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MADURAI: A police officer, who investigated a criminal case either fully or partly, is entitled to look into the ‘case diary' containing the details of the investigation and refresh his memory while deposing as a witness before the trial court, the Madras High Court has said.
However, the accused is also equally entitled to cross examine the police officer under Section 161 of the Indian Evidence Act whenever the investigating officer of the case looks in to the case diary and deposes from its contents, Justice G.M. Akbar Ali clarified.
The judge said that a combined reading of Section 172 of the Code of Criminal Procedure and Sections 145,159 and 161 of the Indian Evidence Act made it clear a trial court too was empowered to call for the case diary to aid it in trying the criminal case.
The court could use the case diary, not as evidence, but only for the purpose of contradicting the police officer with regard to details such as dates, time and venue of the investigations conducted by him if there were disparities between the written records and the oral evidence adduced by him.
Further, no individual other than the police officer and the trial court judge could be allowed to look into the case diary. The role of the accused was limited to the extent of cross examining the officer when he happened to refresh his memory from the contents of the diary, the judge added.
Mr. Justice Akbar Ali also recalled a 113-year-old English judgement passed in Queen Empress Vs. Mannu (1897) wherein a Full Bench of the High Court dealt with, in detail, the importance of the case diary, its purpose and how it must be used by the trial courts.
“It is the absolute duty of judges and Magistrates to entirely disregard all statements and entries in special diaries as being in any sense legal evidence for any purpose, except for one solitary purpose of contradicting the police officer who made the special diary when they do afford such a contradiction.
“Even in that case they are not evidence of anything except that such police officer made the particular entry which is at variance with his subsequently given evidence. They are not evidence that what is stated in the entry was true or correctly represents what was said or done,” the age-old judgement read.
In the present case, a person caught red handed while accepting bribe had moved the High Court challenging an attempt made by a Central Bureau of Investigation officer to depose from the case diary during the trial of the corruption case before the Special Court for CBI cases in Chennai.
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