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3. Section 172 of the Code of Criminal Procedure is as follows: "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.

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. 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 Indian Evidence Act, 1872, Section 161 or Section 145, as the case may be, shall apply."

5. It is within the experience of every Judge of this Court that much misconception exists in these Provinces as to the use which can be made by a Court or by an accused person or his agents of the diaries which are kept by Police officers under Section 172 of the Code of Criminal Procedure, and which in these Provinces are known as special diaries. It is within our judicial knowledge that some Sessions Judges and some Magistrates have decided criminal cases by conviction or by acquittal of the accused on statements which are found in the special diary relating to the case, and have done so without having asked the Police officer who made the special diary or any witness in the case one word as to the truth of these statements, and consequently without having afforded to the prosecution or the accused, as the case was, any opportunity of explaining or of contradicting such statements. Such a use of a special diary by a Court is entirely illegal. I have met with cases which were decided exclusively upon the entries contained in special diaries and not upon any evidence which was before the Court. A Criminal Court is entitled to "send for the Police diaries of a case under inquiry or trial before it, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial." Such Criminal Court may permit the Police officer who made the special diary to look at it for the purpose of refreshing his memory or may use the special diary for the purpose of contradicting such Police officer. Where the Police officer who made the special diary is allowed to refresh his memory and does look at an entry in the Diary for the purpose of refreshing his memory, the provisions of Section 161 of the Indian Evidence Act, 1872, apply, and the accused or his agent is entitled to see such entry in the special diary and to cross-examine such Police officer thereupon. There is no provision in Section 172 of the Code of Criminal Procedure enabling any person other than the Police officer who made the special diary to refresh his memory by looking at the special diary, and the necessary implication is that a special diary cannot be used to enable any witness other than the Police officer who made the special diary to refresh his memory by looking at it. This is in truth a general principle of law. The Criminal Court, but not an accused person or his agent, unless the Police officer has been allowed to look at the diary in order to refresh his memory, can use the special diary for the purpose of contradicting the Police officer who made it, but before doing so the Court must comply with the specific enactment of Section 145 of the Indian Evidence Act, 1872, and call the attention of the Police officer to such parts of the special diary as are to be used for the purpose of contradicting him, otherwise such a use of the special diary would be illegal. There is no provision in Section 172 of the Code of Criminal Procedure enabling the Court, the prosecution or the accused to use the special diary for the purpose of contradicting any witness other than the Police officer who made it, and the necessary implication is that the special diary cannot be used to contradict any witness other than the Police officer who made it. Section 145 of the Indian Evidence Act, 1872, does not either extend or control the provisions of Section 172.of the Code of Criminal Procedure. It is only if the Court uses the special diary for the purpose of contradicting the Police officer who made it that Section 145 of the Indian Evidence Act, 1872, applies, and in such case it applies for that purpose only, and not for the purpose of enabling the Court or a party to contradict any other witness in the case, or to show it or any part of its contents to any other witness. No reading of Section 172 of the Code of Criminal Procedure consistent with the rules of construction and a knowledge of the English language is possible by which the special diary is to be used to contradict any person except the Police officer who made it. It is not enacted in Section 172 of the Code of Criminal Procedure by reference to Section 145 of the Indian Evidence Act, 1872, or otherwise that if the special diary is used by the Court to contradict the Police officer who made it, it may thereupon or thereafter be used to contradict any other witness in the case.

6. The power of the Criminal Court to use the special diary is not limited to the use of it for the purpose of enabling the Police officer who made it to refresh his memory or for the purpose of contradicting him. The Court may also use the special diary not as evidence of any date, fact or statement referred to in it, but as containing indications of sources and lines of inquiry and as suggesting the names of persons whose evidence may be material for the purpose of doing justice between the Crown and the accused. Should the Court consider that any date, fact or statement referred to in the special diary is or may be material, it cannot legally accept the special diary as evidence, in any sense, of such date, fact or statement, and must in law, before allowing any date, fact or statement referred to in the special diary to influence its mind, have such date, fact or statement established by legal evidence. It is the Court which is entitled to use the special diary for the purpose of seeking for sources and lines of inquiry and for the names of persons who may be in a position to give material evidence. Neither the accused nor his agent is entitled under Section 172 of the Code of Criminal Procedure to see the special diary for any purpose unless it has been used by the Court for enabling the Police officer who made it to refresh his memory or for the purpose of contradicting him.

13. If the special diary is to be of any practical use in aiding a Magistrate or Criminal Court in a criminal inquiry or trial, or is to be of any use in enabling a Magistrate to decide, under Section 167 of the Code of Criminal Procedure, as to whether an accused person should or should not be detained in custody, the special diary must contain at least a summary of the statements made by the persons who had been examined under Section 161 of the Code by the Police officer making the investigation. Pew people would, I imagine, suggest that a mere summary of a person's statement could be regarded by a Magistrate or by a Judge as affording as satisfactory or as complete a source of information as the unabridged statement of such person would afford. The summary would merely represent what the Police officer considered to be the effect of the person's statement to him. The unabridged statement, if correctly taken down, would give what the person making the statement had in fact said. Common sense suggests that when the Legislature enacted in Section 172 that the special diary might be used by a Magistrate or by a Judge in an inquiry or in a trial in a criminal case, and enacted in Section 167 that "a copy of the entries" in the special diary should be sent to the Magistrate who had to decide whether or not an accused person should be detained in custody, the Legislature intended that the information to be afforded by the special diary should be as complete as possible, so far as the purposes for which the special diary might be lawfully used were concerned. And this, in my opinion, compels the conclusion that the Police officer who is making an investigation under Chapter XIV of the Code of Criminal Procedure may lawfully reduce to writing in the special diary the full and unabridged statement made to him by a parson whom he is examining or has examined under Section 161 of the Code. A consideration of Section 172 of the Code, in my opinion, compels the conclusion that the special diary, including every entry in it, is absolutely privileged from inspection by an accused person or his agent unless the special diary is used by the Police officer who made it to refresh his memory, or is used by the Court to contradict the Police officer who made the special diary. A consideration of the principles of public policy leads me to the same conclusion. From Section 39 of the Indian Evidence Act, 1872, may be inferred how much--and how much only--of the special diary may be seen by an accused person or his agent when the special diary is used to refresh his memory by the Police officer who made it or is used by the Court to contradict such officer. In such case the accused person or his agent is in law entitled to see only the particular entry used and so much of the. special diary as is in the opinion of the Court necessary in that particular matter to the full understanding of the particular entry so used, and no more. In such cases the Court must be careful to see that the discretion entrusted to it in deciding what may or may not be seen by the accused or his agent is not abused remembering that the discretion is to be a judicial discretion, and is not to be influenced by a mere arbitrary fancy.