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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO 694 OF 2017 (Arising out of SLP (Crl.) No. 9314 of 2016)

Balakram      ….Appellant

Versus

State of Uttarakhand & Ors. …Respondents

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

Leave granted.

2. The  judgment  in  Miscellaneous  application  No.

1123 of 2016, passed by the High Court of Uttarakhand

at Nainital setting aside the order dated 31.8.2016 in I.A.

No. 174 Kha in S.T. No. 1 of 2015 is called on question in

this appeal.   

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3. Respondent  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 IPC. 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,  Cr.P.C.),  by  the  Investigation  Officer  (PW-15),

which were obtained by respondent No.3 by making an

application under the provisions of Right to Information

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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,  Cr.P.C.   It  was further  contended by  the

appellant that it is open for the accused to lead evidence

on their behalf after recording of the statements of the

accused under Section 313, Cr.P.C.

6. The application came to be rejected by the Sessions

Court  on  31.8.2016.  Being  aggrieved  by  the  same,

respondent No.3 herein filed Misc. Application No. 1123

of 2016 before the High Court of Uttarakhand at Nainital

under Section 482 Cr.P.C.  By the impugned order the

High Court allowed the said miscellaneous application.

7. Learned counsel for the appellant taking us through

the order of the Courts below, argued that entries made 3

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in  the  police  diary  referred  to  in  Section  172  of  the

Cr.P.C. cannot be used for the purpose of Section 145 of

the Indian Evidence Act, 1872 unless the conditions laid

down under Section 172(2) and (3) of Cr.P.C are satisfied;

that  the  High  Court  is  not  justified  in  allowing  the

accused/respondent herein to produce certain pages of

police  diary  obtained  by  the  respondent  under  the

provisions  of  Right  to  Information  Act.  He  argued  in

support of the order of the Trial Court.

8. Per contra, advocate for the respondent argued in

support of the order of the High Court contending that

the  documents  sought  to  be  produced  were  for

confronting PW 15-Investigation Officer who is the author

of those documents; the defence will lose an opportunity

to  confront  the  investigation  officer,  in  case  the

respondent is not allowed to produce the documents in

question.  According  to  him,  it  is  always  open  to  the

accused to produce the documents to be relied upon by

him at the time of recording his statement under Section

313 of the Cr.P.C. but the accused would not get chance 4

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to  confront  the  Investigation  Officer  with  such

documents.

9. Before  proceeding  further  it  would  be  relevant  to

note the provisions of  Section 172 Cr.P.C. and Section

145 of the 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 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

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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 those parts of it which are to be used for the purpose of contradicting him.”

 10. The  afore-mentioned  provisions  are  to  be  read

conjointly  and  homogenously.  It  is  evident  from

sub-section  (2)  of  Section  172  Cr.P.C.,  that  the  Trial

Court has unfettered power to call for and examine the

entries  in  the  police  diaries  maintained  by  the

Investigating Officer. This is a very important safeguard.

The legislature has reposed complete trust in the Court

which is conducting the inquiry or the trial.  If there is

any  inconsistency  or  contradiction  arising  in  the

evidence,  the  Court  can  use  the  entries  made  in  the

diaries for the purposes of contradicting the police officer

as provided in sub-section (3) of Section 172 of Cr.P.C. It

cannot be denied that Court trying the case is the best

guardian of interest of justice.  Under sub-section (2) the

criminal court may send for diaries and may use them

not as evidence, but to aid it in an inquiry or trial.  The

information which the Court may get from the entries in

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such  diaries  usually  will  be  utilized  as  foundation  for

questions to be put to the police witness and the court

may,  if  necessary  in  its  discretion  use  the  entries  to

contradict  the police officer,  who made them.  But the

entries  in  the  police  diary  are  neither  substantive  nor

corroborative  evidence,  and  that  they  cannot  be  used

against any other witness than against the police officer

that too for the limited extent indicated above.

11. 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.  Section 145 of the

Evidence Act provides for cross examination of a witness

as to the previous statements made by him in writing or 7

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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

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. 8

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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 proved, be called  to those

parts  of  it  which  are  to  be  used  for  the  purpose  of

contradicting  him.  Sections  155 (3)  and 145 of  Indian

Evidence Act deal with the different aspects of the same

matter and should, therefore, be read together.

14. Be that as it may, as mentioned supra, 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 9

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him as contemplated under Section 145 of the Evidence

Act if such previous statements are brought on record, in

accordance  with  law,  before  the  Court  and  if  the

contingencies  as  contemplated under  Section 172(3)  of

Cr.P.C. are fulfilled.  Section 145 of the Indian Evidence

Act  does not  either extend or control  the provisions of

Section 172 of Cr.P.C. We may hasten to add  here itself

that there is no scope in Section 172 of the Cr.P.C. to

enable the Court, the prosecution  or the accused to use

the  police  diary  for  the  purpose  of  contradicting  any

witness other than the police officer, who made it.  

15. In case of  Malkiat Singh and others  vs. State of

Punjab1,  this  Court  while  considering  the  scope  of

Section 172(3) Cr.P.C. with reference to Section 145 of

the Indian Evidence Act observed thus:-

“It  is  manifest  from  its  bare  reading without subjecting to detailed and critical analysis  that  the  case  diary  is  only  a record of day to day investigation of the investigating  officer  to  ascertain  the statement  of  circumstances  ascertained through  the  investigation.  Under sub-section (2) the court is entitled at the

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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, 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

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by the Statute under Section 172 (2) of Cr.P.C. 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 Lal vs. Union of

India and Anr2., while considering the question relating

to  inspection of the entries made in the case diary by the

accused has observed thus:-

“We  are  of  the  opinion  that  the provision embodied in sub-section (3) of Section  172  of  the  CrPC  cannot  be characterised  as  unreasonable  or arbitrary.  Under  sub-section  (2)  of Section 172 CrPC 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  diary  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 CrPC. Ultimately there can be no better custodian or guardian of the interest of

2 AIR 1989 SC 144 12

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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 unfettered  right  is  conferred  and recognised,  the  embargo  engrafted  in sub-section  (3)  of  Section  172  of  the CrPC  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

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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.

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19. Since we are not called upon to decide the question

as to  whether  the  copy of  the  case diary  or  a portion

thereof  can  be  provided  to  the  accused  under  the

provisions of  the  Right  to  Information Act,  we are  not

deciding the said question in the matter on hand. In the

case  of  Sidharth  etc.  etc.  vs. State  of  Bihar3,   the

entire  case  diary  maintained  by  the  police  was  made

available  to  the  accused  by  the  trial  Court.  In  that

context  certain  observations  were  made  by  this  Court

which read thus:-

 “….But  if  the  entire  case  diary  is  made

available to the accused, it may cause serious prejudice to others and even affect the safety and  security  of  those  who  may  have  given statements to the police. The confidentiality is always  kept  in  the  matter  of  criminal investigation  and it  is  not  desirable  to  make available the entire case diary to the accused. In the instant case, we have noticed that the entire case diary was given to the accused and the  investigating  officer  was  extensively cross-examined on many facts which were not very  much  relevant  for  the  purpose  of  the case. The learned Sessions Judge should have been careful in seeing that the trial of the case was  conducted  in  accordance  with  the provisions of CrPC.”

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20.  Since  in  the  matter  on  hand,  neither  the  police

officer has refreshed his memory with reference to entries

in the police diary nor has the trial court used the entries

in the diary for the purposes of contradicting the police

officer (PW-15), it is not open for the accused to produce

certain pages of police diary obtained by him under the

provisions of Right to Information Act for the purpose of

contradicting the police officer.  

21. In view of the above, the High Court is not justified

in  permitting  the  accused  to  produce  certain  pages  of

police  diary  at  the  time  of  cross  examination  of

PW-15/Investigating Officer.  Accordingly,  the impugned

Order is liable to be set aside and the same stands set

aside.  The appeal is allowed.

…….…………………………..J.     (Dipak Misra)

…….…………………………..J.    (A.M. Khanwilkar)   

…………………………………J. (Mohan M. Shantanagoudar)

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New Delhi Dated: April 19, 2017

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