minakshi bindhani
29 October 2021
As per the illustrated query!
Section 172 of the Criminal Procedure code, 1973 that every police officer making an investigation shall enter his proceedings in a diary, which is now called a case diary. The section contemplates that any criminal court may send for the said "case diary" and may use such diary not as 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 seeing them. However, if the case diaries are used by the police officers who made them refresh his memory the provisions of Sec.161 or Sec.145 of the Evidence Act shall apply.
Under 159 of Evidence Act, 1872, 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 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 a copy of the 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.
Under Sec.161 of the Evidence Act reads as;
Right of adverse party as to writing used to refresh memory.
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.
In the case, Nathu Manchhu vs. The State of Gujarat(1978) the court held that mere reading over the police statement to the witness before he enters the box does not amount to a contravention of sec.172 of the code.
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 to contradict 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.
Hope it is helpful
Regards
Minakshi Bindhani
