BALAKRAMversusSTATE OF UTTARAKHAND & ORS.

                        [2017) 5 S.C.R. 367


                           BALAKRAM                                    A
                                 V.
              STATE OF UTTARAKHAND & ORS .
                . (Criminal Appeal No. 694 of2017)
                          APRIL 19, 2017                               B
          [DIPAK MISRA, A. M. KHANWILKAR AND
            MOHAN M. SHANTANAGOUDAR, JJ.]
         Code of Criminal Procedure, 1973 - s.172 -: Application filed
  by accused to file copies of police diary after completion of
  examination-in-chief of police officer to cross-examine him .~ C
  Propriety of - Held: U/s. 172(3) the right. of accused to
  cross-examine the police officer with reference to the entries in the
 police diary is very much limited in extent and evei1 that limited
  scope_ arises only when the Court uses the entries to contradict the
 police officer or when police officer uses it for refreshing memories D
. - Accused cannot force the police officer to. refresh his ml!;,,pry
  during his examination in the Court by referring to the entries in
  the police ¢iary - Neither the accused nor his agent is entitled to
  call for such diary and also not entitled to see them during the
  course of inquiry or trial - Thus, it is not open for the accused to
  produce certain pages of po{ice diary for the purpose of E .
  contradiqfing_police officer - Evidence Act, 1872 - s.145 - Penal
  Code, 1860 - ss.302 and 201.
       Evidence Act, 1872 - s.145 - Scope of s.172(3) Cr.P.C. with
 reference to s.145 of the Evidence Act - Held: A witness may be
 cross examined as. to his previous statements made by him as          F
 contemplated u/s.145 if such previous statements are brought on
 record, in accordance with law, before the Court and if the
 contingencies u/s.172(3) of Cr.P.C. are fulfilled_:_ s.145 does not
 either extend or control the provisions of s.172 of Cr.P.C.
       Allowing the appeid, the Court                                  G
      HELD: 1. Section 172 of Code of Criminal Procedure, 1973
 and Section 145 of Evidence Act, 1872 are to be read conjointly
 and homogenously. It is evident from sub-section (2) of Section
 172 Cr.P.C., that the Trial Court has unfettered power to call}or
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                                367
368          SUPREME COURT REPORTS                     [2017] 5 S.C.R.



A 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
B
  police officer as provided in sub-section (3) of Section 172 of
  Cr.P.C. It cannot be denied that 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
c may get from the entries in such diaries usually will be utilized 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
D
  than against the police officer that too for the limited extent
  indicated above. [Para 10) [373-B-E]
         2. Coming to the use of police diary by the accused, sub-
   section (3) of Section 172 clearly lays down that neither the
   accused nor his agents shall be entitled to call for such diaries
 E
   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,
 F 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
 G 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
 H
      BALAKRAM v. STATE OF UTTARAKHAND & ORS.                             369



the police officer uses it for refreshing his memory. The accused         A
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. [Paras 11, 12) [373-E-H; 374-A-B]
      3. The right of the accused to cross examine the police
officer with reference to the entries in the police diary is very B
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 provisions of Sections 145 and 161 of the
Indian Evidence Act. Thus, a witness may be cross-examined as
to his previous statements made by him as contemplated under c
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) of
Cr.P.C. are fulfilled. Section 145 of the Indian Evidence Act does
not either extend or control the provisions of Section 172 of D
Cr.P.C. Further, there is no scope in Section 172 of the Cr.P.C.
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. [Para 14) [374-E-G)
      4. The police diary is only a record of day to day investigation    E
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) of Cr.P.C.
on the court to examine the entries of the police diary would not
allow the accused to claim similar unfettered right to inspect the        F
case diary. [Para 16) [375-E-F]
       5. The denial of right to the accused to inspect the case
diary cannot be characterized as unreasonable or arbitrary. The
confidentiality is always kept in the matter of investigation and it
is not desirable to make available the police diary to the accused        G
on his demand. [Para 18) (377-B-C]
      6. 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
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370            SUPREME COURT REPORTS                         [2017] 5 S.C.R.


A     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. [Para 20] [377-G-H;
      378-A]
            Malkiat Singh and others v. State of Punjab (1991) 4
B
            SCC 341 : (1991] 2 SCR 256; Mukund Lal v. Union of
            India and Anr. AIR 1989 SC 144 : (1988) Suppl. SCR
            524 - relied on.
            Sidharth etc. etc. v. State of Bihar AIR 2005 SC 4352:
            (2005] 3 Suppl. SCR 800 - referred to.
c                             Case Law Reference
      [1991] 2 SCR 256                 relied on                Para 15
      [1988] Suppl. SCR 524            relied on                Para 17
      [2005] 3 Suppl. SCR 800          referred to              Para 18
D           CRIMINAL APPELLATE JURISDICJION : Criminal Appeal
      No. 694 of2017.                 ~··

           -.~From the Judgment and Order dated 07 .09.2016 of the High Court
      ofUttarakhand at Nainital in CRLMANo. 1123 of2016.
             Tripurari Ray, B. S. Billowria, Rajinder Singh, Suresh Kr. Sharma,
 E    V. P. Pandey, Ms. Shilpa Singh, Advs. for the Appellant.
            R. S. Sodhi, Sr. Adv, Raj iv Nanda, Ms. Manisha Bhandari, Omkar
      Shrivastava, Ankit, R. P. Goyal, Advs. for the Respondents.
            The Judgment of the Court was delivered by
 F          MOHAN M. SHANTANAGOUDAR, J. I. Leave granted.
             2. The judgment in Miscellaneous application No. 1123 of2016,
      passed by the High Court of Uttarakhand at Nainital setting aside the
      order dated 31.8.2016 in I.A. No. 174 Kha in S.T. No. 1 of2015 is
      called on question in this appeal.
 G
              3. Respondent No.3 herein, along with another accused, is facing
      trial in ST No. 01 of2015 before the Sessions Court, Champawat forthe
      offences punishable under Section 302 and 20 I ofIPC. Duririg the course
      of the trial, after the completion of examination in chief of.PW-IS, an
      application was filed by the respondent No.3 herein (one of the accused),
 H    the contents of which read thus:-
      BALAKRAM v. STATE OF UTTARAKHAND &"ORS.                               371
          [MOHAN M. SHANTANAGOUDAR, J.]

      "In the above mentioned case applicant wants to submit some           A
      key and relevant documents which are necessary for the fair and
      just trial of instant case.
      It is therefore, humbly prayed that your Honour may kindly grant
      permission for the same in the interest of justice."
      4. Along with the application, list of documents to be produced       B
was also filed. The documents are stated to be copies of certain pages
of Police diary maintained under Section 172 of the Code of Criminal
Procedure, 1973 (for brevity, Cr.P.C.), by the Investigation Officer (PW-
15), which were obtained by respondent No.3 by making an application
under the provisions of Right to Information Act, 2005. The respondent      c
No. 3 proposes to confront PW 15 with those documents.
       5. Such application was opposed by the appellant herein/
complainant on the ground that the fresh documents cannot be allowed
to be produced by the accused at the premature stage of trial and it is
always open for the accused to produce such documents during the            D
stage ofrecording of statements of the accused under Section 313, Cr.P.C.
It was further contended by the appellant that it is open for the accused
to lead evidence on their behalf after recording of the statements of the
accused under Section 3i3, Cr.P.C.
      6. The application came to be rejected by the Sessions Court on       E
31.8.2016. Being aggrieved by the same, respondent No.3 herein filed
Misc. Application No. 1123 of2016 before the High Court ofUttarakhand
at Nainital under Section 482 Cr.P.C. By the impugned order the High
Court allowed the said miscellaneous application.
       7. Learned counsel for the appellant taking us through the order
                                                                           F
of the Courts below, argued that entries made in the police diary referred
to in Section 172 of the Cr.P.C. cannot be used forthe purpose of Section
145 of the Indian Evidence Act, 1872 unless the conditions laid down
under Section 172(2) and (3) ofCr.P.C are satisfied; that the High Court·
is not justified in allowing the accused/respondent herein to produce
certain pages of police diary obtained by the respondent under the G
provisions of Right to Information Act. He argued in support of the order
of the Trial Court.
       8. per contra, advocate for the respondent argued in support of
the order of the High Court contending that the documents sought to be
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372             SUPREME COURT REPORTS                          [2017] 5 S.C.R.



A     produced were for confronting PW 15-Investigation Officer who is the
      author of those documents; the defence will lose an opportunity to confront
      the investigation officer, in case the respondent is not allowed to produce
      the documents in question. According to him, it is always open to the
      accused to produce the documents to be relied upon by him at the time
      of recording his statement under Section 313 of the Cr.P.C. but the
B
      accused would not get chance to confront the Investigation Officer with
      such documents.
            9. Before proceeding further it would be relevant to note the
      provisions of Section 172 Cr.P.C. and Section 145 of the Indian Evidence
      Act for deciding the issue involved:-
c
            "Section 172 of the Code of Criminal Procedure, 1973
            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
 D          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
 E          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
 F          the police officer who made them to refresh his memory, or ifthe
            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 (I of 1872 ), shall apply,
             Section 145 of the Indian Evidence Act, 1872
 G
             145. Cross-examination as to previous statements in
             writing.-A witness may be cross-examined as to previous
             statements made by him in writing or reduced into writing~ and
             relevant to matters in question, without such writing being shown
             to him, or being proved; but, if it is intended to contradict him by
 H
       BALAKRAM v. STATE OF UTTARAKHAND & ORS.                                   373
           [MOHAN M. SHANTANAGOUDAR, J.)

      the writing, his attention must, before the writing can be proved,         A
      be cal led to those parts of it which are to be used for the purpose
      of contradicting him."
        I 0. The afore-mentioned provisions are to be read conjointly and
homogenously. It is evident from sub-section (2) of Section 172 Cr.P.C.,
that the Trial Court has unfettered power to call for and examine the            B
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 ofCr.P.C. It
                                                                                 c
cannot be denied that Court trying the case is the best guardian of interest
ofjustice. 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 utilized as foundation for questions to be put to the police     D
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.
                                                                                 E
       11. Coming to the use of police diary by the accused, sub-section
(3) of 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           F
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     G
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
                                                                                 H
374               SUPREME COURT REPORTS                         [2017] 5 S.C.R.


A     arises only when the Court uses the entries to contradict the police officer
      or when the police officer uses it for refreshing his memory.
             12. In other words, in case ifthe Court does not use such entries
      forthe purpose of contradicting the police officer or ifthe police officer
      does not use the same for refreshing his memory, then the question of
B     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. Section 145 of the Indian Evidence Act consists of two limbs.
  It is provided in the first limb of Section 145 that a witness may be cross-
c examined as to the previous statements made by him without such writing
  being shown to him. But the Second limb provides that, ifit is intended
  to contradict him by the writing, his attention must before writing can be
  proved, be called to those parts of it which are to be used for the purpose
  of contradicting him. Sections 155 (3) and 145 ofindian Evidence Act
D deal with the different aspects of the same matter and should, therefore,
  be read together.
          14. 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
E
  officer or when the police officer uses it for refreshing his memory and
  that again is subject to provisions of Sections 145 and 161 of the Indian
  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
F accordance with law, before the Court and if the contingencies as
  contemplated under Section 172(3) ofCr.P.C. are fulfilled. Section 145
  of the Indian Evidence Act does not either extend or control the provisions
  of Section 172 ofCr.P.C. We may hasten to add here itself that there is
  no scope in Section 172 of the Cr.P.C. to enable the Court, the prosecution
G or the accused to use the police diary for the purpose of contradicting
  any witness other than the police officer, who made it.
             15. In case ofMalkiat Singh and others vs. State of Punjab 1,
      this Court while considering the scope of Section 172(3) Cr.P.C. with
      reference to Section 145 of the Indian Evidence Act observed thus:-
 H    1
          1991 (4) sec 341
        BALAKRAM v. STATE OF UTTARAKHAND & ORS.                               375
            [MOHAN M. SHANTANAGOUDAR, J.]

        "It is manifest from its bare reading without subjecting to detailed A
        and critical analysis that the case diary is only a record of day to
        day investigation of the investigating officer to 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 B
        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 ifthe 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 c
        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
                                                                                D
        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."
       16. The police diary is only a record of day to day investigation       E
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) ofCr.P.C. on the court to examine the
entries of the police diary would not allow the accused to claim similar       F
unfettered right to inspect the case diary.
       17. This Court in the case of Mukund Lal vs. Union of India
and Anr, while considering the question relating to inspection of th~
entries made in the case diary by the accused has observed thus:-
        "We are of the opinion that the provision embodied in sub-section      G
        (3) of Section 172 of the CrPC cannot be characterised as
        unreasonable or arbitrary. Under sub-section (2) of Section 172
        CrPC the court itself has the unfettered power to examine the
2
    AIR1989 SC 144
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376      SUPREME COURT REPORTS                             [2017] 5 S.C.R.



A     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; ifthere is any inconsistency
      or contradiction arising in the context of the case diary the court
      can use the entries for the purpose of contradicting the police
B
      officer as provided in sub-section (3) of Section 172 of the CrPC.
      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
c     with reference to the contents of the diaries. In view of this
      safeguard, the charge of unreasonableness or arbitrariness cannot
      stand scrutiny. The petitioners claim an unfettered right to make
      roving inspection of the entries in the case diary regardless of
      whether these entries are used by the police officer concerned to
      refresh his memory or regardless of the fact whether the court
D
      has used these entries for the purpose of contradicting such police
      officer. It cannot be said that unless such unfettered right is
      conferred and recognised, the embargo engrafted in sub-section
      (3) of Section 172 of the CrPC would fail to meet the test of
      reasonableness. For instance in the case diary there might be a
 E    note as regards the identity of the informant who gave some
      information which resulted in investigation into a particular aspect.
      Public interest demands that such an entry is not made available
      to the accused for it might endanger the safety of the informants
      and it might deter the informants from giving any information to
      assist the investigating agency, as observed in Mohinder Singh
 F
      v.Emperor:
            "The accused has no right to insist upon a police witness
      referring to his diary in order to elicit information which is
      privileged. The contents of the diary are not at the disposal of the
      defence and cannot be used except strictly in accordance with
 G    the provisions of Sections 162 and 172. Section 172 shows that
      witness may refresh his memory by reference to them but such
      use is at the discretion of the witness and the judge, whose duty it
      is to ensure that the privilege attaching to them by statute is strictly
      enforced."
 H
         BALAKRAM v. STATE OF UTTARAKHAND & ORS.                               377
             [MOHAN M. SHANTANAGOUDAR, J.]

              The public interest requirement from the standpoint of the       A
        need to ensure a fair trial for an accused is more than sufficiently
        met by the power conferred on the court, which is the ultimate
        custodian of the interest of justice and can always be trusted to
        be vigilant to ensure that the interest of accused persons standing
        the trial, is fully safeguarded."
                                                                               8
       18. From the afore-mentioned, it is clear that the denial of right to
the accused to inspect the case diary cannot be characterized as
unreasonable or arbitrary. The confidentiality is always kept in the matter
of investigation and it is not desirable to make available the police diary
to the accused on his demand.
                                                                               c
       19. Since we are not called upon to decide the question as to
whetlier 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 the case of
Sidharth etc. etc. vs. State ofBihar3,the entire case diary maintained
by the police was made available to the accused by the trial Court. In         D
that context certain observations were made by this Court which read
thus:-
         " ....But ifthe 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.    E
         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          F
         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 ofCrPC."
       20. Since in the matter on hand, neither the police officer has         G
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
3
    AIR 2005 SC 4352
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378                SUPREME COURT REPORTS                         [2017] 5 S.C.R.



A     of Right to Information Act for the purpose of contradicting the police
      officer.
             21. In view of the above, the High Court is not justified in permitting
      the accused to produce certain pages of police diary at the time of cross
      examination of PW-15/Investigating Officer. Accordingly, the impugned
B     Order is liable to be set aside and the same stands set aside. The appeal
      is allowed.


      Ankit Gyan                                                      Appeal allowed.