Section 172 of the Code has a meaningful bearing on the entire investigation by a police officer. It is mandatory for him to maintain a diary where he shall enter day-by-day proceedings in the investigation carried out by him.
He is expected to mention time of events and his departure, reporting back and closing of the investigation, the place/places he visited and the statements he recorded during investigation. The statement of the witness is recorded during the investigation under Section 161 shall be inserted in that diary. A Criminal Court is empowered under Section 172(2) to send for the diaries and they could be used by the Court but not as evidence in the case but to aid it in such inquiry for trial.
However, Sub-section 3 of the same Section provides that neither the accused nor his agents shall be entitled to call for such diaries, nor they are entitled to see them but it is only where the police officer who makes them to refresh his memory or the Court uses them for the purposes of contradicting such police officers in terms of Section 172 than Sections 161 or 145 provisions would apply.
The purpose and the object seems to be quite clear that there should be fairness in investigation, transparency and a record should be maintained to ensure a proper investigation.
In the case of Habeeb Mohammad v. State of Hyderabad, A.I.R. 1954 S.C. 51, Supreme Court stated the principle of law that the criminal court may send for the police diaries of a case under inquiry/trial in such court and may use such diaries, not as evidence in the case but to aid in such inquiry or trial. It seems to the Court that the Judge in error in making use of the police diaries at all in his judgment and in seeking confirmation of his opinion on the question of appreciation of evidence from statements contained in those diaries.
The proper use of diaries he could make in terms of Section 172 Cr.P.C. by elucidating points which need clarification. The Court in this case was primarily concerned with the argument that diaries were not produced.
Further in the case of Khatri v. State of Bihar A.I.R. 1981 SC 1068 though in a writ petition the Court was concerned with a question whether the documents called for by the Court vide its Order dated 16th February, 1981 liable to be produced by the State or production of those documents is barred under Sections 162 & 172 of the Code and the petitioners in those cases are not entitled to see such documents. The Court rejecting the contention held as under:
“It is common ground that Shri L.V. Singh was directed by the State Government under Section 3 of the Indian Police Act, 1861 to investigate into twenty four cases of blinding of under-trial prisoners where allegations were made by the under-trial prisoners and First Information Reports were lodged that they were blinded by the police officers whilst in police custody, Shri L.V. Singh through his associates carried out this investigation and submitted his reports in the discharge of the official duty entrusted to him by the State Government.
These reports clearly relate to the issue as to how, in what manner and by whom the twenty-four under-trial prisoners were blinded, for that is the matter which Shri L.V. Singh was directed by the State Government to investigate. If that be so, it is difficult to see how the State can resist the production of these reports and their use as evidence of these reports and their use as evidence in the present proceeding. These reports are clearly relevant under Section 35 of the Indian Evidence Act.”
In the case of Malkiat Singh and Ors. v. State of Punjab (1991) 4 SCC 341 the Court reiterated the principle that use of entries in the case diary is really of no use and is of benefit to the accused but unless the investigating officer or the Court uses the entries in the case where either to refresh the memory or contradicting the investigating officer as previous statement under Section 161 in terms of Section 145 of the Evidence Act the entries can be used by the accused as evidence. The free use thereof is not permissible under defence.
In case Mukund Lal v. Union of India A.I.R. 1989 SC 144, the Court clearly stated the denial to the accused of 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 cannot be said to be unreasonable. This was treated to be a very important safeguard as the Legislature has reposed complete trust in the Court which is conducting the inquiry or the trial and has empowered the Court to call for these diaries therefore the right of the accused is not unfettered but in fact is limited as noticed.
Usefully, reference can also be made to the judgment of the Court in the case of Shamshul Kanwar v. State of U.P. A.I.R. 1995 SC 1748 wherein Supreme Court while issuing direction for requiring the State to make a general hearing in terms of Section 172 of the Code clearly stated that it was mandatory for the police officer/in charge to maintain the diary in terms of the said provision and there is jurisdiction in the criminal code to call such diaries and make use of them not as evidence but only to aid such inquiry or trial.
It is generally confined to utilize the information therein as foundation for the question put to the witnesses, particularly, to the police witnesses where the police officer has used 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 145, would be applicable. The right of the 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 for the aforestated purposes.
The investigating officer has a right to refresh his memories and can refer to the general diary. The Court has power to summon the case diary in exercise of its powers and for the purposes stated. The accused is vested with the power of making use of the statements recorded during investigation for the purposes of contradiction and copies thereof the accused is entitled to see in terms of Section 2 & 7 of the Code. [State of Kerala v. Babu (1999) 4 SCC 621 and State of Karnataka vs. K. Yarappa Reddy (1999) 8 SCC 715]