Report No. 69
15.11. Statutory provisions in the U.S.A.-
It may be mentioned in this connection that in some American States, there are interesting statutory provisions which deal with the procedure somewhat elaborately. For example, the provision on the subject in California says1
"When part of an act, declaration, conversation or writing is given in evidence by one party, the whole on the same subject may be enquired into by the other; thus, when a letter is read, the answer may be given, and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation or writing which is necessary to make it understood may also be given in evidence."
Then, the Georgia Code2 provides-
"Where either party introduces part of a document or a record, the opposite party may read so much of the balance as is relevant." "When an admission is given in evidence, it is the right of the other party to have the whole admission and all the conversation connected therewith."3
The Louisiana Code provides that the opponent using a party's confessions "must not divide them; they must be taken entire."4
According to the Montana law5-
"When part of an act, declaration, conversation or writing is given in evidence by one party, the whole on the same subject may be enquired into by the other; thus, when a letter is read, all other letters on the same subject between the same parties may be given."
The need for the proposed provision could be discussed from several points of view.
1 Cal. Code of Civil Procedure (1872), section 1854; Wigmore's Evidence, 1905 Edn., section 2113, p. 2859, cited in Field.
2. Georgia Code, (1895), section 5241; Wigmore's Evidence, 1905 Edn., section 2113, p. 2859, cited in Field.
3 Georgia Code, (1895), section 5196; Wigmore' Evidence, 1905 Edn., section 2113, p. 2859, cited in Field.
4. Louisiana Code Pr., (1894), section 356; Wigmore's Evidence, 1905 Edn., section 2113, p. 2859, cited in Field:_
5. Montana C.P.C., (1895), section 3130; Wigmore's Evidence, 1905 Edn., section 2113, p. 2859, cited in Field.
In the first place, the fact that no difficulty has been found in practice is not conclusive, because the suggestion for amendment is not made for meeting any difficulty pointed out in any case law, but because of the obscurity of the position as regards the right of the adverse party. This obscurity is primarily due to the fact that in the present section, there is no mention of the adverse party.
15.13. Essential in the interest of justice.-
Secondly, the proposed amendment is essential in the interest, of justice, because, if one party uses a statement without referring to the other portions which explain or qualify it, justice requires that the opposite party should have a right to insist that the remainder, in so far as it is necessary for the purpose mentioned above (elucidating the statement already used), should be given in evidence.
15.14. Point as to discretion.-
Thirdly, it is not as if the present section gives a discretion to the court which the proposed section takes away. The word "discretion" in this context is not quite appropriate. When the present section provides in effect that the remainder of the statement shall be given in evidence, the use of the words "the court considers necessary" does not indicate an unfettered discretion. If it is a case of unfettered discretion, that is all the more reason, why discretion should not be continued. However, the proper view is that the power of the court under the present section is to decide-not as a matter of interpretation-how much of the remainder of the statement is necessary for understanding what is admitted.
15.15. Police diaries used for refreshing memory.-
Fourthly, we may examine the special situation of police diaries. Under the Code of Criminal Procedure1 (reference will be made to the old Code since most of the reported decisions relate to the old Code), a special diary is, in general, privileged, and it may be used by the court not as evidence in the case, but to aid the court in the inquiry or trial. Neither the accused nor his agent is entitled to call for such diaries or to see them. But, if the police diary is used by the court to contradict the witness or if the police officer uses it for refreshing his memory, then the provisions of certain sections of the Indian Evidence Act apply.
Those sections are-(a) section 161, which provides that such writing must be produced and shown to the adverse party who may cross-examine the witness on it, and (b) section 145, which provides that a witness may be cross-examined as to previous statements made by him in writing or reduced into writing 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 which are to be used for the purpose of contradicting him.
1. Section 172, Code of Criminal Procedure, 1898.
15.16. Thus, police diaries cannot be used for contradicting, (for example), a defence witness, and it is precisely because they were sought to be so used that the Privy Council had to criticise the lower courts in 19171. This judgment of the Privy Council approves the proposition laid down in an Allahabad case2, to the effect that police diaries cannot be used as evidence (except to the extent indicated in section 172, Cr. P.C.).
1. Dar Singh v. Emperor, AIR 1917 PC 25.
2. Queen Empress v. Mannu, 1897 ILR 19 All 390 (FB).
15.17. What is to happen if the police officer does use the police diary to refresh his memory? Section 172, Criminal Procedure Code, provides that the provisions of the Evidence Act shall apply in such a case. The provisions of the Evidence Act as to refreshing memory are to be found in sections 159 to 161.
15.18. For our purpose, the material section is 161, which is quoted as follows:-
"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."
15.19. It is obvious that neither section 172, Code of Criminal Procedure, nor section 161 of the Evidence Act, contemplates that the court should delegate to the counsel for the accused the power to decide how much of the diary shall be seen or used by the defence1. The defence is entitled to inspect only that portion of the diary from which the witness refreshed his memory, and not the entire diary. This was proposition laid down in an Allahabad case.2
1. Queen Empress v. Mannu, (1897) ILR 19 All 390 (393, 394).
2. AIR 1933 Lah 498 (500).