become relevant for the prosecution as well as the defense , he collects the
blood from the Spot. He examines witnesses under Section 161 and then appears in Court
himself in Support of what he has done during investigation. Thus, the investigating officer is a
material witness whose non examination cannot be ignored and the court cannot collect
material for conviction of an accused from the investigation report or case diary, unless he has
been examined as a witness.66
Where there were no contradictions in the statements of the witnesses recorded in the court with
reference to their statements recorded under Section 161 Cr.P.C ,the non -examination of the
investigating officer was held not fatal.67
WHEN INVESTIGATING OFFICER IS DEAD :
64 Nagina Sharma V State Of Bihar, 1991 CrLJ 1195 : 1991 (2) Crimes ,Brahmdeo
Hazra V State,1987 BBCJ 340
65 S.K.Rashid V State Of Bihar, 1987 BBCJ 151 : 1987 (35) BLJR 335
66 Behari Prasad V State Of Bihar ,AIR 1996 SC 2905 : 1996 AIR SCW 759 : 2 SCC
317 : 1996 SCC (Cri) 271 : 1996 CrLJ 1653
67 Nagina Sharma V State Of Bihar , (1991) 2 Crimes 453 : 1991 CrLJ 1195 ,1222
(Pat- DB)

When the Investigating officer was dead the prosecution should have fairly got the relevant part
of the diaries proved in evidence to avoid prejudice.68
INVESTIGATING OFFICER IS LIKE ANY OTHER WITNESS:
There cannot be any doubt that in case examination of the Investigating officer is essential ,nonexamination of the Investigating officer is fatal to the prosecution. But when the Investigating
officer like any other witness cannot be easily available for his examination, the prosecution
cannot be condemned .In special circumstances ,absolute results could not be allowed to depend
on the attitude of the police if truth cannot emerge from the evidence on the record. The police
witnesses are just like ordinary witnesses and they do not deserve any extra importance at the
cost of Justice.69

INVESTIGATING OFFICER IS A MATERIAL WITNESS :


Investigating officer is a material witness whose evidence becomes essential in certain sections
and so his non examination becomes fatal to the prosecution. But in certain situations his nonappearance is not fatal and the prosecution does not suffer and the accused is at no disadvantage
and prejudice on account of his non examination.70

DEFECTIVE INVESTIGATION :
Where testimony of the witnesses is found to be credible and cogent defect on the part of the
Investigating officer . Eg: Failure to mention the date and time when the investigation started
would not be fatal to the prosecution case and accused cannot claim acquittal on this ground
alone.71

68 Hakru V State Of Rajasthan,1994 CrLJ 2141 (Raj DB): 1994 (1) WLN 572
69 Laxmi Narain Singh V State Of Bihar,1987 PLJR 804 : Awadeshwar Singh V State
of Bihar,1989 BLJR 259 : Nagina Sharma V State Of Bihar ,1991 (2) Crimes 453 ,481
(pat- DB)
70 Nagina Sharma V State Of Bihar,1991 CrLJ 1195 : 1991 (2) Crimes 453,483 (patDB)
71 Arif khan @ Agha Khan V State Of Uttaranchal ,2002 CrLJ 4564 ( Ultra)

CONCLUSION & SUGGESTIONS :


In this research analysis mainly for which purpose and in which manner Case Diary is used has
been elucidated.. We have also seen that the Provision related to Case Diary basically discussed
in Section 172 of Code Of Criminal Proceeding ,which mainly talks about case Diary and also
deals with the use of Case Diary. The Diary referred to in this section is the Special Diary
known as Station House Report. So, we can say that as per Section 172 casts duty on every
investigating officer to maintain diary of his investigation known as Case Diary or Special
Diary Or Police Diary or Station House Report. So, the Basic object behind the Case
diary is to enable the court to check the method of investigation adopted by the Police.
Referring to the vagueness as to the nature of the diary and some states describing it as a Special
Diary or Case Diary and others referring to them as General Diary signifying some
differences in meaning, the Supreme Court opined that a legislative change is necessary
providing for framing of appropriate and uniform regulations regarding the maintenance of
diaries by the police for the Purpose Contemplated by Section 172 vis a vis the other sections
such as Section 167.It may be noted that even in the above mentioned two circumstances the

accused is not allowed the wholesale inspection of the entire case Diary. And it may also be
noted that the provision has been held to be constitutional. He can only inspect those portions of
the dairy as used by the Police Officer or the Court as mentioned above ,and such other portions
of the diary as the Court Considers necessary for the full understanding of the portions actually
used. If the case Diary is not maintained as required by Section 172, that in itself may not vitiate
the trial; but it would expose the evidence of the investigating Police Officer to adverse
Criticism, and might diminish the value of his Evidence.

BIBLIOGRAPHY :

BOOKS REFERRED :
1. The Code of Criminal Procedure 19 th Enlarged Edition Reprint 2011 Ratanlal &
Dhirajlal, Revised by B.M. Prasad & Manish Mohan , with a Foreword Justice M.N.
Venkatachaliah
2. Code of Criminal Procedure : An Encyclopaedic Commentary on the Code of Criminal
Procedure, 1973 ( set of 2 Volume ) S.C. Sarkar ,revised by Sarkar & V.R.Manohar.
3. Civil Court Procedure & Criminal Proceedings in India S.K. Garg (Advocate)
4. Code of Criminal Procedure - Tandon ,revised by Shailender Malik
5. Code of Criminal Procedure Fourth Edition R.V.Kelkar.
WEBSITES REFERRED :
www.legalserviceindia.com

www.lawyersclubindia.com
www.indiankanoon.org
www.legalindia.com
www.humanrightsinitiative.org