Holding

Only statements recorded under Section 161(3) of the CrPC are required to be supplied to the accused; gists entered in the case diary under Section 172 are not statements and need not be disclosed.

Summary

The State of NCT of Delhi sought to compel the accused, Ravi Kant Sharma and others, to be supplied with the "gists" of statements recorded by the investigating officer during interrogation. The trial court held that such gists amounted to statements under Section 161(3) of the Criminal Procedure Code (CrPC) and must be provided to the accused. The Delhi High Court remitted the matter for further determination, relying on Shamshul Kanwar's decision that gists could be treated as statements if they were under Section 161. The Supreme Court clarified that only statements expressly recorded under Section 161 are subject to disclosure, whereas observations entered in the case diary under Section 172 are not statements and cannot be supplied. It further held that the privilege under Section 173(b) applies only to Section 161 statements, not to case‑diary entries. Consequently, the High Court's direction was set aside and the appeal was allowed.

Issues considered

Whether gists of interrogation recorded in the case diary under Section 172 constitute statements under Section 161(3) of the CrPC and must be disclosed to the accused.
Whether the privilege under Section 173(b) of the CrPC can be claimed to withhold such gists.
Whether the High Court's direction to examine the case diary for determining the nature of the gists is legally sustainable.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 172, s. 173, s. 207
Indian Evidence Act, 1872

Subjects

Criminal Procedure CodeSection 161Section 172case diarygists of statementsdisclosure to accusedprivilege under Section 173revisionappeal

Judgment

~
..
A STATE OF NCT OF DELHI
v.
RA VI KANT SHARMA AND ORS.

FEBRUARY 13, 2007

B [DR. ARIJJT PASA YAT AND S.H. KAPADIA, JJ.]

c
Code of Criminal Procedure, 1973-ss.161and172-Gistslobservation
recorded during interrogation-Non-supply of to the accused-Held, rigluly
not supplied-Accused entitled only to the copy of statement recorded under
' :!._

s.161.

Prosecution case was that PW 193, the Inspector had interrogated PW
66. The accused-respondent requested for supply of the gists of statement of
interrogation of PW-66. The Prosecution contended that PW-193 had merely
D recorded his own observation and the gists cannot be treated as statement of
PW66.

Trial Court held that even the gists made after interrogating a person
amounts to statement under s.161(3) Cr.P.C. and accused is entitled to get
copy of such gists and directed the Prosecution to supply same to the accused.
E Against this opinion/direction, appellant filed revision.

High Court observed that if the gists pertain to observation made by
PW-193 himself then these are not to be disclosed to respondent. However, if
the gists can be regarded as statements under s.161(3) although in summary
form made by PW-66 then in view of Shamshul Kanwar Case*, same may be
F "\
supplied to respondent. In view of this, High Court remitted the case to trial
Court for d.etermining the issue.

In appeal to this Court, appellant contended that the conceptual difference
between the statement of witnesses recorded under s. 172 Cr.P.C. and case
diary under s.161 Cr.P.C. has been lost sight of; that Shamshul Kanwar's
G case* on which the High Court relied on dealt with cases having composite
case diary which include the statement recorded under s.161 Cr.P.C. as well ..,..
as the observation of the investigating officer under s.172 Cr.P.C. and that in

H
the State of NCT of Delhi, the case diary is being maintained separately and

540 -
j

STATE OF NCT OF DELHI v. RA VI KANT SHARMA 541

-\.
hence there is no question of any portion of case diary being looked into to A
find out whether statement under s. 161 have been recorded therein or not.

Allowing the appeal, the Court

HELD: 1.1. Under s.161 Cr.P.C., the police officer may reduce into
writing any statement made to him in the course of examination under that B
provision and if he does so he shall make separate and true record of the
statement of each such person whose statement he records. In a given case
the investigating officer may record circumstances ascertained during
·1
' investigation in the case diary in terms of s.172 Cr.P.C. It is only when the
investigating officer decides to record the statement of witnesses under s.161
Cr.P.C. that he becomes obliged to make a true record of the statement which c
obviously will not include the interpretation of the investigating officer of the
... statements or the gists of statement. [Para 1111546-B-C)
·i
~.2. Sub-section (b) of s.173 Cr.P.C. which authorises the police officer
to claim a sort of privilege in respect of any statement recorded under s.161
D
Cr.P.C. after giving reasons as to why such statement may not be provided to
the accused. Such privilege can only be claimed in respect of statement
• ' recorded under s.161 Cr.P.C. and not in respect of what the officer records
f in the case diary i.e. the gist of the statement under s.172 Cr.P.C. The
Magistrate has to, in terms of s.207, provide to the accused, free of cost, copies
of statements recorded under s.161 (3) subject to the exceptions in terms of E
.. s. 173(6). [Para 11) (546-C-D]

2. In different States case diaries are maintained in different ways. Some
States have a composite case diary which includes the statements recorded
under s. 161 Cr.P.C. as well as the observations of the investigating officer
under s.172 Cr.P.C. This court, therefore, in Shamshul Kanwar's case* held F
(
that the statements under s.161 need to be separated from observations which
are recorded under s.172 in order to make available the statement under s.
161(3) to the accused. The position is entirely different here. [Para 13]

Shamshul Kanwar v. State of Uttar Pradesh* [1995] 4 SCC 430,
G
referred to.

> -~ 3. The direction of the High Court as contained in the impugne<! order
is not a definite one. It only refers to Shamshul Kanwar's case* and concludes
that ifthe 'gists' can be regarded as statements under s.161 Cr.P.C. although
H
~-

542 SUPREME COURT REPORTS [2007] 2 S.C.R.

A in summary form they would have to be made over to the accused. It does not ...,_
factually find out that as to whether the gists can be regarded as statements I

in view of the position of law. It did not take note of the specific stand of the
appellant about separate maintenance of case diaries. In view of this, directions
of the High Court are clearly unsustainable. IPara 15] 1548-H; 549-A-B]

B Sunita Devi v. State of Bihar and Anr., 1200511 SCC 608 and Sidharth
and Ors. v. State of Bihar, 12005] 12 SCC 545, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 201 of
2007. /
c From the final judgment and Order dated 23.5.2006 of the High Court of
Delhi at New Delhi in Crl. R.P. No. I 83/2006.

Vikas Singh, A.S.G., Satyakam, R.C. Kathia and Anil Katiyar for the
r
Appellant.

D N. Hariharnn, Sudershan Rajan, Md. Qamar Ali, M.K. Pathy, P.
Narasimhan, Jatin Talwar and A.P. Mohanty for the Respondents.

The Judgment of the Court was delivered by
)

DR. ARIJIT PASAYAT, J. I. Leave granted.
E
2. Challenge in this Appeal is to the direction given by the Delhi High
Court difecting that if the gists of the interrogation can be regarded as
statements under Section 161(3) of the Code of Criminal Procedure, 1973 (in F
short the 'Cr.P.C.'), although in summary form, then the same would have to
be supplied over the accused i.e. the respondents herein.
F
y
3. The background facts in a nutshell are as follows:
I"=

4. Respondents filed a petition under Section 397 and Section 401 read
with Section 482 of the Cr.P.C. regarding the opinion expressed by the trial
court during recording of cross examination of PW I 93 (Inspector Sukhwinder
G Singh) with regard to submissions alleged to have been made by PW 166
(Rakesh Bhatnagar).
~

5. For the purpose of adjudication of the present controversy, reference ""'
has to be made to the opinion expressed by the trial court which reads as
follows:
H
l

STATEOFNCTOFDELHlv. RAVIKANTSHARMA[PASAYAT,.I.] 543

"It is not in dispute that this witness has admitted to have A
interrogated PW Rakesh Bhatnagar several times but copy of seven
statement (recorded by me and other !O's) only is supplied to accused
R.K. Sharma. In my opinion even the gist made after interrogating a
person i.e. PW Rakesh Bhatnagar was a statement in view of aforesaid
provision and the accused was entitled to get copy of such gists of B
statements. Prosecution is accordingly to supply the copies of such
gists to accused R.K. Sharma''.

6. This opinion/direction was questioned by the appellant because in
terrns of such opinion/direction the prosecution has been directed to supply
copies of 'gists' of statement said to have been recorded while interrogating C
PW 66. Stand of the appellant is that these are not statements which fall
within the meaning of Section 161(3) of the Cr.P.C. and, therefore, the accused
is not entitled to any copy of the so called 'gists'. It was pointed out that
these 'gists' were not statements but mere observations of the investigating
officer. Relevant portion of the cross examination of PW-193 reads as follows: D
"At this stage learned defence counsel requests that he be supplied
copies of the gist of statements of interrogation of Rakesh Bhatnagar
recorded in case diary under Section 161. The witness submits that
he did not record the gists of statement but the gist of interrogation
which was his own observation and not the statement." E
7. It was pointed out by the appellant before the trial court that PW 193
has categorically and clearly stated that he did not record gist of statements
of PW 66. On the other hand the gist related to his own observation and
cannot be treated as statement of PW 66. Since the plea did not find acceptance
by the trial Court, High Court was moved by filing a revision petition. F
( Maintainability of revision was questioned by the respondents. It was also
pointed out that in terms of Section 172 Cr.P.C., the investigating officer is
required tp maintain a case diary. With reference to the decision of this Court
in Shamshul Kanwar v. State of Uttar Pradesh, [1995) 4 SCC 430 it was
submitted that in some States the case diary comprises two parts i.e. first G
relating to the steps taken during investigation and the second part consists
of statements of circumstances ascertained during the investigation. This
Court observed that these statements obviously refer to the statements
recorded by the officer in terms of Section 161 Cr.P.C. and copies of second
part which mainly contains statement of the witnesses as a matter of course
are to be supp Iied to the accused persons. H
544 SUPREME.COURT REPORTS (2007] 2 S.C.R.

A 8. After considering the rival submissions, learned Single Judge of the
High Court observed that revision was maintainable and on merits observed
as follows:

"As regards the merits, considering all the arguments advanced
, by the learned counsel for the parties and particularly in view of the
B statements made by PW 193 in the course of his cross-examination
that the gists recorded by him were gists of his own observation and
not the stateqient of PW-66, it would be necessary to ascertain by
looking at the case diary itself as to whether this statement of PW 193 )
(
is made out or not. There is not doubt that if the gists pertain to only
c observations made by PW-193 himself then these are not to be disclosed
to the accused/respondents. However, if the gists can be regarded as
statements under Section 161(3) of the Cr.P.C., although in summary
form, made by PW-66 then in view of the various decision of this
· Court and particularly in the case of Shamshul Kanwar, the same
would hav-:: to be made over the accused/respondents. It would be
D necessary to examine the case diary to ascertain the same. The matter
is, therefore, sent back to the concerned trial court for determination
· of this issued in view of the aforesaid guidelines. Thereafter, the court
may pass appropriate orders. The impugned direction/order is set
aside.
E
The revision petition stands disposed of."

9. According to the learned aounsel for the appellant, the conceptual
difference between the statement of witnesses recorded under Section 172
Cr.P .C. and case diary under Section 161 Cr.P .C. has been lost sight of. It is
F sub~itted that Shamshul Kanwar's case (supra) on which the High Court
relied dealt with cases having composite case diary which include the statement \
recorded under Section 161 Cr.P .C. as well as the observation of the'
investigating officer under Section 172 Cr.P.C. It is submitted that in the State
ofNCT of Delhi the case diary is being maintained separately and hence there
G is no question of any portion of case diary being looked into to find out
whether.statement under Section 161 have beenI recorded therein or not.

10.. Per contra learned counsel for the respondents submitted that the
statements prayed for by the respondents are statements recorded under '""·
Section 161 Cr.P.C. and not of statements relatable to Section 172 Cr.P.C. as
H projected by the appellants. With reference to Section 172 Cr.P.C. it is submitted
STA TE OFNCT OF DELHI v. RA VI KANT SHARMA [PASAYA T, J.] 545
that it does not contemplate recording of: (a) statement of witnesses; (b) gists A
of statement of witnesses. Therefore, recording of statement of witnesses in
case diary would not confer such statement the protection granted under
Section 172 Cr.P.C.

Sections 161 and 172 Cr.P.C. read as follows:
B
"Section 161: Examination of witnesses by police: ( 1) Any police
officer making an investigation under this Chapter, or any police
officer not below such rank as the State Government may, by general
or special order prescribe in this behalf, acting on the requisition of
such officer, may examine orally any person supposed to be acquainted C
with the facts and circumstances of the case.

(2) Such person shall be bound to answer truly all questions relating
to such case put to him by such officer, other than questions the
answers to which would have a tendency to expose him to a criminal
charge or to a penalty or forfeiture. D
(3) The police officer may reduce into writing any statement made to
him in the course of an examination under this section; and if he does
so,. he shall make a separate and true record of the statement of each
such person whose statement he records.
E
Section 172: Diary of proceeding in investigation : (I) 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. F
(
(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 G
diaries, not shall he or they are 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 H
l
I'

546 SUPREME COURT REPORTS (2007] 2 S.C.R.

A Act, 1872 (1of1872) shall apply.

11. Under Section 161 Cr.P.C. the police officer may reduce into writing
any statement made to him in the course of examination under that provision
and if he does so he shall make separate and true record of the statement of
each such person whose statement he records. The provision in other words
B authorizes the police officer to reduce into writing any statement made by a
witness. In a given case the investigating officer may record circumstances
ascertained during investigation in the case diary in terms of Section 172
Cr.P.C. It is only when the investigating officer decides to record the statement
of witnesses under Section 161 Cr.P.C. that he becomes obliged to make a true
C record of the statement which obviously will not include the interpretation of
the investigating officer of the statements or the gists of statement. At this
stage it will be necessary to take note of sub-section (b) of Section 173 Cr.P.C.
which authorises the police officer to claim a sort of privilege in respect of
any statement recorded under Section 161 Cr.P.C. after giving reasons as to
D why such statement may not be provided to the accused. Such privilege can
only be claimed in respect of statement recorded under Section 161 Cr.P.C. and
not in respect of what the officer records in the case diary i.e. the gist of the
statement under Section 172 Cr.P.C. It will also be necessary to take note of
Section' 207 Cr.P.C. The Magistrate has to, in terms of that provision, provide
to the accused, free of cost, copies of statements recorded under Section 161
E (3) subject to the exceptions in terms of Section 173(6). A categorical statement
has been made by the learned counsel for the appellant that the gist of the
statement has not been produced by the prosecution to prove the guilt of the
accused and the gists of the statements were not recorded in terms of Section
161 Cr.P.C. and accused has no right to ask for the gists of such statements
p if recorded under Section 172.

12. At this juncture it would be necessary to take note of sub-section
(3) of Section 172 which provides that neither the accused nor his agents shall
be entitled to call for such diaries meaning diary of proceedings in investigation
nor sh1;1ll he or they be entitled to see them merely because they are referred
G to by the Court.

13. As rightly submitted by learned counsel for the appellant, in different
States case diaries are maintained in different ways. Some States have a
composite case diary which includes the statements recorded under Section
H 161 Cr.P.C. as well as the observations of the investigating officer under
i
STATE OF NCT OF DELHI v. RA VI KANT SHARMA [PASA YAT, J.] 547

~
.Section 172 Cr.P.C. This court, therefore, in Shamshul Kanwar's case (supra) A
held that the statements under Section 161 need to be separated from
observations which are recorded under Section 172 in order to make available
the statement under Section 161(3) to the accused. The position is entirely
different here. Certain observations made by this Court in two recent cases
also need to be noted. In Sunita Devi v. State of Bihar and Anr., [2005] I
B
sec 608 it was observed at para 27 as follows:
"The supervision notes can in no count be called. They are not a part
of the papers which are supplied to the accused. Moreover, the
\ informant is not entitled to the copy of the supervision notes. The
supervision notes are recorded by the supervising officer. The c
documents in terms of Sections 207 and 208 are supplied to make the
accused aware of the materials which are sought to be utilized against
him. The object is to enable the accused to defend himself properly.
The idea behind the supply of copies is to put him on notice of what
he has to meet at the trial. The effect of non-supply of copies has
been considered by this Court in Noor Khan v. State of Rajasthan,
D
AIR (1964) SC 286 and Shakita Abdul Gafar Khan (Smt.) v. Vasant
1 Raghunath Dhoble and Anr., [2003] 7 SCC 749. It was held that non-
supply is not necessarily prejudicial to the accused. The Court has to
I give a definite finding about the prejudice or otherwise. The
supervision notes cannot be utilized by the prosecution as a piece of E
material or evidence against the accused. At the same time the accused
cannot make any reference to them for any purpose. If any reference
is made before any court to the supervision notes, as has noted above
they are not to be taken note of by the concerned court. As many
•
instances have come to light when the parties, as in the present case, F
make reference to the supervision notes, the inevitable conclusion is
( that they have unauthorized access to the official records. We,
therefore, direct the Chief Secretary of each State and Union Territory
and the concerned Director General of Police to ensure that the
supervision notes are not made available to any person and to ensure
•.. that confidentiality of the supervision notes is protected. If it comes G
. :. · to light that any official is involved in enabling any person to get the
same appropriate action should be taken against such official. Due
,..\:' care and caution should be taken to see that while supplying police
papers supervision notes are not given."
H
~.

548 SUPREME COURT REPORTS [2007] 2 S.C.R.

A 14. Similarly in Sidharth and Ors. v. State of Bihar, (2005] 12 SCC 545
at para 27 it was noted as follows:

"Lastly, we may point out that in the present case, we have
noticed that the entire case diary maintained by the police was made
available to the accused. Under Section 172 of the Criminal Procedure
B Code, every police officer making an investigation has to record his
proceedings 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. It is specifically provided in
c sub-clause (3) of Section 172 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 Cr.P.C. or the
D provisions of Section 145 of the Evidence Act shall be complied with.
The court is empowered to call for such diaries not to use it as
ev·idence but to use it as aid to find out anything that happened ..
during the investigation of the crime. These provisions haveoeen
incorporated in the Code of Criminal Procedure to achieve certain
E specific objectives. The police officer who is conducting the
investigation may come across a series of information which cannot
be divulged to the accused. He is bound to record such facts in the
case diary. But if the entire case diary is made available to the accused,
it may cause serious prejudice to others and even affect the safety
F and security of those who may have given statement to the police.
The confidentiality is always kept in the matter of criminal investigation
and it is not desirable to make available the entire case diary to the
accused. In the instant case, we have noticed that the entire Fase
diary was given to the accused and the investigating officer' was
extensively cross-examined on many facts which were not very much
G relevant for the purpose of the case. The learned Sessions Judge
should have been careful in seeing that the trial of the case was
conducted in accordance with the provisions of Cr.P.C."

15. The direction of the High Court as contained in the impugned order
H is not a definite one. It only refers to Shamshul Kanwar 's case (supra) and
J

STATE OFNCTOF DELHI v. RAVI KANT SHARMA [PASAY AT,J.] 549
concludes that if the 'gists' can be regarded as statements under Section 161 A
Cr.P.C. although in summary form they would have to be made over to the
accused. It does not factually find out that as to whether the gists can be
regarded as statements in view of the position of law stated above. It did not
take note of the specific stand of the appellant about separate maintenance
of case diaries.
B
16. In view of what has been stated above, the directions of the High
Court are clearly unsustainable and are set aside.

17. Appeal is allowed.

D.G. Appeal allowed.
c

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