Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
The Case Diary under Section 192 BNSS: Contents, Evidentiary Value, and Why the Accused Cannot Call for It
The case diary is the contemporaneous record of an investigation. It is written day by day, before anyone knows which facts will turn out to matter, and it therefore shows what the investigating officer actually did, when he did it, and what he knew at each stage. That is what makes it valuable, and it is also why the Bharatiya Nagarik Suraksha Sanhita, 2023 treats it as it does: the court may send for it and use it to aid it, but it is not evidence, and the accused cannot call for it at all.
That last rule strikes many people as unfair when they first meet it, and it has been challenged on that footing. The answer is that the material the prosecution relies on reaches the accused by a different route, under section 230, and that what the diary contains beyond that is the internal working record of an investigation which no system makes available to the person being investigated. This topic sets out the contents, the rule, the two doors through which the diary can nonetheless be opened, and what the accused gets instead.
1. What the Diary Must Contain
Section 192, BNSS 2023 (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) The statements of witnesses recorded during the course of investigation under section 180 shall be inserted in the case diary. (3) The diary referred to in sub-section (1) shall be a volume and duly paginated. (4) 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. (5) 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 the Bharatiya Sakshya Adhiniyam, 2023 relating to those matters shall apply. |
Figure 1: The section, sub-section by sub-section
1.1 The four particulars
Sub-section (1) is not a general direction to keep notes. It prescribes four particulars, and each has a purpose.
Particular | Why it is required |
|---|---|
The time at which the information reached him | It fixes the starting point of the investigation, and it is the material against which a claim that the first information report was recorded promptly, or belatedly, is tested |
The time at which he began and closed his investigation | It shows how long was spent on each day, and it is the answer to a suggestion that a step recorded as taken on a particular day could not have been taken then |
The place or places visited | It establishes where the officer was, which is frequently decisive where the defence suggests that a recovery or a statement was recorded elsewhere than it purports to have been |
A statement of the circumstances ascertained | The substance of what the investigation produced that day. It is the part that shows what the officer knew at each point, and therefore whether a line of inquiry was open to him and was not pursued |
1.2 The volume and the pagination
Sub-section (3) requires the diary to be a volume and duly paginated. That is not a matter of neatness. A diary kept on loose sheets can have pages added, removed or substituted afterwards, and a diary whose pages are not numbered cannot be shown to be complete. The requirement exists so that the record is capable of being proved to be the record that was made at the time, and a diary that does not comply loses much of the value the section is designed to give it.
2. The Evidentiary Value
Sub-section (4) contains the whole of the rule, and it is expressed as a permission followed immediately by a limitation. The court may send for the diaries; it may use them; but not as evidence in the case, only to aid it in the inquiry or trial.
⚠ The three propositions The diary is not evidence. Nothing entered in it proves anything. A court may not find a fact on the strength of an entry, and a judgment which rests a conclusion on what the case diary says is bad on that ground alone. The court may use it to aid itself. That means to understand the course of the investigation: to see what was done and when, to follow a chronology, to locate a document, to appreciate why a particular line was taken. It is an aid to comprehension, not a source of proof. It is not a substitute for the prosecution’s case. A court cannot supply a gap in the evidence from the diary, cannot use it to corroborate a witness, and cannot use it to fill in a fact the prosecution has failed to prove. If the evidence does not establish a fact, the diary does not establish it either. |
📖 Naresh Kumar Yadav v. Ravindra Kumar, (2008) 1 SCC 632 Facts: A question arose as to the use a court may make of the case diary, and in particular whether the court could act on what the diary contained, and what the position of the accused is where the court has called for and looked at the diary in the course of deciding a matter. Held: The Supreme Court restated the rule. The case diary is maintained to enable the court to know what the investigating officer did, and how, and it may be used by the court only to aid it in the inquiry or trial; it is not evidence and a decision cannot be founded on its contents. The accused has no right to call for it or to inspect it, and the fact that the court has referred to it does not give him that right. But the section preserves two situations in which the ordinary rules apply: where the police officer uses the diary to refresh his memory while giving evidence, and where the court uses it to contradict him. In either case the provisions of the law of evidence on those subjects are attracted, and the accused becomes entitled to the access those provisions give. The Court emphasised that the diary is intended to be a contemporaneous record and that entries are to be made day by day. Ratio: The case diary may be used by the court only to aid it, never as evidence. The accused cannot call for it, but the ordinary rules of evidence apply where the officer refreshes his memory from it or the court uses it to contradict him. |
3. The Accused and the Diary
Figure 2: The closed door, the two exceptions, and what the accused gets instead
3.1 The bar, and the challenge to it
📖 Mukund Lal v. Union of India, 1989 Supp (1) SCC 622 Facts: The provision denying the accused the right to call for or to inspect the case diary was challenged as unconstitutional. It was contended that the prosecution has access to the entire record of the investigation while the accused has none, that the imbalance offends the guarantee of equality and the right to a fair trial under Articles 14 and 21, and that a person cannot properly defend himself against a case built on material he cannot see. Held: The Supreme Court upheld the provision. It held that the bar does not offend Articles 14 or 21, because the accused is not in fact left without the material on which the prosecution relies: the statements of the witnesses the prosecution proposes to examine, the police report, the first information report and the documents forwarded with the report are all supplied to him separately under the provisions requiring the furnishing of copies. What the diary contains beyond that is the internal record of the investigation, and the legislature was entitled to take the view that its disclosure would impede investigations and endanger informants and witnesses. The Court also pointed out that the bar is not absolute: where the officer uses the diary to refresh his memory, or the court uses it to contradict him, the accused obtains access under the ordinary rules of evidence. The balance so struck is a reasonable one. Ratio: The denial of access to the case diary is constitutionally valid, because the material the prosecution relies on is supplied separately and because the bar yields where the prosecution itself uses the diary in the witness box. |
3.2 The two doors
- Refreshing memory. Where the police officer who made the diary uses it to refresh his memory while giving evidence, the provisions of the law of evidence on refreshing memory apply. The adverse party is then entitled to see the writing and to cross-examine upon it. The door is opened by the prosecution’s own act.
- Contradicting the officer. Where the court uses the diary for the purpose of contradicting the police officer, the provisions on cross-examination as to previous statements in writing apply, and the relevant part becomes accessible for that purpose.
The structure is therefore that the diary is closed unless the prosecution opens it. An officer who is careful to give his evidence from memory, and a court that does not use the diary against him, leave it shut; and there is nothing the accused can do to compel either. That is a real limitation, and it is the price of the rule.
3.3 What the accused gets instead
Section 230 requires the Magistrate, in a case instituted on a police report, to furnish to the accused free of cost and without delay — and the Sanhita now requires it within fourteen days from the date of production or appearance — a copy of each of the following.
- The police report.
- The first information report recorded under section 173.
- The statements recorded under section 180 of all persons whom the prosecution proposes to examine as its witnesses, excluding any part in regard to which a request for exclusion has been made under section 193(6).
- The confessions and statements, if any, recorded under section 183.
- Any other document or relevant extract forwarded to the Magistrate with the police report under section 193(6).
Section 193(6) permits the investigating officer to request that a part be excluded from the copies furnished, on the ground that it is not relevant to the subject-matter of the proceeding or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, giving his reasons. The Magistrate decides. The exclusion is therefore judicially controlled, and the accused may contest it.
4. The Diary in Practice
Where the diary matters | How it is used |
|---|---|
At the remand hearing | Section 187(1) requires the officer to transmit to the Magistrate a copy of the entries in the diary and at the same time forward the accused. The diary is the material on which the Magistrate decides whether to authorise detention, and a remand granted without it is granted on nothing |
On an application for default bail | The diary shows what was done and when, and whether the investigation was in fact pending on the date claimed |
On an application for further investigation | It shows what lines were open and were not pursued |
At the trial | The court may send for it to understand the course of the investigation. It may not act on its contents |
When the officer gives evidence | If he refreshes his memory from it, the accused becomes entitled to see it and to cross-examine upon it |
On a challenge to the investigation | The absence of entries, entries not made day by day, a diary not kept as a paginated volume, or a gap in the chronology are all matters the court weighs in assessing the investigation |
⚠ Two distinctions worth keeping The case diary is not the general diary. The general or daily diary of a police station is a different record, maintained under the police statutes, in which the station’s activities are entered. Information relating to a cognizable offence is mandatorily recorded in it, and information about a non-cognizable offence is entered under section 174(1)(i), with the daily diary report now forwarded fortnightly to the Magistrate. The statements in the diary are governed by section 181, not by section 192. A statement of a witness recorded under section 180 is inserted in the case diary under section 192(2), but its use is controlled by section 181, which permits it to be used only to contradict its maker. Access to it comes from section 230, not from any right to see the diary. |
5. Key Takeaways
The position stated shortly 1. Section 192(1) requires every police officer making an investigation to enter his proceedings in a diary day by day, setting forth the time the information reached him, the time he began and closed the investigation, the places visited, and a statement of the circumstances ascertained. 2. Section 192(2): the statements of witnesses recorded under section 180 are inserted in the case diary. 3. Section 192(3): the diary shall be a volume and duly paginated, so that it cannot be added to or substituted afterwards. 4. Section 192(4): a Criminal Court may send for the diary and use it to aid it, but not as evidence in the case. A finding founded on an entry in the diary is bad. 5. Section 192(5): neither the accused nor his agents may call for it, nor see it merely because the Court has referred to it. 6. The bar is constitutionally valid, because the material the prosecution relies on is supplied separately under section 230 and because the diary beyond that is the internal record of the investigation: Mukund Lal. 7. The bar yields in two situations: where the officer uses the diary to refresh his memory, and where the Court uses it to contradict him. The ordinary rules of evidence then apply and the accused obtains access. 8. The diary is therefore closed unless the prosecution opens it: Naresh Kumar Yadav. 9. What the accused gets instead, under section 230 and now within fourteen days, is the police report, the first information report, the statements under section 180 of the witnesses the prosecution proposes to examine, the confessions and statements under section 183, and the documents forwarded with the report. 10. The diary is the material on which the Magistrate decides a remand under section 187(1), which is the point at which it does most of its work. |
6. Frequently Asked Questions
What is a case diary?
The record every police officer making an investigation is required by section 192 to keep day by day, setting out the time the information reached him, the time he began and closed the investigation, the places he visited, and the circumstances ascertained. The statements of witnesses recorded under section 180 are inserted in it.
Is the case diary evidence?
No. Section 192(4) permits a Criminal Court to send for it and to use it to aid it in the inquiry or trial, but expressly not as evidence in the case. A court cannot found a finding on what the diary says.
Can the accused see the case diary?
No. Section 192(5) provides that neither the accused nor his agents are entitled to call for it, nor to see it merely because the Court has referred to it. The denial has been held constitutionally valid.
Is there any way the accused can get access to it?
Two. Where the police officer who made the diary uses it to refresh his memory while giving evidence, and where the Court uses it to contradict him. In either case the provisions of the law of evidence on those subjects apply and the accused obtains the access they give.
Why must the diary be a paginated volume?
So that pages cannot be added, removed or substituted afterwards, and so that the diary can be shown to be complete. A diary kept on loose or unnumbered sheets cannot be proved to be the record that was made at the time.
What does the accused receive instead?
Under section 230, free of cost and now within fourteen days of his production or appearance: the police report, the first information report, the statements recorded under section 180 of the witnesses the prosecution proposes to examine, the confessions and statements recorded under section 183, and any other document forwarded with the report.
Related Topics
- Investigation under the BNSS, 2023: Chapter XIII, Sections 173 to 196
- Examination of Witnesses by the Police: Sections 179 to 182
- Remand during Investigation under the BNSS, 2023
- Police Report under the BNSS, 2023: Section 193
- Search by a Police Officer: Sections 185 and 186, BNSS
- Supply of Documents to the Accused: Section 230, BNSS