IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28-3-2011 CORAM THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI CRL.O.P.No.2840 of 2011 P.K. Chandrasekaran ... Petitioner vs The Inspector of Police CBI Chennai ... Respondent Criminal Original Petition filed under Section 482 Cr.P.C. for the reliefs as stated therein. For petitioner : Mr.R.Sankarappan For respondent : Mr.N. Chandrasekaran Spl.P.P for CBI Cases ORDER By consent of both sides, the matter has been taken up for final hearing. The petition has been filed seeking a direction to the learned XIV Additional Special Judge for CBI Cases, Chennai to record the evidence of P.W.4 in C.C.No.13 of 2009 pending on the file without allowing P.W.4 o peruse the C.D. File of the case. 2. The petitioner is an accused in C.C.No.13 of2009 on the file of the learned XIV Additional Special Judge for CBI Cases. The case was taken for trial and three witnesses were already examined. One Mr.C.S. Mony, Deputy Superintendent of Police, CBI was called as P.W.4 on 31.1.2011. According to the petitioners, the said witness entered the witness box with case diary file pertaining to the petitioner's case and started deposing after perusing the C.D file. It was objected by the learned counsel for the petitioner. It was objected on the ground that a statement under Sec.161 (3) of the witness was recorded by the investigating officer one Mr.G. Palaniappan and therefore, the witness cannot peruse the C.D file and depose. However, the objection was overruled by the trial court but the evidence was stopped. Therefore, the petitioner has come forward before this court seeking for the above relief. 3. Mr.Sankarappan, the learned counsel for the petitioner would submit that the Deputy Superintendent of Police who was called as PW4 cannot peruse the case diary and depose as the case diary cannot be an evidence before the Court of law. The learned counsel relied on an oldest Full Bench English judgment delivered on 13.7.1897 and reported in 17 A.W.N 1897 174 (Queen Empress vs https://hcservices.ecourts.gov.in/hcservices/ Mannu) . 4. In the said judgment, the point for consideration before the Full Bench was as to the use, which may or may not, legally be made of diaries made by police officers under Sec.172 of the Code of criminal procedure and as to what those diaries may contain. The Full Bench observed thus: "A Criminal Court is entitled to "send for the Police diaries of a case under inquiry or trial before it, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial". Such Criminal Court may permit the Police officer who made the special diary to look at it for the purpose of refreshing his memory or may use the special diary for the purpose of contradicting such police officer. Where the Police Officer who made the special diary is allowed to refresh his memory and does look at an entry in the diary for the purpose of refreshing his memory, the provisions of Sec.161 of the Indian Evidence Act, 1872, apply, and the accused or his agent is entitled to see such entry in the special diary and to cross-examine such Police officer thereupon. There is no provision in Sec.172 of the Code of Criminal Procedure enabling any person other than the Police Officer who made the special diary to refresh his memory by looking at the special diary, and the necessary implication is that a special diary cannot be used to enable any witness other than the Police officer who made the special diary to refresh his memory by looking at it. This is in truth a general principle of law. The Criminal Court, but not an accused person or his agent unless the police officer has been allowed to look at the diary in order to refresh his memory, can use the special diary for the purpose of contradicting the Police officer who made it, but before doing so the Court must comply with the specific enactment of Sec.145 of the Indian Evidence Act, 1872, and call the attention of the Police Officer to such parts of the special diary as are to be used for the purpose of contradicting him, otherwise such a use of the special diary would be illegal. 5. The learned counsel also relied on a decision reported in AIR 1978 Gujarat 49 (Nathu Manchhu vs The State of Gujarat) 6. And AIR 1988 Kerala 1 (State of Kerala vs Ammini and others) where the Full Bench of the Kerala High Court dealt with https://hcservices.ecourts.gov.in/hcservices/ the diary envisaged under section 172 of the Code. 7. Per contra, Mr.N. Chandrasekar, learned Special Public Prosecutor for CBI, would submit that the witness has a right to refresh his memory by perusal of the case diary. The learned counsel submitted that the proposed witness who registered and partly investigated the case appeared before the court with the file containing the copies of three case diaries which were maintained by him and he had not deposed anything from the diary but before ever he started his evidence, there was an objection by the learned counsel for the petitioner which was overruled by the trial court. 8. Heard and perused the materials available on record. 9. An important question raised in this petition is as to whether a police officer who had fully or partly investigated the case can depose from the case diary. 10. Sec.172 Cr.P.C. Reads as follows: 172. Diary of proceeding in investigation. (1) Every police officer making an investigation under this Chapter shall day by day enter his proceeding 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. (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. https://hcservices.ecourts.gov.in/hcservices/ 11. The plain reading of the section would show that that every police officer making an investigation shall enter his proceedings in a diary, which is now called as case diary. The section contemplates that any criminal court may send for the said "case diary" and may use such diary not as an evidence in the case but to aid it in such trial. The section also prohibits the accused or his agent to call for such diaries and see them. However, if the case diaries are used by the police officers who made them to refresh his memory the provisions of Sec.161 or Sec.145 of the evidence Act shall apply. 12. Sec.145 of the Evidence Act reads as follows: 145. Cross-examination as to previous statements in writing 1[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, with 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. 13. Sec.159 of the Evidence Act reads as follows 159. Refreshing memory. A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the court considers it likely that the transaction was at that time fresh in his memory. The witness may also refer to any such writing made by any other https://hcservices.ecourts.gov.in/hcservices/ person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct. When witness may use copy of document to refresh memory. Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the court, refer to a copy of such document: Provided the court be satisfied that there is sufficient reason for the non-production of the original. An expert may refresh his memory by reference to professional treatises. 14. Sec.161 of the Evidence Act reads as follows: 161. Right of adverse party as to writing used to refresh memory. 1161. 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. From the perusal of Sec.172 of the Code, the following five points emerge: i) A police officer making an investigation shall maintain a case diary. ii) A criminal court is entitled to send for the case diary of the case under trial before it and may use such diaries, not as evidence in that case but to aid the Court in such trial. iii) such criminal court may permit the police officer who made the case diary to look at it for the purpose of refreshing his memory or may use the case diary for the purpose of contradicting such police officer. https://hcservices.ecourts.gov.in/hcservices/ iv) when a police officer is allowed to refresh his memory and does look at an entry in the diary for the purpose of refreshing his memory the accused is entitled to cross examine such police officer under sec.161 of the Indian Evidence Act. v) the necessary implication is that no other person other than the police officer, who made the case diary, is allowed to look at the diary. 16. The Full Bench of English judgment reported in 17 A.W.N 1897 174 (Queen Empress vs Mannu) . 17 A.W.N 1897 174 (Queen Empress vs Mannu) . has dealt with in detail of the importance of the case diary and its purpose and has observed thus "Before concluding this judgment I must again point out that it is the absolute duty of Judges and Magistrates to entirely disregard all statements and entries in special diaries as being in any sense legal evidence for any purpose, except for the one solitary purpose of contradicting the police officer who made the special diary when they do afford such a contradiction; and even in that case they are not evidence of anything except that such Police officer made the particular entry which is at variance with his subsequently given evidence; they are not evidence that what is stated in the entry was true or correctly represents what was said or done" 17. The Full Bench of Kerala High Court cited supra had also considered Sec.172 of the code and has held "57. The diary mentioned in S.172 (1) and the statements recorded under S.161(3) of the Code are obviously different. Statements recorded under S.161 (3) are covered by the sweep of inhibition contained in S.162 of the Code. The prohibition imposed in S.162 cannot be circumvented by resort to S.172 (2) of the Code. The two are different records, though the statements recorded under Sec.161(3) and the diary envisaged in S.172(1) may together be incorporated in the same file which police call "Case Diary file" for the sake of convenience. That apart, S.172(2) itself embodies an inhibition that the diary envisaged in https://hcservices.ecourts.gov.in/hcservices/ that section is not to be used as evidence in the case. The only use of the diary is "to aid" the Court in the trial, to ascertain the time at which the investigation was begun and closed on each day, the places visited by the officer, and the circumstances ascertained through investigation. It is not a substitute for evidence in the case for the purpose of making a comparison with the testimonies of witness or judicial dying declarations or judicial confessions. The Sessions Judge by adopting the above method had committed an illegality" 18. In AIR 1978 Gujarat 49 (Nathu Manchhu vs The State of Gujarat) is a case where two witnesses, who were called to prove an extra judicial confession, would state in their cross examination that in the morning of the day of their deposition before court, their statement recorded under Sec.162(3) of the Code was read over to them by the police and the police told them to give evidence in accordance with that statement. The court held that mere reading over the police statement to the witness before he enters the box does not amount to contravention of sec.172 of the code. Therefore, the above decision is not applicable to the case in hand. 19. Therefore, the case diary maintained by the police officer, who investigated, can be used to refresh his memory and it is permissible. However, any statement or entries containing thereof shall not be used as legal evidence for any purpose except for the purpose of contradicting the police officer who recorded the statement or made the entry. The police officer who made the investigation alone is entitled to look into the case diary to refresh his memory. No other person is entitled to look at the case diary including the accused and his agent. 20. This being the legal position, let us consider the case on hand. The present witness C.S. Mony was the Inspector of Police, CBI who registered the case against the accused on a complaint given by one Manikandan under Sec.7 of Prevention of Corruption Act in RC MA 2008 and has arranged for a trap proceedings and conducted the trap. His statement before the subsequent investigating officer is to the effect that he had received the complaint and registered a case and arranged trap and conducted pre and post trap proceedings and examined the trap witnesses and seized the tainted money under the mahazar. He had handed over the case to the subsequent investigating officer. Therefore, he was the police officer who made entries in the case diary from the registration of the case till handing over the investigation to his successor on 24.10.2008. Therefore, he is entitled to look at the case diary only to refresh his memory only to that extent and the case diary cannot be used as evidence. If a police officer refreshes his memory and refer to any writing made by him in course of investigation, the accused is entitled to https://hcservices.ecourts.gov.in/hcservices/ cross-examine him on that aspect. However, he can not look at his own statement recorded under section162 (3) of the code. 21. At the cost of repetition, it is reiterated as follows: i) A police officer making an investigation shall maintain a case diary. ii) A criminal court is entitled to send for the case diary of the case under trial before it and may use such diaries, not as evidence in that case but to aid the Court in such trial. iii) such criminal court may permit the police officer who made the case diary to look at it for the purpose of refreshing his memory or may use the case diary for the purpose of contradicting such police officer. iv) when a police officer is allowed to refresh his memory and does look at an entry in the diary for the purpose of refreshing his memory the accused is entitled to cross examine such police officer under sec.161 of the Indian Evidence Act. v) the necessary implication is that no other person other than the police officer who made the case diary is allowed to look at the same. 22. Therefore, the learned XIV Additional Special Judge for CBI Cases, Chennai is directed to call P.W.4 and allow him to look at the case diary only to refresh his memory in respect of those entries he made in course of his investigation and observe the above guidance issued by this court. 23. With the above direction, the criminal original petition is disposed of. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ sr TO 1. XIV Additional Special Judge for CBI Cases, Chennai 2. The Inspector of Police CBI Chennai 3. The Special Public Prosecutor for CBI Cases, Chennai 1 cc to Mr.R.Sankarappan, Advocate, Sr.No.22168 Order in CRL.O.P.No.2840 of 2011 RK {CO} TP/20.4.2011. https://hcservices.ecourts.gov.in/hcservices/