1. By consent of both sides, the matter has been taken up for final hearing. The petition has been filed seeking a direction to the learned XIV Additional Special Judge for CBI Cases, Chennai to record the evidence of P.W.4 in C.C.No.13 of 2009 pending on the file without allowing P.W.4 o peruse the C.D. File of the case.

2. The petitioner is an accused in C.C.No.13 of2009 on the file of the learned XIV Additional Special Judge for CBI Cases. The case was taken for trial and three witnesses were already examined. One Mr.C.S. Mony, Deputy Superintendent of Police, CBI was called as P.W.4 on 31.1.2011. According to the petitioners, the said witness entered the witness box with case diary file pertaining to the petitioner's case and started deposing after perusing the C.D file. It was objected by the learned counsel for the petitioner. It was objected on the ground that a statement under Sec.161 (3) of the witness was recorded by the investigating officer one Mr.G. Palaniappan and therefore, the witness cannot peruse the C.D file and depose. However, the objection was overruled by the trial court but the evidence was stopped. Therefore, the petitioner has come forward before this court seeking for the above relief.

3. Mr.Sankarappan, the learned counsel for the petitioner would submit that the Deputy Superintendent of Police who was called as PW4 cannot peruse the case diary and depose as the case diary cannot be an evidence before the Court of law. The learned counsel relied on an oldest Full Bench English judgment delivered on 13.7.1897 and reported in 17 A.W.N 1897 174 (Queen Empress vs Mannu).

4. In the said judgment, the point for consideration before the Full Bench was as to the use, which may or may not, legally be made of diaries made by police officers under Sec.172 of the Code of criminal procedure and as to what those diaries may contain. The Full Bench observed thus:

"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 Sec.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 Sec.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 Sec.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.

5. The learned counsel also relied on a decision reported in AIR 1978 Gujarat 49 (Nathu Manchhu vs The State of Gujarat)

6. And AIR 1988 Kerala 1 (State of Kerala vs Ammini and others) where the Full Bench of the Kerala High Court dealt with the diary envisaged under section 172 of the Code.

7. Per contra, Mr