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(2) 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.
(3) 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 Section 161 or Section 145 as the case may, of the Indian Evidence Act, 1872 (1 of 1872), shall apply."

Sub-section (2) is clear that a criminal court may use the diary not as a evidence but to aid it in a trial, and sub-section (3) prohibits the use of the diary by the accused even if the court refers the same. The accused is entitled to see the diary only when it is used by the Police Officer to refresh his memory or the court uses the same for the purposes of contradicting the Police Officer.

The statement of Shri Ahat Khan appearing at page 11 recorded on 12.9.1997 does not show that there was a question asked to the witness, and he wanted to reply after seeing the case diary. It is not understood as to how the court permitted the use of the case diary and allowed the witness to see the same to answer the question on the basis of the case diary. No situation envisaged in sub-section (3) had arisen and therefore the use of the diary could not and should not have been permitted by the trial Judge.