To study about the Significance of Diary of Proceedings in Investigation

To Study the Significance of Diary of Proceedings in Investigation

Project submitted to

Mrs. Sreejaya Patil

(Faculty: Criminal Law (Hons.I)

Project submitted by

Prashant Kerketta

Semester VII

Roll no. 119

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, C.G.

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ACKNOWLEDGEMENT

I am highly elated to carry out my research on the topic, ‘To Study the Significance of Diary of
Proceedings in Investigation’. I would like to give my deepest regard to my course teacher Mrs.
Sreejaya Patil, who held me with his immense advice, direction and valuable assistance, which
enabled me to march ahead with this topic. I would like to thank my friends, who gave me their
precious time for guidance and helped me a lot in completing my project by giving their helpful
suggestion and assistance. I would like to thank my seniors for their valuable support. I would
also like to thank the library staff and computer lab staff of my university for their valuable
support and kind cooperation.

Prashant Kerketta

Semester VII

BATCH- 13

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TABLE OF CONTENTS

INTRODUCTION ............................................................................................................................................. 4
OBJECTIVES ................................................................................................................................................... 5
CONCEPT OF CASE DIARY ………………………………………………………………………………………………………………………..6
USE OF CASE DIARY………………………………………………………………………………………………………………………………….8

USE OF CASEDIARY IN TRIAL……………………………………………………………………………………………………………….……8

USE OF CASE DIARY IN INVESTIGATION………………………………………………………………………………………………….10

EVIDENTRY VALUE OF POLICE DIARY……………………………………………………………………………………………..………19

CASE LAWS…………………………………………………………………………………………………………………………………………….20

CONCLUSION…………………………………………………………………………………………………………………………………………22

REFRENCES……………………………………………………………………………………………………………………………………………23

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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.

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. Address, both
present and permanent of the witnesses and all other relevant details should be in
variably recorded in the Case Diaries. The following shall not be incorporated in the Case
Diaries:

 Opinion of Investigating Officer, 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 O., comments of Law
Officer(s) and Supervisory Officers.
 Any other facts/circumstances not relating to investigation of the case.

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RESEARCH METHODOLOGY

The method of research adopted for the project is the analytical and descriptive method.

The texts that were used for the project include articles, research papers and news given in
various websites as well as online journals

OBJECTIVES

1. To know about the legal provisions of Diary of Proceedings in investigation or enquiry.

2. To have a detailed study of the concept of Police Diary and its use.

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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.These diaries are called case diaries or special diaries. 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
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

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the question of accused getting any right to use the entries even to that limited extent does not
arise.

 As per section 172 deals with in 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 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
to aid the court in such inquiry or an investigation started under section-174 of the code.

The object of recording “case diaries” under this section is to enable courts to check the method
of investigation by the police. 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. 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. Similarly

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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.

A diary kept under this section cannot be used as evidence of any data, 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.

USE OF CASE DIARY

 In case of other purposes (Trial)

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
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.

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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.

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

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find out whether the investigation had been conducted in accordance with the Criminal
Procedure Code (CrPC).

 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 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 judgement 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.

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

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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 judgement 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 defence 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 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.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 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.

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 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 defence they
can be summoned on the application of defence.
 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.
 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.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 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.
The court should not draw any inference from an inspection of the police papers. If any use is to

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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 defence 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 defence cannot place
reliance thereon.

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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
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 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.

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 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.

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 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.
 No use to prejudice of accused. – Judge should not use the police diary to the prejudice of
the accused. Even if the defence requests the Judge of examine the police diary, that
would not justify him in using it to the prejudice of the accused.

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

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continue to retain it throughout the subsequent examination of the witness. 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.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.

Permitting defence counsel to see portions of police diary for use in defence 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 defence 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 defence. 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 favourable 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
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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.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 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.

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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.

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CASE LAWS

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 find favour in decisions reported in A.I.R. 1959 S.C., 1012(Tahsildar Singh & Anr.
Vrs. State of U.P.) and 1989 Cr.L.J., 1876 (Md. Badruddin Vrs. State of Assam) and A.I.R.
1926 Pat, 20 (Badri Chaudhary & Ors. Vrs. King Emperor). 29. 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 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, 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

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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 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 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 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.

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CONCLUSION

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
code of criminal proceeding. Which talk about case diary and try to defined and also deals the
how can used 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 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 basic object behind the “case diary” is to enable the court to check the method of
investigation adopted by the police.

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References

 www.academia.com

 www.scribd.com

 www.lawyersclubindia.com

 www.legalindia.com

 www.comegetpointsaboutlaw.com

 www.legalfarm.com

 www.cobrapost.com

 www.tehelka.com

 www.livemint.com

 www.timeofindia.indiatimes.com

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