Can a Sessions Judge reply upon case diary in a murder case?

The author in this article discusses whether a sessions judge can rely upon case diary in a murder case or not and the related concepts. The author further discusses the importance of case diary in a murder case.

Before we get into the question of whether a Sessions Judge can reply to a case diary in a murder case or not it is important to understand what is a case diary and the importance of case diary in a murder case. Not only that but also to understand the powers and constitution of a Sessions court through various judgements and provisions of law. 

Case Diary- a provision in the law

According to Section 172 of the Code of Criminal Procedure, 1973 case diary generally means the record of investigation done by the police officers. It marks and includes all the developments in a case and has to be properly updated throughout the investigation. Section 172(1) states that “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.[1]This generally means that every investigating officer is obligated to make daily entries in the diary regarding all the advancements made in the case.

This subsection also gives the particulars that need to be mentioned in a case diary, namely:

  • Details of time at which the information reached the officer
  • Time at which the investigation began
  • Time at which the investigation was closed
  • Places visited by the officer to investigate
  • Statement of facts along with the circumstances that led up to the crime, meaning what exactly happened
  • Steps were taken by the officer to ascertain the facts
  • Addresses of witnesses, that is, present address and permanent address

However, certain things should not be mentioned in a case diary and the officer should refrain from using them. Those things are:

  • The opinion of any officer related to the case or any difference in opinion of the Investigating Officer and the Supervisory officer
  • Recommendations made in the conclusion of the report or any comments made by any of the officers
  • Facts or circumstances that are not helpful to the case

Section 172(2) states that “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.[2]it means that any court can ask for case diary for better understanding of the investigation done by the officers. But these records called by them cannot be used as evidence in the case by either prosecution or defense. This view has also been given in the case of Shamushul Kanwar v. State of Uttar Pradesh[3]. It has also been given in the judgement that subsection 2 is not to be given any critical analysis and should be subjected to bare reading as it is self-explanatory.

The case also helps in understanding the concept behind subsection 3 of section 172 which states that “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.[4]

It means that as per this section, the case diary cannot be used as evidence in the trial and cannot be called upon by the accused or his representatives to prove his innocence. But if the record has been called upon to refresh the memory of the investigating officer, Section 161 or Section 145 of the Indian Evidence Act, 1872 shall apply. Section 161 of the Indian Evidence Act gives the right to an adverse party as to writing used to refresh memory, that is, any written document can be used to refresh memory. Also, Section 145 of the Indian Evidence Act gives the power to cross-examination concerning any written document called upon for refreshing memory. The whole point of subsection 3 was to give the power of cross-examination of the case diary if it has been called for refreshing the memory of the investigating officer.

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The same view has also been upheld or given in the case of Queen-Empress v. Mannu[5]where it was stated that the power for use of case diary is only given to the trial court judge and the police officer and it is their duty to disregard any information given that it is irrelevant to the trial. If there is any contradiction in the case diary and the statement of the police officer, the case diary can be used to refresh the memory of the police officer and understand the concept behind the facts written in the diary. Not only this, the magistrate also cannot take cognizance in the material he found in the case diary. In this case, the Court relied upon the case diary for conviction.

Also, in the case of Khatri and Ors. v. The state of Bihar[6]the Hon’ble Supreme court was of the view that even though the case diary has been called upon by the court to refer, the accused and his representatives cannot call for this diary for reference in the case and aid them in the process of proving the accused’s innocence. Here in this case the Court even though relied upon the case diary, that did not mean that a case diary can only be used to prove guilt but also innocence. 

In another case of Mukund Lal and Anr. v. Union of India and Anr.[7] The Hon’ble Supreme court stated that the legislature has provided the basic rules concerning usage of case diary that needs no critical analysis. This means that accused cannot use the diary to prove his innocence other than the time when the police officer has requested to use of the diary to refresh his memory.

But what happens if the case diary is not kept up to the mark of the law related to it? The police officer should take care of the following points while making a case diary:

  • Diaries are to be kept properly as is their duty
  • No intentional or unintentional mistakes should be made while making a diary entry by the officer. If the diary entry is not made properly, this would not result in proving the guilt of the accused.
  • If any false entry is made in the diary, the officer is charged with an offense under Section 177 of the Indian Penal Code.
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Uses of Case Diary in a murder case

The case diary is used for providing insight into the investigation to the trial court. It gives an idea about the lines of investigation that were followed to make a case against the accused. It also helps the court to understand the day to day developments in the case. It is stated in the Code of Criminal Procedure as the aid in the inquiry or trial. It also helps the court to decide the witnesses that it needs to call for furthering the trial or even call on record the documents mentioned in the diary. The court can also use the diary to clear up some misunderstanding that has been found in evidence and the statements given by the witnesses. These diaries can also be used to contradict the statement made by the officer in the later stages of the trial. This view has been upheld in the case of Mukund Lal and Anr. v. Union of India and Anr.[8] The case also provided for more guidelines on the usage of case diaries by the Court, namely:

  • The diary can only be used by a police officer to prove his point and cannot be used by any other witness. The diary can also not be used against any witness or police officer as it is not a shred of true evidence.
  • The diary cannot be used as a piece of corroborative evidence against the police officer. The diary is only to be used for contradicting the officer.
  • The diary is not to be used to cause prejudice to the accused
  • A police officer cannot be compelled to refresh his memory by giving him the police diary made by him for the investigation of the case. The police officer can refuse the use of the diary, but this refusal will benefit the accused to prove his innocence. But all witnesses can be compelled to refresh his memory by the court to move forward in the case in a timely fashion and to stop the witness from turning hostile.
  • The defense counsel can use the diary to make up its case but only on the court’s discretion.

Sessions Court

Section 9 of the Code of Criminal Procedure states “The State Government shall establish a Court of Session for every session’s division.[9] (2) Every Court of Session shall be presided over by a Judge, to be appointed by the High Court.[10] (3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session.[11]This means that the state government establishes a session court in every division which is presided by a Sessions Judge who is appointed by the High Court. The High Court also appoints the Additional Sessions Judge and Assistant Sessions Judge to preside over the sessions Court.

The subsection 6 of Section 9 states that “The Court of Session shall ordinarily hold its sitting at such place or places as the High Court may, by notification, specify; but, if in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the sessions division, it may, with the consent of theprosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein.[12]

This means that the Court of Sessions can be held either at High Court or any other place after the consent of the prosecution and the accused. The Additional Sessions Judge or Assistant Sessions Judge is responsible for matters related to theft, dacoity, murders, pick-pocketing, etc. in the absence of the Sessions Judge.

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According to Section 28, a sessions court can pass the following sentences:

  • Any sentence authorized by law, but for a death penalty sentence, authorization is needed from the High Court.
  • An Assistant Sessions Judge cannot pass a death sentence, life imprisonment, or imprisonment for more than 10 years.

Conclusion

Now that we are clear on what exactly is a case diary and the powers of session court, we can come on the question of whether sessions judge reply upon case diary in a murder case.

A sessions judge cannot order a general order requesting that police diaries be sent to him for any case. The request to call case diaries has to be case-specific, that is, he can order that case diaries be sent to him along with the record of Magistrate’s record for trial in all criminal appeals. This means that even though the sessions judge cannot call the case diary in a murder case with previous records but he still can understand the investigation from the police diary once called upon.

Also, as we already know that once the diary is called for refreshing the memory of the police officer, the prosecution and the defence can take the diary for cross-examination. Once this cross-examination is conducted, the sessions judge can reply upon the questions raised in this and can also base the order on the findings of this cross-examination. Thus, it can be said that the sessions judge cannot rely upon a case diary in a murder case.

Though it would seem that the case diary in a murder case is not that important or does not hold any power, it does as it can make the mind of the judge regarding a particular case. The case diary makes the base of the knowledge of the matter in the judge’s mind. 

Not only this, a case diary in a murder case can not only be used to prove the guilty conscience of the accused but may also help in proving his/her innocence.

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[1] Section 172(1) of the Code of Criminal Procedure

[2] Section 172(2) of the Code of Criminal Procedure

[3] 1995 4 SCC 430

[4] Section 172(3) of the code of Criminal Procedure

[5] (1897) ILR 19 All 1897

[6] 1981 AIR 1068

[7] 1989 AIR 144

[8]1989 AIR 144

[9] Section 9(1) of the Code of Criminal Procedure

[10] Section 9(2) of the Code of Criminal Procedure

[11] Section 9(3) of the Code of Criminal Procedure

[12] Section 9(6) of the Code of Criminal Procedure