In Devangana Kalita plea, Delhi HC allows case diaries linked to anti-CAA stir to be preserved, turns down appeal for reconstruction

While rejecting the request for reconstruction, the High Court reasoned that the other pages of the police diary “which do not form part of case diary in the present case and which would have been used by the investigating officers for recording statements in various other FIRs being investigated by them at the relevant time cannot be reconstructed as the same is being beyond the scope of Section 172 and 91 CrPC and also because petitioner (Kalita) is not entitled to have the copy of the same.”

The order read, “The court is within its competence to read the police diary only for aid and for satisfying its conscience in appreciating the legal evidence available on record but not beyond. The entries in the case diaries are not evidence nor they can be used by the accused in the court unless the case comes within the scope of Section 172(3) CrPC,” Justice Dudeja recorded.

CrPC Section 172 deals with maintenance of police diaries during an investigation and CrPC Section 172 (3) holds that an accused is not entitled to call for or see such case diaries, unless 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 a police officer.

A criminal court, under provisions of CrPC Section 172 may send for diaries and may use them not as evidence, but to aid it in an inquiry or trial.

Such entries in the case diaries are usually utilised as foundation for questions to be put to the police witness and the court may, if necessary in its discretion, use the entries to contradict the police officer, who made them.

But the entries in the police diary are neither substantive nor corroborative evidence, and that they cannot be used against any other witness than against the police officer that too for the limited extent as detailed in the provision.

The court, however, clarified that Kalita “shall have a right to demonstrate antedating before the trial court during trial.”

In her plea, Kalita sought setting aside of a Judicial Magistrate of First Class (JMFC) order of Shahdara, Karkardooma court dated November 6, 2024 where the court refused to delve into Kalita’s allegations of tampering and antedating CrPC section 161 statements (examination of witnesses by police). These statements were part of the case diary and filed with the main as well as supplementary chargesheets in the case.

She also sought preservation and reconstruction of the case diary.

She had earlier raised the allegations of tampering of records before the magistrate court and had sought that the court secures the complete booklet pertaining to the relevant case diaries.

The JMFC court had opined that it “cannot go into the truthfulness and veracity of the allegations” even as the “there may be merits” in Kalita’s claims.

If tampering is proven in the case diaries, it may help Kalita in seeking discharge from the offences.

Kalita, along with activist Natasha Narwal, are accused in an FIR registered at Jafrabad police station for being among those who organised an anti-CAA protest and road blockade under Jafrabad Metro station on February 22-23.

The protest had prompted a pro-CAA rally by BJP’s Kapil Mishra and his supporters on February 23. A day later, riots broke out in the district.