DEFENCE COUNSEL DURING CROSS EXMN COMPELL THE I.O TO REFER HIS CASE DIARY

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DURING MY CROSS EXAMINATION AS INVESTIGATING OFFICER THE DEFENCE COUNSEL INSTRUCTING AND COMPELLING ME TO REFER MY CASE DIARY AND ANSWER TO THE COURT REGARDING CERTAIN FACTS——- CAN DEFENCE COUNSEL COMPEL/INSTRUCT AN INVESTIGATING OFFICER DURING HIS CROSS EXAMINATION TO REFER AND ANSWER CERTAIN QUESTIONS — WHEN IO PREFER TO ANSWER SUCH QUESTIONS BY REFERRING RELIED UPON DOCUMENTS – AND STATEMENTS OF WITNESSES- THE DEFENCE COUNSEL INSISTS THAT IO SHOULD REFER CD AND SHOW IT TO THE COURT THAT SUCH FACTS WERE RECORDED IN CASE DIARY— MY CONTENTION IS THAT ENTIRE FACTS AND CIRCUMSTANCES AND HAPPENINGS CAN NOT BE RECORDED IN THE CASE DIARY AS IT IS NOT THE EVIDENCE– HOW TO OVERCOME SUCH UNREASONABLE DEMANDS BY DEFENCE COUNSEL—PLEASE QUOTE RELEVANT CASE LAW, IF ANY

[Dr. Ashok Dhamija]

Case Diary is a privileged document under Section 172 of Cr.P.C. Sub-section (1) of this section requires that:

“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.”

As per a recent amendment made to Section 172 Cr.P.C. in the year 2009, now it is required that:

“The statements of witnesses recorded during the course of investigation under Section 161 shall be inserted in the case diary.”

Under Section 172, 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.

However, this section further provides that 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, shall apply.

Therefore, the accused does not have a right to see the case diaries unless the police officer uses them to refresh his memory under Section 159 of the Evidence Act or unless the Court uses them for the purpose of contradicting such police officer.

The defence counsel cannot (directly) compel or instruct the police officer to refer to and reply from a case diary, unless the police officer has himself used the case diary to refresh his memory or unless the Court uses them for the purpose of contradicting such police officer, as mentioned above.

However, the court may have the power to ask the police officer to refer to the case diary. Other than the general provisions, there is a special provision in Section 165 of the Evidence Act, the relevant extract of which is reproduced below:

“The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:”

Therefore, sometimes, a defence counsel may request the court to ask the police officer a question about the contents of the case diary, and if the court is convinced it may ask such question. But, the defence counsel cannot ask such question directly to the police officer unless the condition mentioned in Section 172 Cr.P.C. is satisfied.

In this regard, I may point out that what I have mentioned above finds support from the following observations of the Supreme Court in the case of Shamshul Kanwar v. State of U.P., (1995) 4 SCC 430:

“The accused person is not entitled to require a police officer to refresh his memory during his examination in court by referring to the diary. At the most the accused can on a reasonable basis seek the court to look into the diary and do the needful within the limits of Section 172 CrPC. However, the court is not bound to compel the police witness to look at the diary in order to refresh his memory nor the accused is entitled to insist that he should do so. If there is such a refusal what inference should be drawn depends on the facts and circumstances of each case.”

Therefore, it should be clear that the defence counsel cannot compel the police officer to refer to the case diary and answer the question. However, if the police officer himself refreshes his memory or if the court uses the said case diary (as mentioned in Section 172 Cr.P.C.), in that case the accused may get the right to cross-examine on the case diary. The full observations of the Supreme Court in the above case of Shamshul Kanwar v. State of U.P., (1995) 4 SCC 430, are relevant in this regard:

“This section firstly lays down that every police officer making an investigation should maintain a diary of his investigation. It is well-known that each State has its own police regulations or otherwise known as police standing orders and some of them provide as to the manner in which such diaries are to be maintained. These diaries are called case diaries or special diaries. The section itself indicates as to the nature of the entries that have to be made and what is intended to be recorded is what the police officer did, the places where he went and the places which he visited etc. and in general it should contain a statement of the circumstances ascertained through his investigation. Sub-section (2) is to the effect that a criminal court may send for the diaries and may use them not as evidence but only to aid in such inquiry or trial. The aid which the court can receive from the entries in such a diary usually is confined to utilising the information given therein as foundation for questions to be put to the witnesses particularly the police witnesses and the court may, if necessary, in its discretion use the entries to contradict the police officer who made them. Coming to their use by the accused, sub-section (3) 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 courts. But in case the police officer uses the entries to refresh his memory or if the court uses them for the purpose of contradicting such police officer then provisions of Section 161 or Section 145, 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 is intended to contradict him by the writing, his attention must be called to those parts of it which are to be used for the purpose of contradiction. Section 161 deals with the adverse party’s rights as to the production, inspection and cross-examination when a document is used to refresh the memory of the witness. It can therefore be seen that the right of accused to cross-examine the police officer with reference to the entries in the general 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 and that again is subject to the limitations of Sections 145 and 161 of the Evidence Act and for that limited purpose only the accused in the discretion of the court may be permitted to peruse the particular entry and 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 the entries even to that limited extent does not arise. The accused person is not entitled to require a police officer to refresh his memory during his examination in court by referring to the diary. At the most the accused can on a reasonable basis seek the court to look into the diary and do the needful within the limits of Section 172 CrPC. However, the court is not bound to compel the police witness to look at the diary in order to refresh his memory nor the accused is entitled to insist that he should do so. If there is such a refusal what inference should be drawn depends on the facts and circumstances of each case. Section 172 does not deal with any recording of statements made by witnesses and what is intended to be recorded is what the police officer did namely the places where he went, the people he visited and what he saw etc. It is Section 161 CrPC which provides for recording of such statements. Assuming that there is failure to keep a diary as required by Section 172 CrPC, the same cannot have the effect of making the evidence of such police officer inadmissible and what inference should be drawn in such a situation depends upon the facts of each case. It is well-settled that the entries of the police diary are neither substantive nor corroborating evidence and they cannot be used by or against any other witness than the police officer and can only be used to the limited extent indicated above. The above-stated principles are reiterated in many decisions rendered by the courts.”

In this regard, the detailed discussion on this issue in the case of Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 may also be seen in which the Supreme Court concluded by observing that the right of the accused in relation to the police file and the general diary is a very limited one and is controlled by the provisions.

Thus, the legal position in this regard is quite clear.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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