1. Six persons, namely, Ahmed Mia, Abul Kashem, Nurus Safa alias Ahmed Sofa, Syedar Rahaman, Ali Mullah and Khalilur Rahaman were sent up for trial charged under various sections of the Penal Code. They were tried by the Additional Sessions Judge of Chittagong and a jury and they were all convicted under various sections of the Penal Code. Five of the appellants have appealed. They are the first five named above. The case against the appellants may, briefly, be stated thus: Amir Hossain and certain other persons claimed to have a right of way over a certain path leading to a tank. They alleged that the accused obstructed that pathway by erecting a bamboo fencing. When they went to remove that fencing, the accused and others assaulted them as a result of which one Ahmed Mia was killed. The defence taken broadly may be stated thus: Amir Hossain and his party were attempting to carve out a pathway over land belonging to the appellants. They trespassed into the homestead portion of the appellants' land and there was a mutual fight in the course of which persons of both parties got injured.
2. It appears that the same investigating, officer conducted the enquiry with respect to the allegations of both parties and Amir Hossain and others were tried in a counter case. It is clear from this brief statement of the facts of the case that the investigating officer who went on the scene very shortly after the occurrence was perhaps the most important witness in the case. He gave evidence in the Sessions trial. The appellants requested the Court by a petition to direct the investigating officer to come with the police diary of the counter case, so that he may be contradicted, if necessary, as regards his statements as to what he saw at the time of his investigation by reference to his own record of what he saw in the police diary. The learned Judge rejected the petition stating that Section 162, Criminal P. C, rendered such a statement inadmissible in evidence.
3. In our judgment, the learned Judge was wrong in refusing this prayer of the accused. Section 162, Criminal P.C., has nothing whatsoever to do with this matter. That section relates to statements made by persons to police officers in the course of investigation. What the appellants were wanting to make use of was not a statement of a person to a police officer but a statement of the police officer recorded by himself in his diary. Not only was there no objection to the learned Judge calling for this police diary but we are of the opinion that in the particular circumstances of this case he should have called for this diary and satisfied himself by referring thereto that the evidence given by the investigating officer before him truly represented what the investigating officer saw. In the circumstances of this case, the investigating officer's evidence on this point was of vital importance and the learned Judge should have satisfied himself by looking into the diary that the investigating officer was relating accurately and truly what he saw at the place of occurrence. In this connexion, we would refer to Section 172, Criminal P. O. It is true that this section does not in terms apply, but it is useful because it indicates a principle which should guide the Courts in dealing with such police diaries. Section 172 (2) says:
Any criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use snob, diaries, not as evidence in the case, but to aid it in such inquiry or trial.
It goes on to say that neither the accused nor his agents shall be entitled to call for such diaries, or to see them merely because they are referred to by the Court; but if the diaries are used by the police officer who made them, to refresh his memory, or if the Court uses them for the purpose of contradicting the police officer the diaries would become evidence under Section 161 or Section 145, Evidence Act. We would point out that Section 172 relates to the police diary made in respect of a case under enquiry or trial by the Court which calls for it. In the present case the diary related not to the case which was actually being tried by the Court but to the counter case. For this reason we stated before that Section 172 does not in terms apply, but the principles there set out apply. We are not aware of any section which would prevent the Court from looking into the diary of the counter case, or from using the diary in the counter case in the way laid down in subs. (2) of Section 172, Criminal P. C., and we are of opinion that in this ease the Court should have used the diary in that manner. True, this is a question of discretion but we are of opinion that the Court in failing to exercise its discretion properly committed a serious error and that by reason of this error the conviction of the appellants has been vitiated.
4. We accordingly set aside the convictions and sentences passed on the appellants and direct that they be retried by the learned Sessions Judge himself or by some Judge other than Mr. P. C. Eoy as the learned Sessions Judge may think fit. We would also direct that the learned Judge who tries this case should call for the record of the counter case; And go through the record for the purpose of doing justice in the present case, The appellants Abul Kasem, Sayed Ahmed alias Sayedur Rahaman and Ali Meah alias Ali Molla, if on bail, shall remain on the same bail and if they have not yet furnished bail they shall be released on their furnishing bail to the satisfaction of the District Magistrate.
5. I agree entirely. As my learned brother has pointed out, Section 172 does not in terms apply because it relates to the use of such diaries as have reference to a case under enquiry or trial in that Court which is called upon to look into those diaries. But this section embodies a principle which in my opinion extends to all such police diaries under Section 172 as may be of assistance in ascertaining the truth about any case which is at that time under investigation in any criminal Court whether they were made for that case or for a connected case. The only real question in the present case was where this riot took place. The investigating Sub-Inspector deposed that when he visited the spot, he saw signs which indicated that it had occurred at a particular place. This very investigating officer conducted an investigation into a counter case, which arose out of the same occurrence and it is alleged that in connexion with that other investigation he had recorded in the diary which he kept under Section 172, certain statements as to what he himself had observed when he visited the spot. It would seem to have been the case for the defence that what the Sub-Inspector had recorded in his diary under Section 172 in the counter case actually contradicted his evidence in the present case, and that the diary in question would have supported the contention advanced on behalf of the defence that the occurrence had taken place at another spot which was on land belonging to the accused persons. In these circumstances, I am definitely of the opinion that the learned trial Judge should, in the exercise of his judicial discretion, have sent for the diary kept by the investigating police officer under Section 172 in connexion with the investigation of. the counter case, and that when that diary arrived the learned trial Judge should have proceeded to use it in the manner indicated in Sub-section. (2) of section 172.
6. It is very true that a diary kept under Section 172 cannot in any circumstances be used as evidence of any date, fact or Statement contained therein, but I am of the opinion that it can be used for the purpose of assisting the Court in the enquiry or trial by enabling the Court to discover means for further elucidation of points which need clearing up before justice can be done. See in this connexion the case in Emperor v. Dal Singh ('17) 4 A.I.B. 1917 P.C. 25 and the ease in Queen Empress v. Mannu ('97) 19 All. 390. As my learned brother has pointed out, there is nothing if the law Which precludes a Court from sending for a diary kept under Section 172 and looking into it for such a purpose whether that diary relates to the case actually under enquiry or trial, or whether it relates to the investigation of a connected case.