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Inspection and certified copy of Police Case Diary in relation to a FIR

- case is pending trial - as per section 172 of the Criminal Procedure
Code, it is a privileged document - the disclosure of copies of case
diary may impede the process of prosecution
21 Aug, 2013

ORDER

The appellant vide RTI application dated 29.10.2011 has requested for the inspection and certified copy of the complete case diary in relation to FIR
No. 346/2003 registered under section 498A, 406/34 of IPC registered at Adarsh Nagar Police Station, Delhi and has also enclosed the Order of the
Hon’ble High Court dated 30.9.2005 in the matter of Deputy Commissioner of Police Vs. D.K Sharman with the RTI application. The appellant also
states that he is the accused in the said FIR No. 346/2003. The PIO, Additional Deputy Commissioner of Police, North West District, Delhi replied to
the appellant informing that the same had been submitted in the court on 16.03.2004 and the same is pending trial and hence the requisite information
may be asked from concerned court. Not satisfied with the reply, the appellant filed first appeal dated 2.12.2011 wherein he reiterated the fact that the
said High Court Order enclosed with the RTI application has not been considered by the concerned PIO. The first appellate authority, Deputy
Commissioner of Police, upheld the view taken by the PIO in his order dated 29.12.2011 without giving any reference to the High Court order in
question. Thereafter the appellant has filed second appeal before the Commission seeking appropriate directions for disclosure of the desired
information by the PIO. Before proceeding with the present facts of the case the Commission would like to quote judgment of the Hon'ble Supreme
Court wherein the Hon'ble Court has made an observation regarding case diary and its use during the trial in court. In the matter of Sidharth etc. etc.
Vs. State of Bihar (Criminal Appeal Nos. 688 of 2003, decided on 30.09.2005) it was held:

"Lastly, we may point out that in the present case, we have noticed that the entire case diary maintained by the police was made available to the
accused. Under Section 172 of the Criminal Procedure Code, every police officer making an investigation has to record his proceedings in a diary
setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him
and a statement of the circumstances ascertained through his investigation. It is specifically provided in Sub-clause (3) of Section 172 that 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 for the purpose of contradicting such
police officer, the provisions of Section 161 of the Cr.P.C. or the provisions of Section 145 of the Evidence Act shall be compiled with. The Court is
empowered to call for such diaries not to use it as evidence but to use it as aid to find out anything that happened during the investigation of the crime.
These provisions have been incorporated in the Code of Criminal Procedure to achieve certain specific objectives. The police officer who is
conducting the investigation may come across series of information which cannot be divulged to the accused. He is bound to record such facts in the
case diary. But if the entire case diary is made available to the accused, it may cause serious prejudice to others and even affect the safety and security
of those who may have given statements to the police. The confidentiality is always kept in the matter of criminal investigation and it is not desirable
to make available the entire case diary to the accused. In the instant case, we have noticed that the entire case diary was given to the accused and the
investigating officer was extensively cross-examined on many facts which were not very much relevant for the purpose of the case. The learned
Sessions Judge should have been careful in seeing that the trial of the case was conducted in accordance with the provisions of the Cr. P.C."

The relevant section of Criminal Procedure Code is being reproduced states:

172. Diary of proceedings in investigation.-

(1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth
the time at which the Information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a
statement of the circumstances [ascertained through his investigation.

(2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the
case, but to aid it in such inquiry or trial.

(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 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,

Vide Mukund Lal v. Union of India and Anr. (AIR1989SC144) the Hon’ble Supreme Court held that “accused can peruse that particular part of the
case diary in the context of Sections 145 or 161 of the Evidence Act –

(a) if it is used by the police officer concerned to refresh his memory or

(b) if the Court uses, it for contradicting the official concerned.

Shri A.N Tiwari, & Shri M.M Ansari F. No. CIC/AT/A/2006/00071 (decided On: 11.05.2006) in the matter of Shri Kuldeep Kumar V Shri B.S Brar
while allowing disclosure of a gist of the depositions of those examined by the police without disclosing names or details which could compromise
witness/source confidentiality and safety observed that:
“We are in agreement with the appellate authority's averment that disclosing the details of the case diary will have far reaching consequences in terms
of the confidentiality of the information received by the police and may even endanger the physical safety of those examined by the police authorities.
However, we also notice that in spite of claiming absolute exemption under Section 8(1)(g), the PIO had voluntarily given some information to the
appellant about the status of his case along with the reason as to why it was treated as untraced. In our view, some more information than what has
been given to the appellant can also be given to him without unduly compromising the investigation or the witnesses etc. We say this while still
recognizing that in all requests for information under RTI Act, especially when they pertain to the law enforcement authorities, it becomes necessary
to strike a fine balance between the imperatives of the confidentiality of the sources of information, witness protection and so on, with the right of the
citizen to get information. In our view, in this particular case, that balance will not be unduly affected if the following further information is furnished
by the PIO to the appellant. We wish to add here that we accept the merit of the police authority's contention that an open-ended order by this
Commission to make available to any information seeker, all the details of investigation into a crime, will have serious implications for law
enforcement and will have potentiality for misuse by criminal elements. Each case will, therefore, have to be examined independently, on the basis of
facts specific to that case. In this particular case, we don't find that the apprehensions of the police about disclosure of information are justified."

In the matter of Shri H K Bansal Kanta Vs. CPIO, Central Bureau of Investigation, Anti Corruption Branch, and CPIO, Department of Post,
Rohtak Division (CIC/SM/A/2011/000416, 23.03.2012) the Ld. Chief Information Commissioner has taken the following view:

“During the hearing, the Respondents reported that the trial of this case was still going on and, therefore, the desired document from which certain
conclusions had been quoted by the Appellant could not be disclosed without affecting adversely the prosecution of the offender. In several similar
cases in the past, we had also held that documents such as the report of the investigating officer which might contain copies of the case diary and other
such records should not normally be disclosed as it might impede the investigation/prosecution. Therefore, we tend to agree with the decision of the
CPIO/ Appellate Authority”.

Decision:

From the preceding Judgments and orders it is well understood that case diary maintained by the police is a privileged document and all the details
especially relating to the identity of the witness needs to be protected. However, the appellant has relied upon the Judgment of the Hon’ble Delhi High
Court in the matter of Deputy Commissioner of Police Vs. D.K Sharma wherein the trial proceedings had concluded and the accused was
convicted. The Commission concurs with the view taken by the Central Information Commission in the previous orders that there is a well established
procedure in law to ensure natural justice and that the disclosure of the copies of the case diary at this stage may impede the process of prosecution.
The appeal is disposed off accordingly.

(Sushma Singh)

Information Commissioner

Citation: Mr. Krishna Verma v. Delhi Police in Case No. CIC/SS/A/12/001669

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