Delhi High Court: In a petition filed under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 for setting aside an order dated 6-11-2024, wherein the trial Court had declined the plea of Delhi Riots accused Devangana Kalita for preservation and reconstruction of case diary, the Single Judge Bench of Ravinder Dudeja, J, held that even though case diary is not evidence, its absence may affect fairness of trial. Thus, the Court allowed for the preservation of case diary but rejected the plea for reconstruction of the same.
Background
The petitioner in the instant case was one of the persons accused in the protest against Citizenship Amendment Act and National Register of Citizens, by crowd of about 200-400 people gathered below Jafrabad Metro Station. Trial against the accused had commenced in 2020. In 2024, the accused had raised the issue of tampering and ante dating of statements recorded under Section 161 of the Criminal Procedure Code, 1973 (‘CrPC’) which were part of the case diary and supplementary chargesheet on the premise that there was a discrepancy in the booklet numbers and page numbers of the respective sheets on which the statements under Section 161 of the CrPC had been recorded and thereby requested preservation of case diary, i.e., booklets 9989 and 9990.
The trial Court had declined the relief sought with reason that the issue was a procedural aspect thereby truthfulness and veracity of the allegations could not be looked upon by the court at the trial stage.
Analysis, Law and Decision
The primary question before the Court was whether the trial Court was right in dismissing the applications for restoration of the case diary booklets 9998 and 9990.
The Court noted that Section 172 of the CrPC granted unfettered power to the trial Court to call for and examine entries in the police diaries maintained by the investigating officer. Under Section 172 (2) of the CrPC, 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 would 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 a limited extent.
The Court further stated that the Section 172 (2) of the CrPC, clearly lays down that the accused shall not be entitled to call for such diaries or to see them merely because they were referred to by the Court. Denial of the same is not arbitrary or unreasonable since confidentiality of investigation must always be maintained.
With regards to the preservation of case diary booklets, the Court opined that even though the case diary is not the evidence, but its absence may affect the fairness of trial and therefore directions may be given to preserve it. In light of the same, the Court held that the interim order dated 2-12-2024, issuing directions for the preservation of the case diaries 9989 and 9990, be made absolute.
The Court further noted that the pages of booklets 9989 and 9990 which did not form part of the case diary could not be reconstructed as the same was beyond the scope of Section 172 and 91 of the CrPC. The Court is within its competence to read the police diary only for aid and for satisfying its conscience in appreciating the legal evidence available on record but not beyond. The entries in the case diaries are neither evidence nor they can be used by the accused in the court unless the case comes within the scope of Section 172(3) of the CrPC.
Thus, the Court allowed preservation of the case diary but rejected its reconstruction.
[Devangana Kalita v. State NCT of Delhi, Crl. M.C. No. 8909 of 2024, decided on 22-9-2025]
Advocates who appeared in this case:
For the Petitioner: Adit S. Pujari, Vanya Chhabra, Siddharth Kaushal, Advocates
For the Respondent: Anuj Handa, SPP, Sanya Handa, Akansha Chandok, Shubham Pandey, Advocates
Buy Code of Criminal Procedure, 1973 HERE
