Shailesh Kumar vs State Of UP 2024 INSC 143 :: [2024] 2 S.C.R. 776 – S 172 CrPC – Case Diary – Ss 145,161,165 Evidence Act

Code Of Criminal Procedure, 1973; Section 172 – Indian Evidence Act, 1872; Section 145,161 – When a police officer uses case diary for refreshing his memory, an accused automatically gets a right to peruse that part of the prior statement as recorded in the police officer’s diary by taking recourse to Section 145 or Section 161, as the case may be, of the Evidence Act -The accused has a right to cross-examine a police officer as to the recording made in the case diary whenever the police officer uses it to refresh his memory. Though Section 161 of the Evidence Act does not restrict itself to a case of refreshing memory by perusing a case diary alone, there is no exclusion for doing so. Similarly, in a case where the court uses a case diary for the purpose of contradicting a police officer, then an accused is entitled to peruse the said statement so recorded which is relevant, and cross-examine the police officer on that count. What is relevant in such a case is the process of using it for the purpose of contradiction and not the conclusion. To make the position clear, though Section 145 read with Section 161 of the Evidence Act deals with the right of a party including an accused, such a right is limited and restrictive when it is applied to Section 172 of CrPC. Suffice it is to state, that the said right cannot be declined when the author of a case diary uses it to refresh his memory or the court uses it for the purpose of contradiction – Referred to Balakram v.State of Uttarakhand and Others, (2017) 7 SCC 668 (Para 26,27)

Code Of Criminal Procedure, 1973; Section 172 – It is the responsibility and duty of the Investigating Officer to make a due recording in his case diary, there is no corresponding right under subsection (3) of Section 172 of CrPC for accused to seek production of such diaries, or to peruse them, except in a case where they are used by a police officer maintaining them to refresh his memory, or in a case where the court uses them for the purpose of contradicting the police officer. In such a case, the provision of Section 145 or Section 161, as the case may be, of the Evidence Act, shall apply – An improper maintenance of a case diary by the Investigating Officer will not enure to the benefit of the accused. Prejudice has to be shown and proved by the accused despite non-compliance of Section 172 of CrPC in a given case. However, this does not take away the mandatory duty of the police officer to maintain it properly. As the court is the guardian of truth, it is the duty of the Investigating Officer to satisfy the court when it seeks to contradict him. The right of the accused is, therefore, very restrictive and limited. Bhagwant Singh v. Commissioner of Police, (1983) 3 SCC 344, Baleshwar Mandal v. State of Bihar, (1997) 7 SCC 219, Manoj and Others v. State of Madhya Pradesh, (2023) 2 SCC 353. (Para 22- 25)

Code Of Criminal Procedure, 1973; Section 172 , 154 -Information disclosing commission of a cognizable offence shall first be entered in a book kept by the officer in charge of police station and not in the General Diary. Therefore, it is amply clear that a General Diary entry cannot precede the registration of FIR, except in cases where preliminary inquiry is needed. While an FIR is to be registered on an information disclosing the commission of a cognizable offence, so also a recording is thereafter required to be made in the case diary – Referred to Lalita Kumari v. Government of Uttar Pradesh & Others, (2014) 2 SCC 1 (Para 28)

Indian Evidence Act, 1872; Section 165 -Power of the court to put questions and order production of documents in the course of trial. -This is a general and omnibus power given to the court when in search of the truth. Such a power is to be exercised against any witness before it, both in a civil as well as a criminal case. The object is to discover adequate proof of a relevant fact and, therefore, for that purpose, the Judge is authorised and empowered to ask any question of his choice. When such a power is exercised by the court, there is no corresponding right that can be extended to a party to cross-examine any witness on an answer given in reply to a question put forth by it, except with its leave – Referred to Ram Chander v. State of Haryana, (1981) 3 SCC 191 (Para 29-30)

Criminal Investigation – Role of Investigating Officer – An investigation of a crime is a lawful search of men and materials relevant in reconstructing and recreating the circumstances of an offence said to have been committed. With the evidence in possession, an Investigating Officer shall travel back in time and, therefore tick off the time zone to reach the exact time and date of the occurrence of the incident under investigation. The goal of investigation is to determine the truth which would help the Investigating Officer to form a correct opinion on the culpability of the named accused or suspect. Once such an opinion is formed on a fair assessment of the evidence collected in the investigation, the role of the court comes into play when the evidence i.e. oral, documentary, circumstantial, scientific, electronic, etc. is presented for and on behalf of the prosecution. In its journey towards determining the truth, a court shall 8 play an active role while acknowledging the respective roles meant to be played by the prosecution and the defence. During the entire play, the rules of evidence ought to be honoured, sprinkled with the element of fairness through due procedure. Adequate opportunities would have to be given to challenge every assumption. Administration of criminal justice lies in determining the guilt of the accused beyond reasonable doubt. The power of the State to prosecute an accused commences with investigation, collection of evidence and presentation before the Court for acceptance. 18.The investigating agency, the prosecutor and the defence are expected to lend ample assistance to the court in order to decipher the truth. As the investigating agency is supposed to investigate a crime, its primary duty is to find out the plausible offender through the materials collected. It may or may not be possible for the said agency to collect every material, but it has to form its opinion with the available material. There is no need for such an agency to fix someone as an accused at any cost. It is ultimately for the court to decide who the culprit is. Arvind Kumar @ Nemichand & Ors. v. State of Rajasthan, (2021) 11 SCR 237, Common Cause and Others v. Union of India, (2015) 6 SCC 332. (Para 17-18)

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