Supreme Court of India
SHAILESH KUMARversusSTATE OF U.P. (NOW STATE OF UTTARAKHAND)
- Citation
- 2024 INSC 143
- Decided
- 26 February 2024
- Disposal
- Appeal(s) allowed
- Bench
- M M SUNDRESH
Holding
The investigation must aim to discover truth, Sections 172 CrPC, 145 and 161 Evidence Act must be read together, a General Diary entry cannot precede an FIR, and the conviction was set aside, resulting in the appellant's acquittal.
Summary
The appellant was convicted of murder under Section 302 IPC based on a dying declaration, eyewitness testimony, and the recovery of a weapon, despite serious irregularities in the investigation. The Supreme Court examined the purpose of criminal investigation, the role of the investigating officer, and the interplay between Section 172 of the CrPC and Sections 145 and 161 of the Evidence Act. It held that the goal of investigation is to discover truth and that the case diary must be maintained properly, with any use of it for refreshing memory or contradiction subject to the rights conferred by Sections 145 and 161. The Court also clarified that a General Diary entry cannot precede the registration of an FIR. Finding that the trial court had failed to apply these principles, the Court set aside the conviction and acquitted the appellant. The appeal was therefore allowed.
Issues considered
- The proper goal and role of the investigating officer in a criminal investigation
- Whether Section 172 CrPC must be read in consonance with Sections 145 and 161 of the Evidence Act
- Whether a General Diary entry can be made before an FIR is registered
- Whether deficiencies in the case diary and FIR registration caused prejudice to the accused
- Whether the trial court erred in using the case diary to contradict the police officer and fixing the onus on the accused
Legislation cited
- Code of Criminal Procedure, 1973s. 154, s. 165, s. 172
- Evidence Act, 1872s. 145, s. 161, s. 165
- Indian Penal Code, 1860s. 302
Subjects
InvestigationGoal of investigationRole of investigating officerCase DiaryMaintenance of case diaryCross-examination as to previous statements in writingRight of the accused to cross-examine as to case diary used to refresh memoryRefreshing of memory perusing case diaryContradiction of police officer using case diaryFIR vis-à-vis case diaryPower of Judge to put questions
Judgment
[2024] 2 S.C.R. 776 : 2024 INSC 143
Shailesh Kumar
v.
State of U.P. (Now State of Uttarakhand)
(Criminal Appeal No. 684 of 2012)
26 February 2024
[M. M. Sundresh* and S.V.N. Bhatti, JJ.]
Issue for Consideration
What is the goal of investigation and what is the role of investigating
officer; Are s.172 CrPC and ss. 145 & 161 of the Evidence Act
to be read in consonance with each other; Can a General Diary
entry precede the registration of FIR.
Headnotes
Code of Criminal Procedure, 1973 – Goal of investigation and
the role of investigating officer:
Held: 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 – 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. [Para 17]
* Author
[2024] 2 S.C.R. 777
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
Code of Criminal Procedure, 1973 – Evidence Act, 1872 –
Maintenance of case diary u/s. 172 CrPC and application of
s. 145 and s. 161 of the Evidence Act – S.172 CrPC and ss.
145 & 161 of the Evidence Act are to be read in consonance
with each other subject to the limited right conferred under
sub-section (3) of s.172 of CrPC:
Held: A case diary is maintained by an Investigating Officer
during his investigation for the purpose of entering the day-to-day
proceedings of the investigation – While doing so, the Investigating
Officer should mandatorily record the necessary particulars
gathered in the course of investigation with the relevant date,
time and place – Under sub-section (1-A) and (1-B) of s.172 of
CrPC, the Investigating Officer has to mention, in his case diary,
the statement of witnesses recorded during investigation with
due pagination – The object of these sub-sections is to facilitate
a fair investigation since a statement made u/s. 161 of CrPC
is not expected to be signed as mandated by s.162 of CrPC –
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 s.145 or s.161, as the case may be, of the Evidence
Act – S.172(3) of CrPC makes a specific reference to s.145 and
s.161 of the Evidence Act – Therefore, whenever a case is made
out either u/s.145 or u/s. 161 of the Evidence Act, the benefit
conferred thereunder along with the benefit of s.172(3) of CrPC
has to be extended to an accused – Thus, 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 s.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 s.145 r/w. s.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 s.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
778 [2024] 2 S.C.R.
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his memory or the court uses it for the purpose of contradiction –
Therefore, there is no hesitation in holding that s.145 and s.161
of the Evidence Act on the one hand and s.172(3) of CrPC on
the other are to be read in consonance with each other, subject
to the limited right conferred under sub-section (3) of s.172 of
CrPC. [Paras 20, 26, 27]
Code of Criminal Procedure, 1973 – First Information Report
vis-a-vis Case Diary:
Held: In Lalita Kumari v. Government of Uttar Pradesh & Others,
the Supreme Court held that an 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 – 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. [Para 28]
Evidence Act, 1872 – s. 165 – Judge’s power to put questions
or order production:
Held: S.165 of the Evidence Act speaks of the 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. [Para 29]
Penal Code, 1860 – s. 302 – Prosecution case that victim-
deceased went to picnic along with PW-2 and PW-3 – On their
return, they were intercepted by appellant with a knife, who
inflicted two fatal blows on the chest and stomach of the
victim – Prosecution sought to bring home the guilt of the
appellant primarily in the form of: (a) dying declaration, (b) eye
witnesses, (c) recovery and (d) alleged arrest of the appellant
nearer to the scene of the offence – Trial Court convicted
[2024] 2 S.C.R. 779
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
appellant u/s. 302 IPC and sentenced him to imprisonment
for life – High Court confirmed the conviction – Propriety:
Held: The victim-deceased was first examined by the PW-5 (who
was working in the hospital) – The presence of PW-1 (father of
deceased) before PW-5 is extremely doubtful – His presence
was not spoken to at all by PW-5 – The evidence of PW-1 is
quite unnatural as he has neither spoken about the motive in his
statement recorded u/s. 161 of CrPC, nor about the so-called dying
declaration which was not even witnessed by PW-5 – PW-5 has
clearly stated that the deceased was in a very serious condition,
blood was oozing out and, therefore, he could not give adequate
treatment – The deceased was immediately referred to the second
hospital – The testimony of PW-1 is also contradictory to PW-3
and PW-8 (doctor who examined deceased in the second hospital)
– Similarly, evidences of PW-2 and PW-3 cannot be relied upon,
PW-2 admittedly was not examined by PW-11 (investigating officer)
for over 2 weeks, for which no explanation was given – This
witness also stated that he was not the friend of the deceased,
therefore, his presence at the place of occurrence creates a serious
doubt as to how he happened to accompany the deceased to
the picnic spot – PW-3, though accompanied the deceased, was
not present thereafter, as deposed by PW-5 and did not admit
the deceased to the second hospital as deposed by PW-8 – The
prosecution has not chosen to examine the driver of the vehicle
i.e the tempo in which the deceased was taken to the hospital
– There is no explanation as to how PW-9-another police officer
from different jurisdiction authored the inquest report – Also, it is
totally unbelievable for PW-6 to reach the place of occurrence out
of inquisitiveness – The arrest of the accused at the instance of
PW-7 is yet another instance of the prosecution trying to make
out a case – It is incomprehensible that the appellant would be
present at the place of the occurrence when he is attempting to
flee – Similar logic goes to the recovery of the knife, it was found
in an open place – On perusal of the case diary, it was found
various corrections had been made, while some pages were even
missing – A clear attempt is made to correct the dates – When the
trial court perused the case diary for the purpose of contradicting
the statement of a police officer, it ought not to have fixed the onus
on the appellant – It has failed to discharge its duty enshrined
u/s. 172(3) of CrPC r/w. s. 145 or s.161, as the case may be, of
the Evidence Act – These aspects as discussed were not looked
780 [2024] 2 S.C.R.
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into in a proper perspective – Thus, the appellant has made out
a case for acquittal. [Paras 32-39]
Case Law Cited
Lalita Kumari v. Government of Uttar Pradesh & Others,
[2013] 14 SCR 713 : (2014) 2 SCC 1 – followed.
Arvind Kumar @ Nemichand & Ors. v. State of
Rajasthan, [2021] 11 SCR 237; Common Cause and
Others v. Union of India, [2015] 6 SCR 731 : (2015) 6
SCC 332; Bhagwant Singh v. Commissioner of Police,
[1983] 3 SCR 109 : (1983) 3 SCC 344; Baleshwar
Mandal v. State of Bihar, (1997) 7 SCC 219; Balakram
v. State of Uttarakhand and Others, [2017] 5 SCR 367 :
(2017) 7 SCC 668; Ram Chander v. State of Haryana,
[1981] 3 SCR 12 : (1981) 3 SCC 191 – relied on.
Manoj and Others v. State of Madhya Pradesh, [2022]
9 SCR 452 : (2023) 2 SCC 353 – referred to.
Books and Periodicals Cited
Law Commission of India’s One Hundred and Fifty
Fourth Report (154th).
List of Acts
Penal Code, 1860, Code of Criminal Procedure, 1973.
List of Keywords
Investigation; Goal of investigation; Role of investigating officer;
Case Diary; Maintenance of case diary; Cross-examination as
to previous statements in writing; Right of the accused to cross-
examine as to case diary used to refresh memory; Refreshing
of memory perusing case diary; Contradiction of police officer
using case diary; FIR vis-à-vis case diary; Power of Judge to put
questions.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.684
of 2012.
From the Judgment and Order dated 15.11.2010 of the High Court of
Uttarakhand at Nainital in CRLA No.888 of 2001
[2024] 2 S.C.R. 781
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
Appearances for Parties
D. P. Singh, Vikram Singh, Amit Gupta, Archit Singh, Manu Mishra,
Ms. Shreya Dutt for M/s. Mitter & Mitter Co., Advs. for the Appellant.
Saurabh Trivedi, Ashutosh Kumar Sharma, Advs. for the Respondent.
Judgment / Order of the Supreme Court
Judgment
M. M. Sundresh, J.
1. The appellant convicted by the Additional Sessions Judge/Special
Judge, Anti-Corruption U.P (East) Dehradun in ST 166/1992 under
Section 302 of the Indian Penal Code, 1860 (hereinafter referred to
as “IPC”) for life imprisonment, as confirmed by the Division Bench
of the High Court of Uttarakhand at Nainital in Criminal Appeal No.
888 of 2001 seeks acquittal.
2. Heard learned counsel Mr. D.P Singh appearing for the appellant
and the learned counsel Mr. Saurabh Trivedi appearing for the
respondent. We have perused the entire records placed before us,
and taken due note of the synopsis notes submitted.
BRIEF FACTS
3. The deceased, Gajendra Singh went to a picnic along with two
friends, Suresh (PW-2) and Sunil Mandal (PW-3) at about 11 a.m. on
the fateful day – 21.06.1992. On their return, they were intercepted
by the appellant riding on a motorcycle. The appellant by uttering
the words “Today I shall pay all your dues”, attacked the deceased
Gajendra Singh with a knife inflicting two fatal blows on the chest
and stomach respectively. The motive of the attack appears to be
the failure of the appellant in completing the work for which the
deceased gave a sum of Rs.500/-.
4. PW-2 and PW-3 took the deceased, who was bleeding profusely
on a tempo whose driver has not been examined, to the hospital
in which PW-5 was working. After admitting the deceased in the
hospital, PW-2 went to the house of the deceased by travelling,
which took him 15 minutes, and passed on the information of
attack on deceased, to his father, PW-1. On examination, PW-5
found that the deceased was in a serious condition and, therefore,
merely gave first aid and referred the deceased to a hospital in
782 [2024] 2 S.C.R.
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Dehradun. After reaching the hospital, PW-1 made an enquiry
with the deceased who gave a dying declaration narrating the
incident. PW-5 did not speak about the presence of any of the
witnesses except the fact that the deceased was admitted by PW-3
and, therefore, did not refer to the said dying declaration given to
PW-1. PW-1 dictated the complaint to one Mr. Inder Singh (not
examined) and went to the police station situated just opposite
to the hospital. Prior to the aforesaid action on the part of PW-1,
PW-5 has made an entry in the emergency medical register which
was subsequently filled up by another person named Dr. B.V.
Sharma (not examined). Dr. B.V. Sharma sent report immediately
to the police station.
5. Before PW-1 could reach the police station, the report from the
hospital had reached and, therefore, investigation was triggered.
However, neither First Information Report (FIR) had been registered
nor noting had been made in the general diary. In fact, the available
noting on the general diary did not disclose any offence committed
on 21.06.1992, as per the statement of PW-13, who produced the
same before the court.
6. PW-2 and PW-3 took the deceased to the nearby hospital at
Dehradun as per the version of PW-1 and PW-2, while PW-3 said
it was himself and PW-1 who undertook the said exercise. As per
the version of PW-8, the doctor who attended the deceased at the
Dehradun hospital, the deceased was brought to the hospital by his
brother Mr. Bhupender Singh (not examined).
7. PW-11 took up the investigation. He went to the place of occurrence,
drew the sketch and prepared the site plan. While returning, he was
informed by PW-7, another brother of the deceased that he received
information that the appellant was trying to escape to Dehradun. PW-
6, who heard about the occurrence, went to the place of occurrence
out of curiosity. The appellant was found and arrested at about 50-
60 yards from the place of occurrence by PW-11 in the presence of
PW-6, PW-7 and one Mr. Sanjeev Saini (not examined). The knife
that was said to have been used for committing the offence was
recovered from an open place at about 50 steps near the place of
occurrence. No arrest memo has been prepared though an entry
was made in the general diary. Recovery memo was signed by PW-6
and PW-7 alone.
[2024] 2 S.C.R. 783
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
8. The post-mortem was conducted by PW-4, Dr. Jaideep Dutta, which
indicated two major injuries, in tune with the case of the prosecution.
PW-9, being the police officer of a different jurisdiction, prepared the
inquest report, presumably on the ground that the ultimate death
happened there, as the second hospital was situated within his
jurisdiction.
9. After the initial investigation by PW-11, PW-12 took over the further
investigation, but did not take adequate care to check and verify the
earlier statements given by the witnesses. Some of the witnesses
have been examined at the earliest while the others like PW-2, PW-6
and PW-7 were examined 2 weeks thereafter. The FIR was curiously
sent by post and, therefore, reached the jurisdictional magistrate
days thereafter.
10. During the course of trial, the prosecution examined 13 witnesses.
In the questioning made under Section 313 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as “CrPC”), the appellant
clearly denied all the charges levelled against him. On a request
made on behalf of the appellant, the general diary was summoned
and perused by the trial court. This was done as a question was
raised on the story propounded by the prosecution which goes to
the date and time of the occurrence. On perusal, the trial court found
out that there were certain interpolations with specific reference to
the dates and certain pages were missing and jumbled. While giving
a finding that the noting of the date as 22.06.1992 and thereafter
striking it off to 21.06.1992 as a clerical mistake, the trial court went
on to put the blame on the appellant that he maneuvered to do so
in connivance with somebody, though the said correction could only
help the case of the prosecution.
11. While convicting the appellant, the trial court placed heavy reliance
upon the evidence of PW-1 to PW-3. The discrepancies qua the
emergency medical register and amongst the statements of PW-1,
PW-2 and PW-3 were brushed aside as minor and natural or ignorable
discrepancies due to the passage of time. Much reliance has been
placed on the recovery of the two-wheeler, though not mentioned in
the site plan. The delay in recording the statement of the witnesses
were also taken lightly. The so-called dying declaration given before
PW-1 was accepted, despite a clear statement made by PW-5 that
none was present during the stay of the deceased with him till he
was sent to the other hospital.
784 [2024] 2 S.C.R.
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12. The High Court concurred with the decision of the trial court by
placing reliance upon the post-mortem report and the testimony of
PW-1 to PW-3.
SUBMISSION OF THE APPELLANT
13. Learned counsel for the appellant submitted that the evidence of PW-1
ought not to have been accepted by both the courts. The report from
the hospital had reached the police station much before. The person
to whom PW-1 dictated the complaint has not been examined. There
is no material for motive and the testimony of PW-1 is contrary to
the one given by PW-3, PW-5 and PW-8. Similarly, the presence
of PW-2 is extremely doubtful as his evidence was recorded weeks
thereafter. He was also not found to be present by PW-3 in the second
hospital, though PW-3 deposed otherwise. Therefore, evidence of
PW-2 also ought to have been eschewed. His statement that it is
PW-1 and himself who took the deceased to the second hospital is
found to be incorrect in view of the testimony of PW-8. The courts
below ought to have placed adequate reliance upon the evidence
of PW-5 and PW-8, the doctors, who were admittedly working in the
hospital at the relevant point of time. The fact that the FIR was not
registered immediately after the information was received clearly
indicates that it was ante-dated. This contention is also strengthened
by the inquest report prepared by the police officer of a different
police station i.e. by PW-9.
14. Learned counsel vehemently contended that the trial court has
committed grave error in not noting the fact that no time, date and
adequate particulars were mentioned in the case diary. The object
and rationale behind Section 172 of CrPC coupled with Sections
145, 161 and 165 of the Indian Evidence Act, 1872 (hereinafter
referred to as “Evidence Act”) have been clearly overlooked by both
the courts. The motive has not been proved as witnesses have not
spoken about it in their statements under Section 161 of CrPC. It
is a case of completely botched up investigation and, therefore, the
appellant deserves acquittal.
SUBMISSION OF THE RESPONDENT
15. Learned counsel for the State placed substantial reliance upon
the recovery of the vehicle. It is stated that admittedly the vehicle
belonged to the father of the appellant. That is the reason why
[2024] 2 S.C.R. 785
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
an application was filed seeking its custody, which came to be
allowed. Both the courts have rightly held that the discrepancies
are bound to happen in view of the passage of time from the date
of incident till the deposition is recorded in the Court. PW-2 and
PW-3 did not have any ulterior motive or reason to implicate the
appellant. PW-3’s statement has been recorded at the earliest.
There is nothing wrong in the inquest report submitted by PW-9.
As there is no perversity, appreciation by both the courts of the
evidence available on record for coming to their conclusion does
not warrant any interference.
DISCUSSION
16. Before considering the factual submissions of both sides, we shall
first deal with the position of law which is relevant for deciding the
appeal.
Investigation and the Role of Investigating Officer
17. 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 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.
786 [2024] 2 S.C.R.
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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,
“Fair, Defective, Colourable Investigation
40. An Investigating Officer being a public servant
is expected to conduct the investigation fairly. While
doing so, he is expected to look for materials available
for coming to a correct conclusion. He is concerned
with the offense as against an offender. It is the offense
that he investigates. Whenever a homicide happens, an
investigating officer is expected to cover all the aspects and,
in the process, shall always keep in mind as to whether
the offence would come under Section 299 IPC sans
Section 300 IPC. In other words, it is his primary duty to
satisfy that a case would fall under culpable homicide not
amounting to murder and then a murder. When there are
adequate materials available, he shall not be overzealous
in preparing a case for an offense punishable under Section
302 IPC. We believe that a pliable change is required
in the mind of the Investigating Officer. After all, such
an officer is an officer of the court also and his duty
is to find out the truth and help the court in coming
to the correct conclusion. He does not know sides,
either of the victim or the accused but shall only be
guided by law and be an epitome of fairness in his
investigation.
41. There is a subtle difference between a defective
investigation, and one brought forth by a calculated and
deliberate action or inaction. A defective investigation
per se would not enure to the benefit of the accused,
unless it goes into the root of the very case of the
[2024] 2 S.C.R. 787
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
prosecution being fundamental in nature. While
dealing with a defective investigation, a court of law
is expected to sift the evidence available and find out
the truth on the principle that every case involves a
journey towards truth. There shall not be any pedantic
approach either by the prosecution or by the court as
a case involves an element of law rather than morality.
xxx xxx xxx
44. We would only reiterate the aforesaid principle qua a
fair investigation through the following judgment of Kumar
v. State, (2018) 7 SCC 536:
“27. The action of investigating authority in
pursuing the case in the manner in which they
have done must be rebuked. The High Court
on this aspect, correctly notices that the police
authorities have botched up the arrest for
reasons best known to them. Although we are
aware of the ratio laid down in Parbhu v. King
Emperor [Parbhu v. King Emperor, AIR 1944 PC
73], wherein the Court had ruled that irregularity
and illegality of arrest would not affect the
culpability of the offence if the same is proved
by cogent evidence, yet in this case at hand,
such irregularity should be shown deference as
the investigating authorities are responsible for
suppression of facts.
28. The criminal justice must be above
reproach. It is irrelevant whether the falsity lie
in the statement of witnesses or the guilt of
the accused. The investigative authority has
a responsibility to investigate in a fair manner
and elicit truth. At the cost of repetition, I
must remind the authorities concerned to
take up the investigation in a neutral manner,
without having regard to the ultimate result.
In this case at hand, we cannot close our eyes
to what has happened; regardless of guilt or the
asserted persuasiveness of the evidence, the
788 [2024] 2 S.C.R.
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aspect wherein the police has actively connived
to suppress the facts, cannot be ignored or
overlooked.”
45. A fair investigation would become a colourable
one when there involves a suppression. Suppressing
the motive, injuries and other existing factors which
will have the effect of modifying or altering the charge
would amount to a perfunctory investigation and,
therefore, become a false narrative. If the courts find
that the foundation of the prosecution case is false
and would not conform to the doctrine of fairness as
against a conscious suppression, then the very case
of the prosecution falls to the ground unless there are
unimpeachable evidence to come to a conclusion for
awarding a punishment on a different charge.”
(emphasis supplied)
19. Common Cause and Others v. Union of India, (2015) 6 SCC 332,
“31. There is a very high degree of responsibility placed on
an investigating agency to ensure that an innocent person
is not subjected to a criminal trial. This responsibility is
coupled with an equally high degree of ethical rectitude
required of an investigating officer or an investigating
agency to ensure that the investigations are carried out
without any bias and are conducted in all fairness not only
to the accused person but also to the victim of any crime,
whether the victim is an individual or the State.”
Case Diary
Section 172 of CrPC
“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 dairy, 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.
[2024] 2 S.C.R. 789
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
(1-A) The statements of witnesses recorded during the
course of investigation under section 161 shall be inserted
in the case diary.
(1-B) 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
a 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.”
Section 145 of the Evidence Act
“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 the writing, his attention must, before
the writing can be proved, be called to those parts of it
which are to be used for the purpose of contradicting him.”
Section 161 of the Evidence Act
“161. Right of adverse party as to writing used to
refresh memory.—Any writing referred to under the
provisions of the two last preceding sections must be
produced and shown to the adverse party if he requires it;
such party may, if he pleases, cross-examine the witness
thereupon.”
20. A case diary is maintained by an Investigating Officer during his
investigation for the purpose of entering the day-to-day proceedings
of the investigation. While doing so, the Investigating Officer should
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mandatorily record the necessary particulars gathered in the course
of investigation with the relevant date, time and place. Under sub-
section (1-A) and (1-B) of Section 172 of CrPC, the Investigating
Officer has to mention, in his case diary, the statement of witnesses
recorded during investigation with due pagination. Sub-section (1-A)
and (1-B) were inserted by Act 5 of 2009 with effect from 31/12/2009.
The object of these sub-sections is to facilitate a fair investigation
since a statement made under Section 161 of CrPC is not expected
to be signed as mandated by Section 162 of CrPC. To highlight the
importance of adhering to the requirements of these sub-sections,
we rely upon the Law Commission of India’s One Hundred and
Fifty Fourth Report (154th) on Code of Criminal Procedure, 1973,
Chapter IX,
“7. After giving our earnest consideration and in view of
the fact that there is unanimity in respect of the need for
making substantial changes in the law, we propose that
there should be changes on the following lines :
…The signature of the witness on the statement thus
recorded need not be obtained. But, if the witness so
examined desires a copy of such statement so recorded
shall be handed over to him under acknowledgement.
To reflect the shift in emphasis, a corresponding
amendment to Section 172 should also be made to
the effect that the Investigating Officer maintaining
the case diary should mention about the statement of
the circumstances thus ascertained, and also attach
to the diary for each day, copies of the statement
of facts thus recorded under Section 161 CrPC.
Neither the accused nor his agent shall be entitled
to call for such diaries which can be put to a limited
use as provided under Section 172 CrPC. Under the
existing provisions of the Code, the preparation of
the earliest record of the statement of witness is
left in the hands of Investigating Officer and as the
mode of recording as provided in section 162 does
not ensure the accuracy of the record (It is well
known that many good cases are spoiled by insidious
incorrect entries at the instance of the accused and
it is also well known that many innocent persons
[2024] 2 S.C.R. 791
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
are sent up along with the guilty at the instance of
informant’s party),…”
(emphasis supplied)
21. In furtherance of the above suggestion, the Law Commission of India
accordingly provided a draft amendment to Section 172 of CrPC for
the consideration of the Parliament,
“… On the above mentioned lines, the relevant Sections
can be amended as follows:
xxxx
172(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 if the circumstances ascertained
through his investigation; and also attach to the diary for
each day copies of statement of facts, if any, recorded
under Section 161 in respect of the person or persons
whose examination was completed that day.
(2) Any criminal Court may send for the police diaries of
a 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 this Court.”
(emphasis supplied)
22. While 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 sub-section (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.
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23. Law is quite settled that 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,
“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 be 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)
24. Baleshwar Mandal v. State of Bihar, (1997) 7 SCC 219,
“5. Under Section 172 CrPC read with Rule 164 of
Bihar Police Manual dealing with the investigation,
an Investigating Officer investigating a crime is under
obligation to record all the day-to-day proceedings and
information in his case diary, and also record the time
at which the information was received and the place
visited by him, besides the preparation of site plan
and other documents. The Investigating Officer is also
required to send bloodstained clothes and earth seized
from the place of occurrence for chemical examination.
Failure on the part of the Investigating Officer to comply
with the provisions of Section 172 CrPC is a serious
lapse on his part resulting in diminishing the value
[2024] 2 S.C.R. 793
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
and credibility of his investigation. In this case the
Investigating Officer neither entered the time of recording
of the statements of the witnesses in the diary nor did he
send the bloodstained clothes and earth seized from the
place of occurrence for examination by a serologist. The
High Court also adversely commented upon the lapses on
the part of the Investigating Officer in not complying with
the provisions of the Code of Criminal Procedure. We,
therefore, take it that, in fact, there was serious lapse
on the part of the Investigation Officer in not observing
the mandate of Section 172 CrPC while investigating
the case which has given rise to this appeal. But the
question that arises for consideration is, has any
prejudice been caused to the accused in the trial by
non-observance of rules by the Investigating Officer?
The evidence on record before the Sessions Court and
the appellate court does not show that due to the lapses
on the part of the Investigating Officer in not sending the
bloodstained clothes and earth seized from the place of
occurrence for chemical examination and further not noting
down the time of recording the statement of the witnesses
in the diary has resulted in any prejudice to the defence of
the accused. In the present case, the place of occurrence
and the identity of the deceased are not disputed. Further,
the testimony of the eyewitnesses which is consistent and
does not suffer from infirmity, was believed by both the
courts below. Once the eyewitnesses are believed and
the courts come to the conclusion that the testimony
of the eyewitnesses is trustworthy, the lapse on the
part of the Investigating Officer in not observing the
provisions of Section 172 CrPC unless some prejudice
is shown to have been caused to the accused, will
not affect the finding of guilt recorded by the Court.
Neither before the High Court nor before this Court, it was
pointed out in what manner the accused were prejudiced
by non-observance of the provisions of Section 172 CrPC
and the rules framed in this regard. We are, therefore, of
opinion that judgments of the courts below do not suffer
on account of omission on the part of the Investigating
Officer in not sending the earth seized from the place of
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occurrence for chemical examination or in not entering
the time of recording of the statements of witnesses in
the diary.”
(emphasis supplied)
25. Manoj and Others v. State of Madhya Pradesh, (2023) 2 SCC 353,
“203. The scheme of the CrPC under Chapter XII
(Information to Police and Powers to Investigate) is clear
— the police have the power to investigate freely and
fairly; in the course of which, it is mandatory to maintain a
diary where the day-to-day proceedings are to be recorded
with specific mention of time of events, places visited,
departure and reporting back, statements recorded, etc.
While the criminal court is empowered to summon these
diaries under Section 172(2) for the purpose of inquiry
or trial (and not as evidence), Section 173(3) makes it
clear that the accused cannot claim any right to peruse
them, unless the police themselves, rely on it (to refresh
their memory) or if the court uses it for contradicting the
testimony of the police officers. [Mukund Lal v. Union of
India, 1989 Supp (1) SCC 622 : 1989 SCC (Cri) 606;
Malkiat Singh v. State of Punjab, (1991) 4 SCC 341 :
1991 SCC (Cri) 976]
204. In Manu Sharma [Manu Sharma v. State (NCT of
Delhi), (2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385] , in the
context of police diaries, this Court noted that “[t]he purpose
and the object seems to be quite clear that there should be
fairness in investigation, transparency and a record should
be maintained to ensure a proper investigation”. This
object is rendered entirely meaningless if the police
fail to maintain the police diary accurately. Failure
to meticulously note down the steps taken during
investigation, and the resulting lack of transparency,
undermines the accused’s right to fair investigation; it
is up to the trial court that must take an active role in
scrutinising the record extensively, rather than accept
the prosecution side willingly, so as to bare such
hidden or concealed actions taken during the course
of investigation. [ Role of the courts in a criminal trial has
[2024] 2 S.C.R. 795
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
been discussed in Zahira Habibulla H. Sheikh v. State of
Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999.]”
(emphasis supplied)
26. 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.
27. Section 172(3) of CrPC makes a specific reference to Section 145
and Section 161 of the Evidence Act. Therefore, whenever a case
is made out either under Section 145 or under Section 161 of the
Evidence Act, the benefit conferred thereunder along with the benefit
of Section 172(3) of CrPC has to be extended to an accused. Thus,
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. Therefore, we have
no hesitation in holding that Section 145 and Section 161 of the
Evidence Act on the one hand and Section 172(3) of CrPC on the
other are to be read in consonance with each other, subject to the
limited right conferred under sub-section (3) of Section 172 of CrPC.
Balakram v. State of Uttarakhand and Others, (2017) 7 SCC 668,
“9. The aforementioned provisions are to be read
conjointly and homogenously. It is evident from sub-
section (2) of Section 172 CrPC, that the trial court has
unfettered power to call for and examine the entries
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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 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
[2024] 2 S.C.R. 797
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
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.
12. Section 145 of the Evidence Act consists of two limbs.
It is provided in the first limb of Section 145 that a witness
may be cross-examined as to the previous statements
made by him without such writing being shown to him.
But the second limb provides that, if it 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 of the Evidence Act deal
with the different aspects of the same matter and should,
therefore, be read together.
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
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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.”
(emphasis supplied)
First Information Report vis-a-vis Case Diary
Section 154 of CrPC
“154. Information in cognizable cases.—(1) Every
information relating to the commission of a cognizable
offence, if given orally to an officer in charge of a police
station, shall be reduced to writing by him or under his
direction, and be read over to the informant; and every
such information, whether given in writing or reduced to
writing as aforesaid, shall be signed by the person giving it,
and the substance thereof shall be entered in a book to be
kept by such officer in such form as the State Government
may prescribe in this behalf…”
28. The mandate of Section 154 of CrPC implies that every information
disclosing commission of a cognizable offence shall be entered in
a book to be kept by the officer in charge of the police station in
such form as the State Government may prescribe. In Lalita Kumari
v. Government of Uttar Pradesh & Others, (2014) 2 SCC 1, the
Constitution Bench of this Court while answering the question as
to whether the information disclosing commission of a cognizable
offence shall first be entered into the General Diary or in a book kept
by the Officer in charge of Police Station which in common parlance
is referred as First Information Report has critically analyzed the
interplay between Section 154 of CrPC and Section 44 of the Police
Act, 1861. This Court also had occasion to analyze the legislative
history of CrPC 1861, CrPC 1973 and the Police Act 1861 to answer
the aforesaid question, whereby it was held that an Information
[2024] 2 S.C.R. 799
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
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. Lalita Kumari (Supra),
“57. It is contented by the learned ASG appearing
for the State of Chhattisgarh that the recording of
first information under Section 154 in the “book”
is subsequent to the entry in the General Diary/
Station Diary/Daily Diary, which is maintained in the
police station. Therefore, according to the learned
ASG, first information is a document at the earliest
in the General Diary, then if any preliminary inquiry
is needed the police officer may conduct the same
and thereafter the information will be registered as
FIR. This interpretation is wholly unfounded. The
first information report is in fact the “information”
that is received first in point of time, which is either
given in writing or is reduced to writing. It is not the
“substance” of it, which is to be entered in the diary
prescribed by the State Government. The term “General
Diary” (also called as “Station Diary” or “Daily Diary”
in some States) is maintained not under Section 154
of the Code but under the provisions of Section 44 of
the Police Act, 1861 in the States to which it applies,
or under the respective provisions of the Police Act(s)
applicable to a State or under the Police Manual of a
State, as the case may be.
58. Section 44 of the Police Act, 1861 is reproduced below:
“44.Police officers to keep diary.—It shall be
the duty of every officer in charge of a police
station to keep a General Diary in such form
as shall, from time to time, be prescribed by
the State Government and to record therein all
complaints and charges preferred, the names
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of all persons arrested, the names of the
complainants, the offences charged against
them, the weapons or property that shall have
been taken from their possession or otherwise,
and the names of the witnesses who shall have
been examined.
The Magistrate of the district shall be at liberty
to call for and inspect such diary.”
59. It is pertinent to note that during the year 1861, when
the aforesaid Police Act, 1861 was passed, the Code of
Criminal Procedure, 1861 was also passed. Section 139
of that Code dealt with registration of FIR and this section
has also referred to the word “diary”, as can be seen from
the language of this section, as reproduced below:
“139.Complaint, etc., to be in writing.—Every
complaint or information preferred to an officer
in charge of a police station, shall be reduced
into writing, and the substance thereof shall be
entered in a diary to be kept by such officer, in
such form as shall be prescribed by the local
Government.”
(emphasis supplied)
Thus, the Police Act, 1861 and the Code of Criminal
Procedure, 1861, both of which were passed in the
same year, used the same word “diary”.
60. However, in the year 1872, a new Code came to be
passed which was called the Code of Criminal Procedure,
1872. Section 112 of the Code dealt with the issue of
registration of FIR and is reproduced below:
“112.Complaint to police to be in writing.—
Every complaint preferred to an officer in charge
of a police station shall be reduced into writing,
and shall be signed, sealed, or marked by the
person making it, and the substance thereof shall
be entered in a book to be kept by such officer
in the form prescribed by the local Government.”
[2024] 2 S.C.R. 801
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
It is, thus, clear that in the Code of Criminal Procedure,
1872, a departure was made and the word “book” was
used in place of “diary”. The word “book” clearly
referred to the FIR book to be maintained under the
Code for the registration of FIRs.
61. The question that whether the FIR is to be recorded
in the FIR book or in the General Diary, is no more res
integra. This issue has already been decided authoritatively
by this Court.
62. In Madhu Bala v. Suresh Kumar [Madhu Bala v.
Suresh Kumar, (1997) 8 SCC 476 : 1998 SCC (Cri) 111],
this Court has held that FIR must be registered in the
FIR register which shall be a book consisting of 200
pages. It is true that the substance of the information is
also to be mentioned in the Daily Diary (or the General
Diary). But, the basic requirement is to register the
FIR in the FIR book or register. Even in Bhajan Lal
[State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC
335 : 1992 SCC (Cri) 426] , this Court held that FIR has
to be entered in a book in a form which is commonly
called the first information report.
63. It is thus clear that registration of FIR is to be done
in a book called FIR book or FIR register. Of course,
in addition, the gist of the FIR or the substance of
the FIR may also be mentioned simultaneously in the
General Diary as mandated in the respective Police
Act or Rules, as the case may be, under the relevant
State provisions.
64. The General Diary is a record of all important
transactions/events taking place in a police station,
including departure and arrival of police staff, handing
over or taking over of charge, arrest of a person, details
of law and order duties, visit of senior officers, etc. It is
in this context that gist or substance of each FIR being
registered in the police station is also mentioned in the
General Diary since registration of FIR also happens to be
a very important event in the police station. Since General
Diary is a record that is maintained chronologically on
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day-to-day basis (on each day, starting with new number
1), the General Diary entry reference is also mentioned
simultaneously in the FIR book, while FIR number is
mentioned in the General Diary entry since both of these
are prepared simultaneously.
65. It is relevant to point out that FIR book is maintained
with its number given on an annual basis. This means that
each FIR has a unique annual number given to it. This is
on similar lines as the case numbers given in courts. Due
to this reason, it is possible to keep a strict control and
track over the registration of FIRs by the supervisory
police officers and by the courts, wherever necessary.
Copy of each FIR is sent to the superior officers and
to the Judicial Magistrate concerned.
66. On the other hand, General Diary contains a huge
number of other details of the proceedings of each day.
Copy of General Diary is not sent to the Judicial Magistrate
having jurisdiction over the police station, though its copy
is sent to a superior police officer. Thus, it is not possible
to keep strict control of each and every FIR recorded
in the General Diary by the superior police officers
and/or the court in view of enormous amount of other
details mentioned therein and the numbers changing
every day.
67. The signature of the complainant is obtained in
the FIR book as and when the complaint is given to
the police station. On the other hand, there is no such
requirement of obtaining signature of the complainant
in the General Diary. Moreover, at times, the complaint
given may consist of large number of pages, in which
case it is only the gist of the complaint which is to
be recorded in the General Diary and not the full
complaint. This does not fit in with the suggestion
that what is recorded in the General Diary should
be considered to be the fulfilment/compliance with
the requirement of Section 154 of registration of FIR.
In fact, the usual practice is to record the complete
complaint in the FIR book (or annex it with the FIR
[2024] 2 S.C.R. 803
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
form) but record only about one or two paragraphs
(gist of the information) in the General Diary.
xxx xxx xxx
70. If at all, there is any inconsistency in the provisions
of Section 154 of the Code and Section 44 of the
Police Act, 1861, with regard to the fact as to whether
the FIR is to be registered in the FIR book or in the
General Diary, the provisions of Section 154 of the
Code will prevail and the provisions of Section 44
of the Police Act, 1861 (or similar provisions of the
respective corresponding Police Act or Rules in other
respective States) shall be void to the extent of the
repugnancy. Thus, FIR is to be recorded in the FIR
book, as mandated under Section 154 of the Code,
and it is not correct to state that information will be
first recorded in the General Diary and only after
preliminary inquiry, if required, the information will
be registered as FIR.
xxx xxx xxx
72. It is thus unequivocally clear that registration of
FIR is mandatory and also that it is to be recorded in
the FIR book by giving a unique annual number to
each FIR to enable strict tracking of each and every
registered FIR by the superior police officers as well
as by the competent court to which copies of each
FIR are required to be sent.
xxx xxx xxx
97. The Code contemplates two kinds of FIRs : the duly
signed FIR under Section 154(1) is by the informant to the
officer concerned at the police station. The second kind
of FIR could be which is registered by the police itself
on any information received or other than by way of an
informant [Section 157(1)] and even this information has
to be duly recorded and the copy should be sent to the
Magistrate forthwith. The registration of FIR either on
the basis of the information furnished by the informant
under Section 154(1) of the Code or otherwise under
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Section 157(1) of the Code is obligatory. The obligation
to register FIR has inherent advantages:
97.1. (a) It is the first step to “access to justice” for a victim.
97.2. (b) It upholds the “rule of law” inasmuch as the
ordinary person brings forth the commission of a cognizable
crime in the knowledge of the State.
97.3. (c) It also facilitates swift investigation and sometimes
even prevention of the crime. In both cases, it only
effectuates the regime of law.
97.4. (d) It leads to less manipulation in criminal
cases and lessens incidents of “antedated” FIR or
deliberately delayed FIR.”
(emphasis supplied)
Ram Chander v. State of Haryana, (1981) 3 SCC 191,
“3…. The court, the prosecution and the defence must
work as a team whose goal is justice, a team whose
captain is the judge. The Judge, ‘like the conductor of
a choir, must, by force of personality, induce his team
to work in harmony; subdue the raucous, encourage
the timid, conspire with the young, flatter and (sic
the) old’.”
Justice O. Chinnappa Reddy
Section 165 of the Evidence Act
“165. Judge’s power to put questions or order
production.—The Judge may, in order to discover or to
obtain proper proof of relevant facts, ask any question he
pleases, in any form, at any time, of any witness, or of
the parties, about any fact relevant or irrelevant; and may
order the production of any document or thing; and neither
the parties nor their agents shall be entitled to make any
objection to any such question or order, nor, without the
leave of the Court, to cross-examine any witness upon
any answer given in reply to any such question:
Provided that the judgment must be based upon facts
declared by this Act to be relevant, and duly proved:
[2024] 2 S.C.R. 805
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
Provided also that this section shall not authorize any
Judge to compel any witness to answer any question, or
to produce any document which such witness would be
entitled to refuse to answer or produce under sections 121
to 131, both inclusive, if the question were asked or the
document were called for by the adverse party; nor shall
the Judge ask any question which it would be improper
for any other person to ask under section 148 or 149; nor
shall he dispense with primary evidence of any document,
except in the cases hereinbefore excepted.”
29. Section 165 of the Evidence Act speaks of the 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. Emphasizing upon the
importance of Section 165 of the Evidence Act, Sir James Stephen
while presenting the report of the Select Committee, at the time of
passing of the Evidence Act observed,
“It is absolutely necessary that the judge should not only hear what
is put before him by others, but that he should ascertain by his
own inquiries how the facts actually stand. In order to do this, it will
frequently be necessary for him to go into matters which are not
themselves relevant to the matters in issue, but may lead to something
that is, and it is in order to arm judges with express authority to do
this that section 165, which has been so much objected to, has
been framed”.
“A judge or Magistrate in India frequently has to
perform duties which in England would be performed
by Police Officer or attorneys. He has to sift out the
truth for himself as well as he can, and with little
assistance of a professional kind. Section 165 is
intended to arm the judge with the most extensive
806 [2024] 2 S.C.R.
Digital Supreme Court Reports
power possible for the purpose of getting at the truth.
The effect of this section is that, in order to get to the
bottom of the matter before the count, he will be able
to look at and enquire into every fact whatever.”
(emphasis supplied)
30. Ram Chander v. State of Haryana, (1981) 3 SCC 191,
“O. Chinnappa Reddy, J.— What is the true role of a
judge trying a criminal case? Is he to assume the
role of a referee in a football match or an umpire in a
cricket match, occasionally answering, as Pollock and
Maitland [ Pollock and Maitland : The History of English
Law] point out, the question ‘How is that’, or, is he to,
in the words of Lord Denning ‘drop the mantle of a
judge and assume the robe of an advocate’? [Jones
v. National Coal Board, (1957) 2 All ER 155 : (1957) 2
WLR 760] Is he to be a spectator or a participant at the
trial? Is passivity or activity to mark his attitude? If he
desires to question any of the witnesses, how far can
he go? Can he put on the gloves and ‘have a go’ at the
witness who he suspects is lying or is he to be soft
and suave? These are some of the questions which
we are compelled to ask ourselves in this appeal on
account of the manner in which the Judge who tried
the case put questions to some of the witnesses.
2. The adversary system of trial being what it is, there
is an unfortunate tendency for a judge presiding over
a trial to assume the role of a referee or an umpire and
to allow the trial to develop into a contest between
the prosecution and the defence with the inevitable
distortions flowing from combative and competitive
elements entering the trial procedure. If a criminal court
is to be an effective instrument in dispensing justice,
the presiding judge must cease to be a spectator
and a mere recording machine. He must become a
participant in the trial by evincing intelligent active
interest by putting questions to witnesses in order
to ascertain the truth. As one of us had occasion to
say in the past:
[2024] 2 S.C.R. 807
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
Every criminal trial is a voyage of discovery
in which truth is the quest. It is the duty of a
presiding Judge to explore every avenue open
to him in order to discover the truth and to
advance the cause of justice. For that purpose
he is expressly invested by Section 165 of the
Evidence Act with the right to put questions to
witnesses. Indeed the right given to a Judge is so
wide that he may, ask any question he pleases,
in any form, at any time, of any witness, or of
the parties about any fact, relevant or irrelevant.
Section 172(2) of the Code of Criminal Procedure
enables the court to send for the police-diaries
in a case and use them to aid it in the trial. The
record of the proceedings of the Committing
Magistrate may also be perused by the Sessions
Judge to further aid him in the trial. [Sessions
Judge, Nellore v. Intha Ramana Reddy ILR 1972 AP
683 : 1972 Cri LJ 1485]
3. With such wide powers, the court must actively
participate in the trial to elicit the truth and to protect
the weak and the innocent. It must, of course, not
assume the role of a prosecutor in putting questions.
The functions of the counsel, particularly those of the
Public Prosecutor, are not to be usurped by the judge,
by descending into the arena, as it were. Any questions
put by the judge must be so as not to frighten, coerce,
confuse or intimidate the witnesses. The danger inherent
in a judge adopting a much too stern an attitude towards
witnesses has been explained by Lord Justice Birkett:
People accustomed to the procedure of the court are likely
to be overawed or frightened, or confused, or distressed
when under the ordeal of prolonged questioning from the
presiding judge. Moreover, when the questioning takes on
a sarcastic or ironic tone as it is apt to do, or when it takes
on a hostile note as is sometimes almost inevitable, the
danger is not only that witnesses will be unable to present
the evidence as they may wish, but the parties may begin
to think, quite wrongly it may be, that the judge is not
808 [2024] 2 S.C.R.
Digital Supreme Court Reports
holding the scales of justice quite eventually. [ Extracted
by Lord Denning in supra f.n. 2]
In Jones v. National Coal Board [Jones v. National Coal Board, (1957)
2 All ER 155 : (1957) 2 WLR 760] Lord Justice Denning observed:
The Judge’s part in all this is to hearken to the evidence,
only himself asking questions of witnesses when it is
necessary to clear up any point that has been overlooked or
left obscure; to see that the advocates behave themselves
seemly and keep to the rules laid down by law; to exclude
irrelevancies and discourage repetition; to make sure
by wise intervention that he follows the points that the
advocates are making and can assess their worth; and
at the end to make up his mind where the truth lies. If he
goes beyond this, he drops the mantle of the Judge and
assumes the role of an advocate; and the change does
not become him well.
We may go further than Lord Denning and say that
it is the duty of a judge to discover the truth and for
that purpose he may “ask any question, in any form,
at any time, of any witness, or of the parties, about
any fact, relevant or irrelevant” (Section 165 Evidence
Act). But this he must do, without unduly trespassing
upon the functions of the Public Prosecutor and the
defence Counsel, without any hint of partisanship and
without appearing to frighten or bully witnesses. He
must take the prosecution and the defence with him.
The court, the prosecution and the defence must work
as a team whose goal is justice, a team whose captain
is the judge. The Judge, ‘like the conductor of a choir,
must, by force of personality, induce his team to work
in harmony; subdue the raucous, encourage the timid,
conspire with the young, flatter and (sic the) old’.”
(emphasis supplied)
ON FACTS
31. We have given our consideration to the circumstances, motive, role
of the accused and the volition of the prosecution to bring home the
guilt of the appellant primarily in the form of: (a) Dying Declaration, (b)
[2024] 2 S.C.R. 809
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
Eye witnesses, (c) Recovery and (d) Alleged arrest of the appellant
nearer to the scene of the offence.
32. The presence of PW-1 before PW-5 is extremely doubtful. His
presence was not spoken to at all by PW-5. The evidence of PW-1
is quite unnatural as he has neither spoken about the motive in his
statement recorded under Section 161 of CrPC, nor about the so-
called dying declaration which was not even witnessed by PW-5. PW-5
has clearly stated that the deceased was in a very serious condition,
blood was oozing out and, therefore, he could not give adequate
treatment. The deceased was immediately referred to the second
hospital. There was no necessity for PW-1 to dictate the complaint
to one Mr. Inder Singh who curiously has not been examined by the
prosecution. In any case, there was no need for PW-11 to wait for
PW-1 to come to him for registration of FIR, which he was mandated
to do so, as soon as he received the report from the hospital. The
testimony of PW-1 is also contradictory to PW-3 and PW-8.
33. On the similar line, we do not wish to rely upon the evidence of
PW-2 and PW-3. PW-2 admittedly was not examined by PW-11 for
over 2 weeks, for which no explanation is forthcoming. This witness
also states that he was not a friend of the deceased and, therefore,
his presence at the place of occurrence creates a serious doubt
as to how he happened to accompany the deceased to the picnic
spot. PW-3, though accompanied the deceased, was not present
thereafter, as deposed by PW-5 and did not admit the deceased to the
second hospital as deposed by PW-8. On the contrary, the evidence
of PW-3 is that it is PW-1 and himself who admitted the deceased.
Furthermore, even his presence thereafter was not noticed by PW-5.
34. Though we rely upon the evidence of PW-5 to a certain extent, the
emergency medical register was not completely filled up by him.
Nobody knows the reason as to why he partially filled up the register
and the remaining part was filled by Dr. B.V. Sharma, who was not
examined by the prosecution. By placing reliance upon his testimony
partly, we would only come to the conclusion that his evidence goes
against the prosecution version on two counts, namely, the presence
of any other witness and the condition of the deceased.
35. The prosecution has not chosen to examine the driver of the vehicle
i.e the tempo in which the deceased was taken to the hospital. Even
PW-5 has stated that the blood was oozing out from the body of the
810 [2024] 2 S.C.R.
Digital Supreme Court Reports
deceased. This is another contradiction in the statement of PW-2
and PW-3 in this regard. PW-8 in his evidence has stated that the
deceased was brought by another brother of the deceased. Even
this witness has not been examined for the reason known to the
prosecution.
36. PW-9 is an important witness being a police officer hailing from
a different jurisdiction. It is very curious to know that he was the
author of the inquest report after the investigation was taken up by
PW-11. Despite this being very strange, no plausible explanation
was forthcoming from him. Though PW-11 was trying to say that
at times due to the instructions from the higher officers, it is done
so, when an offence is committed an Investigating Officer is duty
bound to take up the investigation and complete it. After taking up
the investigation he thereafter cannot delegate it, except for justifiable
reasons. This lends credence to the case projected by the defence
that the interpolations and missing pages in the case diary clearly
indicate that the FIR was ante-dated. Perhaps that is the reason why
the FIR reached the jurisdictional magistrate belatedly and also the
examination of the witnesses including PW-2 under section 161 of
CrPC was done days after the occurrence.
37. PW-6 and PW-7 are not natural witnesses. It is totally unbelievable
for PW-6 to reach the place of occurrence out of inquisitiveness.
There is no need for him to be in that very place. The arrest of
the accused at the instance of PW-7 is yet another instance of the
prosecution trying to make out a case. It is incomprehensible that
the appellant would be present at the place of the occurrence when
he is attempting to flee. Similar logic goes to the recovery of the
knife. If PW-11 is stated to have made an inspection and drawn the
sketch, he would have very well found the knife at a nearby place.
It is nobody’s case that it was hidden, on the contrary, it was found
in an open place.
38. From the aforesaid discussion, we have no doubt that the date, time
and place of occurrence could have been different. The trial court
strangely placed the onus on the appellant even with respect to the
corrections made in the case diary along with the missing pages.
On perusal of the case diary, we find that at several places such
corrections have been made, while some pages were even missing.
A clear attempt is made to correct the dates. Such corrections
[2024] 2 S.C.R. 811
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
actually were put against the appellant while they indeed helped the
case of the prosecution. The finding of the trial court in this regard
is neither logical nor reasonable. Even on the question of motive,
there is absolutely no material as witnesses did not speak about
the same in their statements recorded under Section 161 of CrPC.
Mere recovery of a motorcycle per se will not prove the case of the
prosecution especially when it has not been proved as to how it was
recovered. The evidence of PW-13 clearly shows that no date, time
and proper recording have been made in the case diary. When the
trial court perused the case diary for the purpose of contradicting
the statement of a police officer, it ought not to have fixed the onus
on the appellant. It has failed to discharge its duty enshrined under
Section 172(3) of CrPC read with Section 145 or Section 161, as
the case may be, of the Evidence Act. To be noted, it was brought
on a request made by the appellant and the court was using it for
the purpose of contradiction.
39. On a perusal of the impugned judgment and that of the trial court in
convicting the appellant, we find that the aspects discussed by us
have not been looked into in a proper perspective. The appellant has
certainly made out a case for acquittal. Accordingly, the conviction
rendered by the High Court, confirming that of the trial court stands
set aside. The appellant is acquitted of all the charges.
40. The appeal is allowed. The appellant was granted bail vide Order of
this Court dated 06.04.2015. Hence, bail bonds stand discharged.
Headnotes prepared by: Ankit Gyan Result of the case:
Appeal allowed.
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