The evidentiary value of a Case Diary under Section- 172(3) Cr.P.C

Introduction

The Police is empowered under Section- 155 and Section- 156 of the Code of Criminal Procedure, 1973 to conduct an investigation, and with respect to these powers there are certain obligations (apart from conducting a free and fair investigation) imposed on the Police Officers under Section- 172 i.e. to maintain a diary on a day to day basis of the steps taken by the Police during investigation, places visited in furtherance of this objective, statement of the witnesses recorded etc. So that the manner in which the investigation is carried out is on record and whenever the Court needs some kind of assistance during a Trial the diary comes into play.

There are certain questions that are often posed during a Trial such as-

• Whether Police can be compelled to produce a diary in the Court?
• Does a diary maintained during an investigation possess any evidentiary value in the Court of Law?
• Whether an accused is entitled for such case diaries?
• Does an accused have a right to cross examine the Police Officer with reference to entries in the Diary?

This article is an honest effort on the part of the Author to reflect what the criminal law says on these issues.

Section- 172 of the Criminal Procedure Code- What does it states?

This Section states that the Police conducting an investigation shall throughout such process has to maintain a diary mentioning the day to day activities it performed in pursuance of the investigative power that it has exercised. It shall include the witnesses examined, the places visited, and the time of beginning and closing of investigation.

The 2009 amendment to this section also made it obligatory to insert the statement of witnesses recorded under Section- 161 andsection- 172(3) states that neither the accused nor his agents shall be entitled to call for such diaries, but it can be presented before the Court under Section- 145 or Section 161 of the Evidence Act.

Section- 145 of the Evidence Act– “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……” which is a provision that deals with cross- examination and confers discretion on the Court under Section- 172(3) to use the diary for contradicting the statements made by the Police Officer.

While on the other hand, Section- 161 of the Evidence Act is a right that has been given to a party to refresh his memory while referring to any writing made by him at the time of transaction concerning which he is in question (Section- 159), and such statements made are also open for cross examination.

So it is quite clear that the scope of the accused to cross examine a Police Officer with respect to the entry that is made in diary is limited to mere applicability of Section- 145 & Section- 161 of the Evidence Act, 1872.

Interpretation by the Supreme Court

The first case on this topic that came up before the Supreme Court was Shamshul Kanwar v. State of U.P.[1] and the issue here before the Court was whether accused has a right to use case diary. The Court while interpreting Section- 172(3) opined that there is no such right of the accused but it is the discretion of the Court or the will of the Police Officer to refresh his memory that shall provide a right to the accused to use a diary but only for the purpose of cross examination of the statements that are made by Police Officer.

The Court in this very case also stated that failure to keep diary as required under Section- 172 CrPC shall not make the evidence of a Police Officer inadmissible and the inference in such cases shall be drawn depending on the facts and circumstances of the case, and this was the judgment where the Supreme Court for the first time reminded legislature that there is a need of a uniformity in maintaining a case diary as in some states the diary is composite in nature (Part I is step taken during the course of investigation by the Police and Part II is the statement of witnesses) while in some states it does not contain the statement made under Section- 161 CrPC.

“Later in 2009, Sec- 172(1A) was inserted which made it mandatory that statement of witnesses u/s 161 shall be inserted in the case diary”

In another notable judgment of State of NCT of Delhi v. Ravi Kant Sharma[2], the Supreme Court was of the view that in case the gist of statements recorded under Section- 161(3) CrPC forms a part of the case diary, then such “gist” shall be provided to the accused but only after the Court is satisfied factually after due examination that it is not other than the “gist of statements”.

In Balakram v. State of Uttarakhand[3], this Court again reminded Courts throughout the country that the right of the accused to cross examine a Police Officer is very limited in extent and even that limited scope arises only when the Court uses the entries to contradict a Police Officer or when such officer uses it for refreshing his memory. And a mere denial of this right by the Court cannot be characterised as unreasonable or arbitrary.

The relevance of the case diary was also highlighted by the Apex Court in P. Chidambaram v. Directorate of Enforcement[4] where this Court was of the opinion that the Court can peruse the case diary/ materials collected during investigation by prosecution even before the commencement of trial in circumstances like-

• To satisfy itself that the investigation is in right direction
• There is no misuse of power
• Whether bail u/s 438 is to be granted or not

And these instances are not illustrative and not exhaustive

Is a person entitled to get a copy of Case Diary by filing an RTI?

On this issue the view of all the High Courts and the Central Information Commission has been the same that unless and until a Trial is concluded[5] a person is not entitled to get a copy of the case diary by filing a RTI application as Section- 8(1) (h) of the Right to Information Act, 2005 restricts the flow of information which would impede the process of investigation or apprehension or prosecution of offenders[6].

Conclusion

Section 172 of the Code of Criminal Procedure is one of the most relevant sections that deal with the pre- trail procedures as the efforts and the intention of the Police during an investigation is highlighted by the entries made in the case diary and no better authority is constituted than the Trial Court that can examine whether the pre- trial procedure is being followed in letter and its spirit.

The right to cross- examine a Police Officer w.r.t the entries made in a case diary u/s 172(3) in recent times has become a practice in Trial, as in most of the cases the examination of Police Officers in a Court takes after 3-4 years due to which the sanctity of the statement is tested by the Court by calling up case diaries and cross examining the victim either under through Section- 145 or section- 161 of the Evidence Act.

Therefore, in light of the scenario that prevails in our criminal justice delivery system it becomes necessary that we have a better understanding of Section- 172 of CrPC.

Relevant Citations-

1. Shamshul Kanwar v. State of U.P,(1995) 4 SCC 430
2. State of NCT of Delhi v. Ravi Kant Sharma, (2007) 2 SCC 764
3. Balakram v. State of Uttarakhand, (2017) 7 SCC 668
4. P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24
5. Sanjay Kumar Sahani v. Central Public Information Officer, 2019 SCC OnLine CIC 3192
6. Deputy Commissioner of Police v. D.K. Sharma, 2010 SCC OnLine Del 4554

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