Failure to maintain diary:
As the concept of maintaining General Diary has its origin under the Section 44 of Police Act of 1861 as applicable to States, which makes it an obligation for the concerned Police Officer to maintain a General Diary, but such non maintenance per se may not be rendering the whole prosecution illegal. However, on the other hand, we are aware of the fact that such nonmaintenance of General Diary may have consequences on the merits of the case, which is a matter of trial. Moreover, we are also aware of the fact that the explanation of the genesis of a criminal case, in some cases, plays an important role in establishing the prosecution’s case. With this background discussion we must observe that the binding conclusions reached in the paragraph 120.8 of Lalitha Kumari Case (Supra) is an obligation of best efforts for the concerned officer to record all events concerning an enquiry. If the Officer has not recorded, then it is for the trial court to weigh the effect of the same for reasons provided therein. A court under a writ jurisdiction or under the inherent jurisdiction of the High Court is ill equipped to answer such questions of facts. The treatment provided by the High Court in converting a mixed question of law and fact concerning the merits of the case, into a pure question of law may not be proper in light of settled jurisprudence.
Our conclusion herein is strengthened by the fact that CrPC itself has differentiated between irregularity and illegality. The obligation of maintenance of General Diary is part of course of conduct of the concerned officer, which may not itself have any bearing on the criminal trial unless some grave prejudice going to the root of matter is shown to exist at the time of the trial.1 Conspicuous absence of any provision under CrPC concerning the omissions and errors during investigation also bolsters the conclusion reached herein.
Mystery of Law and Justice 