Holding

A case diary of another case may be summoned under Section 91(1) of the CrPC, and statements recorded under Section 161 can be used for contradiction or impeachment pursuant to Section 162 of the CrPC and Section 145 of the Evidence Act.

Summary

In a Sessions trial, the accused sought to summon the police case diary of a different investigation (Cr. No.81/91) to confront a witness (PW‑5) with his earlier statement recorded under Section 161, and also prayed to recall the witness. The Sessions Judge allowed the application, but the State of Kerala and the victim's brother challenged the order, arguing that Section 172 of the CrPC does not permit summoning a diary of a case not under trial. The High Court dismissed the challenge, holding there was no bar to summon such a diary. On appeal, the Supreme Court clarified that the power to summon a case diary of another case derives from Section 91(1) of the CrPC, not from Section 172, and that the diary can be produced when the court deems its production necessary or desirable. The Court affirmed that statements recorded under Section 161 may be used for contradiction or impeachment under Section 162 of the CrPC read with Section 145 of the Evidence Act, subject to the usual restrictions. Consequently, the appeal was dismissed, confirming the lower courts' orders on the basis of the correct statutory provision.

Issues considered

Whether a statement of a witness recorded under Section 161 in one case can be used against the witness in a different trial.
Whether a Sessions Court can summon the police diary of a case not under inquiry or trial before it for the purpose of contradicting a witness.
Whether Section 172 of the CrPC authorises summoning of a case diary of another case, or whether such power lies in Section 91(1).
Whether Section 162 of the CrPC permits the use of statements recorded under Section 161 in proceedings other than the investigation of the offence concerned.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 162, s. 172, s. 207, s. 91(1)
Indian Evidence Act, 1872s. 145, s. 155

Subjects

case diarySection 91Section 172prior statementcross‑examinationwitness impeachmentCriminal Procedure CodeEvidence Actsummons

Judgment

A STATE OF KERALA
v.
-
BABU AND ORS.

MAY 4, 1999

B [G.B. PATTANAIK AND N. SANTOSH HEGDE, JJ.]

Criminal Procedure Code, 1973-Sections 91(1), 161, 162, 172-Indian
Evidence Act, 1872-Section 145-Sessions case-Whether Court can summon
the case diary of a different case not pertaining to the one in hand-Held,
C yes-Further held, the power to summon the case diary emanates not from
Section 172 but from Section 91(1).

The respondents-accused in a Sessions case filed an application under
Section 172 of the Criminal Procedure Code for summoning a case diary in
a different case for the purpose of contradicting the statement of a witness
D and to impeach the credit of the witness in the Sessions case. The respondents
also prayed for recalling the witness. The Sessions Judge allowed the
application. Both the State and the brother of the victim challenged the order
of the Sessions Court and the same dismissed by the High Court. It was held
that there is no bar in law to summon the case diary of a case even other
E than the one which is being tried, for the purpose of contradicting the
evidence of the prosecution witnesses.

On appeal before this Court, the State contended that the case diary
sought to be summoned being a case diary not of the case which is being
tried in the Sessions trial, under Section 172 Cr. P.C. it is impermissible
F for the Court to summon-the case diary nor the statement recorded therein
could be permitted to be used for contradicting a witness who is being
examined in a trial arising out of a totally different case. The Respondents
contended that any prior statement of a witness can be used for the purpose
of contradicting a witness as provided for in Section 162 Cr. P.C. and Section
145 of the Evidence Act and that in view of the fact that those provisions
G having been enacted for the benefit of the accused a liberal construction
should be given to the provisions of Section 172 of the Code.

Dismissjng the appeal, the Court

HELD : 1. On a reading of_Section 162 of the Code bearing in mind
H the object of the said section and Section 145 of the Evidence Act, it is clear
978
STATE OF KERALA v. BABU 979
that an accused in a criminal trial has the right to make use of the previous A
statements of a witness including the statements recorded by the investigating
agency during the course of an investigation for the purpose of establishing
a contradiction in the evidence of a witness or to discredit the witness.
[983-G]

2. There is no prohibition in the Criminal Procedure Code against any B
court from looking into the diary of a counter case or from using the diary
of a counter case in the trial of anther case. But this does not mean that the
right of the court to summon the case diary of another case is derived from
Section 172 of the Code or by the application of principles of Section 172
because ex facie Section 172 of the Code does not help the accused in
making use of a case diary. Section 172 relates to summoning of the case C
diary of a case which is under enquiry or trial only. [986-B-D]

3. Section 172 does not contemplate summoning of the case diary for
the purpose of assisting the accused to have a look at the previous statements
of the witness for using it for his benefit, as contemplated in Section 162
of the Code. The finding of the Courts below that the source of power to D
summon the case diary of a case other than the one that is being tried
emanates from Section 172 of the Code is incorrect. [985-D-F)
Ahmed Mia & Ors. v. Emperor, AIR (1944) Cal. 243, distinguished.
Khatri & Ors. v. State of Bihar & Ors., [1981] 2 SCC 493, referred E
to.
4. The finding of the High Court that a statement recorded by
investigating officer in any case, which was under investigation, being a
statement made under Section 161 of the Code, the same can be used for the
limited purpose provided under Section 162 of the Code read with Section F
145 of the Evidence Act, is affirmed. The very object of the enactment of
Section 161 of the Code and Section 145 of the Evidence Act is to create a
right in the accused to make use of the previous statements of the witnesses
for the purpose of contradiction and for impeaching the credit of the witness.
This right has not been taken away by Section 172 of the Code and there
is no prohibition in regard to this right of the accused either under the Code G
or under the Evidence Act. This right does not flow under Section 172 of the
Code nor is the accused entitled to these previous statements under Section
207 of the Code. (986-E-H]

Tasildar Singh & Anr. v. State of UP., AIR (1959) SC 1012, referred
to. H
980 SUPREME COURT REPORTS [1999] 2 S.C.R.

A S. A case diary of another case, not pertaining to the trial in hand can
be summoned if the Court trying the case considers that production of such
a case diary is necessary or desirable for the purpose of trial, under Section
91 of the Code. When a case diary is summoned under section 91(1) of the
--
Code then the restrictions imposed under sub-sections (2) and (3) of Section
172 would not apply to the use of such case diary but while using a previous
B statement recorded in the said case diary, the court should bear in mind the
restrictions imposed under section 162 of the Code and Section 145 of the
Evidence Act because what is sought to be used from the case diary so
produced, are the previous statements recorded under Section 161 of the
Code. [987-G-H; 988-A)
c CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
761 of 1993.

From the Judgment and Order dated 27.8.93 of the Kerala High Court
in Crl. M.C. No. 1435of1993.
D
G. Prakash for the Appellant.

Roy Abraham for Ms. Baby Krishnan for the Respondent.

The Judgment of the Court was delivered by
E
SANTOSH HEGDE, J. In a pending Sessions case, on behalf of the
accused persons, applications were made to summon the case diary of a case
registered as Cr. No.81191 for confronting a witness with his previous statement
as found in the said case diary and to recall the said PW-5. The learned
Sessions Judge allowed the said applications which came to be challenged
F in criminal petitions filed before the High Court of Kerala by the State as well
as the brother of the deceased. These petitions came to be dismissed by an
Order of the High Court dated 17th August, 1993. Both the Sessions Court
and the High Court held that there is no bar in law to summon the case diary
of a case even other than the one which is being tried, for the purpose of
G contradicting the evidence of the prosecution witnesses. In this appeal by
special le~ve, the State of Kerala has raised the following questions of law:

(a) Whether the Statement ofa witness recorded u/s. 161 ofCr.P.C.
in one particular crime could be used against that witness in any
other trial enquiry or proceedings by the accused.
H (b) Whether the learned Sessions Judge can call for the police
STATE OF KERALA v. BABU [SANTOSH HEGDE, J.] 981
diaries of a case which is not under inquiry or trial before him A
· and permit it to be used by the accused for contradicting a
witness examined ·ih another case under trial before him.
(c) Whether Section 162 of the Cr.P.C. permit the use of statement
recorded under Section 161 of Cr.P.C. in any other proceeding
other than the inquiry or trial in respect of the offence for which B
the investigation was conducted.

It is contended on behalf of the appellant that the case diary sought
to be summoned being a case diary not of the case which is being tried in
the sessions trial under Section 172 of the Code of Criminal Procedure
(hereinafter referred to as 'the Code'), it is impermissible for the court to C
summon the case diary nor the statements recorded therein could be permitted
to be used for contradicting a witness who is being examined in a trial arising
out of a totally different case.

On behalf of the respondents, it is contended that any prior statement
of a witness can be used for the purpose of contradicting a witness as D
provided for in Section 162 of the Code and Section 145 of the Evidence Act.
It was contended that in view of the fact that those provisions having been
enacted for the benefit of the accused, a liberal construction should be-given
to the provisions of Section 172 of the Code. Reliance was placed upon a
judgment of the High Court of Calcutta rendered in the case of Ahmed Mia E
and Ors. v. Emperor, AIR ( 1944) Cal. 243 and of this Court in Khatri & Ors.
v. State of Bihar & Ors., [1981] 2 SCC 493. The brief facts necessary to
appreciate the contentions of the parties in this appeal are as follows :

In the course of trial of Sessions Case No.157/92, on the file of the
Sessions Judge at Thrissur, it was noticed by the defence that on the very F
day of the incident which was subject matter of the sessions case, there was
another crime registered in Cr. No. 81/91 and in that during the course of
investigation, a statement of the witness who is being exan1ined in the sessions
case as PW-5, was recorded under Section 161 of the Code which, the defence
has contended, contradicts the statement made by PW-5 in the course of the G
sessions trial. Therefore, for the purpose of establishing the contradiction in
the evidence of PW-5 and in order to impeach the said witness, the defence
wanted the case diary in Crime No.81/91 to be summoned with a consequential
prayer for recalling PW-5. This prayer to summon the case diary of Crime
No.81/91, having been allowed, the above controversy has arisen primarily
based on the language ol Section 172 of the Code. H
982 SUPREME COURT REPORTS [1999] 2 S.C.R.
'
A Before examining the applicability of Section 172 of the Code, we will
first consider the right of an accused to cross.-examine a witness with reference
to the previous statement of a witness in a trial. Section 145 of the Evidence
Act provides :-

"A witness may be cross-examined as to previous statements
B made by him in writing or reduced into writing, and relevant to matters
in question, without 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."

C A perusal of this Section shows that this section permits the cross-
examination of the witness in any trial, with reference to his previous statement,
to establish a contradiction and the manner in which such contradictions can
be established. Section 155 of the Evidence Act provides that the previous
statement of a witness can be made use of during the cross-examination of
D that witness for the purpose of impeaching the credit of the witness. Thus,
it is seen it is the right of a party in a trial to use the previous statements
of a witness either for the purpose of establishing a contradiction in his
evidence or for the purpose of impeaching the credit of the witness. This right
given to a party in a trial under Section 145 of the Evidence Act is somewhat
controlled in criminal trials by the provisions made in the Code.
E
Section 161 of the Code provides that the police officer investigating
a case is entitled to examine any person and reduce the statement of such
person in writing. This statement recorded by a police officer under Section
161 even though is a previous statement for the purpose of Section 145 of
the Evidence Act, such statement can be used for the purpose of establishing
F a contradiction or impeaching the credit of the witness only in the manner
provided for in Section 162 of the Code. The use of the previous statement
recorded under section 161 of the Code is controlled by Section 162 of the
Code. The proviso which which actually controls the use of Section 162 of
the Code reads thus :-
G "Provided that when any witness is called for the prosecution in such
inquiry or trial whose statement has been reduced into writing as
aforesaid, any part of his statement, if duly proved, may be used by
the accused, and with the permission of the Court, by the prosecution
to contradict such witness in the manner provided by Section 145 of
H the Indian Evidence Act, 1872 (I of 1872); and when any part of such
STATE OF KERALA v. BABU [SANTOSH HEGDE, J.] 983
statement is so used, any part thereof may also be used in the re- A
examination of such witness, but for the purpose only of explaining
any matter referred to in his cross-examination."

Therefore, it is seen even in a criminal trial the previous statement of
a witness can be used by the accused for the limited purpose mentioned in
Section 162 of the Code as provided for in Section 145 of the Evidence Act. B
The object of enacting Section 162 is noticed by this Court in the case of
Tasildar Singh and Anr. v. State of U.P., AIR (1959) SC 1012 wherein it was
held thus :

"It is, therefore, seen that the object of the legislature throughout
has been to exclude the statement of a witness made before the police C
during the investigation from being made use of at the trial for any
purpose, and the amendments made from time to time were only
intended to make clear the said object and to dispel the cloud cast on
such intention. The Act of 1808 for the first time introduced an
exception enabling the said statement reduced to writing to be used D
for impeaching the credit of the witness in the manner provided by
the Evidence Act. As the phraseology of the exception lent scope to
defeat the purpose of the legislature, by the Amendment Act of 1923,
the section was redrafted defining the limits to confine it only to
contradict the witness in the manner provided under section 145 of
the Evidence Act. If one could guess the intention of the legislature E
in framing the section in the manner it did in 1923, it would be
apparent that it was to protect the accused against the user of the
statements of witnesses made before the police during investigation
at the trial presumably on the assumption that the said statements
were not made under circumstances inspiring confidence. Both the F
section and the proviso intended to serve primarily the same purpose
i.e., the interest of the accused."

Therefore, on a reading of Section 162 of the Code bearing in mind the
object of the said Section and Section 145 of the Evidence Act, it is clear that
an accused in a criminal trial has the right to make use of the previous G
statements of a witness including the statements recorded by the investigating
agency during the course of an investigation for the purpose of establishing
a contradiction in the evidence of a witness or to discredit the witness. The
question then arises how does the accused confront the previous statement
made by a witness in the course of an investigation to establish the
contradiction in the evid;;;nce given by the witness in the trial. So far as the H
984 SUPREME COURT REPORTS [1999] 2 S.C.R.

A statements made during the course of investigation of the case being tried
is concerned, there is no difficulty because an accused is entitled under
Section 207 of the Code for the supply of free copies of the documents
-
referred to in the said Section which includes the previous statement recorded
under sub-section (3) of Section 161 of the Code. The accused does not have
B such a right as a matter of course in regard to other previous statements; more
so, in regard to the statements recorded by the investigating agency under
Section 161 in a case other than the one that is being tried by the court.
Therefore, in the instant case, the accused made an application for summoning
the case diary of Crime No.81/91 invoking the provisions of Section 172 of
the Code. But the State contends that this Section does not apply to
C summoning the case diary of cases other than the one that is being tried.
Therefore, we will now examine the contention of the State with reference to
Section 172 of the Code which Section reads thus :

"172. Diary of proceedings in investigation.-( I) Every police
officer making an investigation under this Chapter shall day by day
D 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 circumstrnces ascertained through his investigation.
(2) Any Criminal Court may send for the police diaries of a case
E 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
F 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 (I of 1872),
shall apply."
G Sub-section (I) of the above Section mandates that every police officer
making an investigation shall maintain a case diary of that case in which
among other entries, shall maintain the statements of the witnesses examined
by him during the course of his investigation. Sub-section (2) of the same
Section empowers a criminal court to send for such police diaries of a case
under inquiry or trial in such Court, (emphasis supplied) and permits the use
H of such diaries, not as evidence in the case, but to aid it in such inquiry or
STATE OF KERALA v. BABU [SANTOSH HEGDE, J.] 985

trial. The words used in sub-section (2) of Section 172, more particularly A
'police diaries of a case under inquiry or trial in such Court,' indicates it is
only that police diary in which the concerned investigating officer had made
entries of his investigation and which pertains to the case being tried by the
court alone can be sent for. Sub-section (3) of Section 172 further imposes
restrictions in the manner in which such diaries can be used by the court. It B
also specifically bars the right of an accused or his agent to call for such
diaries. Thus, on a plain language of this Section, it is clear that this Section
cannot be used for the purpose of summoning a case diary which does not
pertain to the investigation of the case which is being tried by the court. It
also stands to reason because so far as the accused is concerned in the case
in which he is being tried, he would have been supplied with all the documents C
referred to under Section 207 of the Code. Therefore, the question of he using
the entries in the case diary would not arise. Section 172 is specifically meant
for the contingencies when court finds it necessary to look into the case diary
for the purpose of finding an aid in the trial or for the purpose of assisting
the police officer to refresh his memory. Therefore, Section 172 does not D
contemplate summoning of the case diary for the purpose of assisting the
accused to have a look at the previous statements of the witness for using
it for his benefit, as contemplated in Section 162 of the Code. The trial court
and the High Court in this case proceeded on the footing that there is no bar
under the Code to summon the case diary relating to the cases other than the
one that is being tried. Hence, placed reliance on Section 172 of the Code. E
We are unable to subscribe to that part of the finding of the courts below
that the source of power to summon the case diary of a case other than the
one that is being tried, emanates from Section 172 of the Code. Respondents
have sought to place reliance on a Division Bench judgment of the High
Court of Calcutta in the case of Ahmed Mia & Ors. v. Emperor, AIR (1944) F
Cal. 243 wherein the High Court observed thus :-

"Section 172 relates to the Police diary made in respect of a case
under enquiry or trial by the Court which calls for it and therefore
does not in terms apply where the diary relates not to the case which
was actually being tried by the Court but to the counter case, but the G
principles set out in the section apply. There is no provision in the
Criminal Procedure Code which would prevent the Court from looking
into the diary of the counter case, or from using the diary in the
counter case in the way laid down in S.172(2)."

These observations of the court proceeded on the 1"'asis that there is H
986 SUPREME COURT REPORTS [1999) 2 S.C.R.

A no provision in the Criminal Procedure Code which would prevent the court
from looking into the diary of the counter case or from using the diary in the
counter case in the way laid down in Section 172(2) of the Code. There can
be no quarrel in regard to the fact that there is no prohibition in the Criminal
Procedure Code against any court from looking into the diary of a counter
B case or from using the diary of a counter case in the trial of another case.
But this does not mean that the right of the court to summon the case diary
of another case is derived from Section 172 of the Code or by the application
of principles of Section 172 because ex facie Section 172 of the Code does
not help the accused in making use of a case diary. Therefore, we are of the
opinion that the judgment of the Calcutta High Court does not fully support
C the case of the respondents. On the contrary, it is seen that this Court in
Khatri's case (supra) has observed thus:

"It will thus be seen that the bar against production and use of
case diary enacted in Section 172 is intended to operate only in an
inquiry or trial of an offence."
D
Which also indicate the fact that Section 172 relates to summoning of
the case diary of a case which is under enquiry or trial only.

The High Court in the impugned judgment proceeded on the basis that
a statement recorded by an investigating officer in any case which was under
E investigation, being a statement made under Section 161 of the Code, the
same can be used for the limited purpose provided under Section 162 of the
Code read with Section 145 of the Evidence Act. There can be no quarrel with
this approach of the High Court in regard to the use of the previous statements
of a witness made in the course of another investigation being used in the
course of another criminal trial. This is because, as seen from the observations
F of this Court in the case of Tahsildar Singh (supra), the very object of
enactment of Section 161 of the Code and Section 145 of the Evidence Act
is to create a right in the accused to make use of the previous statements of
the witnesses for the purpose of contradiction and for impeaching the merit
of the witness. This right has not been taken away by Section 172 of the Code
G and, as noticed above, there is no prohibition in regard to this right of the
accused either under the Code or under the Evidence Act. But the question
for consideration is, how does the accused exercise this right with reference
to a previous statement of a witness made in another case which is recorded
by the investigating officer in that case under the provisions of Section 161
of the Code. In our opinion, this right certainly does not flow under Section
-
H 172 of the Code nor is the accused entitled to these previous statements
STATE OF KERALA v. BABU [SANTOSH HEGDE, J.) 987
under Section 207 of the Code. But, this does not mean that the accused is A
---- denied of his limited benefit of using the said previous statements recorded
during the course of another investigation. The answer to this question, in
our considered view, lies in Section 91 ( l) of the Code which reads thus:

"91. Summons to produce document or other thing. -{ l) Whenever
any Court or any officer in charge of a police station considers that B
the production of any document or other thing is necessary or desirable
for the purposes of any investigation, inquiry, trial or other proceeding
under this Code by or before such Court or officer, such Court may
issue a summons, or such officer a written order, to the person in
whose possession or power such document or thing is believed to be,
requiring him to attend and produce it, or to produce it, at the time C
and place stated in the summons or order.
(2) Any person required under this section merely to produce a
document or other thing shall be deemed to have complied with
the requisition if he causes such document or thing to be
produced instead of attending personally to produce the same. D
(3) Nothing in this section shall be deemed -
(a) to affect Sections 123 and 124 of the Indian Evidence Act, 1872
(1 of 1872), or the Bankers' Books Evidence Act, 1891 (13 of
1891), or E
(b) to apply to a letter, postcard, telegram or other document or any
parcel or thing in the custody of the postal or telegraph authority."

The language of Section 91 is much wider than the language of Section
172 and by no stretch of imagination it could be contended that the case diary
maintained under Section 172 of the Code is ·not a document as contemplated F
under Section 91(1) of the Code. If that be so and if the court comes to the
conclusion that the production of such document is necessary or desirable
then, in our opinion, the court is entitled to summon the case diary of another
case under Section 91 of the Code de hors the provisions of Section 172 of
the Code for the purpose of using the statements made in the said diary, for G
contradicting a witness. When a case diary, as stated above, is summoned
under Section 91(1) of the Code then the restrictions imposed under sub-
sections (2) and (3) of Section 172 would not apply to the use of such case
diary but we hasten to add that while using a previous statement recorded
in the said rase diary, the court should bear in mind the restrictions imposed
under Section 162 of the Code and Section 145 of the Evidence Act because H
988 SUPREME COURT REPORTS [1999) 2 S.C.R.

A what is sought to be used from the case dairy so produced, are the previous
statements recorded under Section 161 of the Code.

In this view of the matter, in our opinion, a case diary of another case,
not pertaining to the trial in hand can be summoned if the court trying the
c.ase considers that production of such a case diary is necessary or desirable
B for the purpose of trial, under Section 91 of the Code.

For the above reasons, this appeal fails and the judgments impugned
are confirmed though for a different reason as indicated above.

V.M. Appeal dismissed.