On such complaint or information having been received by the Station House Officer and First Information Report is recorded and investigation is taken up, Section 172 of Cr.P.C., comes into play. Section 172 of Cr.P.C., reads as under:
"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.
[(1A). The statements of witnesses recorded during the course of investigation under section 161 shall be inserted in the case diary.]
[(1B). The diary referred to in sub-section (1) shall be a volume and duly paginated.]
(2) Any Criminal Court may send for the police diaries of the 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 (1 of 1872), shall apply."
18. A plain reading of the above provision would clearly indicate that Investigating Officer who makes an investigation under Chapter XII will have to enter day by day of his proceedings relating to investigation conducted in a diary, setting forth the time at which information reached him, time at which he began and closed the investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation. In other words, it is a diary in which the proceedings of investigation by the police are recorded in a chronological order. This pertains to the particular case and is maintained continuously by the different Officers who are in charge of the investigation. Every step taken in investigation should find a place in this Diary.
19. Section 172 mandates that every police officer making an investigation shall maintain a diary, which is commonly known and called as "Case Diary". The entries in this Diary should be made with promptness, in sufficient detail, mentioning all sufficient facts, in careful chronological order. Section 172 enjoins that investigating officer has to maintain a case Diary and sub-section (2) of Section 172 empowers a Criminal Court to call for Case Diary as an aid in its enquiry or trial which is both for the vindication of the law as well as for the protection of those charged with an offence. 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. The extent to which accused may cross-examine a police officer on case diary entries came up for consideration in the case of SHAMSHUL KANWAR vs. STATE OF U.P. reported in MANU/SC/0337/1995 : (1995) 4 SCC 430 and has been held to the following effect:
"CASE DIARY---Sec. 172---use of right of accused regarding use of case diary-extent of---held, accused gets right to cross-examine the police officer with reference to entries in case diary when the same is used by the police officer to refresh his memory or when the court uses it for the purpose of contracting the police officer-such right of accused is subject to the limitations of S. 145 and 161 of Evidence Act. Police officer cannot compelled to look into the case diary for refreshing his memory-failure of the police officer to keep a diary does not render his evidence inadmissible-entries of police diary are neither substantive nor corroborating evidence-they cannot be used by or against any other witness-evidence.
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 police officer uses it for refreshing his memory and that again is subject to the limitations of section 145 and 161 of 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 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 following shall not be incorporated in the Case Diaries:
(1) "Opinion of Investigating Officer, opinion of the Supervisory Officers and Law Officers.
(2) Any conflict of opinion between I.O., Law Officers, SP, DIG and Head Office.
(3) Recommendations made in concluding report of the I.O., comments of Law Officer(s) and Supervisory Officers.
(4) Any other facts/ circumstances not relating to investigation of the case."
20. Sub-sections (1A) and (1B) of Section 172 of Cr.P.C., came to be inserted by Act 5 of 2009. Prefatory note or in other words, statement of objects and reasons for bringing in such an amendment indicates that Law Commission of India had undertaken a comprehensive review of the Code of Criminal Procedure and in its 154th Report recommendation have been made particularly those relating to provisions concerning arrest, custody and remand, procedure for summons and warrant cases, compounding of offences, victimology, special protection in respect of women and inquiry and trial of persons of unsound mind. This amongst other reasons indicated in the statement of objects and reasons have persuaded the Parliament to amend Section 172 and by Act 5 of 2009, sub-sections (1A) and (1B) of Section 172 of Cr.P.C., came to be inserted. A bare reading of sub-section (1A) would indicate it casts a duty on the investigating officer to record all the statement of the witnesses in a case Diary. Sub-section (1B) makes obligatory for the investigating officer to keep the case Diary in a bound volume and duly paginated. These amendments are salutary in nature and enacted to check interpolation in a case Diary. The proper maintenance of a Case Diary under Section 172 is intended to safeguard not only the accused, but to insulate the investigating agency itself from unjustifying attacks. Failure on the part of the investigating officer not observing the mandate of Section 172 Cr.P.C. would amount to serious lapse and it results in diminishing the value and credibility of such investigation that may be undertaken. The entries in a Case Diary should be made at its appropriate place indicating the correct date on which it was actually made. The investigating officer cannot make late entries in the Diary by way of interpolation.
21. A bare reading of the aforesaid provision in its entirety would indicate that Investigating Officer who records day to day proceedings in the diary which is referred to as Case Diary has to insert such statement so recorded under Section 161 of Cr.P.C., in the Case Diary itself. That apart, diary so maintained by Investigating Officer has to be mandatorily paginated.
22. It would be appropriate to note the judgment of Hon'ble Apex Court in the case of SHRI BHAGWANT SINGH, VS. COMMISSIONER OF POLICE, DELHI, reported in MANU/SC/0089/1983 : 1983 CRI. L.J. 1081, wherein Hon'ble Apex Court has considered purport and intent of Case Diary vis-à-vis Section 172 of Cr.P.C. (unamended) and has observed to the following effect:
"17. The other inference which disturbs us is that the entries in the police Case Diary (set forth in the annexure to the counter-affidavit on the record) do not appear to have been entered with the scrupulous completeness and efficiency which the law requires of such a document. The haphazard maintenance of a document of that status not only does no credit to those responsible for maintaining it but defeats the very purpose for which it is required to maintained. We think it to be of the utmost importance that the entries in a police Case Diary should be made with promptness, in sufficient detail, mentioning all significant facts, in careful chronological order and with complete objectivity."
(emphasis supplied by me)
23. Thus, it can be inferred from the above discussion that when sub-sections (1A) and (1B) of Section 172 of Cr.P.C., are read in conjunction with sub-section (1) of Section 172 of Cr.P.C., the only irresistible conclusion which can be drawn is that to ensure that investigation is not lacksidal and would go on with mathematical precision so as to apprehend the accused persons and to ensure that investigation so conducted would reach its logical end and to achieve this, Case Diary has to be maintained by the Investigating Officer as indicated in Section 172 and it would protect the innocent persons being made gullible victims of unwarranted arrest or being taken into custody without referring to such arrest in the Case Diary. Hence, Legislature having considered the recommendation of Law Commission has inserted sub-sections (1A) and (1B) to Section 172 of Cr.P.C., by Act 5 of 2009 and at the cost of repetition, it has to be noticed that Case Diary referred to in sub-section (1) should not only be in volume but also should be paginated.
24. Learned High Court Government Pleader in the instant case has not been able to demonstrate before this Court that the Case Diary in the instant case has been in volume and paginated. Undisputedly, Case Diary produced in the instant case is neither in volume nor paginated and this would lead to suspicion with regard to investigation.
25. At this juncture itself, it would be apt and appropriate to refer to 'Case Diary' as referred to in 'Karnataka Police Manual'. Chapter XXXIV, Para 1368 to 1373 of Manual refers to Case Diary as prescribed under Section 172 of Cr.P.C. and it reads as under:
CASE DIARY"1368. (i) Section 172 of the Code of Criminal Procedure requires that every Police Officer making an investigation should enter day by day 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.
(ii) Statements of witnesses examined by the police during investigation should be recorded in Form No. 137 and should be attached to the case diary for the day.
(iii) The case diary proper, which should contain the details mentioned in Sub-Order (i), should be written in Form No. 138.
(iv) There will be a docket sheet in Form No. 139 for each case file.
1369. As provided in Order 1264 copies of statements of witnesses proposed to be examined during an inquiry or trial should be made available to the accused before the inquiry or trial commences. The case diary proper may be used by the court in inquiries or trials, not as evidence but to aid such inquiry or trial. Neither the accused nor his agents shall be entitled to call for such diaries nor are they entitled to see them merely because they are referred to by the court; but, if they are used by the Police Officer who wrote them to refresh his memory or if the court uses them for the purpose of contradicting the Police Officer, then the provisions of Section 161 or 145 of the Indian Evidence Act, as the case may be, shall apply.
1370. The following instructions shall be observed in writing case diaries:-
(i) Every case diary should contain the following information:1371. After completion of the investigation, the Investigating Officer shall record in the concluding diary, a brief summary and the reasons which have guided his final decision in the case. If he considers that there is no case, his reasons will, of course, be fuller, than if he sends the case for trial. A copy of the charge sheet and the final report, as the case may be, will be attached to such concluding diary. A copy of such concluding case diary together with a copy of the charge sheet or final report, as the case may be, should be sent in all cases to the Superintendent through the Inspector and the Sub-Divisional Police Officer. The PI SHO will submit to the Superintendent of Police through the SDPO.
a) date and hour of taking action.(ii) The first case diary should commence with a brief summary of the First information Report, the time of receipt of the complaint, delay, if any, in starting for the scene, the time of departure for and arrival at the scene, and description and plan of the scene.
b) date of report of the case;
c) name of the complainant or informant;
d) names of accused known, if any;
e) property lost;
f) property recovered;
g) date and last page of the previous case diary, if the case diary is not the very first one;
h) name of the deceased, if any, and
i) names of witnesses examined.
(iii) In it will also be noted the place or places visited by the Investigating Officer, a statement of circumstances ascertained through the investigation and the date and hour of closing the investigation. Every step taken by the Investigating Officer should be mentioned as concisely as possible. Every clue obtained, even if at the time it appears likely to be of no value, houses searched with reasons for the search and the names of witnesses to the search, property recovered, its description and place where it was found, arrests, information obtained which is likely to prove of value, and methods adopted by the culprits are among the things to be mentioned in the case diary. The Investigating Officer shall separately record in Form No. 137, the statements of persons examined by him and attach them to the case diary.
(iv) In addition to copies of statements of persons recorded in Form No. 137, copies of Panchanamas and sketches of scenes of offences will be attached to the case diary.
(v) The case diary shall be invariably written up embodying the investigation done on each day. Statements of witnesses should be reduced to writing on the spot in Form No. 137. If it is not possible to reduce to writing the statement of a witness on the spot, it should be taken down in the Investigating Officer's notebook, and transcribed in the prescribed form as soon as possible on the same day the witness is examined. If, for any unavoidable reason, notes have to be taken on separate sheets of paper, these should not be destroyed after the case diary is written but preserved in the case file.
(vi) Case diaries and statements of witnesses will be written by carbon process, one copy being filed in the Police Station and the other sent to the Circle Inspector who will forward it to the Sub-Divisional Police Officer with his remarks, if any. Where case diaries are required to be forwarded to the Superintendent, an extra copy of the case diary and the statements of witnesses will be made. The Sub-Divisional Police Officer will dispose them off according to orders. Where the SHO is a Police Inspector he will forward the diaries to the Sub Divisional Police Officer and the Superintendent of Police.
(vii) The names of informers need not be entered in the diary and no court can compel an Investigating Officer to disclose the name of an informer.
(viii)(a) When a case is transferred from one Investigating Officer to another, the officer taking over the investigation shall take charge of the diary, noting therein the date of assuming charge of the investigation of the case.
(b)(i) The question, whether it is necessary to re-examine the witnesses already examined and record their statements when a subsequent investigation is taken up by another officer, is often raised. Ordinarily, such further investigation is taken up in the following instances:
(A) When a case was first investigated by a Head Constable or a Sub-Inspector and is later taken up by his superior, i.e., the Sub-Inspector or the Inspector;(ii) In such cases, mentioned at (A) and (B) above, it is incumbent on the succeeding Investigating Officer to re-examine all the important witnesses already examined, as the object of an investigation into a case is to ascertain the facts and circumstances. But, as regards the recording of their statements, law does not require the Investigating Officers to reduce such statements into writing. It is enough if the second Investigating Officer, re-examines witnesses with reference to their previous statements already on record and certifies to their correctness of the previous statements. If any additional facts are spoken to by any witness, the second Investigating Officer will have to record those facts and note such other facts as may be necessary in clarification of the facts and omissions in the statement already recorded. However, in a case where the statement recorded by the first Investigating Officer is bare of essential details or has omissions or defects, it is advisable for the second Investigating Officer to record the statement once again in detail.
(B) When an Investigating Officer is transferred in the middle of the investigation of a case and the case is taken up by his successor; and
(C) When a case is reinvestigated by the Corps of Detectives, C.I.D.
(iii) In a case taken up by the C.O.D., the Investigating Officer of the C.O.D. is expected to re-investigate the entire case and not to continue the investigation already done by the local Police Officer. To that end, it is necessary that he should not only re-examine the witnesses but also record their statements in full. The fact that the recording of such statements may lead to multiplicity of contradictions and deviation in the statements of witnesses and may cause inconvenience to the police in furnishing copies to the accused cannot be a valid and lawful ground for evading it.
(iv) Those who, under the orders of the Investigating Officer, assist him by making any enquiries they are directed to make, do not thereby become Investigating Officers under Chapter XII of the Cr.P.C. Therefore, it is not necessary for them to write case diaries under Section 172 Cr.P.C. The result of any enquiries such officers make or action they take, pursuant to the orders or instructions of the Investigating Officer, will be communicated by the former to the latter by means of a special report. Head Constables and Constables will also make necessary entries in their notebooks. The Investigating Officer shall embody the gist of such special reports in his case diary under Sections 172 Cr.P.C.
(v) In investigation under Section 174 Cr.P.C. relating to suicide and accidental deaths, statements of witnesses examined during the investigation will be recorded separately and attached to the investigation report. No case diary need be written incorporating the statements of witnesses. But, if any important witness is examined subsequent to the investigation, a brief case diary should be written giving therein the reasons for not examining the witness during the investigation and other cognate details, and the statement of the witness recorded separately should be attached to the case diary. However, in a case where it has not been clearly established that it is a suicidal or accidental death, though the panchayatdars at the investigation have so opined, a case diary should be written discussing the evidence let in during the investigation and the arguments for treating the case as an accidental or a suicidal death. When a Head Constable holds an investigation, the Sub-Inspector should subsequently verify the investigation and such verification and the result thereof should be embodied by the Sub-Inspector in a case diary. A case diary should also be written embodying the results of the post-mortem examination, if one is conducted on the same day the post-mortem report is received.
(vi) Applications for remands should be made on the case diary form mentioning the grounds justifying the remand applied for and should be accompanied by a copy of the entries made in the case diary, up to the stage the accused is sent for remand.
(vii) case diary forms should be used for applying to Magistrates for warrants of arrest or search, proclamations and other orders connected with investigation and for forwarding search lists provided these communications refer to registered cases. Other-wise, the memorandum form will be used.
(viii) Case diaries should also be written in cases which have been referred by a Magistrate to the police for investigation under Section 202 of the Code of Criminal Procedure and in all non-cognizable cases which are required to be investigated by an order of a Magistrate under Sub-Section (2) of Section 165 of the Code of Criminal Procedure.
1372. In order to show the progress of trials in courts, court case diaries shall be written in Form No. 140, reporting hearings and adjournments, the witnesses examined on each hearing, how each of them fared, and other matters of interest, if any.
1373. As and when a case is decided by the court, court case diaries in Form No. 141 shall be written. A copy of such court case diary in all cases should also be sent to the Superintendent through the Inspector and Sub Divisional Police Officer. The PI SHO will submit to the SP through the SDPO."
Hence, to allay such apprehension or to ensure that guilty persons are not let off the hook, it would be necessary and incumbent upon State to specify in the Police Manual itself as to purpose and intent of sub-sections (1A) and (1B) of Section 172 of Cr.P.C., namely, statement of witnesses recorded during the course of investigation under Section 161 shall be inserted in the Case Diary and such Case Diary should be in volume and it should be paginated. Till such steps are taken by the State prescribing the manner and method in which Case Diaries are to be maintained, rigour of Section (1B) of Section 172 of Cr.P.C. would be lost when the language of Section 172 is clear, explicit and unambiguous, every Investigating Officer is required to maintain the Case Diary in volume with pagination as prescribed thereunder.
IN THE HIGH COURT OF KARNATAKA (KALABURAGI BENCH)
Criminal Petition No. 8747/2015
Decided On: 03.02.2016
IrfanVs.State of Karnataka
Hon'ble Judges/Coram:Aravind Kumar, J.
Citation: 2016 CRLJ(NOC)328 KAR
