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Report No. 177

3.12 Strict compliance with section 172, CrPC called for.-

Sub-section (1) of section 172 of the Code of Criminal Procedure requires that (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 of the circumstances ascertained through his investigation". Inasmuch as such diary would also record and reflect the time, place and circumstances of arrest, it is necessary that the provisions of this sub-section should be strictly complied with.

In this behalf, however, it would be relevant to notice the following observations of the Supreme Court in Shamshul Kanwar v. State (AIR 1995 SC 1748) where the court pointed out the vagueness prevailing in the country in the matter of maintaining the diary under section 172. The court referred, in the first instance, to the fact that in every State there are Police Regulations/Police Standing Orders prescribing the manner in which such diaries are to be maintained and that there is no uniformity among them.

The court pointed out that in some States like Uttar Pradesh, the diary under section 172 is known as 'special diary' or 'case diary' and in some other States like Andhra Pradesh and Tamilnadu, it is known as 'case diary'. The basis for distinction between 'special diary' and 'case diary', the court pointed out, may owe its origin to the words "police diary or otherwise" occurring in section 162 CrPC. The court also pointed out that the use of expression "case diary" in A.P. Regulations and in the Regulations of some other States like J&K and Kerala may indicate that it is something different than a "general diary".

In some other States there appear to be Police Standing Orders directing that the diary under section 172 be maintained in two parts, first part relating to steps taken during the course of investigation by the police officer with particular reference to time at which police received the information and the further steps taken during the investigation and the second part containing statement of circumstances Such an amendment would also go to ensure that the time, place and circumstances of the arrest of an accused are also properly recorded and reflected bysuch record, which is indeed a statutory record. ascertained during the investigation which obviously relate to statements recorded by the officer in terms of section 161 and other relevant material gathered during the investigation.

In view of this state of affairs, the Supreme Court suggested a legislative change to rectify this confusion and vagueness in the matter of maintainance of diary under section 172. It is therefore appropriate that section 172 be amended appropriately indicating the manner in which the diary under section 172 is to be maintained, its contents and the manner in which its contents are communicated to the court and the superior officers, if any. The significance of the case diary has in its relevance as a safeguard against unfairness of police investigation. (See this decision of the Delhi High Court in Ashok Kumar State v. State 1979 Cr Lj 1477.

3.13 We may conclude this consultation paper with the thought articulated by Shri Justice M.N. Venkatachaliah, the then Chairperson of N.H.R.C. that "power to stop, search, arrest and interrogate are exercised against a person who may turn out ultimately to be innocent, law-abiding citizen. Arrest has a diminishing and demoralizing effect on his personality. He is outraged, alienated and becomes hostile. But then a balance has to be struck between the security of the State (and the societal interest in peace and law and order) on one hand and the individual freedom on the other." Your views on the aforesaid proposals are invited.

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