Paragraph numbers below are the court’s original numbering, recovered from the source text.
58. Section 44 of the Police Act, 1861 is reproduced below: “44.Police officers to keep diary.—It shall be the duty of every officer in charge of a police station to keep a General Diary in such form as shall, from time to time, be prescribed by the State Government and to record therein all complaints and charges preferred, the names 800 of all persons arrested, the names of the complainants, the offences charged against them, the weapons or property that shall have been taken from their possession or otherwise, and the names of the witnesses who shall have been examined. The Magistrate of the district shall be at liberty to call for and inspect such diary.”
59. It is pertinent to note that during the year 1861, when the aforesaid Police Act, 1861 was passed, the Code of Criminal Procedure, 1861 was also passed. Section 139 of that Code dealt with registration of FIR and this section has also referred to the word “diary”, as can be seen from the language of this section, as reproduced below: “139.Complaint, etc., to be in writing.—Every complaint or information preferred to an officer in charge of a police station, shall be reduced into writing, and the substance thereof shall be entered in a diary to be kept by such officer, in such form as shall be prescribed by the local Government.” (emphasis supplied) Thus, the Police Act, 1861 and the Code of Criminal Procedure, 1861, both of which were passed in the same year, used the same word “diary”.
60. However, in the year 1872, a new Code came to be passed which was called the Code of Criminal Procedure, 1872. Section 112 of the Code dealt with the issue of registration of FIR and is reproduced below: “112.Complaint to police to be in writing.— Every complaint preferred to an officer in charge of a police station shall be reduced into writing, and shall be signed, sealed, or marked by the person making it, and the substance thereof shall be entered in a book to be kept by such officer in the form prescribed by the local Government.” [2024] 2 S.C.R. Shailesh Kumar v. State of U.P. (Now State of Uttarakhand) It is, thus, clear that in the Code of Criminal Procedure, 1872, a departure was made and the word “book” was used in place of “diary”. The word “book” clearly referred to the FIR book to be maintained under the Code for the registration of FIRs.
61. The question that whether the FIR is to be recorded in the FIR book or in the General Diary, is no more res integra. This issue has already been decided authoritatively by this Court.
62. In Madhu Bala v. Suresh Kumar [Madhu Bala v. Suresh Kumar, (1997) 8 SCC 476 : 1998 SCC (Cri) 111], this Court has held that FIR must be registered in the FIR register which shall be a book consisting of 200 pages. It is true that the substance of the information is also to be mentioned in the Daily Diary (or the General Diary). But, the basic requirement is to register the FIR in the FIR book or register. Even in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , this Court held that FIR has to be entered in a book in a form which is commonly called the first information report.
63. It is thus clear that registration of FIR is to be done in a book called FIR book or FIR register. Of course, in addition, the gist of the FIR or the substance of the FIR may also be mentioned simultaneously in the General Diary as mandated in the respective Police Act or Rules, as the case may be, under the relevant State provisions.
64. The General Diary is a record of all important transactions/events taking place in a police station, including departure and arrival of police staff, handing over or taking over of charge, arrest of a person, details of law and order duties, visit of senior officers, etc. It is in this context that gist or substance of each FIR being registered in the police station is also mentioned in the General Diary since registration of FIR also happens to be a very important event in the police station. Since General Diary is a record that is maintained chronologically on 802 day-to-day basis (on each day, starting with new number 1), the General Diary entry reference is also mentioned simultaneously in the FIR book, while FIR number is mentioned in the General Diary entry since both of these are prepared simultaneously.
65. It is relevant to point out that FIR book is maintained with its number given on an annual basis. This means that each FIR has a unique annual number given to it. This is on similar lines as the case numbers given in courts. Due to this reason, it is possible to keep a strict control and track over the registration of FIRs by the supervisory police officers and by the courts, wherever necessary. Copy of each FIR is sent to the superior officers and to the Judicial Magistrate concerned.
66. On the other hand, General Diary contains a huge number of other details of the proceedings of each day. Copy of General Diary is not sent to the Judicial Magistrate having jurisdiction over the police station, though its copy is sent to a superior police officer. Thus, it is not possible to keep strict control of each and every FIR recorded in the General Diary by the superior police officers and/or the court in view of enormous amount of other details mentioned therein and the numbers changing every day.
67. The signature of the complainant is obtained in the FIR book as and when the complaint is given to the police station. On the other hand, there is no such requirement of obtaining signature of the complainant in the General Diary. Moreover, at times, the complaint given may consist of large number of pages, in which case it is only the gist of the complaint which is to be recorded in the General Diary and not the full complaint. This does not fit in with the suggestion that what is recorded in the General Diary should be considered to be the fulfilment/compliance with the requirement of Section 154 of registration of FIR. In fact, the usual practice is to record the complete complaint in the FIR book (or annex it with the FIR [2024] 2 S.C.R. Shailesh Kumar v. State of U.P. (Now State of Uttarakhand) form) but record only about one or two paragraphs (gist of the information) in the General Diary. xxx xxx xxx 70. If at all, there is any inconsistency in the provisions of Section 154 of the Code and Section 44 of the Police Act, 1861, with regard to the fact as to whether the FIR is to be registered in the FIR book or in the General Diary, the provisions of Section 154 of the Code will prevail and the provisions of Section 44 of the Police Act, 1861 (or similar provisions of the respective corresponding Police Act or Rules in other respective States) shall be void to the extent of the repugnancy. Thus, FIR is to be recorded in the FIR book, as mandated under Section 154 of the Code, and it is not correct to state that information will be first recorded in the General Diary and only after preliminary inquiry, if required, the information will be registered as FIR. xxx xxx xxx 72. It is thus unequivocally clear that registration of FIR is mandatory and also that it is to be recorded in the FIR book by giving a unique annual number to each FIR to enable strict tracking of each and every registered FIR by the superior police officers as well as by the competent court to which copies of each FIR are required to be sent. xxx xxx xxx 97. The Code contemplates two kinds of FIRs : the duly signed FIR under Section 154(1) is by the informant to the officer concerned at the police station. The second kind of FIR could be which is registered by the police itself on any information received or other than by way of an informant [Section 157(1)] and even this information has to be duly recorded and the copy should be sent to the Magistrate forthwith. The registration of FIR either on the basis of the information furnished by the informant under Section 154(1) of the Code or otherwise under 804 Section 157(1) of the Code is obligatory. The obligation to register FIR has inherent advantages: 97.1. (a) It is the first step to “access to justice” for a victim. 97.2. (b) It upholds the “rule of law” inasmuch as the ordinary person brings forth the commission of a cognizable crime in the knowledge of the State. 97.3. (c) It also facilitates swift investigation and sometimes even prevention of the crime. In both cases, it only effectuates the regime of law. 97.4. (d) It leads to less manipulation in criminal cases and lessens incidents of “antedated” FIR or deliberately delayed FIR.” (emphasis supplied) Ram Chander v. State of Haryana, (1981) 3 SCC 191, “3…. The court, the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge. The Judge, ‘like the conductor of a choir, must, by force of personality, induce his team to work in harmony; subdue the raucous, encourage the timid, conspire with the young, flatter and (sic the) old’.” Justice O. Chinnappa Reddy Section 165 of the Evidence Act “165. Judge’s power to put questions or order production.—The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question: Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved: [2024] 2 S.C.R. Shailesh Kumar v. State of U.P. (Now State of Uttarakhand) Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.” 29. Section 165 of the Evidence Act speaks of the power of the court to put questions and order production of documents in the course of trial. This is a general and omnibus power given to the court when in search of the truth. Such a power is to be exercised against any witness before it, both in a civil as well as a criminal case. The object is to discover adequate proof of a relevant fact and, therefore, for that purpose, the Judge is authorised and empowered to ask any question of his choice. When such a power is exercised by the court, there is no corresponding right that can be extended to a party to cross-examine any witness on an answer given in reply to a question put forth by it, except with its leave. Emphasizing upon the importance of Section 165 of the Evidence Act, Sir James Stephen while presenting the report of the Select Committee, at the time of passing of the Evidence Act observed, “It is absolutely necessary that the judge should not only hear what is put before him by others, but that he should ascertain by his own inquiries how the facts actually stand. In order to do this, it will frequently be necessary for him to go into matters which are not themselves relevant to the matters in issue, but may lead to something that is, and it is in order to arm judges with express authority to do this that section 165, which has been so much objected to, has been framed”. “A judge or Magistrate in India frequently has to perform duties which in England would be performed by Police Officer or attorneys. He has to sift out the truth for himself as well as he can, and with little assistance of a professional kind. Section 165 is intended to arm the judge with the most extensive 806 power possible for the purpose of getting at the truth. The effect of this section is that, in order to get to the bottom of the matter before the count, he will be able to look at and enquire into every fact whatever.” (emphasis supplied) 30. Ram Chander v. State of Haryana, (1981) 3 SCC 191, “O. Chinnappa Reddy, J.— What is the true role of a judge trying a criminal case? Is he to assume the role of a referee in a football match or an umpire in a cricket match, occasionally answering, as Pollock and Maitland [ Pollock and Maitland : The History of English Law] point out, the question ‘How is that’, or, is he to, in the words of Lord Denning ‘drop the mantle of a judge and assume the robe of an advocate’? [Jones v. National Coal Board, (1957) 2 All ER 155 : (1957) 2 WLR 760] Is he to be a spectator or a participant at the trial? Is passivity or activity to mark his attitude? If he desires to question any of the witnesses, how far can he go? Can he put on the gloves and ‘have a go’ at the witness who he suspects is lying or is he to be soft and suave? These are some of the questions which we are compelled to ask ourselves in this appeal on account of the manner in which the Judge who tried the case put questions to some of the witnesses. 2. The adversary system of trial being what it is, there is an unfortunate tendency for a judge presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive elements entering the trial procedure. If a criminal court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. As one of us had occasion to say in the past: [2024] 2 S.C.R. Shailesh Kumar v. State of U.P. (Now State of Uttarakhand) Every criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. For that purpose he is expressly invested by Section 165 of the Evidence Act with the right to put questions to witnesses. Indeed the right given to a Judge is so wide that he may, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact, relevant or irrelevant. Section 172(2) of the Code of Criminal Procedure enables the court to send for the police-diaries in a case and use them to aid it in the trial. The record of the proceedings of the Committing Magistrate may also be perused by the Sessions Judge to further aid him in the trial. [Sessions Judge, Nellore v. Intha Ramana Reddy ILR 1972 AP 683 : 1972 Cri LJ 1485] 3. With such wide powers, the court must actively participate in the trial to elicit the truth and to protect the weak and the innocent. It must, of course, not assume the role of a prosecutor in putting questions. The functions of the counsel, particularly those of the Public Prosecutor, are not to be usurped by the judge, by descending into the arena, as it were. Any questions put by the judge must be so as not to frighten, coerce, confuse or intimidate the witnesses. The danger inherent in a judge adopting a much too stern an attitude towards witnesses has been explained by Lord Justice Birkett: People accustomed to the procedure of the court are likely to be overawed or frightened, or confused, or distressed when under the ordeal of prolonged questioning from the presiding judge. Moreover, when the questioning takes on a sarcastic or ironic tone as it is apt to do, or when it takes on a hostile note as is sometimes almost inevitable, the danger is not only that witnesses will be unable to present the evidence as they may wish, but the parties may begin to think, quite wrongly it may be, that the judge is not 808 holding the scales of justice quite eventually. [ Extracted by Lord Denning in supra f.n. 2] In Jones v. National Coal Board [Jones v. National Coal Board, (1957) 2 All ER 155 : (1957) 2 WLR 760] Lord Justice Denning observed: The Judge’s part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of the Judge and assumes the role of an advocate; and the change does not become him well. We may go further than Lord Denning and say that it is the duty of a judge to discover the truth and for that purpose he may “ask any question, in any form, at any time, of any witness, or of the parties, about any fact, relevant or irrelevant” (Section 165 Evidence Act). But this he must do, without unduly trespassing upon the functions of the Public Prosecutor and the defence Counsel, without any hint of partisanship and without appearing to frighten or bully witnesses. He must take the prosecution and the defence with him. The court, the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge. The Judge, ‘like the conductor of a choir, must, by force of personality, induce his team to work in harmony; subdue the raucous, encourage the timid, conspire with the young, flatter and (sic the) old’.” (emphasis supplied) ON FACTS 31. We have given our consideration to the circumstances, motive, role of the accused and the volition of the prosecution to bring home the guilt of the appellant primarily in the form of: (a) Dying Declaration, (b) [2024] 2 S.C.R. Shailesh Kumar v. State of U.P. (Now State of Uttarakhand) Eye witnesses, (c) Recovery and (d) Alleged arrest of the appellant nearer to the scene of the offence. 32. The presence of PW-1 before PW-5 is extremely doubtful. His presence was not spoken to at all by PW-5. The evidence of PW-1 is quite unnatural as he has neither spoken about the motive in his statement recorded under Section 161 of CrPC, nor about the so- called dying declaration which was not even witnessed by PW-5. PW-5 has clearly stated that the deceased was in a very serious condition, blood was oozing out and, therefore, he could not give adequate treatment. The deceased was immediately referred to the second hospital. There was no necessity for PW-1 to dictate the complaint to one Mr. Inder Singh who curiously has not been examined by the prosecution. In any case, there was no need for PW-11 to wait for PW-1 to come to him for registration of FIR, which he was mandated to do so, as soon as he received the report from the hospital. The testimony of PW-1 is also contradictory to PW-3 and PW-8. 33. On the similar line, we do not wish to rely upon the evidence of PW-2 and PW-3. PW-2 admittedly was not examined by PW-11 for over 2 weeks, for which no explanation is forthcoming. This witness also states that he was not a friend of the deceased and, therefore, his presence at the place of occurrence creates a serious doubt as to how he happened to accompany the deceased to the picnic spot. PW-3, though accompanied the deceased, was not present thereafter, as deposed by PW-5 and did not admit the deceased to the second hospital as deposed by PW-8. On the contrary, the evidence of PW-3 is that it is PW-1 and himself who admitted the deceased. Furthermore, even his presence thereafter was not noticed by PW-5. 34. Though we rely upon the evidence of PW-5 to a certain extent, the emergency medical register was not completely filled up by him. Nobody knows the reason as to why he partially filled up the register and the remaining part was filled by Dr. B.V. Sharma, who was not examined by the prosecution. By placing reliance upon his testimony partly, we would only come to the conclusion that his evidence goes against the prosecution version on two counts, namely, the presence of any other witness and the condition of the deceased. 35. The prosecution has not chosen to examine the driver of the vehicle i.e the tempo in which the deceased was taken to the hospital. Even PW-5 has stated that the blood was oozing out from the body of the 810 deceased. This is another contradiction in the statement of PW-2 and PW-3 in this regard. PW-8 in his evidence has stated that the deceased was brought by another brother of the deceased. Even this witness has not been examined for the reason known to the prosecution. 36. PW-9 is an important witness being a police officer hailing from a different jurisdiction. It is very curious to know that he was the author of the inquest report after the investigation was taken up by PW-11. Despite this being very strange, no plausible explanation was forthcoming from him. Though PW-11 was trying to say that at times due to the instructions from the higher officers, it is done so, when an offence is committed an Investigating Officer is duty bound to take up the investigation and complete it. After taking up the investigation he thereafter cannot delegate it, except for justifiable reasons. This lends credence to the case projected by the defence that the interpolations and missing pages in the case diary clearly indicate that the FIR was ante-dated. Perhaps that is the reason why the FIR reached the jurisdictional magistrate belatedly and also the examination of the witnesses including PW-2 under section 161 of CrPC was done days after the occurrence. 37. PW-6 and PW-7 are not natural witnesses. It is totally unbelievable for PW-6 to reach the place of occurrence out of inquisitiveness. There is no need for him to be in that very place. The arrest of the accused at the instance of PW-7 is yet another instance of the prosecution trying to make out a case. It is incomprehensible that the appellant would be present at the place of the occurrence when he is attempting to flee. Similar logic goes to the recovery of the knife. If PW-11 is stated to have made an inspection and drawn the sketch, he would have very well found the knife at a nearby place. It is nobody’s case that it was hidden, on the contrary, it was found in an open place. 38. From the aforesaid discussion, we have no doubt that the date, time and place of occurrence could have been different. The trial court strangely placed the onus on the appellant even with respect to the corrections made in the case diary along with the missing pages. On perusal of the case diary, we find that at several places such corrections have been made, while some pages were even missing. A clear attempt is made to correct the dates. Such corrections [2024] 2 S.C.R. Shailesh Kumar v. State of U.P. (Now State of Uttarakhand) actually were put against the appellant while they indeed helped the case of the prosecution. The finding of the trial court in this regard is neither logical nor reasonable. Even on the question of motive, there is absolutely no material as witnesses did not speak about the same in their statements recorded under Section 161 of CrPC. Mere recovery of a motorcycle per se will not prove the case of the prosecution especially when it has not been proved as to how it was recovered. The evidence of PW-13 clearly shows that no date, time and proper recording have been made in the case diary. When the trial court perused the case diary for the purpose of contradicting the statement of a police officer, it ought not to have fixed the onus on the appellant. It has failed to discharge its duty enshrined under Section 172(3) of CrPC read with Section 145 or Section 161, as the case may be, of the Evidence Act. To be noted, it was brought on a request made by the appellant and the court was using it for the purpose of contradiction. 39. On a perusal of the impugned judgment and that of the trial court in convicting the appellant, we find that the aspects discussed by us have not been looked into in a proper perspective. The appellant has certainly made out a case for acquittal. Accordingly, the conviction rendered by the High Court, confirming that of the trial court stands set aside. The appellant is acquitted of all the charges. 40. The appeal is allowed. The appellant was granted bail vide Order of this Court dated 06.04.2015. Hence, bail bonds stand discharged. Headnotes prepared by: Ankit Gyan Result of the case: Appeal allowed.