Whether magistrate can remand accused to custody even though investigating officer has not produced case diary?

 However, the submission made by the applicants that the learned Magistrate has committed an error in granting remand and ordering detention of the applicants from the beginning, as at no time the extracts of the case diary regarding investigation were submitted before the Magistrate, deserves to be accepted. The Magistrate before passing the order of detention or remand has to get himself satisfied regarding adequacy of grounds for the said purpose. This cannot be from what is stated in the application i.e. whether the investigation is complete or certain accused are to be arrested. He has to get himself satisfied from the case diary which is required to be maintained under section 172(1) by the Investigating Officer. It is obligatory upon every Investigating Officer to maintain the said diary which contains various details regarding the progress of the investigation. It is a chart or graph of the investigation which is carried out by the said officer as day to day progress of the investigation is required to be recorded in it. The said extract of the diary must be produced before the Magistrate when any remand or detention of the accused is claimed. The Magistrate must look into the same and get himself satisfied regarding adequacy of the grounds and pass necessary order. Without the extracts of the said diary of investigation or case papers, it is not possible for the Magistrate to find out the adequacy of grounds and to get himself satisfied. The Magistrate must indicate, however succinctly it may be, his satisfaction for detention or remand of the accused. Since the order passed by the learned Magistrate is having the effect of taking away the liberty of a person, which is a fundamental right guaranteed to every citizen under the Constitution of India, it must be scrupulously followed.

8. The learned advocate for the applicants cited MANU/GH/0013/1963, R. K. Nabachandra Singh v. Manipur Administration. It dealt with Section 167 of the Code of Criminal Procedure, 1898. Same provision is to be found in the Code of Criminal Procedure, 1973, as Section 167 (with some modifications). It is observed - (at page 312 (of Cri LJ)

"...... if the police do not transmit to the Court a copy of the entries in the diary relating to the case, to satisfy the Magistrate that there are grounds for believing that the accusation or information is well-founded, and that a remand is absolutely necessary for the purpose of investigation, the Magistrate has no jurisdiction to direct the detention of the arrested person."

Similarly, in MANU/AP/0154/1955 : AIR 1957 AP 561, In re B. J. Reddi the Division Bench considered the effect of Section 167 of the Code of Criminal Procedure, 1898. It came to be observed as follows : at page 1065 (of Cri LJ)

"It is manifest that the provision relating to the transmission of a copy of the entries in the diary prescribed in S. 172 is mandatory and therefore imperative that every one of the officers answering the description in the section should send along with the remand report a copy of the case-diary which he is bound to keep under S. 172, Criminal Procedure Code. The object of enacting this section is that the entries in the diary afford to the Magistrate information upon which he can decide whether or not the detention of the accused person in custody should be authorised and also to enable him to form an opinion as to whether any further detention is necessary.

In the absence of the entries referred to in that section, it is difficult for the Magistrate to decide whether either the detention was authorised or the further detention is necessary. By not complying with the first requirement, the investigating officer render that part of the section which requires the transmission of entries in the case diary otiose. It is really astounding that a Police Officer should offer the explanation that it is not usual to send copies of case-diary in spite of an obligation cast on them by the section.

We are unable to understand how the Magistrate are able to act on the remand reports without the entries. These are very relevant in considering whether a further remand should be granted or not. We hope that the Magistrate acting under S. 167 would insist upon the mandatory provisions of the section being complied with."

IN THE HIGH COURT OF BOMBAY AT NAGPUR

Criminal Revision Application No. 61 of 1993

Decided On: 17.06.1993

Shrawan Waman Nade  Vs.  The State of Maharashtra

Hon'ble Judges/Coram:

P.S. Patankar, J.

Citations: 1994 (2) BomCR 668, 1994 CriLJ 780, 1994 (1) MhLj 220,MANU/MH/0144/1993

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Whether accused can cross examine police officer on basis of pages of case diary obtained under right to information Act?

Since in the matter on hand, neither the police
officer has refreshed his memory with reference to entries
in the police diary nor has the trial court used the entries
in the diary for the purposes of contradicting the police
officer (PW-15), it is not open for the accused to produce
certain pages of police diary obtained by him under the
provisions of Right to Information Act for the purpose of
contradicting the police officer.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO 694 OF 2017
(Arising out of SLP (Crl.) No. 9314 of 2016)
Balakram V State of Uttarakhand & Ors

MOHAN M. SHANTANAGOUDAR, J.
Dated: April 19, 2017.
Citation:(2017)7 SCC 668

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Whether entire police case diary can be made available to accused?

Lastly, we may point out that in the present case, we have noticed that the entire case diary maintained by the police was made available to the accused. Under Section 172 of the Criminal Procedure Code, every police officer making an investigation has to record his proceedings 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. It is specifically provided in Sub-clause (3) of Section 172 that 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 of the Cr.P.C. or the provisions of section 145 of the Evidence Act shall be complied with. The Court is empowered to call for such diaries not to use it as evidence but to use it as aid to find out anything that happened during the investigation of the crime. These provisions have been incorporated in the Code of Criminal Procedure to achieve certain specific objectives. The police officer who is conducting the investigation may come across series of information which cannot be divulged to the accused. He is bound to record such facts in the case diary. But if the entire case diary is made available to the accused, it may cause serious prejudice to others and even affect the safety and security of those who may have given statements to the police. The confidentiality is always kept in the matter of criminal investigation and it is not desirable to make available the entire case diary to the accused. In the instant case, we have noticed that the entire case diary was given to the accused and the investigating officer was extensively cross-examined on many facts which were not very much relevant for the purpose of the case. The learned Sessions Judge should have been careful in seeing that the trial of the case was conducted in accordance with the provisions of the Cr. P.C.

Supreme Court of India

Sidharth, Etc. Etc vs State Of Bihar on 30 September, 2005

Bench: K.G. Balakrishnan, B.N. Srikrishna

Citation:AIR 2005 SC 4352  

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Whether police statement of witness recorded in one case can be used in other case?

Further, in State of Kerala V Babu (1999 (4) SCC 621),

  the Apex Court was confronted with the question as to

  whether the statement of a witness recorded under S.161

  of Cr.P.C. in one particular crime could be used against

  that witness in any other trial enquiry or proceedings by

  the accused.



               11. "The High Court in the impugned
                judgment proceeded on the basis that
                statement recorded by an investigating
                officer in any case which was under
                investigation being a statement made
                under S, 161 of the Code, the same can be
                used for the limited purpose provided under
                S.162 of the Code read with S.145 of the
                Evidence Act. There can be no quarrel with
                this approach of the High Court in regard to
                the use of the previous statements of a
                witness made in the course of another
                investigation being used in the course of
                another criminal trial, This is because, as
                seen from the observations of this Court in
                the case of Tahsildar Singh (supra) the


                very object of enactment of S.161 of the
                Code and S.145 of the Evidence Act is to
                create a right in the accused to make use
                of the previous statements of the witnesses
                for the purpose of contradiction and for
                impeaching the merit of the witness. This
                right has not been taken away by S.172 of
                the Code and, as noticed above, there is no
                prohibition in regard to this right of the
                accused either under the Code or under the
                Evidence Act.


        


               13............................. 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 S.91 of the Code de
                hors the provisions of S.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 S.91(1) of the
                Code then the restrictions imposed under
                Sub-s.(1) and (3) of S.172 would not apply
                to the use of such case diary but we hasten
                to  add     that     while     using   a  previous
                statement recorded in the said diary, the
                court should bear in mind the restrictions
                imposed under S.162 of the Code and
                S.145 of the Evidence Act because what is
                sought to be used from the case diary so
                produced, are the previous statements
                recorded under S.161 of the Code.
                                                    ( Emphasis supplied )



16.Having regard to the above binding precedents there

  cannot be any doubt that S.162 of the Code does not

  prohibit the use of the 161 statement of any witness in

  any other proceeding other than the inquiry or trial in

  respect of the offence for which the investigation was

  conducted. However the Apex Court has cautioned that

  the court should bear in mind the restrictions imposed

  under S.162 of the Code and S.145 of the Evidence Act

  because what is sought to be used from the case diary so

  produced, are the previous statements recorded under

  S.161 of the Code. In view of the above, I am of the view

  that the reasons on the basis of which the application was

  dismissed by the Court below cannot be sustained.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                     PRESENT:

                 MR. JUSTICE RAJA VIJAYARAGHAVAN V

            26TH DAY OF OCTOBER 2016
                      Crl.MC.No. 6611 of 2016 

       SANTHOSH KUMAR Vs STATE OF KERALA,
                

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Leading Judgment on maintenance of case diary during police investigation

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:

a) date and hour of taking action.
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.

(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.
(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;
(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.

(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.
(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.

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.
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

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Leading Supreme court Judgment No. 3 on grant on anticipatory bail

 Another case to which we would like to refer is the judgment of a

Division Bench of this Court in the case of Siddharam

Satlingappa Mhetre v. State of Maharashtra and Others (2011) 1 SCC 694

. This case lays down an exhaustive commentary of 

Section 438 of the

Code covering, in an erudite fashion, almost all the aspects and in

the process relies upon the aforesaid Constitution Bench

judgment in Gurbaksh Singh's case. In the very first para, the

Court highlighted the conflicting interests which are to be

balanced while taking a decision as to whether bail is to be

granted or not, as is clear from the following observations:

“1. Leave granted. This appeal involves issues

of great public importance pertaining to the

importance of individual's personal liberty and

the society's interest. Society has a vital interest

in grant or refusal of bail because every criminal

offence is the offence against the State. The

order granting or refusing bail must reflect

perfect balance between the conflicting interests,

namely, sanctity of individual liberty and the

interest of the society. The law of bails dovetails

two conflicting interests, namely, on the one

hand, the requirements of shielding society from

the hazards of those committing crimes and

potentiality of repeating the same crime while on

bail and on the other hand, absolute adherence

to the fundamental principle of criminal

jurisprudence regarding presumption of

innocence of an accused until he is found guilty

and the sanctity of individual liberty.”

23. The principles which can be culled out, for the purposes of the

instant case, can be stated as under:

(i) The complaint filed against the accused needs to be thoroughly

examined, including the aspect whether the complainant has filed

a false or frivolous complaint on earlier occasion. The court

should also examine the fact whether there is any family dispute

between the accused and the complainant and the complainant

must be clearly told that if the complaint is found to be false or

frivolous, then strict action will be taken against him in

accordance with law. If the connivance between the complainant

and the investigating officer is established then action be taken

against the investigating officer in accordance with law.

(ii) The gravity of charge and the exact role of the accused must be

properly comprehended. Before arrest, the arresting officer must

record the valid reasons which have led to the arrest of the

accused in the case diary. In exceptional cases, the reasons

could be recorded immediately after the arrest, so that while

dealing with the bail application, the remarks and observations of

the arresting officer can also be properly evaluated by the court.

(iii) It is imperative for the courts to carefully and with meticulous

precision evaluate the facts of the case. The discretion to grant

bail must be exercised on the basis of the available material and

the facts of the particular case. In cases where the court is of the

considered view that the accused has joined the investigation and

he is fully cooperating with the investigating agency and is not

likely to abscond, in that event, custodial interrogation should be

avoided. A great ignominy, humiliation and disgrace is attached

to arrest. Arrest leads to many serious consequences not only for

the accused but for the entire family and at times for the entire

community. Most people do not make any distinction between

arrest at a pre-conviction stage or post-conviction stage.

(iv) There is no justification for reading into Section 438 CrPC the

limitations mentioned in Section 437 CrPC. The plentitude of

Section 438 must be given its full play. There is no requirement

that the accused must make out a “special case” for the exercise

of the power to grant anticipatory bail. This virtually, reduces the

salutary power conferred by Section 438 CrPC to a dead letter. A

person seeking anticipatory bail is still a free man entitled to the

presumption of innocence. He is willing to submit to restraints

and conditions on his freedom, by the acceptance of conditions

which the court may deem fit to impose, in consideration of the

assurance that if arrested, he shall be enlarged on bail.

(v) The proper course of action on an application for anticipatory bail

ought to be that after evaluating the averments and accusations

available on the record if the court is inclined to grant anticipatory

bail then an interim bail be granted and notice be issued to the

Public Prosecutor. After hearing the Public Prosecutor the court

may either reject the anticipatory bail application or confirm the

initial order of granting bail. The court would certainly be entitled

to impose conditions for the grant of anticipatory bail. The Public

Prosecutor or the complainant would be at liberty to move the

same court for cancellation or modifying the conditions of

anticipatory bail at any time if liberty granted by the court is

misused. The anticipatory bail granted by the court should

ordinarily be continued till the trial of the case.

(vi) It is a settled legal position that the court which grants the bail

also has the power to cancel it. The discretion of grant or

cancellation of bail can be exercised either at the instance of the

accused, the Public Prosecutor or the complainant, on finding

new material or circumstances at any point of time.

(vii) In pursuance of the order of the Court of Session or the High

Court, once the accused is released on anticipatory bail by the

trial court, then it would be unreasonable to compel the accused

to surrender before the trial court and again apply for regular bail.

(viii) Discretion vested in the court in all matters should be exercised

with care and circumspection depending upon the facts and

circumstances justifying its exercise. Similarly, the discretion

vested with the court under Section 438 CrPC should also be

exercised with caution and prudence. It is unnecessary to travel

beyond it and subject the wide power and discretion conferred by

the legislature to a rigorous code of self-imposed limitations.

(ix) No inflexible guidelines or straitjacket formula can be provided for

grant or refusal of anticipatory bail because all circumstances and

situations of future cannot be clearly visualised for the grant or

refusal of anticipatory bail. In consonance with legislative

intention, the grant or refusal of anticipatory bail should

necessarily depend on the facts and circumstances of each case.

(x) We shall also reproduce para 112 of the judgment wherein the

Court delineated the following factors and parameters that need

to be taken into consideration while dealing with anticipatory bail:

(a) The nature and gravity of the accusation and the exact role of the

accused must be properly comprehended before arrest is made;

(b) The antecedents of the applicant including the fact as to whether

the accused has previously undergone imprisonment on

conviction by a court in respect of any cognizable offence;

(c) The possibility of the applicant to flee from justice;

(d) The possibility of the accused's likelihood to repeat similar or

other offences;

(e) Where the accusations have been made only with the object of

injuring or humiliating the applicant by arresting him or her;

(f) Impact of grant of anticipatory bail particularly in cases of large

magnitude affecting a very large number of people;

(g) The courts must evaluate the entire available material against the

accused very carefully. The court must also clearly comprehend

the exact role of the accused in the case. The cases in which the

accused is implicated with the help of Sections 34 and 149 of the

Penal Code, 1860 the court should consider with even greater

care and caution, because overimplication in the cases is a

matter of common knowledge and concern;

(h) While considering the prayer for grant of anticipatory bail, a

balance has to be struck between two factors, namely, no

prejudice should be caused to free, fair and full investigation, and

there should be prevention of harassment, humiliation and

unjustified detention of the accused;

(i) The Court should consider reasonable apprehension of tampering

of the witness or apprehension of threat to the complainant;

(j) Frivolity in prosecution should always be considered and it is only

the element of genuineness that shall have to be considered in

the matter of grant of bail and in the event of there being some

doubt as to the genuineness of the prosecution, in the normal

course of events, the accused in entitled to an order of bail.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1134-1135 OF 2015

BHADRESH BIPINBHAI SHETH V STATE OF GUJARAT & ANOTHER 

Hon'ble Judges/Coram:
A.K. Sikri and Rohinton Fali Nariman, JJ.

Citation;(2016)1 SCC152

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Whether case diary can be called in civil proceeding or proceeding under article 32 and article 226 of constitution?

The bar under
Sub-section (2) to Section 172 Cr.P.C. is a limited bar and does not
apply to civil proceedings or proceedings under Articles 32 and 226 of
the Constitution of India, particularly when the party calling for thecase diary is neither an accused nor an agent. Rejecting the contention
that the principle behind Section 172 Cr.P.C. is to exclude the report of
investigation altogether in other proceedings for it would jeopardize 
secrecy of investigation, the Supreme Court affirmatively observed that
for truth to emerge, all relevant facts to the inquiry must be brought
before the court and nothing should be shut out, otherwise the opinion
formed may be distorted or incomplete, which might result in injustice. A
judgment should not be founded on partial or speculative presentation of
facts as it would affect the integrity of the judicial system and public
confidence. In exceptional cases, where weighty and compelling
competing interest requires withholding or secrecy, legislature has
provided for exceptions but the exclusion should be strictly interpreted

and not expansively construed.

IN THE HIGH COURT OF DELHI AT NEW DELHI
 CRIMINAL APPEAL NO. 485/2012
 Date of Decision:11th February, 2016
LAXMI @ LACCHO AND ANOTHER 
Versus
STATE NCT OF DELHI 
CORAM:
HON’BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE R.K. GAUBA

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What is importance of Case diary in criminal investigation?

Section 172 Cr.P.C. mandates writing and maintenance of the case diary.
Sub-section (1) stipulates that police officer making investigation shall, on
each day, enter proceedings relating to investigation in the diary including
the time at which he began and closed his investigation, the place or
places visited by him and a statement of circumstances ascertained during 
his investigation, i.e. record of the proceedings. There were judgments
that hold that `record of proceedings' would not include statements
recorded under Section 161 Cr.P.C., for the reason that the said statements
are not protected, whereas the case diaries are made available to the
accused only when pre-conditions are satisfied. (See page 813 of Sarkar's
Code of Criminal Procedure, Tenth edition, 2012). Amendment made by
the Code of Criminal Procedure (Amendment) Act, 2008, w.e.f. 31st
December, 2009, inserting Sub-section (1A), therefore, assumes
significance. The Sub-section mandates that statement of witnesses
recorded during the course of investigation under Section 161 Cr.P.C.
shall be inserted in the case diary. The said Sub-section has to be read
along with Sub-section (1B) which mandates that the case diary would be
a volume and duly paginated. The phrase, "shall be a volume and duly
paginated" ensures sanctity and purity of the case diary. The word,
'inserted' used in Sub-section (1A) does not refer to physical insertion by
placing copies of the statements recorded under Section 161 Cr.P.C. in the
case diary. The expression 'inserted' mandates incorporation of the
statement itself in the case diary, rather than a mere mention that a
statement under Section 161 Cr.P.C. of a particular person has been
recorded. What the person had stated and alluded to in his statement under
Section 161 Cr.P.C. must be inserted and recorded in the case diary itself.
The case diary has to be a volume and paginated, and cannot be a loose leaf
diary from which papers can be removed, changed or interpolated.
This is the unambiguous legislative mandate of Sub-section (1B). The
aforesaid legislative amendments, w.e.f. 31' December, 2009, reveal the
importance and relevance of the case diary as they assure solemnity and
inviolability of the record as to the manner in which the investigation was
conducted. The court can ascertain that the case as projected is true and
false or misleading statements are not made. It reflects the line of 
investigation. In Bhagwant Singh versus Commr. of Police (1983) 3 SCC
344, importance of recording entries in the case diary with promptness
and sufficient details mentioning of relevant facts in chronological order
with complete objectivity is highlighted. In Khatri & Ors. versus State of
Bihar (1981) 2 SCC 493), the following passage from Queen Empress
versus Mannu ILR (1897) 19 All 390 was quoted:
"The early stages of the investigation which follows on the
commission of a crime must necessarily in the vast majority of
cases be left to the police, and until the honest, the capacity, the
discretion and the judgment of the police can be thoroughly
trusted, it is necessary, for the protection of the public against
criminals, for the vindication of the law and for the protection
of those who are charged with having committed a criminal
offence that the magistrate or judge before whom the case is for
investigation or for trial should have the means of ascertaining
what was the information, true, false, or misleading which was
obtained from day to day by the police officer who was
investigating the case and what such police officer acted."
14. In Khatri (supra), the Supreme Court has observed that the case diary
cannot be used as evidence, but is an aid in the trial or inquiry. This is
for the reason because the case diary can be referred to by the Court
but the accused or his agents are not entitled to call for such diary and
are not entitled to see it except when the case diary is used by the
police officer to refresh is memory or the court uses it for
contradicting a police officer in the trial or inquiry, and provisions of
Section 145 or 161 of the Indian Evidence Act apply. The bar under
Sub-section (2) to Section 172 Cr.P.C. is a limited bar and does not
apply to civil proceedings or proceedings under Articles 32 and 226 of
the Constitution of India, particularly when the party calling for the
case diary is neither an accused nor an agent. Rejecting the contention
that the principle behind Section 172 Cr.P.C. is to exclude the report of
investigation altogether in other proceedings for it would jeopardize
secrecy of investigation, the Supreme Court affirmatively observed that
for truth to emerge, all relevant facts to the inquiry must be brought
before the court and nothing should be shut out, otherwise the opinion
formed may be distorted or incomplete, which might result in injustice. A
judgment should not be founded on partial or speculative presentation of
facts as it would affect the integrity of the judicial system and public
confidence. In exceptional cases, where weighty and compelling
competing interest requires withholding or secrecy, legislature has
provided for exceptions but the exclusion should be strictly interpreted
and not expansively construed.


IN THE HIGH COURT OF DELHI AT NEW DELHI
 CRIMINAL APPEAL NO. 485/2012
 Date of Decision:11th February, 2016
LAXMI @ LACCHO AND ANOTHER 
V
STATE NCT OF DELHI 
CORAM:
HON’BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE R.K. GAUBA

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Landmark Judgment on use of Case diary maintained by investigating officer during criminal trial

The investigating officer plays a very pivotal role in
the dispensation of criminal justice and error in the investigation
may result in miscarriage of justice. The police officers have
been given great latitude under Code of Criminal Procedure to
exercise their power to make a successful investigation. They
have been given free liberty to collect necessary evidence in
order to assist the Court to arrive at a just decision of the case.
The duty of the investigating officer is to ascertain the correct
set of facts and present truth before the Court of law. It is
equally the responsibility of the investigating officer while
deposing in Court, to the questions put by either the public
prosecutor or the defence counsel or even by the Court, to make
correct statement with reference to the case diary. A misleading
statement or a false statement by the investigating officer just
out of sheer over anxiety for the success of the prosecution is 
unwarranted and it is not only playing fraud on the temple of
justice but would also be detrimental to the interest of justice.
We are conscious of our power of use of the case
diary. There is no dearth of power on the part of a Criminal Court
to call for and use the case diary in the aid of an enquiry or trial.
Court can certainly peruse the case diary if any doubt creeps in
regarding the sanctity of the investigation or bonafide conduct of
investigating officer in investigating the case. However it does
not give unfettered power to place reliance on the case diary as
a piece of evidence directly or indirectly.
In case of Khatri and Ors. -Vs.- State of Bihar
and Ors. reported in AIR 1981 SC 1068, it is held as
follows:-
“5……The Criminal Court holding an inquiry or
trial of a case is therefore empowered by subsection
(2) of Section 172 to send for the police
diary of the case and the Criminal Court can use
such diary, not as evidence in the case, but to
aid it in such inquiry or trial. But, by reason of
sub-section (3) of Section 172, merely because
the case diary is referred to by the criminal
Court, neither the accused nor his agents are
entitled to call for such diary nor are they
entitled to see it. If however the case diary is
used by the police officer who has made it to
refresh his memory or if the Criminal Court uses
it for the purpose of contradicting such police
officer in the inquiry or trial, the provisions of
Section 161 of the Code or Section 145, as the
case may be, of the Indian Evidence Act would 17
apply and the accused would be entitled to see
the particular entry in the case diary which has
been referred to for either of these purposes and
so much of the diary as in the opinion of the
Court is necessary to a full understanding of the
particular entry so used. It will thus be seen that
the bar against production and use of case diary
enacted in Section 172 is intended to operate
only in an inquiry or trial for an offence and even
this bar is a limited bar, because in an inquiry or
trial, the bar does not operate if the case diary is
used by the police officer for refreshing his
memory or the Criminal Court uses it for the
purpose of contradicting such police officer.”
In case of Mukund Lal -Vs.- Union of India (UOI)
reported in AIR 1989 SC 144, it is held as follows:-
“3……Under Sub-section (2) of Section 172
Cr.P.C. the Court itself has the unfettered power
to examine the entries in the diaries. This is a
very important safeguard. The Legislature has
reposed complete trust in the Court which is
conducting the inquiry or the trial. It has
empowered the Court to call for any such
relevant case diary, if there is any inconsistency
or contradiction arising in the context of the case
dairy, the Court can use the entries for the
purpose of contradicting the Police Officer as
provided in Sub-section (3) of Section 172 of the
Cr.P.C. Ultimately there can be no better
custodian or guardian of the interest of justice
than the Court trying the case. No Court will
deny to itself the power to make use of the
entries in the diary to the advantage of the
accused by contradicting the police officer with
reference to the contents of the diaries.”18
In case of Md. Ankoos -Vs.- The Public
Prosecutor reported in AIR 2010 SC 566, it is held as
follows:-
“24. A Criminal Court can use the case diary in
the aid of any inquiry or trial but not as an
evidence.This position is made clear by Section
172(2) of the Code. Section 172(3) places
restrictions upon the use of case diary by
providing that accused has no right to call for
the case diary but if it is used by the police
officer who made the entries for refreshing his
memory or if the Court uses it for the purpose of
contradicting such police officer, it will be so
done in the manner provided in Section 161 of
the Code and Section 145 of the Evidence Act.
Court's power to consider the case diary is not
unfettered. In light of the inhibitions contained
in Section 172(2), it is not open to the Court to
place reliance on the case diary as a piece of
evidence directly or indirectly.”
In Sidharth and Ors. -Vrs.- State of Bihar 2005
Criminal Law Journal 4499, it was held as follows:
“27. Lastly, we may point out that in the present
case, we have noticed that the entire case diary
maintained by the police was made available to
the accused. Under Section 172 of the Criminal
Procedure Code, every police officer making an
investigation has to record his proceedings 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. It is specifically provided in Subclause
(3) of Section 172 that neither the 19
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 of the Cr.P.C. or the provisions of
Section 145 of the Evidence Act shall be
complied with. The Court is empowered to call
for such diaries not to use it as evidence but to
use it as aid to find out anything that happened
during the investigation of the crime. These
provisions have been incorporated in the Code of
Criminal Procedure to achieve certain specific
objectives. The police officer who is conducting
the investigation may come across series of
information which cannot be divulged to the
accused. He is bound to record such facts in the
case diary. But if the entire case diary is made
available to the accused, it may cause serious
prejudice to others and even affect the safety
and security of those who may have given
statements to the police. The confidentiality is
always kept in the matter of criminal
investigation and it is not desirable to make
available the entire case diary to the accused. In
the instant case, we have noticed that the entire
case diary was given to the accused and the
investigating officer was extensively crossexamined
on many facts which were not very
much relevant for the purpose of the case. The
learned Sessions Judge should have been careful
in seeing that the trial of the case was
conducted in accordance with the provisions of
Cr.P.C.”20
In case of Mahabir Singh –Vrs.- State of
Haryana reported in AIR 2001 SC 2503, it is held as
follows:-
“14. A reading of the said sub-sections makes
the position clear that the discretion given to the
Court to use such diaries is only for aiding the
Court to decide on a point. It is made
abundantly clear in Sub-section (2) itself that
the Court is forbidden from using the entries of
such diaries as evidence. What cannot be used
as evidence against the accused cannot be used
in any other manner against him. If the Court
uses the entries in a case diary for contradicting
a police officer, it should be done only in the
manner provided in Section 145 of the Evidence
Act i.e. by giving the author of the statement an
opportunity to explain the contradiction, after his
attention is called to that part of the statement
which is intended to be so used for
contradiction. In other words, the power
conferred on the Court for perusal of the diary
under Section 172 of the Code is not intended
for explaining a contradiction which the defence
has winched to the fore through the channel
permitted by law. The interdict contained in
Section 162 of the Code, debars the Court from
using the power under Section 172 of the Code
for the purpose of explaining the contradiction.”
In case of Malkiat Singh -Vs.- State of Punjab
(1991) 4 SCC 341, it is held as follows:-
“ 11. It is manifest from its bare reading without
subjecting to detailed and critical analysis that
the case diary is only a record of day to day
investigation of the Investigating Officer to 21
ascertain the statement of circumstances
ascertained through the investigation. Under
sub-section (2) the Court is entitled at the trial
or enquiry to use the diary not as evidence in
the case, but as aid to it in the inquiry or trial.
Neither the accused, nor his agent, by operation
of sub-section (3), shall be entitled to call for the
diary, nor shall he be entitled to use it as
evidence merely because the Court referred to
it. Only right given thereunder is that if the
police officer who made the entries in the diary
uses it to refresh his memory or if the Court
uses it for the purpose of contradicting such
witness, by operation of Section 161 of the Code
and Section 145 of the Evidence Act, it shall be
used for the purpose of contradicting the
witness, i.e. Investigation Officer or to explain it
in re-examination by the prosecution, with
permission of the Court. It is, therefore, clear
that unless the investigating officer or the Court
uses it either to refresh the memory or
contradicting the investigating officer as
previous statement under Section 161 that too
after drawing his attention thereto as is enjoined
under Section 145 of the evidence Act, the
entries cannot be used by the accused as
evidence.”
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA NO. 92 Of 2012

 Panda @ Maheswar Sanangi  Vs  State of Orissa 

P R E S E N T:-
 MR. JUSTICE VINOD PRASAD
AND
  MR. JUSTICE S. K. SAHOO
 Date of Judgment- 05.01.2016

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