Report No. 69
15.20. No discretion under section 161.-
With these propositions one can hardly have any reason to disagree. It would seem, however, that in discussing the law on the subject, Edge C.J. in the Allahabad High Court, spoke of the "discretion" of the court. Now, with respect, the use of the expression "discretion", in this context, is not intelligible. None of the sections in the Code of Criminal Procedure or the Evidence Act gives an unfettered discretion. The combined effect of section 172, Code of Criminal Procedure, 1898 and section 161 Evidence Act is, that the accused person is entitled to see the "writing". Whatever that expression may mean, so much-of the special diary as is necessary to the full understanding of the portion used, should certainly be allowed to be seen. These sections, in any case, do not contemplate any discretion in the unfettered sense.
15.21. On the question of discretion, it may be pointed out that section 161 of the Evidence Act is couched in mandatory terms. The section provides that the writing referred to "must be produced and shown to the adverse party, if he required it; such party may, if he pleases, cross-examine the witness thereupon." thus, the adverse party has the right to inspect the document. The discretion is not of the court but of the party, as is indicated by the words "if he requires it".
15.22. In fact, literally speaking, section 39 of the Evidence Act is not applicable to documents used to refresh the memory, because the document used for refreshing memory is not "evidence", at least in so far as the cross-examination in respect of the portions referred to by the witness is concerned.
15.23. English law as to refreshing memory.-
The position in England on this point is as follows:-
(a) The opponent may inspect the document in order to check it, without making it evidence.
(b) Moreover, he may cross-examine upon it without making it evidence, provided his cross-examination goes no further than the parts which are used for refreshing the memory of the witness1.
(c) But, if he cross-examines on other parts, he makes them part of his evidence2, the document becomes an exhibit which may be inspected by the jury3: and any statement in the document is admissible as evidence of any fact of which direct oral evidence by the witness would be admissible. As to civil cases, this rule is confirmed by Civil Evidence Act, 1968, section 3(2).
1. Gregory v. Tavernor, (1853) 6 C&P 280 (281).
2. Senat v. Senat, 1965 Probate 172: (1965) 2 All ER 505 (51).
3. Wareham v. Routledge, (1805) 5 Esp 235.
15.24. Document not evidence.-
It should be pointed out that the document used by a witness for refreshing his memory is not evidence in the strict sense, even in the scheme of the Evidence Act. Thus, for example, where a medical witness refreshes his memory by the postmortem examination report, the substantive evidence is the oral testimony given by him before the court on oath and in giving such evidence, he refers to the report which he had made.1
1. Stare v. Jawahar Singh, 1971 Cr LJ 1656 (1661) (Raj), following AIR 1938 Mad 336.
15.25. If there is any difficulty as regards the use of police diaries by the defence consequential on the use by the prosecution for refreshing the memory of the police, the difficulty arises not from section 39 (or its proposed amendment), but from section 161.
15.26. Practical utility.-
Fifthly, it may be stated that the practical utility of the proposed provision lies in this, that it will make it clear that if the party relying on a statement does not use the whole thereof (i.e. what is relevant for explaining what is used), the adverse party is not left at its mercy.
15.27. Comment on the Allahabad case.-
We would with great respect to the Allahabad High Court Full Bench decision1, offer the following comments on that judgment:-
(i) The discussion in the judgment about section 39 of the Evidence Act was obiter. The principal question at issue in the case was2, whether the accused was entitled to copies of statements recorded by the police, which were recorded in the police diary, or whether the fact that the statements happened to be recorded in the police diaries, made them confidential. The question at issue was not whether a police officer could refresh his memory (or, if he did so, what are the legal consequences). The question at issue was as to production of statements recorded under section 161, Code of Criminal Procedure, but contained in the police diary. Refreshing the memory was not a matter in issue.
(ii) Edge C.J., in the majority judgment, when discussing section 39, observed3-
"From section 39 of the Indian Evidence Act, 1872, may be inferred how much-how much only-of the police diary may be seen by the accused, or his agent when the diary is used to refresh the memory by the officer who made it."
He said that the accused is entitled to see only the particular entry and so much of the said diary as is, in the opinion, of the court, necessary in that particular matter to the understanding of the matter so used and no more. He added, "in such cases, the court must be careful to see that the discretion entrusted to it in deciding what may or may not be seen by the accused or his agent is not abused." Unfortunately, no detailed reasons were given by way of analysing the phraseology of section 39, nor was there any discussion of the English law as to the extent of inspection and cross-examination on the basis of a document used to refresh memory4.
(iii) In particular, the view taken as to whether a document is "admitted in evidence" merely because it is used for refreshing memory, was not referred to. There are specific English rulings5 holding that the document thereby does not become evidence.
(iv) It would also appear that the full implications of section 161 of the Evidence Act, were also not discussed in the judgment. Section 161 of the Evidence Act is not even mentioned in that part of the judgment where section 39 is discussed.
(v) The reasons for applying section 39 of the Evidence Act are not set out in detail.
(vi) It may be noted that in holding that section 39 could be taken as a basis of inference for construing section 172 of the Criminal Procedure Code, Edge C.J. unfortunately did not consider the aspect, namely, that section 162 of the Criminal Procedure Code (even as it stood then-that is in the 1882 Code) expressly prohibited statements to the police from being "used as evidence against the accused", subject to section 27 of the Evidence Act. Section 172, second paragraph, did not make any change in so far as statements under section 162 were concerned. Use of the statements in favour of the accused was, of course, not prohibited by section 162, but, then, section 172 second paragraph, provided then (as it provides now) that the police diaries may not be used as "evidence in the case". This aspect could at least have been considered before regarding section 39 as applicable.
(vii) Unfortunately, it was also not noticed that in England, when a document is used to refresh the memory, the whole was allowed to be seen by the opposite party. No doubt, the English law did not contain a provision prohibiting the use of police diaries. But, on this point, once the police officer uses the diary to refresh his memory, the law in India would not be different, because all that is to be construed is section 161 of the Evidence Act, the construction whereof cannot be controlled by section 172, Criminal Procedure Code. Once the legislature has, in section 172, Cr. P.C., referred us to section 161 of the Evidence Act, it is section 162-and only that section-that will govern the right of the opposite party to see and use the document. Such limitations as flow as regards the area of inspection and cross-examination under section 161, Evidence Act would flow from that section only, and not from section 172 of the Code.
It is in this respect that the use of the word "discretion" in the Allahabad case was, at least, avoidable, because section 161 of the Evidence Act gives no discretion to the court. It gives a right to the party, which he may exercise if he chooses. It is the party's discretion. This point was missed-perhaps because section 161 was not analysed in the judgment.
(viii) The reasons for the view that the court has a "discretion", are not given in brief or in detail. This may be because this part of the judgment is obiter.
(ix) Incidentally, it may be noted that in so far as the judgment holds that the statements recorded under section 161 become privileged, if they happen to be recorded in the police diaries, it suffers from a weakness. The majority judgment fails to discuss a series of Calcutta cases6-all to the contrary and cited before it. It says that it prefers an earlier Calcutta case7. But that case merely decided that a witness cannot be compelled to refresh his memory.
On this point, the minority view of P.C. Banerji, J. that such a statement does not legitimately form part of the diary and is not entitled to privilege under section 172, agrees with the Calcutta view8. In one of the Calcutta cases9, Trevelyan J., in arguendo observed-
"I do not know of anything more disastrous to the administration of criminal law than that the accused should be debarred from having access to information to which he has a right, and to which he is not absolutely debarred from having access, by some express provision of the Legislature."
The actual decision was also the effect that the accused was not debarred.
1. Queen Empress v. Mannu, 1897 ILR 19 All 390 (405) (FB).
2. The main question in issue is so described in the dissenting judgments of Aikman, J., p. 416 and Bannerji, J., p. 424 in the I.L.R.
3. Judgment, p. 405.
4. In England, whole document is open to inspection.
5. Burgess, (1872) 20 WR 20 (Eng).
6. Sheru Sha, ILR 20 Cal 642 (reviews cases).
7. Emp. v. Kali Churun, ILR 8 Cal 154.
8. For legislative developments, see-
(a) AIR 1928 Pat 215.
(b) AIR 1935 Rang 370.
(c) ILR 33 Cal 1023.
(d) AIR 1935 Sind 145.
9. Sheru Sha, (1893) ILR 20 Cal 642 (644), (Trevelyan and Rampini, ll.).
15.28. Recommendation.-
Having considered all aspects of the matter, we recommend that section 39 should be revised as under:
Revised section 39
(1) When any statement of which evidence is given-
(a) forms part of a longer statement or of a conversation or of an isolated document, or
(b) is contained in a document which forms part of a book or of a connected series of letters or papers, then, subject to the provisions of sub-section (2), the party giving evidence of the statement shall give in evidence so much, and no more, of the statement, conversation document, book or series of letters or papers as is necessary in that particular case to the full understanding of the nature and effect of the statement and of the circumstances under which it was made.
(2) Where such party has failed to give in evidence any part of the statement, conversation, document, book or series of letters or papers which is necessary as aforesaid, the other party may give that part in evidence.
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