(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 shall apply.
The ‘diary’ mentioned in Section 172(1) of the Code is called ‘case diary’ or ‘special diary’. It is of utmost importance that the entries in such a diary are made with promptness, in sufficient detail, mentioning all significant facts, in careful chronological order and with complete objectivity.
Slip attached to injury report formed part of the case diary. The said document was not proved. Attention of the investigating officer was not drawn thereto. No such question appears to have been raised before the High Court.
The Supreme Court felt that they are really at a loss to understand as to how reliance has been placed thereupon on the basis of a piece of paper which appeared in the case diary. It was held that it was improper and deprecated such a practice.
The diaries might be useful for getting at the means for elucidating points which need clearing up or for the discovery of relevant evidence. However, no such diary can be used as substantive evidence of any fact stated therein. A criminal Court is not justified in reading confessions and statements found therein and using such material to disbelieve the prosecution case or the defence case.
The Court is entitled for perusal to enable it to find out if the investigation has been conducted on the right lines so that appropriate directions, if need be, may be given and may also provide materials showing the necessity to summon witnesses not mentioned in the list supplied by the prosecution or to bring on record other relevant material which in the opinion of the Court will help it to arrive at a proper decision in terms of Section 172(3) of the Code.
The diary cannot be used as evidence of any date, fact or statement contained therein, but can be used only for the purpose of assisting the Court in the inquiry or trial, or as suggesting the means of further elucidating the points which need clearing up and which are material for doing justice between the State and the accused; or for the purpose of seeking for sources and lines of inquiry and for the names of persons who may be in a position to give material evidence. Cognizance cannot be taken on materials contained in case diaries independently of the final report.
The diary cannot be used for the purpose of testing the evidence of prosecution witnesses by reading the earlier statements of those witnesses made to the police and entered in the diary. A judge is in error in making use of the police diaries at all in his judgment.
The accused is not entitled to insist that a police officer should refer to the diary to refresh his memory; nor is the judge bound to compel the police officer to look at the diary to refresh his memory. Such use is at the discretion of the judge and of the police officer.
The diary is permitted to be used for the limited purpose of contradicting the police officer, and not for the purpose of corroborating him.
Although the accused or the defence counsel cannot claim right to make roving inspection of the entries in the case diary, the Court may permit in its discretion the defence counsel to see the portions of the case diary which the Court considers that in the interest of justice he should see and use in the defence of the case.