# Sheshnath Singh @ Shishu v. State of U.P. & Anr

- **Citation:** (2024) 4 ILRA 639
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-28
- **Case number:** Application U/S 482. No. 11714 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sheshnath-singh-shishu-v-state-of-u-p-anr-50972
- **Pages:** 20

## Headnote

Law
-

Code
of
Criminal
Procedure,1973 -Section 482- Quashing of
Order Closing Prosecution Evidence - The
applicant
challenged
the
order
closing
prosecution evidence without deciding his
application for copies of case documents - Held,
the Trial Judge's failure to address the
application dated 21.11.2022 before closing
evidence
violated
the
applicant's
rights,
warranting quashing of the order. (Paras 1, 10,
29, 32)

B. Section 207 CrPC - Right to Documents -
The applicant, an accused in a murder trial,
sought copies of the case diary, inquest,
postmortem reports, and charge-sheet - Held,
Section 207 mandates furnishing Statements
recorded under Section 161 CrPC to the
accused, and non-compliance prejudiced the
applicant's right to cross-examine witnesses.
(Paras 11, 23, 24, 29)

C. Section 172 CrPC - Limited Access to Case
Diary - The St. argued the accused has no right
to case diary entries under Section 172 - Held,
the prohibition under Section 172(3) applies to
the Investigating Officer's observations, not to
witness Statements under Section 161, which
must be provided under Section 207. (Paras 13,
24, 26, 27)

D. Fair Trial and Natural Justice - The
applicant was denied the opportunity to crossexamine witnesses due to non-availability of
documents - Held, closing prosecution evidence
without providing mandated documents and
deciding the applicant's application infringed the
right to a fair trial, necessitating recall of
witnesses if required. (Paras 9, 10, 29, 32)

E. Judicial Discretion and Case Diary Use -
The applicant relied on precedents allowing
640 INDIAN LAW REPORTS ALLAHABAD SERIES
limited use of case diary entries - Held, courts
may use case diaries under Section 172(2) to
aid trials, and accused may access Section 161
Statements for cross-examination under Sections
145 and 161 of the Evidence Act, subject to legal
restrictions. (Paras 12, 17, 20, 26)

Application Allowed.

List of Cases cited:

## Text

_Characters 0–39,941 of 68,897. This is a partial read: ask again with offset=39941 for what follows._

4 All. Sheshnath Singh @ Shishu Vs. State of U.P. & Anr.
639

(i) Nature of proceeding u/s 12 of
the Domestic Violence Act is a civil
proceeding, and Application u/s 12 of the
Domestic Violence Act is not the complaint
as mentioned u/s 2(d) Cr.P.C., therefore,
proceeding under the Domestic Violence
Act as well as order passed u/s 18, 19, 20,
21, 22 of the Domestic Violence Act are
civil in nature except the violation of
protection order which is punishable u/s 31
of the Domestic Violence Act;

(ii) Issuance of notice u/s 12 of
the Domestic Violence Act is not a
summon as mentioned u/s 61 of Cr.P.C.,
and
while
issuing
such
notice,
the
Magistrate does not take cognizance for
any offence as in the case of complaint
defined
u/s
2(d)
Cr.P.C.
Therefore,
procedure of Sections 200 & 202 Cr.P.C.
does not apply in the proceeding u/s 12 the
Domestic Violence Act.

23. In view of the foregoing
conclusion, the present Application is
dismissed.

24. The Registrar (Compliance) is
directed to circulate a copy of this order to
all the District Judges in the State of Uttar
Pradesh, who in turn will circulate the same
to all the judicial officers who are dealing
with applications u/s 12 of the Domestic
Violence Act.
----------
(2024) 4 ILRA 639
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.11.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Application U/S 482. No. 11714 of 2023

Sheshnath Singh @ Shishu ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Abhishek Pandey, Sri Raghvendra
Pratap Singh

Counsel for the Opposite Parties:
G.A.

Criminal
Law
-

Code
of
Criminal
Procedure,1973 -Section 482- Quashing of
Order Closing Prosecution Evidence - The
applicant
challenged
the
order
closing
prosecution evidence without deciding his
application for copies of case documents - Held,
the Trial Judge's failure to address the
application dated 21.11.2022 before closing
evidence
violated
the
applicant's
rights,
warranting quashing of the order. (Paras 1, 10,
29, 32)

B. Section 207 CrPC - Right to Documents -
The applicant, an accused in a murder trial,
sought copies of the case diary, inquest,
postmortem reports, and charge-sheet - Held,
Section 207 mandates furnishing Statements
recorded under Section 161 CrPC to the
accused, and non-compliance prejudiced the
applicant's right to cross-examine witnesses.
(Paras 11, 23, 24, 29)

C. Section 172 CrPC - Limited Access to Case
Diary - The St. argued the accused has no right
to case diary entries under Section 172 - Held,
the prohibition under Section 172(3) applies to
the Investigating Officer's observations, not to
witness Statements under Section 161, which
must be provided under Section 207. (Paras 13,
24, 26, 27)

D. Fair Trial and Natural Justice - The
applicant was denied the opportunity to crossexamine witnesses due to non-availability of
documents - Held, closing prosecution evidence
without providing mandated documents and
deciding the applicant's application infringed the
right to a fair trial, necessitating recall of
witnesses if required. (Paras 9, 10, 29, 32)

E. Judicial Discretion and Case Diary Use -
The applicant relied on precedents allowing
640 INDIAN LAW REPORTS ALLAHABAD SERIES
limited use of case diary entries - Held, courts
may use case diaries under Section 172(2) to
aid trials, and accused may access Section 161
Statements for cross-examination under Sections
145 and 161 of the Evidence Act, subject to legal
restrictions. (Paras 12, 17, 20, 26)

Application Allowed.

List of Cases cited:

1. St. of Kerala Vs Babu, (1999) 4 SCC 621

2. St. of NCT of Delhi Vs Ravi Kant Sharma, (2007)
2 SCC 764

3. Balakram Vs St. of Uttarakhand, (2017) 7 SCC
668

4. Shamshul Kanwar Vs St. of U.P., (1995) 4 SCC
430

5. Asian Resurfacing of Road Agency Pvt. Ltd. Vs
CBI, (2018) 16 SCC 299

(Delivered by Hon'ble J.J. Munir, J.)

1. This application under Section 482
Cr.P.C. ('Code' for short) seeks to quash an
order dated 16.03.2023, by which the
prosecution evidence has been regarded
closed and a direction given that the case may
come up for recording the statement of the
accused under Section 313 of the Code. It is
not this order that substantially aggrieves the
applicant. The applicant is aggrieved by the
non decision of his application dated
21.11.2022,
before
passing
the
order
impugned. The applicant, in substance,
therefore, seeks that before the Court would
direct that the prosecution case is over and
the accused's statement under Section 313 of
the Code recorded, the applicant, who is an
accused at the trial, is entitled to a decision
on his application, above referred.

2. The applicant is one of the accused
facing trial before the learned Additional
Sessions Judge, Court No. 4, Ghazipur in
S.T. No. 219 of 1987, State vs. Kanhaiya
and others (arising out of Case Crime No.
227 of 1986), under Sections 147, 148, 149,
302
IPC,
P.S.
Dildarnagar,
District
Ghazipur.

3. According to the applicant, the first
information report giving rise to the crime
was lodged on 25.09.1986 at 11:30 a.m.,
while the incident took place on 25.09.1986
earlier in the day at 08:30 a.m. There are
three nominated accused in the FIR, to wit,
Kanhaiya Singh, Hridaya Narayan Singh
and Sheshnath Singh alias Shishu, besides
two men unnamed. The first information
version is that the informant, Satish Kumar,
was a resident of Ward No.5, P.S.
Dildarnagar, District Ghazipur. In one of
his houses, about 7-8 years ago, Brij
Narayan Singh of Village Gohda, P.S.
Dildar Nagar, District Ghazipur used to
live. Brij Narayan was a Goonda and a man
of
criminal
propensities.
In
the
neighbourhood, people were scared of him.
The informant's father asked Brij Narayan
Singh to vacate his house, upon which, the
former refused.

4. About 5-6 years antedating the FIR
under reference, Brij Narayan Singh was
murdered. The informant's father was
arraigned in the case relating to Brij
Narayan Singh's murder, but upon trial,
was acquitted. The informant's house,
nevertheless, remained in the occupation of
Kanhaiya Singh, Brij Narayan Singh's
brother.

5. About 7-8 days prior to the
occurrence, the informant's father locked
the house aforesaid. Kanhaiya Singh
threatened the informant's father over
locking the house, telling him that he better
open the lock, else he would be done to
death. The informant's father did not yield
4 All. Sheshnath Singh @ Shishu Vs. State of U.P. & Anr.
641
and refused to remove the lock. On
25.09.1986, the informant's father, Murat
Sahu and his uncle Madan Lal were
proceeding to the District Magistrate's
office to complain regarding the threat held
out by Kanhaiya Singh and also to buy
supplies for their shop. They had proceeded
from Dildarnagar to the railway station,
reaching there at 08:30 in the morning and
boarded the train. Kanhaiya Singh, Hridaya
Narayan Singh, Sheshnath Singh alias
Shishu and two other men, whom the
informant did not know, but said that he
could identify them if confronted, entered
the
railway
coach.
Kanhaiya
Singh,
Hridaya Narayan Singh and Sheshnath
Singh alias Shishu were armed with guns
and the two other men, who belonged to
Kanhaiya's
family,
were
unarmed.
Kanhaiya Singh came forward abusing the
informant's father, caught hold of him,
dragging him out of the coach. The
passengers on board objected. Kanhaiya
Singh warned the passengers that if they
attempted to resist, they would be shot.
This abated all resistance from the
passengers, out of fear. In the meanwhile,
the train moved. Kanhaiya Singh exhorted
his companions to shoot the informant's
father, whereupon Seshnath Singh alias
Shishu shot the victim. All the five men
jumped off the train and made good their
escape. The informant's father collapsed
and after a little while, passed away. Some
passengers on board were nominated as
witnesses, whose names figure in the FIR.
As soon as the applicant came to know that
he was nominated in the case, he
surrendered in Court three days after the
occurrence and released on bail by the
learned Sessions Judge of Ghazipur on
19.02.1987.

6. The applicant says that according
to the bail order, it is recorded that there
were memos issued by the Guard to the
Stationmaster,
Tarighat
and
the
Stationmaster of Dildarnagar, who, in turn,
sent a message of the occurrence to P.S.
G.R.P., Dildarnagar. The said message
does not mention the name of the deceased
or the accused. The dead body of the
deceased reached P.S. Dildarnagar at 09.35
a.m., where the FIR was lodged at about
11:30 a.m. by the complainant, Satish
Kumar against the applicant and other
members of his family, as the applicant
says,
on
account
of
animosity.
Interestingly, there is much reliance placed
on the remarks of the learned Sessions
Judge, apparently while granting bail to the
effect that the report by the Stationmaster
to the G.R.P. should be treated the FIR.

7. The most interesting feature of the
case appears to be that a transfer
application was made by the informant
before this Court being Criminal Misc.
Transfer Application No. 810 of 1988,
where this Court, vide order dated
28.01.1988,
admitted
the
application,
issued notice to the other side and stayed
the trial. It is on account of the said order
that the trial remained pending from the
year 1988 to 2022.

8. The proceedings of the trial were
resumed under an order of the learned
Additional Sessions Judge, Court No. 4,
Ghazipur dated 29.10.2022, who proceeded
with it relying upon directions of the
Supreme Court in Asian Resurfacing of
Road Agency Private Limited and
another
v.
Central
Bureau
of
Investigation, (2018) 16 SCC 299.

9. The applicant, upon acquisition of
knowledge, that proceedings in the trial had
commenced, appeared before the Trial
Court on 29.10.2022 and 01.11.2022. On
642 INDIAN LAW REPORTS ALLAHABAD SERIES
01.11.2022, the testimony of PW-1 Satish
Kumar was recorded before the Trial Judge
and time was sought by the applicant to
cross-examine him. The applicant was
trying to collect relevant documents,
including copies of the case diary, inquest
report, postmortem report and the chargesheet, but could not succeed in securing
these, as the same were reported to be
unavailable. The applicant then made an
application
before
the
Trial
Judge,
seeking a direction to the prosecution to
provide him copies of the necessary
documents, including the case diary,
which would enable him to undertake the
prosecution
witnesses'
crossexamination.

10. The applicant's grievance is that
no orders have been made by the Trial
Judge
on
the
application
dated
21.11.2022,
which
is
still
pending.
Nevertheless,
the
testimony
of
the
prosecution witnesses has been heard and
recorded in a cursory manner, depriving
the applicant of his right to crossexamine them.

11. It is the applicant's case that
without
following
the
mandatory
provisions of Section 207 of the Code,
which obliges the Court to ensure that
documents including the case diary,
inquest report, the postmortem report and
the charge-sheet are provided to the
accused free of cost, the trial is
proceeding against him. In support of his
submission that the conduct of trial in the
absence of compliance with Section 207
of the Code is not one held in accordance
with law, learned Counsel for the
applicant has placed reliance upon a
decision of the Supreme Court in State of
Kerala v. Babu and others, AIR 1999 SC
2161. Allusion would be made to the
principle in Babu (supra), and how it bears
upon the applicant's case, during the course
of this judgment.

12. Learned Counsel for the applicant
has further placed reliance upon the
guidance of the Supreme Court in State of
NCT of Delhi v. Ravi Kant Sharma and
others, (2007) 2 SCC 764, which,
according to the learned Counsel, is an
authority that supports his right to have
copies of the statement of witnesses and
other documents, part of the case diary,
supplied to him before the prosecution
witnesses were examined.

13. Mr. D.K. Srivastava, learned
Additional Government Advocate, on the
other hand, submits that the applicant has
no right to ask for a copy of the case
diary or the statements recorded by the
Police, in view of the provisions of
Section 172(2) and 173(3) of the Code, as
that right is very limited. He has placed
reliance upon the decision of the Supreme
Court
in
Balakram
v.
State
of
Uttarakhand and others, (2017) 7 SCC
668.

14. Heard Mr. Abhishek Pandey,
learned Counsel for the applicant and Mr.
D.K.
Srivastava,
learned
Additional
Government Advocate on behalf of the
State.

15. After hearing learned Counsel
for the parties and perusing the record,
this Court is minded to think that Mr.
Pandey
and
Mr.
Srivastava
have
advanced their submissions relying on
very different provisions of the Code,
dealing with the same right of the
accused, but with regard to a right to
access very different kinds of the record
of investigation under the Code.
4 All. Sheshnath Singh @ Shishu Vs. State of U.P. & Anr.
643

16. Before the issue is elucidated
upon, it would be profitable to refer to
authorities that are in point.

17. Balakram (supra), upon which
Mr. Srivastava has reposed faith, was a
case that arose out of an application to
submit certain documents before the Trial
Judge in a sessions trial on a charge of
murder, where the accused proposed to
confront a prosecution witness in that case
on the basis of those documents. The
documents that the accused wanted to bring
on record were part of the case diary,
maintained
by
the
Police
during
investigation, under Section 172 of the
Code. The witness, who was proposed to be
confronted with the documents from the
case diary, was the Investigating Officer
(PW-15). Copies of the documents in
question were secured by the accused by
invoking the provisions of the Right to
Information Act, 2005. The application was
opposed by the complainant on the ground
that fresh documents cannot be allowed to
be produced on behalf of the accused at a
premature stage - premature in the sense
that the stage was one where the
prosecution testimony was being heard. It
was
contended
on
behalf
of
the
complainant opposing the application that
the documents could be produced during
the stage when the statements of the
accused under Section 313 of the Code
were
recorded.
It
was
also
the
complainant's contention that after the
statements under Section 313 of the Code
were recorded, the accused could produce
these documents when it was time to lead
defence evidence. The application was
rejected by the learned Sessions Judge.
Aggrieved, the accused moved the High
Court under Section 482 of the Code. The
High Court allowed the application under
Section 482 of the Code, and this,
apparently, made the complainant appeal to
their Lordships of the Supreme Court by
seeking special leave. The Supreme Court,
after referring to the provisions of Section
172 of the Code and Section 145 of the
Indian Evidence Act, 1872 ('the Act of
1872' for short) observed :

"9.
The
aforementioned
provisions are to be read conjointly and
homogenously. It is evident from subsection (2) of Section 172 CrPC, that the
trial court has unfettered power to call for
and examine the entries in the police
diaries maintained by the investigating
officer. This is a very important safeguard.
The legislature has reposed complete trust
in the Court which is conducting the
inquiry or the trial. If there is any
inconsistency or contradiction arising in
the evidence, the Court can use the entries
made in the diaries for the purposes of
contradicting the police officer as provided
in sub-section (3) of Section 172 CrPC. It
cannot be denied that the Court trying the
case is the best guardian of interest of
justice. Under sub-section (2) the criminal
court may send for diaries and may use
them not as evidence, but to aid it in an
inquiry or trial. The information which the
Court may get from the entries in such
diaries
usually
will
be
utilised
as
foundation for questions to be put to the
police witness and the court may, if
necessary in its discretion use the entries to
contradict the police officer, who made
them. But the entries in the police diary are
neither
substantive
nor
corroborative
evidence, and that they cannot be used
against any other witness than against the
police officer that too for the limited extent
indicated above.

10. Coming to the use of police
diary by the accused, sub-section (3) of
644 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 172 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 Court. But, in case
the police officer uses the entries in the
diaries to refresh his memory or if the
Court uses them for the purpose of
contradicting such police officer, then the
provisions of Sections 145 and 161, as the
case may be, of the Evidence Act would
apply. Section 145 of the Evidence Act
provides for cross-examination of a witness
as to the previous statements made by him
in writing or reduced into writing and if it
was intended to contradict him in writing,
his attention must be called to those
portions which are to be used for the
purpose of contradiction. Section 161 deals
with the adverse party's right as to the
writing used to refresh memory. It can,
therefore, be seen that, the right of the
accused to cross-examine the police officer
with reference to the entries in the police
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 the police officer
uses it for refreshing his memory.

11. In other words, in case if 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 the accused getting any right to
use entries even to that limited extent does
not arise. The accused persons cannot
force the police officer to refresh his
memory during his examination in the
Court by referring to the entries in the
police diary.

13. Be that as it may, as
mentioned supra, right of the accused to
cross-examine the police officer with
reference to the entries in the police diary
is very much limited in extent and even that
limited scope arises only when the Court
uses such entries to contradict the police
officer or when the police officer uses it for
refreshing his memory and that again is
subject to the provisions of Sections 145
and 161 of the Evidence Act. Thus, a
witness may be cross-examined as to his
previous statements made by him as
contemplated under Section 145 of the
Evidence Act if such previous statements
are brought on record, in accordance with
law,
before
the
Court
and
if
the
contingencies
as
contemplated
under
Section 172(3) CrPC are fulfilled. Section
145 of the Evidence Act does not either
extend or control the provisions of Section
172 CrPC. We may hasten to add here
itself that there is no scope in Section 172
CrPC to enable the Court, the prosecution
or the accused to use the police diary for
the purpose of contradicting any witness
other than the police officer who made it.

15. The police diary is only a
record of day-to-day investigation made by
the investigating officer. Neither the
accused nor his agent is entitled to call for
such case diary and also are not entitled to
see them during the course of inquiry or
trial. The unfettered power conferred by the
statute under Section 172(2) CrPC on the
court to examine the entries of the police
diary would not allow the accused to claim
similar unfettered right to inspect the case
diary.

17. From the aforementioned, it
is clear that the denial of right to the
accused to inspect the case diary cannot be
characterised
as
unreasonable
or
arbitrary. The confidentiality is always kept
in the matter of investigation and it is not
4 All. Sheshnath Singh @ Shishu Vs. State of U.P. & Anr.
645
desirable to make available the police
diary to the accused on his demand.

18. Since we are not called upon
to decide the question as to whether the
copy of the case diary or a portion thereof
can be provided to the accused under the
provisions of the Right to Information Act,
we are not deciding the said question in the
matter on hand. In Sidharth v. State of
Bihar [Sidharth v. State of Bihar, (2005) 12
SCC 545 : (2006) 1 SCC (Cri) 175 : AIR
2005 SC 4352] , the entire case diary
maintained by the police was made
available to the accused by the trial court.
In that context certain observations were
made by this Court which read thus : (SCC
p. 561, para 27)

"27. ... 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 CrPC."

19. 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 the Right to
Information Act for the purpose of
contradicting the police officer."

18. The question about the right of the
accused or the power of the Court to utilize
the entries in the case diary for the purpose
of testing the veracity of the police
witnesses arose in Shamshul Kanwar v.
State of U.P., (1995) 4 SCC 430. The issue
in that case arose in the context of the
particulars of entries made in the G.D.
Entry, Ex. Ka-124 which was referred to,
with the accused saying that the G.D. Entry
should carry more details, and the absence
of the names of the accused there and the
witnesses rendered the presence of the
witnesses doubtful. It was in the context of
what details of the occurrence should be
mentioned in the G.D. that the Court
examined the question of how and in what
manner and to what extent entries in the
case diary, envisaged under Section 172 of
the Code, can be utilized by the Court and
the accused, and subject to what conditions
used to contradict, confront or test the
veracity of a police witness. After referring
to the provisions of Section 172 of the
Code, their Lordships of the Supreme Court
held in Shamshul Kanwar (supra):

"10. ..........

This section firstly lays down that
every police officer making an investigation
should
maintain
a
diary
of
his
investigation. It is well-known that each
State has its own police regulations or
otherwise known as police standing orders
and some of them provide as to the manner
in which such diaries are to be maintained.
These diaries are called case diaries or
special diaries. The section itself indicates
as to the nature of the entries that have to
646 INDIAN LAW REPORTS ALLAHABAD SERIES
be made and what is intended to be
recorded is what the police officer did, the
places where he went and the places which
he visited etc. and in general it should
contain a statement of the circumstances
ascertained through his investigation. Subsection (2) is to the effect that a criminal
court may send for the diaries and may use
them not as evidence but only to aid in such
inquiry or trial. The aid which the court
can receive from the entries in such a diary
usually
is
confined
to
utilising
the
information given therein as foundation for
questions to be put to the witnesses
particularly the police witnesses and the
court may, if necessary, in its discretion use
the entries to contradict the police officer
who made them. Coming to their use by the
accused, 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. Section 145 of the Evidence
Act provides for cross-examination of a
witness as to the previous statements made
by him in writing or reduced into writing
and if it is intended to contradict him by the
writing, his attention must be called to
those parts of it which are to be used for
the purpose of contradiction. Section 161
deals with the adverse party's rights as to
the production, inspection and crossexamination when a document is used to
refresh the memory of the witness. It can
therefore be seen that 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 the police officer uses it for
refreshing his memory and that again is
subject to the limitations of Sections 145
and 161 of the 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 if
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 accused person is not
entitled to require a police officer to
refresh his memory during his examination
in court by referring to the diary. At the
most the accused can on a reasonable basis
seek the court to look into the diary and do
the needful within the limits of Section 172
CrPC. However, the court is not bound to
compel the police witness to look at the
diary in order to refresh his memory nor
the accused is entitled to insist that he
should do so. If there is such a refusal what
inference should be drawn depends on the
facts and circumstances of each case.
Section 172 does not deal with any
recording of statements made by witnesses
and what is intended to be recorded is what
the police officer did namely the places
where he went, the people he visited and
what he saw etc. It is Section 161 CrPC
which provides for recording of such
statements. Assuming that there is failure to
keep a diary as required by Section 172
CrPC, the same cannot have the effect of
making the evidence of such police officer
inadmissible and what inference should be
drawn in such a situation depends upon the
facts of each case. It is well-settled that the
entries of the police diary are neither
substantive nor corroborating evidence and
4 All. Sheshnath Singh @ Shishu Vs. State of U.P. & Anr.
647
they cannot be used by or against any other
witness than the police officer and can only
be used to the limited extent indicated
above. The above-stated principles are
reiterated in many decisions rendered by
the courts.

18. With regard to the nature of
the entries to be made in the diary as
required under Section 172 CrPC and the
limited permissible use by the court or by
the accused indicated therein have been the
subject-matter of decisions of a number of
High Courts over the years. It may not be
necessary to refer to them. However, we
have noticed that there is vagueness as to
the nature of the diary contemplated under
this section. In some States the diary
referred to in Section 172 CrPC is known
as 'special diary' or 'case diary' and in
some other States like Andhra Pradesh, J &
K and Kerala there is a provision in the
Police Acts that a "general diary" is to be
maintained in the police station thereby
indicating it to be different from the case
diary. In some States there are police
standing orders to the effect that the diary
contemplated under Section 172 CrPC can
be of two parts; the first one relating to the
steps
taken
during
the
course
of
investigation by the police officer with
particular reference to time at which the
police received the information and the
further steps taken during the investigation
like visiting the places etc. and the second
part
contains
statement
of
the
circumstances
ascertained
during
the
investigation which obviously relate to the
statements recorded by the officer in terms
of Section 161 CrPC and other relevant
materials gathered during the investigation.
The copies of the second part which mainly
contains the statements of the witnesses as
a matter of course are supplied to the
accused persons.

20. Therefore it is clear that the
diary referred to in Section 172 and which
the court may call for and which can be
used to the limited extent mentioned
therein obviously refers to the first part and
to the copies of which the accused is not
entitled to and the entries of which can be
used to the limited extent by the court as
well as by the accused as contained in
Section 172 CrPC. If by virtue of such
police standing orders, the second part also
forms, compendiously, part of the diary as
a whole and if that also is before the court,
the use of the entries in such second part
which contains the statements of the
witnesses recorded, would be of different
nature. In some States for instance Uttar
Pradesh there are regulations regarding the
maintenance of general and case diaries.
Section 161 CrPC provides for examination
of witnesses by police. It further lays down
that the police officer during investigation
may examine the witnesses and may reduce
into writing any statement made to him in
the course of such examination and if he
does so he shall "make a separate and true
record" of the statement of each such
person. Section 162 lays down that no such
statement made by any person to a police
officer shall if reduced to writing be signed
"nor shall any such statement or any record
thereof whether in a 'police diary' or
otherwise" be used for any purpose at any
inquiry or trial save as provided under that
section. The words "police diary or
otherwise" used in this section have
perhaps been the basis for dividing the
diary into two parts. Section 167, an
important
provision,
deals
with
the
procedure
when
investigation
is
not
completed within 24 hours and provides for
production of the accused before a
magistrate
for
seeking
remand.
This
provision also lays down that the officer-incharge of a police station or the police
648 INDIAN LAW REPORTS ALLAHABAD SERIES
officer making the investigation "shall
forthwith transmit to the nearest judicial
magistrate a copy of the entries in the diary
hereinafter prescribed relating to the case"
and at the same time forward the accused to
such magistrate. Likewise sub-section (2-a)
of
Section
167
which
provides
for
production of the accused before an
executive magistrate lays down that the
copy of the entry in the diary 'hereinafter'
prescribed relating to the case shall be
transmitted while forwarding the accused.
The object underlying is that the magistrate
before remanding the accused to custody
should satisfy himself that there is a prima
facie case for doing so after a perusal of the
copies of the entries "in the diary". We are
referring to this aspect only to point out
that some vagueness or confusion is there
in respect of the meaning of the word
'diary' used in Section 172 and other
sections of CrPC and we suggest that a
legislative change is necessary providing
for framing of appropriate and uniform
regulations regarding the maintenance of
the diaries by the police for the purpose
contemplated by Section 172 CrPC vis-àvis the other sections referred to above.

21. We are constrained to go into this
aspect in an elaborate manner as even today
we are coming across a number of cases
where there has been a patent misuse of the
case diaries to be maintained as per Section
172 CrPC. The Full Court in Mannu case
[ILR (1897) 19 All 390 : 17 AWN 174]
observed, as long back as 1897, as under:

"It is within the experience of
every Judge of this Court that much
misconception exists in these Provinces as
to the use which can be made by a court or
by an accused person or his agents of the
diaries which are kept by police officers
under Section 172 of the Code of Criminal
Procedure, and which in these Provinces
are known as special diaries. It is within
our judicial knowledge that some Sessions
Judges and some Magistrates have decided
criminal cases by conviction or by acquittal
of the accused on statements which are
found in the special diary relating to the
case...."

To the same effect are the
observations by Privy Council in Dal Singh
case [AIR 1917 PC 25] . But as pointed out
by this Court in Malkiat Singh case [(1991)
4 SCC 341 : 1991 SCC (Cri) 976] that the
courts even in recent times are not keeping
in view the true scope of Section 172 and
the use to which the diaries should be put
to."

(emphasis by Court)

19. The question, again, engaged the
attention of the Supreme Court in State of
Kerala v. Babu and others, (1999) 4 SCC
621. The facts and the proceedings, in the
context of which the three questions that
arose for consideration before the Court,
can best be recapitulated in the words of
their Lordships, as these figure in the
opening part of the report in Babu (supra):

"1. In a pending sessions case, on
behalf of the accused persons, applications
were made to summon the case diary of a
case registered as Crime No. 81 of 1991 for
confronting a witness with his previous
statement as found in the said case diary
and to recall the said PW 5. The learned
Sessions
Judge
allowed
the
said
applications which came to be challenged
in criminal petitions filed before the High
Court of Kerala by the State as well as the
brother of the deceased. These petitions
came to be dismissed by an order of the
High Court dated 17-8-1993. Both the
4 All. Sheshnath Singh @ Shishu Vs. State of U.P. & Anr.
649
Sessions Court and the High Court held
that there is no bar in law to summon the
case diary of a case even other than the one
which is being tried, for the purpose of
contradicting
the
evidence
of
the
prosecution witnesses. In this appeal by
special leave, the State of Kerala has raised
the following questions of law:

(a) Whether the statement of a
witness recorded under Section 161 of the
CrPC in one particular crime could be used
against that witness in any other trial, enquiry
or proceedings by the accused.

(b) Whether the learned Sessions
Judge can call for the police diaries of a case
which is not under enquiry or trial before him
and permit it to be used by the accused for
contradicting a witness examined in another
case under trial before him.

(c) Whether Section 162 of the
CrPC permits the use of statement recorded
under Section 161 of the CrPC in any other
proceeding other than the enquiry or trial in
respect of the offence for which the
investigation was conducted."

20. It must be remarked that the context
in Babu was slightly different, because it was
about the permissibility of use of statements
recorded under Section 161 of the Code in a
different crime than the one that was subject
matter of trial before the Court. Nevertheless,
the Court examined the question in the
context of the right of the accused to make
use of a witness's previous statements
recorded during the course of investigation
for the purpose of impeaching his veracity
during trial. Their Lordships in Babu
observed :

"8. Therefore, on a reading of
Section 162 of the Code bearing in mind
the object of the said section and Section
145 of the Evidence Act, it is clear that an
accused in a criminal trial has the right to
make use of the previous statements of a
witness including the statements recorded
by the investigating agency during the
course of an investigation for the purpose
of establishing a contradiction in the
evidence of a witness or to discredit the
witness. The question then arises, how does
the accused confront the previous statement
made by a witness in the course of an
investigation to establish the contradiction
in the evidence given by the witness in the
trial? So far as the statements made during
the course of investigation of the case being
tried is concerned, there is no difficulty
because an accused is entitled under
Section 207 of the Code for the supply of
free copies of the documents referred to in
the said section which includes the
previous statement recorded under subsection (3) of Section 161 of the Code. The
accused does not have such a right as a
matter of course in regard to other previous
statements; more so, in regard to the
statements recorded by the investigating
agency under Section 161 in a case other
than the one that is being tried by the court.
Therefore, in the instant case, the accused
made an application for summoning the
case diary of Crime No. 81 of 1991
invoking the provisions of Section 172 of
the Code. But the State contends that this
section does not apply to summoning the
case diary of cases other than the one that is
being tried. Therefore, we will now
examine the contention of the State with
reference to Section 172 of the Code which
reads thus:

"172. Diary of proceedings in
investigation.-(1) Every police officer
making an investigation under this Chapter
shall day by day enter his proceedings in
650 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

(2) Any criminal court may send
for the police diaries of a case under
enquiry or trial in such court, and may use
such diaries, not as evidence in the case,
but to aid it in such enquiry 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."

9. Sub-section (1) of the above
section mandates that every police officer
making an investigation shall maintain a
case diary of that case in which among
other entries, he shall maintain the
statements of the witnesses examined by
him during the course of his investigation.
Sub-section (2) of the same section
empowers a criminal court to send for such
police diaries of a case under enquiry or
trial in such court, (emphasis supplied) and
permits the use of such diaries, not as
evidence in the case, but to aid it in such an
enquiry or trial. The words used in subsection
(2)
of
Section
172,
more
particularly "police diaries of a case under
enquiry or trial in such court," indicate it is
only that police diary in which the
investigating officer concerned had made
entries of his investigation and which
pertains to the case being tried by the court
alone can be sent for.