Recovery of the stolen articles | ‘X’ a petty hawker engaged in selling pens and sundry items at I.S.B.T. is produced before you by the police on 11.10.99 on the allegations that he was arrested on the previous day i.e. 10.10.99 in case F.I.R. 301/99 Police Station Kashmere Gate under section 379 I.P.C. relating to pickpocket of a passenger P. Police prayed that ‘X’ be given in police custody for two days to enable them to affect the recovery….. Decide

Question: Recovery of the stolen articles | ‘X’ a petty hawker engaged in selling pens and sundry items at I.S.B.T. is produced before you by the police on 11.10.99 on the allegations that he was arrested on the previous day i.e. 10.10.99 in case F.I.R. 301/99 Police Station Kashmere Gate under section 379 I.P.C. relating to pickpocket of a passenger P, who arrived at I.S.B.T. on the night intervening 06.10.99 and 07.10.99; cash amounting to Rs.300/- ball-pens numbering about four dozen and several key rings were recovered from the personal search of ‘X’ during the course of interrogation confessed to have picked the pocket of a passenger on the night of 06.10.99 and 07.10.99 and could get recovered the stolen purse, identity Card of the passenger and a part of the cash from the house of his sister in Mangolpuri.

Police prayed that ‘X’ be given in police custody for two days to enable them to affect the recovery of the stolen articles and complete the investigation. On the other hand, a plea for the release of ‘X’ on bail was made on the ground that he is innocent and police have falsely implicated him in the theft case and he never made any confession about the incident theft. Case diaries produced before you showed the factum of the arrest of ‘X’ on 10.10.99 his interrogation but there existed no confession of ‘X’ Decide the prayer of police and the plea of ‘X’. [DJS, 1999]

Find the answer only on Legal Bites. [Recovery of the stolen articles | ‘X’ a petty hawker engaged in selling pens and sundry items at I.S.B.T. is produced before you by the police on 11.10.99 on the allegations that he was arrested on the previous day i.e. 10.10.99 in case F.I.R. 301/99 Police Station Kashmere Gate under section 379 I.P.C. relating to pickpocket of a passenger P. Police prayed that ‘X’ be given in police custody for two days to enable them to affect the recovery….. Decide.]

Answer

According to Section 172(1) CrPC, every investigating police officer is required to enter day by day his proceedings in the investigation in a diary. The purpose is to avoid concoction of evidence or changing chronology to suit the investigation. It ensures transparency in police investigations. Such a diary shall set forth the time at which the information reached the investigating officer, 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 [Section 172(1)]. The diary is popularly called “case diary”, or “special diary”.

Any criminal court can send for the police officer’s 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. It may, however, be noted that though the diary might be useful for getting at the means for elucidating points that need clearing up or for the discovery of relevant evidence, it can never be used as substantive evidence of any fact stated in it.

As held in Dal Singh v. King Emperor, (1916) 18 Cri LJ 471,

the case diary is not evidence of any date, fact, or statement in the diary.

The rule laid down in Queen-Empress v. Mannu (1897) I.L.R. 19 All. 390 where a full Court pointed out that such a diary may be used to assist the Court which tries the case by suggesting means of further elucidating points that need clearing up and which are material for the purpose of doing justice between the Crown and the accused, but not as containing entries which can by themselves be taken to be evidence of any date, fact, or statement contained in the diary. The police officer who made the entry may be confronted with it, but not any other witness.

The question arose before the Hon’ble SC in the case of Abhinandan Jha & Ors v. Dinesh Mishra [1968 AIR 117] whether a magistrate could direct the police to submit a charge-sheet, when the police, after an investigation into a cognizable offence, had submitted a report of the action taken under Section 169, CrPC, that there was no case made out for sending up the accused of trial. The court clearly held that there was no such power conferred on a magistrate either expressly or by implication. The court further observed that:

When a cognizable offence is reported to the police they may after investigation takes action under Section 169 or Section 170 of CrPC. If the police think there is not sufficient evidence against the accused, they may, under Section 169 release the accused from custody on his executing a bond to appear before a competent magistrate if and when so required; or, if the police think there is sufficient evidence, they may, under Section 170, forward the accused under custody to a competent magistrate or release the accused on bail in cases where the offences are bailable.

In either case, the police should submit a report of the action taken, under Section 173, to the competent magistrate who considers it judicially under Section 190 and takes the following action:

• If the report is a charge sheet under Section 170 it is open to the magistrate to agree with it and take cognizance of the offence under Section 190(1) (b); or to take the view that the facts disclosed do not make out an offence and decline to take cognizance. But he cannot call upon the police to submit a report that the accused need not be proceeded against on the ground that there was not sufficient evidence.
• If the report is of the action taken under Section 169, then the magistrate may agree with the report and close the proceeding. If he disagrees with the report he can give directions to the police under Section 156(3) to make a further investigation.

If the police, after further investigation submit a charge sheet, the magistrate may follow the procedure where the charge sheet under Section 170 is filed; but if the police are still of the opinion that there was not sufficient evidence against the accused, the magistrate may agree or disagree with it. When he agrees, the case against the accused is closed. Where the magistrate disagrees and forms the opinion that the facts set out in the report constitute an offence, he can take cognizance under Section 190(1)(c).

However, the magistrate cannot direct the Police to submit a charge-sheet, because the submission of the report depends entirely upon the opinion formed by the police and not on the opinion of the magistrate. The magistrate, if he disagrees with the report of the police, can himself take cognizance of the offence under Section 190(1)(a) or (c), but, be cannot compel the police to form a particular opinion on the investigation and submit a report according to such opinion.

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Important Mains/Long Questions for Judiciary, APO & University Exams

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