LexSHAILESH KUMAR versus STATE OF U.P. (NOW STATE OF UTTARAKHAND)
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* Author [2024] 2 S.C.R. 776 : 2024 INSC 143 Shailesh Kumar v. State of U.P. (Now State of Uttarakhand) (Criminal Appeal No. 684 of 2012) 26 February 2024 [M. M. Sundresh* and S.V.N. Bhatti, JJ.] Issue for Consideration What is the goal of investigation and what is the role of investigating officer; Are s.172 CrPC and ss. 145 & 161 of the Evidence Act to be read in consonance with each other; Can a General Diary entry precede the registration of FIR. Headnotes Code of Criminal Procedure, 1973 – Goal of investigation and the role of investigating officer: Held: An investigation of a crime is a lawful search of men and materials relevant in reconstructing and recreating the circumstances of an offence said to have been committed – With the evidence in possession, an Investigating Officer shall travel back in time and, therefore tick off the time zone to reach the exact time and date of the occurrence of the incident under investigation – The goal of investigation is to determine the truth which would help the Investigating Officer to form a correct opinion on the culpability of the named accused or suspect – Once such an opinion is formed on a fair assessment of the evidence collected in the investigation, the role of the court comes into play when the evidence i.e. oral, documentary, circumstantial, scientific, electronic, etc. is presented for and on behalf of the prosecution – During the entire play, the rules of evidence ought to be honoured, sprinkled with the element of fairness through due procedure – Adequate opportunities would have to be given to challenge every assumption – Administration of criminal justice lies in determining the guilt of the accused beyond reasonable doubt – The power of the State to prosecute an accused commences with investigation, collection of evidence and presentation before the Court for acceptance. [Para 17] [2024] 2 S.C.R. 777 Shailesh Kumar v. State of U.P. (Now State of Uttarakhand) Code of Criminal Procedure, 1973 – Evidence Act, 1872 – Maintenance of case diary u/s. 172 CrPC and application of s. 145 and s. 161 of the Evidence Act – S.172 CrPC and ss. 145 & 161 of the Evidence Act are to be read in consonance with each other subject to the limited right conferred under sub-section (3) of s.172 of CrPC: Held: A case diary is maintained by an Investigating Officer during his investigation for the purpose of entering the day-to-day proceedings of the investigation – While doing so, the Investigating Officer should mandatorily record the necessary particulars gathered in the course of investigation with the relevant date, time and place – Under sub-section (1-A) and (1-B) of s.172 of CrPC, the Investigating Officer has to mention, in his case diary, the statement of witnesses recorded during investigation with due pagination – The object of these sub-sections is to facilitate a fair investigation since a statement made u/s. 161 of CrPC is not expected to be signed as mandated by s.162 of CrPC – When a police officer uses case diary for refreshing his memory, an accused automatically gets a right to peruse that part of the prior statement as recorded in the police officer’s diary by taking recourse to s.145 or s.161, as the case may be, of the Evidence Act – S.172(3) of CrPC makes a specific reference to s.145 and s.161 of the Evidence Act – Therefore, whenever a case is made out either u/s.145 or u/s. 161 of the Evidence Act, the benefit conferred thereunder along with the benefit of s.172(3) of CrPC has to be extended to an accused – Thus, the accused has a right to cross-examine a police officer as to the recording made in the case diary whenever the police officer uses it to refresh his memory – Though s.161 of the Evidence Act does not restrict itself to a case of refreshing memory by perusing a case diary alone, there is no exclusion for doing so – Similarly, in a case where the court uses a case diary for the purpose of contradicting a police officer, then an accused is entitled to peruse the said statement so recorded which is relevant, and cross-examine the police officer on that count – What is relevant in such a case is the process of using it for the purpose of contradiction and not the conclusion – To make the position clear, though s.145 r/w. s.161 of the Evidence Act deals with the right of a party including an accused, such a right is limited and restrictive when it is applied to s.172 of CrPC – Suff
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