Prosecution/Police's sudden Nightmare - Case Diary is covered by RTI and accused on trial is entitled to it.

Prosecution/Police's sudden Nightmare - Case Diary is covered by RTI and accused on trial is entitled to it.

by Kv Dhananjay on Sunday, February 13, 2011 at 11:18pm

In a case of extra ordinary ramification to the criminal law and, of course, to criminals of this country, the Central Information Commission had on 25-Sep-2009 ruled that an accused in a criminal case had the right to demand certified copy of the Case Diary maintained by the Police in relation to the Crime that was registered against the accused.

Now, what is a ‘Case Diary’? Well, a ‘Case Diary’ is a file maintained by the Police to inform themselves on the progress in every FIR registered by them. It will contain information on most of the steps undertaken by the Police in the course of their investigation, the people and witnesses it has interviewed or encountered, their statements or other leads, the evidence it has collected and nearly every other information it comes across in relation to the case before it. The Code of Criminal Procedure, 1973 specifically provides that the accused shall not be entitled to access the case diary at all. A minor exemption is provided which is practically insignificant.

Now, one might ask, what happens if the accused could ask for a copy of the ‘Case Diary’?

Well, the Prosecution will probably tell you, ‘all hell will break loose’.

You see, the prosecution is never perfect. They will often lie, even when they are sure that they are dealing with a ‘true criminal’. They might tell you that unless they deviate here and there, they will never be able to catch up with the ‘criminals’. They will make up stories, tutor witnesses, fabricate evidence and do many other things – quite often, these deeds do get reflected in the entries in the case diary.

Of course, nobody is going to record in their case diary to say “we have obtained a false witness who can be nicely tutored”. Still, the diary could read, say, “Met with M. M says that she has no information at all about the crime with which Z has been charged. But M says that there always were rumours about Z doing such a thing.” After few days, another entry could read, “M says that she was asked by Z to come into his room after 11 pm on a certain day and when she went inside, she was death-shocked to see Z with another person X hacking L to death. Both Z and X asked M to bring in a gunny bag quickly to dispose off the body of L. Terrified, M left that house that very night never to return again”.

Now, in their chargesheet against Z, the Police will merely submit to the Court and to Z (accused), the latter statement of ‘M’ and will call M as the “Prosecution Witness”. The first statement of M recorded by the Police will never be provided to the Court or to the accused – if it were, the accused’s lawyers are bound to simply exploit M’s indecision and cross M to such an extant that M will be told ‘ON STAND’ that she is the “true killer” and “that is why, she was quiet in the beginning” and “later on, she realised that, unless she implicated Z, the Police would eventually discover her as the true killer”. M’s bad or distressed performance ‘ON STAND’ could cast grave doubt on her testimony and, if the Police were largely dependent on M’s testimony, the case could go out of the Police’s hand and result in Z’s acquittal.

So, the Prosecution will simply tell you that it would be a nightmare for them to give away, their ‘case diary’ to the accused. In short, for them, ‘all hell will break loose’.

Now, the CIC had on 25-Sep-2009, ruled in favour of one D.K.Sharma, who was accused of corruption and was facing trial for the same. D.K.Sharma had asked for, among others, certified copy of the case diary maintained by the police for his case. The CIC held that the RTI Act requires the Police to turn over the ‘case diary’ because, the trial was already in progress and this means that, ‘the investigation is not pending’. (The RTI Act would prevent the disclosure of information in relation to any investigation). The Order of the CIC dated 25-Sep-2009 is here: https://docs0.google.com/document/d/17HvQp7lhHHhJksRysxZPRsSgtbi76gBDg7u1lUueX7Y/edit?hl=en#

The Deputy Commissioner of Police filed thereafter, a Writ Petition in the Delhi High Court – Writ Petition (Civil) No.12428 of 2009. On 15-Jan-2010, Hon’ble Justice J Murlidhar issued a stay upon the Order of the CIC. However, by 15-Dec-2010, when this case came for judgment, the Respondent (in Writ Petition), D.K.Sharma stood convicted in the trial that was in progress while the CIC had ruled in his favour. By an Order and Judgment dated 15-Dec-2010, Hon’ble Justice J.Murlidhar has agreed with the CIC and has dismissed the Writ Petition filed by the Deputy Commissioner of Police. The Order and Judgment of the Delhi High Court in Writ Petition No.12428 of 2009 is here: https://docs.google.com/document/d/12Kq2UXwjIJ-P-w6WC-4Ex2nU14LXJIlvFjyZQ1k6DuE/edit?hl=en#

In effect, an accused on trial may now seek a copy of the case diary maintained by the Police in relation to the FIR against the accused, at least, in the territory of the National Capital Territory of Delhi. I can clearly sense ‘panic’ in the police in Delhi. And, souls already convicted may now ask for their ‘case diary’ and possibly get busy with challenge to their conviction on grounds of ‘fraud’, ‘fabrication’ or ‘dishonesty’ on the part of the police.

K.V.Dhananjay
Advocate