TMI Blog2017 (4) TMI 1466X X X X Extracts X X X X X X X X Extracts X X X X ..... ded in Sub-section (3) of Section 172 of Code of Criminal Procedure. It cannot be denied that Court trying the case is the best guardian of interest of justice. Coming to the use of police diary by the Accused, Sub-section (3) of Section 172 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 Court. But, in case the police officer uses the entries in the diaries to refresh his memory or if the Court uses them for the purpose of contradicting such police officer, then the provisions of Sections 145 and 161, as the case may be, of the Evidence Act would apply. 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 such entries to contradict the police officer or when the police officer uses it for refreshing his memory and that again is subject to provisions of Sections 145 and 161 of the Indian Evidence Act. Thus, a witness may be cross-examined as to his previous statements made by him as contemplat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent No. 3 herein, along with another Accused, is facing trial in ST No. 01 of 2015 before the Sessions Court, Champawat for the offences punishable Under Section 302 and 201 of Indian Penal Code. During the course of the trial, after the completion of examination in chief of PW-15, an application was filed by the Respondent No. 3 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Indian Evidence Act for deciding the issue involved: Section 172 of the Code of Criminal Procedure, 1973 172. Diary of proceedings in investigation. (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 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. (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 Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uses them for the purpose of contradicting such police officer, then the provisions of Sections 145 and 161, 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 was intended to contradict him in writing, his attention must be called to those portions which are to be used for the purpose of contradiction. Section 161 deals with the adverse party's right as to 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 ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigating officer to ascertain the statement of circumstances ascertained through the investigation. Under Sub-section (2) 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, nor shall he be entitled to use it as evidence merely because the court referred to it. Only right given thereunder 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 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in Sub-section (3) of Section 172 of the Code of Criminal Procedure would fail to meet the test of reasonableness. For instance in the case diary there might be a note as regards the identity of the informant who gave some information which resulted in investigation into a particular aspect. Public interest demands that such an entry is not made available to the Accused for it might endanger the safety of the informants and it might deter the informants from giving any information to assist the investigating agency, as observed in Mohinder Singh v. Emperor. The Accused has no right to insist upon a police witness 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 fai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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