Accused Can't Access Full Case Diary or Compel Its Reconstruction Despite 'Ante-dating' Allegations: Delhi High Court Clarifies Scope of Sec 172 CrPC - 2025-09-23

Delhi HC Orders Preservation of Case Diary Amidst Tampering Allegations, but Denies Accused's Plea for Reconstruction

New Delhi: The Delhi High Court, while addressing allegations of "ante-dating" police statements in a 2020 Delhi riots-related case, has ruled that while a court can order the preservation of a case diary to ensure a fair trial, an accused cannot compel its reconstruction or gain access to parts unrelated to their case. Justice Ravinder Dudeja clarified the scope of Section 172 of the Code of Criminal Procedure (Cr.P.C.), emphasizing that an accused's right to access the case diary is strictly limited.

The order was passed on a petition filed by activist Devangana Kalita, an accused in an FIR registered in connection with the 2020 protests against the Citizenship Amendment Act (CAA).

Background of the Case

Devangana Kalita is among 26 individuals charge-sheeted in FIR No. 48/2020, registered at PS Jafrabad for allegedly blocking a road during protests. During the trial, Kalita's counsel raised serious concerns before the Magistrate, alleging that witness statements recorded under Section 161 Cr.P.C. were "ante-dated" or back-dated by the investigating agency. This suspicion arose from apparent chronological inconsistencies in the page numbers of two police case diary booklets, Nos. 9989 and 9990.

The petitioner sought an order to reconstruct and preserve the entirety of these two booklets to substantiate her claim of evidence tampering. However, on November 6, 2024, the trial court dismissed her application, terming it a "procedural aspect" that could be addressed at a later stage. Aggrieved by this order, Kalita approached the Delhi High Court.

Arguments Before the High Court

Petitioner's Contentions: Kalita’s counsel argued that the chronological discrepancies were demonstrable proof of manipulation. For instance, in one booklet, a statement dated March 9, 2020, was recorded on page 8, while statements from an earlier date (February 26, 2020) appeared much later, on pages 31-43. It was argued that the mandatory requirement under Section 172 Cr.P.C. for chronological and paginated maintenance of case diaries is crucial for the sanctity of the investigation. The petitioner contended that the trial court failed to exercise its powers under Section 91 Cr.P.C. to summon these crucial documents.

State's Submissions: The State, represented by the Special Public Prosecutor, vehemently opposed the petition, arguing it was a tactic to delay the trial, as the allegations were raised three years after the trial began. The prosecution asserted that Section 172(3) Cr.P.C. explicitly bars the accused from calling for or inspecting the case diary. It was further submitted that the booklets in question were used for multiple cases, and reconstructing them was impractical. The State maintained there was no ante-dating and that the relevant records pertaining to the FIR were already preserved under the trial court's custody.

High Court's Analysis and Ruling

Justice Ravinder Dudeja bifurcated the petitioner's prayer into two parts: preservation and reconstruction.

On Preservation: The Court acknowledged that the preservation of the case diary is essential to ensure fairness in the trial, invoking its inherent powers under Section 482 Cr.P.C. (now Section 528 BNSS) and its duty to uphold Article 21 (Right to Life and Personal Liberty).

“The case diary is not the evidence but its absence may affect the fairness of trial and therefore directions may be given to preserve it. The power of giving such directions flows from the court duty to ensure compliance with Article 21 and its inherent powers...” the Court observed.

Accordingly, the High Court made its earlier interim order dated December 2, 2024, for the preservation of booklet nos. 9989 and 9990 absolute.

On Reconstruction and Access: However, the Court dismissed the plea for reconstructing the booklets. It held that pages of the diary used for other FIRs are beyond the scope of judicial inquiry in the present case under Sections 172 and 91 Cr.P.C.

The judgment reiterated the established legal principle that the case diary is primarily an aid for the court and the investigating officer. Citing the Supreme Court's ruling in Mukund Lal vs. Union of India , the Court stated:

“It is clear that the denial of right to the accused to inspect the case diary cannot be characterized as unreasonable or arbitrary. The confidentiality is always kept in the investigation and it is not desirable to make available the police diary to the accused on his demand.”

Final Decision and Implications

The petition was dismissed with a key clarification: Kalita retains the right to argue the issue of ante-dating before the trial court at the appropriate stage. The Court’s order strikes a balance between protecting the confidentiality of police investigation records and upholding the accused's right to a fair trial. While it allows the accused to challenge the authenticity of evidence, it prevents a "roving inspection" of police diaries, thereby reinforcing the limited scope of access granted to the defense under the Cr.P.C.