TMI Blog1999 (5) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Statement of a witness recorded u/s. 161 of Cr.P.C. in one particular crime could be used against that witness in any other trial enquiry or proceedings by the accused. (b) Whether the learned Sessions Judge can call for the police diaries of a case which is not under inquiry or trial before him and permit it to be used by the accused for contradicting a witness examined in another case under trial before him. (c) Whether Section 162 of the Cr.P.C. permit the use of statement recorded under Section 161 of Cr.P.C. in any other proceeding other than the inquiry or trial in respect of the offence for which the investigation was conducted. It is contended on behalf of the appellant that the case diary sought to be summoned being a case diary not of the case which is being tried in the sessions trial under Section 172 of the Code of Criminal Procedure (hereinafter referred to as the Code), it is impermissible for the court to summon the case diary nor the statements recorded therein could be permitted to be used for contradicting a witness who is being examined in a trial arising out of a totally different case. On behalf of the respondents, it is contended that any prior state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h reference to his previous statement, to establish a contradiction and the manner in which such contradictions can be established. Section 155 of the Evidence Act provides that the previous statement of a witness can be made use of during the cross-examination of that witness for the purpose of impeaching the credit of the witness. Thus, it is seen it is the right of a party in a trial to use the previous statements of a witness either for the purpose of establishing a contradiction in his evidence or for the purpose of impeaching the credit of the witness. This right given to a party in a trial under Section 145 of the Evidence Act is somewhat controlled in criminal trials by the provisions made in the Code. Section 161 of the Code provides that the police officer investigating a case is entitled to examine any person and reduce the statement of such person in writing. This statement recorded by a police officer under Section 161 even though is a previous statement for the purpose of Section 145 of the Evidence Act, such statement can be used for the purpose of establishing a contradiction or impeaching the credit of the witness only in the manner provided for in Section 162 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confidence. Both the section and the proviso intended to serve primarily the same purpose i.e., the interest of the accused. Therefore, on a reading of Section 162 of the Code bearing in mind the object of the said Section and Section 145 of the Evidence Act, it is clear that an accused in a criminal trial has the right to make use of the previous statements of a witness including the statements recorded by the investigating agency during the course of an investigation for the purpose of establishing a contradiction in the evidence of a witness or to discredit the witness. The question then arises how does the accused confront the previous statement made by a witness in the course of an investigation to establish the contradiction in the evidence given by the witness in the trial. So far as the statements made during the course of investigation of the case being tried is concerned, there is no difficulty because an accused is entitled under Section 207 of the Code for the supply of free copies of the documents referred to in the said Section which includes the previous statement recorded under sub-section (3) of Section 161 of the Code. The accused does not have such a right as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is only that police diary in which the concerned investigating officer had made entries of his investigation and which pertains to the case being tried by the court alone can be sent for. Sub-section (3) of Section 172 further imposes restrictions in the manner in which such diaries can be used by the court. It also specifically bars the right of an accused or his agent to call for such diaries. Thus, on a plain language of this Section, it is clear that this Section cannot be used for the purpose of summoning a case diary which does not pertain to the investigation of the case which is being tried by the court. It also stands to reason because so far as the accused is concerned in the case in which he is being tried, he would have been supplied with all the documents referred to under Section 207 of the Code. Therefore, the question of he using the entries in the case diary would not arise. Section 172 is specifically meant for the contingencies when court finds it necessary to look into the case diary for the purpose of finding an aid in the trial or for the purpose of assisting the police officer to refresh his memory. Therefore, Section 172 does not contemplate summoning of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served thus : It will thus be seen that the bar against production and use of case diary enacted in Section 172 is intended to operate only in an inquiry or trial of an offence. which also indicate the fact that Section 172 relates to summoning of the case diary of a case which is under enquiry or trial only. The High Court in the impugned judgment proceeded on the basis that a statement recorded by an investigating officer in any case which was under investigation, being a statement made under Section 161 of the Code, the same can be used for the limited purpose provided under Section 162 of the Code read with Section 145 of the Evidence Act. There can be no quarrel with this approach of the High Court in regard to the use of the previous statements of a witness made in the course of another investigation being used in the course of another criminal trial. This is because, as seen from the observations of this Court in the case of Tahsildar Singh (supra), the very object of enactment of Section 161 of the Code and Section 145 of the Evidence Act is to create a right in the accused to make use of the previous statements of the witnesses for the purpose of contradiction and for impe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the conclusion that the production of such document is necessary or desirable then, in our opinion, the court is entitled to summon the case diary of another case under Section 91 of the Code de hors the provisions of Section 172 of the Code for the purpose of using the statements made in the said diary, for contradicting a witness. When a case diary, as stated above, is summoned under Section 91(1) of the Code then the restrictions imposed under sub-sections (2) and (3) of Section 172 would not apply to the use of such case diary but we hasten to add that while using a previous statement recorded in the said case diary, the court should bear in mind the restrictions imposed under Section 162 of the Code and Section 145 of the Evidence Act because what is sought to be used from the case dairy so produced, are the previous statements recorded under Section 161 of the Code. In this view of the matter, in our opinion, a case diary of another case, not pertaining to the trial in hand can be summoned if the court trying the case considers that production of such a case diary is necessary or desirable for the purpose of trial, under Section 91 of the Code. For the above reasons, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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