ORDER :- Aggrieved by an order of acquittal the complainant has come to this Court in revision.

1-a. At about 10.30 P.M. on 22nd March, 1962 Sri G.K. Saxena, the station officer. Kotwali, Allahabad, received a message on the telephone that in mohalla Dandipur in the city of Allahabad, two parties were seriously fighting and exchanging brickbats etc. Sri G.K. Saxena thereupon collected a police force and rushed to the spot. He made an entry in the general diary to this effect, a copy whereof is Ex. C-1. On return Sri Saxena made another report in the general diary, a copy whereof is Ex. C. 2. In this report he stated that he found tire parties rioting and that he arrested some persons of either party, under Section 151 of the Code of Criminal Procedure and that after investigation a proper report under Section 107/117 Cr. P.C. shall be filed against both parties. In this report Sri Saxena also stated the fads which he had come to know as to the cause of this occurrence between the parties.

2. Soon after the arrested persons were released on bail. Both parties filed complaints against each other for rioting and causing hurt. Sri Moinuddin conducted the further investigation of the occurrence and ultimately both the parties were challaned under Section 147 and 323/149 I.P.C. The Magistrate acquitted the present complainant's party and convicted the accused-opposite parties under the aforesaid sections and sentenced each of them to six months' R. I. On appeal, the conviction and sentences passed on the accused-opposite parties were set aside and they were acquitted. This led to the complainant filing the present revision in this Court.

3. The only point pressed on behalf of the complainant is that the report Ex. C. 2 made by Sri Saxena was inadmissible in evidence and the learned Sessions Judge having relied upon it in support of his conclusion, his judgment is vitiated.

4. Section 172 Cr. P.C. directs every police officer making an investigation to enter iris 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. Sub-Section (2) prohibits the use of the diary as evidence in the case. The accused is further prohibited from seeing the diary or call for them except to contradict the police officer in case he uses the diary to refresh his memory.

5. Section 44 of the Police Act, 1861, directs an officer in charge of a police station to keep a general diary and to record therein various matters mentioned in that section as well as in Regulation 295 of the U.P. Police Regulations. It is urged for the accused-opposite parties that Section 172 Cr. P.C. applies only to the diary kept under that section and the prohibition from use as evidence relates only to this diary; that prohibition does not apply to general diary kept in virtue of Section 44 Police Act.

6. That may be so, Section 172 Cr. P.C. is a special rule of evidence. In so far as it goes, it overrides the provisions of the Evidence Act. It prohibits the use of the police diary of a case as evidence in the case. It also provides for the various matters which have to be mentioned in the diary of the case. Some of the matters mentioned in Section 172(1) are common to Section 44 of the Police Act and the Regulation framed thereunder. But Section 172(1) Cr. P.C. directs that the diary of the case will contain 'a statement of the circumstances ascertained through investigation'. This is a matter which is not prescribed to be mentioned in the general diary by Section 44 it the Police Act or Regulation 295.

7. Under Section 44 of the Police Act all complaints and charges preferred have to be entered as also the names of the witnesses who shall have been examined. It does not contemplate that the statements of the witnesses examined are also to be recorded. Similarly the informa

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