Criminal cases: police diaries cannot be used as ‘evidence’

Seven-page SC judgment sheds light on scope of Section 172 CrPC

The Supreme Court has held “inadmissible” the use of police diary as evidence in criminal cases.

"It is important to underline that the police diary is itself not the evidence and, therefore, inadmissible for having no evidentiary value,” says a seven-page judgment authored by Justice Syed Mansoor Ali Shah on the scope and extent of Section 172 CrPC, police diaries, their purposes and admissibility before court of law.

“It is, however, just a source to help understand the undiscovered or misunderstood aspects of the evidence existing on the record,

if any, and introduce new dimensions to the case, leading to discovery and production of new evidence, if required to meet the ends of justice,” it adds.

“Whatever the court infers from a police diary must translate into admissible evidence in accordance with law, and the court cannot simply rely on, and adjudicate upon the charge on the basis of, statements made in the police dairy."

The judgment says that Section 172(1) CrPC mandates every police officer making investigation of a case to maintain a diary (commonly known as ‘police dairy’ or ‘case dairy’) of proceedings conducted by him in the course of that investigation, by requiring him to enter in that dairy:
i) the time at which any information relating to the offence under investigation reaches him on a particular day; ii) the time at which he begins and closes his investigation on a particular day; iii) the place or places visited by him on a particular day, concerning the investigation of the case; and iv) a statement of the circumstances ascertained on a particular day through his investigation.

"The object to require recording of the said details in the police dairy appears to be to enable the courts to check the method and manner of investigation undertaken by the investigating officer.

“Until the honesty, the capacity, the discretion and the judgment of the police can be thoroughly trusted, it is necessary for the protection of the public against criminals, for the vindication of the law, and for the protection of those who are charged with having committed a criminal offence that the magistrate or judge before whom the case is for inquiry or for trial should have the means of ascertaining what was the information (true, false, or misleading) which was obtained from day to day by the police officer who was investigating the case, and what were the lines of investigation upon which such Police Officer acted."

The judgment also said that a properly kept police diary would afford such information, and such information would enable a magistrate or a judge to determine whether persons referred to in the police diary, but not sent up as witnesses by the police, should be summoned to give evidence in the interests of the prosecution or of the accused.

“It is important to remember that it is the duty of the magistrate or of the judge before whom a criminal case is [being heard] to ascertain the truth and to decide accordingly.

It is axiomatic that a police officer who is investigating a criminal case, receives all sorts of information: true, false or misleading.

The formulation of opinion on the basis of investigation by the police officer can also range from correct and fair opinion to a premature, biased, influenced or incorrect opinion.

"It is to check these infirmities that may creep into police investigation that it is essential that the Magistrate or the Judge, who is to hold the scales of justice evenly between the State and the accused, should have some means of ascertaining the quality of information obtained by the police officer during the course of investigation every day."

Justice Shah also observed that Section 172(2) CrPC empowers a criminal court to send for the police diaries of a case under inquiry or trial in that court and permit the use of such diaries to aid it in such inquiry or trial, but the provisions thereof expressly prohibit the use of such dairies as evidence in the case.

The expression “to aid it in such inquiry or trial” indicates that it can be used by the Court for the purpose of enabling itself to have a better understanding of the evidence brought on the record of the case by the prosecution.
"Inspection of the police diaries can reveal sources of further inquiry, viz, the pointation of some important witnesses that the court can summon, or how the evidence produced was collected to better understand the links between the evidence on the record."

The court can thus use the police dairies in the course of inquiry or trial for resolving obscurities in evidence through questioning the relevant witnesses or for bringing relevant facts on record to secure the ends of justice through legally admissible evidence, e.g., by summoning as witness those persons who are though referred to in the police diary but not sent up as witnesses by the

investigating officer and whose testimony appears to be relevant in the inquiry or trial, or by calling production of some document that appears to be relevant to the matter under inquiry or trial.

“The court, however, cannot take the facts and statements recorded in police dairies as material or evidence for reaching a finding of fact: these diaries by themselves cannot be used either as substantive or corroborative evidence."

The apex court held that the opinion of a police officer who has investigated the case as to the guilt or innocence of an accused person is not a relevant fact, and is therefore not admissible, under the Qanun-e-Shadat Order, 1984; as he is not an “expert” within the meaning of that term as used in Article 59 of the Qanun-e-Shadat Order, 1984.

Even the Criminal Procedure Code (CrPC) does not authorise him to form such an opinion. To determine guilt or innocence of an accused person alleged to be involved in the commission of an offence is a judicial function that can only be performed by a court of law. This judicial function cannot be delegated to the police officer investigating the case.

The police officers are empowered under the provisions of Chapter XIV of the CrPC, only to investigate non-cognisable offence with the order of a magistrate and the cognizable offence without such order.

“This power of investigation, in no way, includes the power to determine guilt or innocence of the accused persons.”
An investigation, as defined in Section 4(1)(l) of the CrPC, includes all proceedings under the CrPC for the collection of evidence conducted by a police officer or by any other person authorised by a magistrate.

"This definition makes it clear that the assignment of a police officer conducting an investigation is limited to the collection of evidence, and the evidence when collected has to be placed by him before the competent court of law. Only the court has the power and duty to form an opinion about the guilt or innocence of an accused person and to adjudicate accordingly on the basis of evidence produced before it."

"An opinion formed by the investigating officer as to the non-existence or existence of sufficient evidence or reasonable ground of suspicion to justify the forwarding of an accused person to a magistrate under sections 169 and 170 of CrPC does not tantamount to opinion as to the guilt or innocence of the accused person.

“And despite such opinion of the investigating officer, the final determination even as to the existence or non-existence of sufficient ground for further proceeding against the accused person is to be made by the Magistrate under Section 173(3) and 204(1) of the CrPC on examining the material available on record, and not on the basis of that opinion of the investigating officer.