Can an accused make a request to summon the case diary of another case to contradict the witness?

Section 172 of the criminal procedure code makes the provision of case diary. Section 172 of the Code which Section reads thus:

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, of 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.

Sub-section (1) of the above Section mandates that every police officer making an investigation shall maintain a case diary of that case in which among other entries, shall maintain the statements of the witnesses examined by him during the course of his investigation.

Sub-section (2) of the same Section empowers a criminal court to send for such police diaries of a case under inquiry or trial in such Court, and permits the use of such diaries, not as evidence in the case, but to aid it in such inquiry or trial.

The words used in sub-section (2) of Section 172, more particularly police diaries of a case under inquiry or trial in such Court, indicates it is only that police diary in which the concerned investigating officer had made entries of his investigation and which pertains to the case being tried by the court alone can be sent for.

Sub-section (3) of Section 172 further imposes restrictions in the manner in which such diaries can be used by the court. It also specifically bars the right of an accused or his agent to call for such diaries.

Thus, on a plain language of this Section, it is clear that this Section cannot be used for the purpose of summoning a case diary which does not pertain to the investigation of the case which is being tried by the court. It also stands to reason because so far as the accused is concerned in the case in which he is being tried, he would have been supplied with all the documents referred to under Section 207 of the Code.

Therefore, the question of he using the entries in the case diary would not arise. Section 172 is specifically meant for the contingencies when court finds it necessary to look into the case diary for the purpose of finding an aid in the trial or for the purpose of assisting the police officer to refresh his memory.

Therefore, Section 172 does not contemplate summoning of the case diary for the purpose of assisting the accused to have a look at the previous statements of the witness for using it for his benefit, as contemplated in Section 162 of the Code.

Mediums to use the statements recorded in other cases

Section 91(1) of the Code reads thus:

91. Summons to produce document or other thing.- (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.

(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.

(3) Nothing in this section shall be deemed — (a) to affect Sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers Books Evidence Act, 1891 (13 of 1891), or (b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.

The language of Section 91 is much wider than the language of Section 172 and by no stretch of imagination it could be contended that the case diary maintained under Section 172 of the Code is not a document as contemplated under Section 91(1) of the Code.

If that be so and if the court comes to the conclusion that the production of such document is necessary or desirable then, in our opinion, the court is entitled to summon the case diary of another case under Section 91 of the Code de hors the provisions of Section 172 of the Code for the purpose of using the statements made in the said diary, for contradicting a witness.

When a case diary, as stated above, is summoned under Section 91(1) of the Code then the restrictions imposed under sub-sections (2) and (3) of Section 172 would not apply to the use of such case diary but while using a previous statement recorded in the said case diary, the court should bear in mind the restrictions imposed under Section 162 of the Code and Section 145 of the Evidence Act because what is sought to be used from the case dairy so produced, are the previous statements recorded under Section 161 of the Code.

Thus, a case diary of another case, not pertaining to the trial in hand can be summoned if the court trying the case considers that production of such a case diary is necessary or desirable for the purpose of trial, under Section 91 of the Code.

Reference

State Of Kerala vs Babu & Ors (1999)