This Article is written by Mehak Jain who is currently pursuing law at the Hidayatullah National Law University. This is an exhaustive article that aims to explain Section 172 of Cr.P.C, i.e. case diary as a tool for carrying out investigation by the police officer.

Introduction

Section 172 of The Code of Criminal Procedure, 1973 deals with case diaries. A case diary is a diary maintained by police officers while investigating a case which contains details of how the inquiry was carried out and other particulars such as the date on which the investigation began, places visited as a part of the investigation, etc. They are inadmissible as evidence, however, they can be used to aid the Court while the investigation/trial. These diaries are essentially made for the purpose of helping the investigating officer refresh his/her memory while being presented as a witness for a trial.

Case Diary

Section 172 of Cr.P.C talks about case diaries, how to maintain them, their evidentiary value, etc. The section has three clauses-

(1) Under Chapter XII which deals with Information to the police and their powers to investigate, every police officer needs to maintain a case diary while carrying out an investigation. It should be updated every day while the investigation goes on. Particulars of the case, such as the time at which the case was reported, time at which the investigation began, the time when he closed the investigation, places visited by him for the purpose of the investigation, and detailed account of circumstances overseen, should be noted down in the diary.

(2) Such diaries may be demanded by any Criminal Court for a case that is under inquiry or trial. These diaries shall be used to aid such inquiry/ trial. They cannot be used as evidence.

(3) The accused or his/her agent is not allowed to, nor entitled to ask for and see such diaries. However, section 161 or section 145 of the Indian Evidence Act, 1872 may apply in case the diary has been used by the officer who made it to refresh his/her memory, or if the Court uses the diary to cross-question and counter such police officer.

Sections 161 and 145 have been explained below for the purposes of a better understanding of Section 172(3) of the Cr.P.C.

Section 161 of The Indian Evidence Act, 1872 refers to the adverse party’s right to a document used for the purpose of refreshing memory. The accused, by the discretion of the Court, may be allowed to inspect the particular entry, provided that either such entry has been used by the Court to contradict a police officer, or the police officer referred to such entry to refresh his memory. If such entry has not been used for either of the mentioned purposes, the accused has no right to refer to or use the entries, i.e., the accused has a very limited right with respect to gaining access to any entries in a case diary.

Section 145 deals with cross-examination of witnesses with respect to previous statements made by him in writing, or reduced into writing; however such writings should not be shown to him. His attention simply should be called to those parts of his statement which are used to contradict him before they are proved.

Particulars of the case diary

Section 172(1) clearly specifies the details to be noted in the case diary. Time at which the case was first reported, when the investigation began, when it ended, places visited and a statement of facts derived from the investigation are some important details.

Case diaries should only mention relevant and actual steps taken towards proceeding with the investigation. Details about witnesses should be invariably recorded too. Investigating Officer’s (IO’s)/Supervisory officer/law officers’ opinion or any recommendations made towards the end while summing up the report by IO are not to be included in the case diary.

The diaries should be kept with care and should be maintained properly. Even though it is not used as evidence, it is an important official document that serves to aid the Court and should not be kept haphazardly. Negligence in handling it is frowned upon.

The particulars need to be filled out with adequate details and should mention any necessary facts which are of importance to the case. The entries should be made in chronological order and no entry shall be vague or incomplete.

Section 177 of Cr.P.C. deals with false entries made in the case diary by any public servant. Even if he/she did so under orders of his/her superior, such public servant has committed an offence under Section 177.

Evidentiary value

Even though a case diary is an official document, it does not mean it is admissible in court as evidence, simply because of the fact that its contents might not be absolutely true and maybe hampered with. Entries of a police diary are not substantial.

Case diaries have no use as evidence

The contents of a case diary are not original evidence; however, if the person who made entries in it is called as a witness, it can be put as evidence. Judges should make sure the diary is not used at all to reach a judgment, and that contents of police diary do not influence his/her judgment making. Case diaries cannot be used as substantive evidence under Section 172 but only to aid the Court in clearing up a doubtful point that may arise during the course of the trial.

Cr.P.C. forbids disbelieving the defence’s statements simply because it is nowhere mentioned in the case diary, as this leads the prosecution to make use of the case diary to strengthen his/her case and to imply that the defence’s side has been untrue. The Court must decide against drawing the conclusion from the case diary. It is not evidence.

Case diary must be used within the provisions of Section 172, and just because there might be no evidence in a case does not mean a case diary can be used as evidence. The Court can not be influenced and disbelieve either party on the basis of a statement made in the police diary.

Use only as an aid to Court

The Court should avoid using case diaries altogether and should only use it as per the law. Section 172 mentions that any criminal Court may ask for the case diary and use it to aid the inquiry, and not as evidence. What this means is that the Court may notice a trend of evidence to be submitted with help of these diaries, what further people to question and seek as witnesses, and whether proofs of statements that could qualify for being actual evidence made in diaries were submitted or not.

Need for case diary

Investigation of a case

The police officer who investigated the criminal case has a right to reach up to the case diary and use it for the purpose of refreshing his/her memory while testifying in Court. However, whenever such a police officer takes the help of a case diary to recall facts, the accused gets equally entitled to cross-examine him/her as per Section 161 of the Indian Evidence Act, 1872.

The trial court is also entitled to call for the case diary, not as evidence but only for the purpose of cross-questioning the officer about particulars such as date and time on investigations made by him/her. Also, only the police and trial Court judge is allowed to take the aid of the case diary. The accused is allowed only if the police officer uses entry to refresh his/her memory.

The case of Emperor vs. Mannu deals with a case diary’s importance, purpose and how to be used by trial courts.

In this case, it was clarified and reiterated that the contents of the case diary are to be disregarded as legal evidence and are to be used for the exclusive purpose of cross-questioning the police officer who made the case diary. Even in that case, it does not mean that the entry can still be served as evidence, or was absolutely correct and true; it simply means that what is stated in the entry varies with the evidence given subsequently.

Nothing in the diary has any evidentiary value; however, it may serve as giving clarity to vague points and establishing a proper occurring of events before the decision of the case is decided. It can be used as an aid in framing a charge, not the cause of framing a charge.

Permissible use of police diary

1. Court has the right to use a case diary for acquiring names of persons which may be in a position to give actual evidence to the Court. They are also entitled to use it for establishing how the inquiry procedure went on and may take its aid to get more clarity about certain points.
2. The Court should use it to gain further evidence and for clearing up ambiguities. The diary should be read carefully to find any important matters and then call for necessary witnesses to prove the matter.
3. The diaries should be used to find evidence from prospective people mentioned, and also as a foundation on the basis of which line of inquiry is established and the witness is cross-questioned.
4. Section 482 deals with the right of the High Court to look into police diaries, if an application for quashing proceedings of the subordinate Court is made. The High Court can do so to determine the correctness of documents such as affidavits and to determine whether a proper case had been built or not.

Can the diary be used by the defence counsel for defence of the case?

An accused person is not entitled to see the statements recorded in a case diary. However, Section 172 does not prohibit the defence counsel from referring to the same. It’s on the Court’s discretion and whether it thinks that giving such access to defence counsel is necessary for the pursuit of justice.

Case diaries can be used to contradict the police officer

The object of Section 172(3) is to allow the police officer testifying to refresh his/her memory with the help of a case diary or to cross-question him in case contradictions arise between entries made by him/her in the diary and the evidence submitted in Court.

The diary can only be used by the police officer who made it, and that too, for the purpose of refreshing his/her memory. It cannot be used by any other witnesses or to counter a witness other than a police officer.

The case diary cannot influence the judge or make him/her prejudiced to the accused. In case the defence urges the Court to refer to the diary, that will not mean it is to be used to reach a decision.

The accused cannot demand the police officer to use the diary to refresh memory as the officer is not entitled to do so. However, the non-cooperation of the officer would mean he/she has failed his/her duty as a witness and is refusing to give information which they possess. This will hence fall to the benefit of the accused as by not referring to the diary, the officer is refusing to disclose the source of information.

Such an officer cannot decide to withhold material information when he/she can clear up a point by referring to their diary. For example, if the Court asks the officer to mention relevant dates and he/she refuses to do so, the Court can compel them to disclose the dates as such IO is somewhat prejudiced against the accused.

Conclusion

From the above text, we have observed that case diaries, even though not admissible as substantive evidence are an important part of the investigation. If analyzed properly, they may lead to further people which might have evidence to give. They are one of the tools to aid the Court in reaching its decision, however, they are not the turning point of the case itself. These diaries should be maintained properly and the information in them should be complete and not tampered with. They give credibility to an investigation.

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