Case Diary : Importance & Relevance

Section 172 of the Code of Criminal Procedure, 1973 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.

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. (See page 813 of Sarkar’s Code of Criminal Procedure, Tenth edition, 2012).

Amendment made by the Code of Criminal Procedure (Amendment) Act, 2008, w.e.f. 31 st December, 2009, inserting Sub-section (1A), therefore, assumes significance. The Sub-section mandates that statement of witnesses recorded during the course of investigation under Section 161 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. 31′ 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.

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 161 or 145 of the Evidence Act apply.

See Also : Laxmi @ Laccho v. State NCT of Delhi [Delhi High Court, 11-02-2016]

Section 172 Cr.P.C. after its amendment w.e.f. 31st December, 2009 with incorporation of Sub-Sections 1A and 1B reads as under:-

“Section 172 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 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 the Indian Evidence Act, 1872 (1 of 1872), shall apply.”

Case Law Reference on Case Diary

1. Bhagwant Singh Vs. Commr. of Police (1983) 3 SCC 344

Importance of recording entries in the case diary with promptness and sufficient details mentioning of relevant facts in chronological order with complete objectivity is highlighted.

2. Queen Empress Vs. Mannu ILR (1897) 19 All 390

The early stages of the investigation which follows on the commission of a crime must necessarily in the vast majority of cases be left to the police, and until the honest, the capacity, the discretion and the judgment of the police can be thoroughly trusted, it is necessary, for the protection of the public against criminals, for the vindication of the law and for the protection of those who are charged with having committed a criminal offence that the magistrate or judge before whom the case is for investigation or for trial should have the means of ascertaining what was the information, true, false, or misleading which was obtained from day to day by the police officer who was investigating the case and what such police officer acted.

3. Khatri v. State of Bihar, (1981) 2 SCC 493

The case diary cannot be used as evidence, but is an aid in the trial or inquiry. This is for the reason because the case diary can be referred to by the Court but the accused or his agents are not entitled to call for such diary and are not entitled to see it except when the case diary is used by the police officer to refresh is memory or the court uses it for contradicting a police officer in the trial or inquiry, and provisions of Section 145 or 161 of the Indian Evidence Act apply.

The bar under Sub-section (2) to Section 172 Cr.P.C. is a limited bar and does not apply to civil proceedings or proceedings under Articles 32 and 226 of the Constitution of India, particularly when the party calling for the case diary is neither an accused nor an agent.

Rejecting the contention that the principle behind Section 172 Cr.P.C. is to exclude the report of investigation altogether in other proceedings for it would jeopardize secrecy of investigation, the Supreme Court affirmatively observed that for truth to emerge, all relevant facts to the inquiry must be brought before the court and nothing should be shut out, otherwise the opinion formed may be distorted or incomplete, which might result in injustice.

A judgment should not be founded on partial or speculative presentation of facts as it would affect the integrity of the judicial system and public confidence. In exceptional cases, where weighty and compelling competing interest requires withholding or secrecy, legislature has provided for exceptions but the exclusion should be strictly interpreted and not expansively construed.

4. Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1

Reference was made to Section 172 Cr.P.C. and several earlier judgments, to elucidate that the right of an accused in relation to the police file and general diary is a limited and a controlled one, but still the accused has been provided with definite rights under the provisions of Cr.P.C. and the constitutional mandate to face the charge against him by a fair investigation and trial. Fairness in action on both accounts is essential.

Reference was made to Section 91 of the Evidence Act, which empowers the court to summon a document or thing and Section 207 Cr.P.C., which requires that the court without delay and free of cost should furnish to the accused copies of the police report, first Information report, statements and confessional statements of persons recorded under Section 161 Cr.P.C. whom the prosecution wishes to examine as witnesses, of course, excluding any part of statement or documents as contemplated under Section 173(6) Cr.P.C.

It was observed:-

The right of the accused with regard to disclosure of documents is a limited right but is codified and is the very foundation of a fair investigation and trial. On such matters, the accused cannot claim an indefeasible legal right to claim every document of the police file or even the portions which are permitted to be excluded from the documents annexed to the report under Section 173(2) as per orders of the court.

But certain rights of the accused flow both from the codified law as well as from equitable concepts of the constitutional jurisdiction, as substantial variation to such procedure would frustrate the very basis of a fair trial. To claim documents within the purview of scope of Sections 207, 243 read with the provisions of Section 173 in its entirety and power of the court under Section 91 of the Code to summon documents signifies and provides precepts which will govern the right of the accused to claim copies of the statement and documents which the prosecution has collected during investigation and upon which they rely.

It will be difficult for the Court to say that the accused has no right to claim copies of the documents or request the Court for production of a document which is part of the general diary subject to satisfying the basic ingredients of law stated therein.

A document which has been obtained bona fide and has bearing on the case of the prosecution and in the opinion of the Public Prosecutor, the same should be disclosed to the accused in the interest of justice and fair investigation and trial should be furnished to the accused. Then that document should be disclosed to the accused giving him chance of fair defence, particularly when non-production or disclosure of such a document would affect administration of criminal justice and the defence of the accused prejudicially.

The concept of disclosure and duties of the Prosecutor under the English system cannot, in our opinion, be made applicable to the Indian criminal jurisprudence stricto sensu at this stage. However, we are of the considered view that the doctrine of disclosure would have to be given somewhat expanded application.

As far as the present case is concerned, we have already noticed that no prejudice had been caused to the right of the accused to fair trial and non-furnishing of the copy of one of the ballistic reports had not hampered the ends of justice. Some shadow of doubt upon veracity of the document had also been created by the prosecution and the prosecution opted not to rely upon this document. In these circumstances, the right of the accused to disclosure has not received any setback in the facts and circumstances of the case. The accused even did not raise this issue seriously before the trial court.”

5. C. Muniappan v. State of Tamil Nadu, (2010) 9 SCC 567

An order of acquittal or benefit of doubt need not ensue, when evidence de hors such lapses is reliable, credible and sufficient to convict the accused. Of course, extra caution and prudence is required while evaluating the evidence. The Court should examine as to whether the lapses or defects in investigation, be it in the form of negligence or omission etc., had affected the object of finding out the truth. This is the litmus test, which should be applied in each case.

6. Ganga Singh v. State of M.P., (2013) 7 SCC 278

It was observed that court should not acquit the accused on the ground that there were some defects in investigation, but if the defects in the investigation were as such as to cast a reasonable doubt about the prosecution case, then the accused is entitled to acquittal because of such doubt.

7. Surjit Sarkar v. State of West Bengal, (2013) 2 SCC 146

After referring to several earlier decisions, it has been held that deficiencies in investigation by way of omission and lapses by the investigating agency cannot themselves justify total rejection of the prosecution case and where prosecution evidence de hors such lapses, when carefully scrutinised and evaluated, does not affect the object of finding of truth.

At the same time, it cannot be accepted as a broad proposition that in no case shoddy or defective investigation would not result in acquittal. Investigation must be precise and should not be having glaring loopholes, which create doubt as to whether the offence was committed by the person charged or not. This is impermissible.
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