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Report No. 37

491. Section 172(2) and suggestion regarding sending diaries in Capital cases.-

The following suggestion1 has been made by a District Munsif Cum Judicial First Class Magistrate, in Andhra Pradesh.

"Experience would have shown, specially in case involving a sentence of life imprisonment or death, that the diary of police proceedings during the investigation is not made available for sufficiently long time. Innumerable judicial decisions have pointed out that the case diaries in those cases were neither prepared on the date they are purported to have been prepared, or, if prepared, they were not in such condition as they appear to be. The section may be amended to provide the case diaries, at least in cases of serious nature involving capital punishment should be submitted to the nearest magistrate forthwith within 24 hours of making such diary. The amendment is essential at least in regard to capital offences."

We do not think, that such a change should be made, even for capital offences.

1. F. 3(2)/55-L.C., Pt. III, S. No. 50(q).

492. Section 172 and discretion to be given to Court to allow inspection.-

The following suggestion1 has been made by a High Court.

"Experience shows that the accused is often handicapped in his defence by the restrictions now placed under section 172. An amendment is suggested to enable him to have a complete picture of the case against him, as revealed by the investigation. This will help the accused to put up a proper defence."

The amendment proposed by the High Court is the addition of a new sub-section, as sub-section (3), to section 172, as follows:-

"(3) Notwithstanding what is contained in the above sub-section, the accused or his counsel may apply to the Court for inspection or scrutiny of any relevant portion or portions of the case diaries, in order to aid him in his defence, and the court may, in its discretion, grant such scrutiny of any portion or portions of the case diary if it is satisfied that it will be in the interests of the accused to do so, and will not be prejudicial to the public interest".

The State Government concerned has however, expressed the view that section 172 has not caused any special difficulty. In its view the amendment suggested by the High Court may lead to complications and the question may be refused whether refusal by the Judge or Magistrate to permit inspection was justified or not. The State Government, therefore, does not support the suggestion of the High Court.

1. F. 3(2)/55-L.C., Pt. III, S. No. 52.

493. It was urged before us, that the objection of the State Government is not convincing, and that even if no special difficulty has been caused, the suggested change has other merits.

It was stated that the merit of the suggestion is, that it will inspire confidence in police investigation, without at the same time impairing the public interest. No right is proposed to be conferred which would do damage to the general secrecy of police records. A discretion it was emphasised is to be conferred on the Court.

494. As to the existing law, the undermentioned cases may be seen.1-4 The diary is to be used by the court alone.5 It cannot be used for contradicting defence witnesses.6 For the previous law, the undermentioned case7 may be consulted.

As has been observed by Field J.,8 the grounds upon which the opposite party is permitted to inspect a writing and to refresh the memory of a witness are threefold: (i) to secure the full benefit of the witness's recollection as to the whole of the facts; (ii) to check the use of improper documents; and (iii) to compare his oral testimony with his written statement. The opposite party may look at the writing to see what kind of writing it is in order to check the use of improper documents; but I doubt whether he is entitled, except for this particular purpose, to question the witness as to other and independent matters contained in the same series of writings."

1. Molagan (in re:), AIR 1953 Mad 179 (182), para. 17.

2. Habeeh Mohamed v. State, AIR 1954 SC 60, para. 13.

3. Emp. v. Jhubbu Mahton, 1882 ILR 8 Cal 739 (744, 745) (Field J.) (discussed the reasons why opposite party is allowed inspection, where a witness refreshes his memory).

4. Kali Chran, 1881 ILR 8 Cal 154 (157) (Prinsep and Wilson JJ.).

5. Emp. v. Dharam Vir, AIR 1933 Lah 498 (500) (Dalip Singh & Monreo JJ.).

6. Dal Singh, ILR 44 Cal 876 (888): AIR 1917 PC 75.

7. Q.E. v. Mannu, 1897 ILR 19 All 390 (FB).

8. Emp. v. Jhubboo Mahton, 1882 ILR 8 Cal 739 (744, 745).

495. It was also urged before us, that on the one hand, every material in the diary is not of a secret nature.1 On the other hand, a wholesale inspection of the diary may be against public policy.2 The suggestion (it was stated) strikes a mean between these two extremes.

1. See Fatnaya Lal v. Emp., AIR 1942 Lah 89 (91).

2. Emp. v. Dharam Vir, AIR 1933 Lah 498.

496. Perhaps the reason why the proposed change is suggested, is similar to that stated in the observations in a Madras case:1

"It is of comparatively little use for defending Counsel being permitted by the Sessions Judge to look into the case diary at the belated stage of the trial only when the learned Judge himself on a perusal of it finds something of great use to the accused. It is necessary for responsible defence from the start that in cases such as the present, defending counsel should know what accused told Police in the first instance. We have not come across any m appropriate concrete case than the present in which this course should have been "ab initio" adopted".

1. Molagan (in re:), AIR 1953 Mad 179 (182), para. 17.

497. We have carefully considered the various aspects of the case as put forth above. We regret, however, that we are unable to accept the suggestion. We have an apprehension that it might hamper free disclosure in investigation.

498. Section 173(1)(a).-

In section 173(1), for the words "police report", the words "report of a police Officer in writing" may be substituted.1

1. Cf. discussion relating to section 4(1)-definition of "complaint".

Code of Criminal Procedure, 1898 (Sections 1-176) Back

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