BALAKRAM versus STATE OF UTTARAKHAND & ORS.

Citation: [2017] 5 S.C.R. 367 · Decided: 19-04-2017 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[2017) 5 S.C.R. 367 
BALAKRAM 
V. 
STATE OF UTTARAKHAND & ORS . 
. (Criminal Appeal No. 694 of2017) 
APRIL 19, 2017 
[DIPAK MISRA, A. M. KHANWILKAR AND 
MOHAN M. SHANTANAGOUDAR, JJ.] 
Code of Criminal Procedure, 197 3 - s.172 -: Application filed 
A 
B 
by accused to file copies of police diary after completion of 
examination-in-chief of police officer to cross-examine him .~ C 
Propriety of -
Held: U/s. 172(3) the right. of accused to 
cross-examine the police officer with reference to the entries in the 
police diary is very much limited in extent and evei1 that limited 
scope_ arises only when the Court uses the entries to contradict the 
police officer or when police officer uses it for refreshing memories 
D 
. - Accused cannot force the police officer to. refresh his ml!;,,pry 
during his examination in the Court by referring to the entries in 
the police ¢iary - Neither the accused nor his agent is entitled to 
call for such diary and also not entitled to see them during the 
course of inquiry or trial - Thus, it is not open for the accused to 
produce certain pages of po{ice diary for the purpose of E . 
contradiqfing_police officer - Evidence Act, 1872 - s.145 - Penal 
Code, 1860 - ss.302 and 201. 
Evidence Act, 1872 - s.145 - Scope of s.172(3) Cr.P.C. with 
reference to s.145 of the Evidence Act - Held: A witness may be 
cross examined as. to his previous statements made by him as 
contemplated u/s.145 if such previous statements are brought on 
record, in accordance with law, before the Court and if the 
contingencies u/s.172(3) of Cr.P.C. are fulfilled_:_ s.145 does not 
either extend or control the provisions of s.172 of Cr.P.C. 
Allowing the appeid, the Court 
HELD: 1. Section 172 of Code of Criminal Procedure, 1973 
and Section 145 of Evidence Act, 1872 are to be read conjointly 
and homogenously. It is evident from sub-section (2) of Section 
172 Cr.P.C., that the Trial Court has unfettered power to call}or 
367 
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368 
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SUPREME COURT REPORTS 
[2017] 5 S.C.R. 
and examine the entries in the police diaries maintained by the 
Investigating Officer. This is a very important safeguard. The 
legislature has reposed complete trust in the Court which is 
conducting the inquiry or the trial. If there is any inconsistency 
or contradiction arising in the evidence, the Court can use the 
entries made in the diaries for the purposes of contradicting the 
police officer as provided in sub-section (3) of Section 172 of 
Cr.P.C. It cannot be denied that Court trying the case is the best 
guardian of interest of justice. Under sub-section (2) the criminal 
court may send for diaries and may use them not as evidence, 
but to aid it in an inquiry or trial. The information which the Court 
may get from the entries in such diaries usually will be utilized as 
foundation for questions to be put to the police witness and the 
court may, if necessary in its discretion use the entries to 
contradict the police officer, who made them. But the entries in 
the police diary are neither substantive nor corroborative 
evidence, and that they cannot be used against any other witness 
than against the police officer that too for the limited extent 
indicated above. [Para 10) [373-B-E] 
2. Coming to the use of police diary by the accused, sub-
section (3) of Section 172 clearly lays down that neither the 
accused nor his agents shall be entitled to call for such diaries 
nor he or they may be entitled to see them merely because they 
are referred to by the Court. But, in case the police officer uses 
the entries in the diaries to refresh his memory or if the Court 
uses them for the purpose of contradicting such police officer, 
then the provisions of Sections 145 and 161, as the case may be, 
of the Evidence Act would apply. Section 145 of the Evidence Act 
provides for cross examination of a witness as to the previous 
statements made by him in writing or reduced into writing and if 
it was intended to contradict him in writing, his attention must be 
called to those portions which are to be used for the purpose of 
contradiction. Section 161 deals with the adverse party's right as 
to the writing used to refresh memory. It can, therefore, be seen 
that, the right of the accused to cross-examine the police officer 
with reference to the entries in the police diary is very much 
limited in extent and even that limited scope arises only when 
the Court uses the entries to contradict the police officer
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