This Criminal Original Petition has been filed, challenging the order passed by the Court below, dismissing the petition filed by the petitioners under Section 91 of Crl.P.C, seeking for the production of the "General Diary" [GD] maintained by the respondent Police.

2. The petitioners are facing trial before the Court below for an offence under Section 302 of IPC. The prosecution had examined all the witnesses on their side and the Investigating Officer was examined on 18.07.2018. At that point of time, the petitioners filed a petition for a direction to the respondent Police to produce the General Diary covering the period from 11.5.2013 to 11.5.2014. This petition has been dismissed by the Court below solely on the ground that the same cannot be used as an evidence, in view of the Bar under Section 172 of Cr.P.C.

3. The learned counsel for the petitioners would submit that the General Diary was required in order to effectively cross examine the Investigating Officer. The learned counsel would further submit that the bar contained under Section 172 of Cr.P.C is applicable to only a Case Diary and not to a General Diary, and the Court below misdirected itself in dismissing the petition filed by the petitioners. The learned counsel would further submit that denying the petitioners an opportunity to effectively cross examine the Investigating Officer by placing reliance on the General Diary, results in an unfair trial.

4. The learned Government Advocate (Crl.Side) would submit that there is no requirement to produce the General Diary before the Court and the bar contained under Section 72 of Cr.P.C, will equally apply to the General Diary also. The learned counsel would submit that the Investigating Officer can be effectively cross examined with the available materials and there is no requirement for producing the General Diary. The learned counsel would further submit that the petition itself has been filed only with a view to protract the proceedings.

5. This Court has carefully considered the submissions made on either side. The following important questions arise for consideration in this case.

a) Whether an accused person is entitled to seek for the production of a General Diary as an evidence during the course of trial? And

b) Whether the Bar contained under Section 172 of Cr.P.C will apply to the entries made in a General Diary also?

6. It will be relevant to extract the provisions of Section 172 of Cr.P.C.

Diary of proceedings in investigation:-

(1) 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.

[(1-A) The statements of witnesses recorded during the course of investigation under Section 161 shall be in-served in the case diary.

(1-B) The diary referred to in sub-section (1) shall be a volume and duly paginated.]

(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 be, of the Indian Evidence Act, 1872 (1 of 1872 ), shall apply.

7. Every Police Officer making an investigation shall enter his proceedings in a Diary, which must be used at the trial or inquiry not as an evidence in the case, but to aid the Court in such inquiry or trial. The case Diary is only a record of the day-t