Section 172 of Cr.PC which is reproduced herein below:–
“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 enquiry or trial.
(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall be 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 by 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.”
Sub-section (2) speaks that, “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 is in such enquiry or trial”.
- The investigating Officer always maintains the case diary in one part.
- Section 172(2) of the Code of Criminal Procedure permits a court to peruse the case diary to verify certain steps taken during the investigation by the investigating agency but the same can not be used as a substitute for the evidence of the prosecution.
- At the stage of charge after perusing case-diary the facts mentioned in the case-diary could not be considered either in favour of the accused or in favour of the prosecution. The Court is required to frame charge on the basis of the charge-sheet filed by the police u/s 173, Cr.PC.
- The diaries can be used for refreshing memory by investigating officer and Court can use it for the purpose of contradicting such police officer as per provision u/s 161 or Section 145 of the Indian Evidence Act, 1872.
We are of the opinion that the provision embodied in Sub-section (3) of Section 172 of the Cr.P.C. cannot be characterised as unreasonable or arbitrary. Under Sub-section (2) of Section 172 Cr.P.C. the Court itself has the unfettered power to examine the entries in the diaries. This is a very important safeguard. The Legislature has reposed complete trust in the court which is conducting the inquiry or the trial. It has empowered the court to call for any such relevant case diary, if there is any inconsistency or contradiction arising in the context of the case dairy the Court can use the entries for the purpose of contradicting the Police Officer as provided in Sub-section (3) of Section 172 of the Cr.P.C. Ultimately there can be no better custodian or guardian of the interest of justice than the Court trying the case. No court will deny to itself the power to make use of the entries in the diary to the advantage of the accused by contradicting the police officer with reference to the contents of the diaries. In view of this safeguard, the charge of unreasonableness or arbitrariness cannot stand scrutiny. The petitioners claim an unfettered right to make roving inspection of the entries in the case diary regardless of whether these entries are used by the police officer concerned to refresh his memory or regardless of the fact whether the court has used these entries for the purpose of contradicting such police officer. It cannot be said that unless such unfetterred right is conferred and recognised, the embargo engrafted in Sub-section (3) of Section 172 of the Cr.P.C. 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 AIR 1932 Lah 103:
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.
and also as observed in Mahabirji Birajman Mandir Vs. Prem Narain Shukla and Others, .
The case diary contains not only the statements of witnesses recorded u/s 161 Cr.P.C. and the site plan or other documents prepared by the Investigating Officer, but also reports or observations of the Investigating Officer or his superiOrs. These reports are of a confidential nature and privilege can be claimed thereof. Further, the disclosure of the contents of such reports cannot help any of the parties to the litigation, as the report invariably contains the opinion of such officers and their opinion is inadmissible in evidence.[ Mukund Lal (1989) AIR(SC) 144 ]