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TMI Blog2017 (4) TMI 1466X X X X Extracts X X X X X X X X Extracts X X X X ..... herein (one of the Accused), the contents of which read thus: In the above mentioned case applicant wants to submit some key and relevant documents which are necessary for the fair and just trial of instant case. It is therefore, humbly prayed that your Honour may kindly grant permission for the same in the interest of justice. 4. Along with the application, list of documents to be produced was also filed. The documents are stated to be copies of certain pages of Police diary maintained Under Section 172 of the Code of Criminal Procedure, 1973 (for brevity, Code of Criminal Procedure), by the Investigation Officer (FW-15), which were obtained by Respondent No. 3 by making an application under the provisions of Right to Information Act, 2005. The Respondent No. 3 proposes to confront PW 15 with those documents. 5. Such application was opposed by the Appellant herein/complainant on the ground that the fresh documents cannot be allowed to be produced by the Accused at the premature stage of trial and it is always open for the Accused to produce, such documents during the stage of recording of statements of the Accused Under Section 313, Code of Criminal Procedure. It was furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, Section 145 of the Indian Evidence Act, 1872 145. Cross-examination as to previous statements in writing.-A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the writing used to refresh memory. It can, therefore, be seen that, the right of the Accused to cross-examine the police officer with reference to the entries in the police 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. 12. In other words, 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 entries even to that limited extent does not arise. The Accused persons cannot force the police officer to refresh his memory during his examination in the Court by referring to the entries in the police diary. 13. Section 145 of the Indian Evidence Act consists of two limbs. It is provided in the first limb of Section 145 that a witness may be cross-examined as to the previous statements made by him without such writing being shown to him. But the Second limb provides that, if it is intended to contradict him by the writing, his attention must before writing can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he court uses it for the purpose of contradicting such witness, by operation of Section 161 of the Code and Section 145 of the Evidence Act, it shall be used for the purpose of contradicting the witness, i.e. Investigation Officer or to explain it in re-examination by the prosecution, with permission of the court. It is, therefore, clear that unless the investigating officer or the court uses it either to refresh the memory or contradicting the investigating officer as previous statement Under Section 161 that too after drawing his attention thereto as is enjoined Under Section 145 of the Evidence Act, the entries cannot be used by the Accused as evidence. 16. The police diary is only a record of day to day investigation made by the investigating officer. Neither the Accused nor his agent is entitled to call for such case diary and also are not entitled to see them during the course of inquiry or trial. The unfettered power conferred by the Statute Under Section 172 (2) of Code of Criminal Procedure on the court to examine the entries of the police diary would not allow the Accused to claim similar unfettered right to inspect the case diary. 17. This Court in the case of Mukund L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess referring to his diary in order to elicit information which is privileged. The contents of the diary are not at the disposal of the defence and cannot be used except strictly in accordance with the provisions of Sections 162 and 172. Section 172 shows that witness may refresh his memory by reference to them but such use is at the discretion of the witness and the judge, whose duty it is to ensure that the privilege attaching to them by statute is strictly enforced. The public interest requirement from the standpoint of the need to ensure a fair trial for an Accused is more than sufficiently met by the power conferred on the court, which is the ultimate custodian of the interest of justice and can always be trusted to be vigilant to ensure that the interest of Accused persons standing the trial, is fully safeguarded. 18. From the afore-mentioned, it is clear that the denial of right to the Accused to inspect the case diary cannot be characterized as unreasonable or arbitrary. The confidentiality is always kept in the matter of investigation and it is not desirable to make available the police diary to the Accused on his demand. 19. Since we are not called upon to decide the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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