S. 172(3) CrPC | Accused Has No Right To Access Case Diary: Orissa High Court

"The matter therefore needs to be viewed with all seriousness by all concerned, not only by the concerned courts but also the office of the Court Sub-Inspector and the concerned Investigating Officer under whose custody the case diary is supposed to be kept. While the Code of Criminal Procedure provides that the accused is entitled to a fair trial, the same does not mean that the accused can be given an unfair advantage contrary to the provisions of the Code."

Notably, Section 172(3), Cr.P.C. reads,

"(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of section 161 or section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), shall apply."

Brief Facts:

The accused in the case accessed the case diary concerning the proceedings against him and put a copy of the same as an annexure to his bail application. When the matter was listed before the Bench of Justice Sashikanta Mishra, he expressed his anguish and shock over the fact that the accused could access the case diary, which was meant to remain with the police and more so when a bar is in place against providing access to the same to the accused. He, therefore, had ordered for an enquiry to be conducted by the District Judge, Keonjhar, who was also directed to submit a report explaining how the accused got the copies of the case diary.

Court's Observations:

When the matter was listed on 26^th July 2022 for hearing, the Court observed that the District & Sessions Judge, Keonjhar conducted an enquiry as to how the case diary could be made available to the accused so that he could enclose it to the bail application as an annexure. The District Judge, in his report dated 18.07.2022, informed that he enquired from the Court of the Judicial Magistrate First Class (JMFC), Barbail and also from the Additional District & Sessions Judge (ADJ), Champua, who dealt with the case at different periods of time. Basing on the inputs provided by the J.M.F.C, Barbil and ADJ, Champua, the District Judge arrived at the conclusion that the copies of the case diary enclosed to the bail application was taken neither from the offices nor from the Courts of the J.M.F.C., Barbil and ADJ, Champua.

Further, the District Judge conveyed that the source of receipt of copy of the case diary must be from the CSI office of Champua or from Rugudi Police Station. After carefully perusing the report of the District Judge, the Court found no reason to disagree with the same. The report was, therefore, accepted.

The Court reiterated that in view of the bar under Section 172, Cr.P.C., the accused has no right of access to the case diary. It then observed,

"The Court is therefore, of the view that all the courts must be conscious of the entitlement and disentitlement of the accused to the records of the investigating agency/prosecution pertaining to the case and so also the concerned police personnel in charge of the same. This Court, therefore, directs the Registrar (Judicial) to place the matter before the Court in the administrative side for issuing appropriate instructions to the sub-ordinate courts. Further, this Court directs the Director General of Police to take note of the matter and to issue necessary instructions to all concerned so as to ensure that the provision under Section 172 of Cr.P.C. is adhered to in letter and spirit by the concerned Police Officers. Action taken by the DG in this regard be intimated to this Court."

When the matter was then listed on 26^th August 2022, the Court was informed that the Registrar (Judicial) placed the matter before the Court in the administrative side and necessary instructions were issued to all the District Judges to ensure that the accused or his agents do not have access to the case diaries of the investigating officers or obtain copies of the same from the case records of the Courts.

The Inspector General of Police, CID, CB also informed the Court that several instructions were imparted to all the Police Officers including the Inspectors-In-Charge (IICs)/ Investigating Officers (IO), Courts Sub-Inspectors of the State for strict compliance of Section 172(3), Cr.P.C.

Accordingly, the matter was disposed of.

Case Title: Shakti Singh v. State of Odisha

Case No.: BLAPL No. 3662 of 2022

Coram: Justice Sashikanta Mishra

Counsel for the Petitioner: Mr. S. Dash, Advocate

Counsel for the Respondent: Mr. A. Pradhan, Additional Standing Counsel

Click Here To Read/Download Order dated 26.07.2022

Click Here To Read/Download Order dated 26.8.2022