Effect of failure to maintain Police Diary.

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.

[Source: State by Lokayukta Police vs H Srinivas decided by SC on 18 May, 2018]

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