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Can Bail Be Granted By The Court Without Perusal Of Case Diary?

Bail is an integral component of criminal justice systems globally, balancing the rights of defendants against society's need for justice and protection. Within this framework, the case diary serves as a crucial tool in determining whether bail should be granted or denied. This essay explores the significance of case diaries in the bail process, highlighting their contribution to evaluating bail applications and promoting equitable and just results along with the necessity of its perusal by the court before granting or refusing bail to an accused person.

Section 172 of the Code of Criminal Procedure (1973) requires that all police officers conducting an investigation must record their daily progress in a diary, detailing the time they received the information, when they started and concluded their investigation, the locations they visited, and the circumstances they discovered during their investigation.

The case diary should contain witness statements recorded under Section 161 CrPC during the investigation. The case diary should be a single volume, properly paginated. Any criminal court may request the police diaries of a case under inquiry or trial in that court. The court may use these diaries to assist in the inquiry or trial, but not as evidence in the case. Neither the accused nor their representatives may request or view the diaries solely because they were mentioned by the Court.

In the event that the police officer who authored the diaries employs them to recollect details or if the Court uses them to contradict the officer's testimony, the provisions under Section 161 or Section 145 of the Indian Evidence Act of 1872 will come into effect i.e. the police officer can be cross-examined in such a situation.

Understanding Bail:

Bail is a provisional release granted to an individual undergoing trial, often accompanied by specific conditions like financial deposits, travel limitations, or guarantors. This practice upholds the principle of presumed innocence, enabling individuals to maintain their lives outside of confinement while awaiting their day in court. The decision to grant or deny bail, however, is influenced by several factors, such as the severity of the alleged crime, the risk of flight, the potential threat to society, and the likelihood of the accused attending the trial.

Role of Case Diary:

The case diary, a chronological record maintained by investigating officers or law enforcement agencies, meticulously documents the investigation process, evidence gathered, witness testimonies, and other relevant information pertaining to a case. This comprehensive log serves as a repository of facts and circumstances surrounding the alleged offense, offering vital insights for judicial decision-making, such as bail determinations.

Evidence Evaluation:

The case diary enables a comprehensive evaluation of evidence against the defendant. It empowers the judiciary to examine the prosecution's case, including charges, witness credibility, and evidence admissibility. A well-documented case diary with reliable evidence bolsters the prosecution's case for denying bail, especially in grave offenses or where substantial evidence implicates the accused.

Risk Assessment:

Bail determinations involve assessing the potential danger of releasing the defendant into society. The case file assists in this evaluation by offering insights into the defendant's criminal background, previous conduct, and potential risk of fleeing. Details about prior convictions, ongoing charges, or attempts to avoid law enforcement aid judges in estimating the likelihood of the defendant reoffending or absconding if granted bail.

Judicial Discretion:

In bail decisions, judicial discretion is of utmost importance, as it empowers magistrates and judges to evaluate each case's distinctive factors. The case diary provides judges with factual context and legal precedents, enabling them to make informed decisions regarding bail granting or refusal. A thorough case diary fosters transparency and accountability in judicial decision-making, safeguarding the interests of both the accused and the wider community.

Fair Trial Guarantee:

The case diary acts as a safeguard for the accused person's right to a fair trial. By meticulously documenting the investigation process and evidentiary findings, it empowers defense counsel to construct robust arguments in favor of bail, refute prosecution claims, and spotlight any procedural irregularities or constitutional violations. Access to the case diary enables defense attorneys to vigorously advocate for their clients' rights, thereby preserving the integrity of the criminal justice system.

Preventing Abuse of Power:

Law enforcement may occasionally abuse their authority by unlawfully arresting an innocent person or creating false evidence. The case diary serves as a safeguard against such abuses by documenting investigative activities and holding responsible parties accountable for improper procedures. Judicial review of the case diary empowers courts to identify and rectify any due process violations, thus protecting the individual's freedom and maintaining public confidence in the justice system.

Can Bail be granted without Case Diary?

Bail can be granted even without a case diary, but the absence of this documentation may influence the decision-making process and the strength of the bail application. The case diary is a vital resource for judges to evaluate the merits of the bail request, considering factors such as the nature of the charges, the strength of the evidence, and the potential risks associated with releasing the accused.

In scenarios where the case diary is unavailable or incomplete, judges may resort to alternative sources of information, including oral arguments from the prosecution and defense, witness testimonies, and relevant legal precedents. However, the absence of documented evidence may introduce uncertainties and complexities into the bail decision, potentially affecting the outcome.

Ultimately, the decision to grant bail without a case diary depends on the specific circumstances of the case, the discretion of the presiding judge, and the availability of other pertinent information to adequately assess the bail application's merits and risks.

In the case of Habeeb Mohammed v. State of Hyderabad (AIR 1954 SC 51: 1954 Cri LJ 338), Justice Mahajan while heading a three judges bench made a noteworthy observation concerning Section 172 of the Code of Criminal Procedure, which deals with police diaries and their permissible use. Under Section 172, criminal courts can access police diaries for inquiries or trials, not as primary evidence but as supplementary material.

According to some critiques, it has become customary for courts at all levels to utilize police case diaries pursuant to Section 172 Cr. P.C. when considering bail applications, especially when a Section 173 Cr. P.C. final report is not yet available. This practice violates established legal principles and precedents, which forbid the use of case diaries at this stage. Orders seeking case diaries for bail application decisions have become prevalent, prompting a reassessment based on legislative intent. The ongoing use of case diaries creates significant legal hurdles and potential injustice for the accused, as it enables the prosecution to alter case diaries in an effort to thwart bail requests.

Section 2(g) of the Code of Criminal Procedure defines an inquiry as a non-trial investigation conducted by a judicial officer to determine whether a case should proceed to trial. The purpose of an inquiry is to establish the truth and ascertain whether the evidence supports a reasonable belief that a crime has been committed. It involves a thorough investigation of the circumstances, individuals, and events connected to the alleged offense. The primary aim is to gather evidence to determine whether the alleged actions constitute a criminal offense. Inquiries serve as a preliminary step, determining whether there is sufficient evidence to proceed with a trial.

The CrPC assigns the duty of conducting the inquiry to the Magistrate or the Court. This phase is vital in deciding whether the case warrants a trial and seeks to uncover the underlying truth of the matter. CrPC inquiry usually commences when charge framing begins, setting the stage for further trial proceedings. Hence, bail hearing cannot be called an inquiry; so, calling for case diary for bail hearing is not essential.

The term 'trial' is not explicitly defined in the Criminal Procedure Code, 1973 but it generally refers to the phase of a trial that commences after the charge is framed and concludes with either a conviction or an acquittal. In simpler terms, a trial can be described as a judge's formal examination of evidence.

According to Section 172 of the Code of Criminal Procedure (1973) any criminal court may request the case diaries of a case under inquiry or trial in that court. The court may use these diaries to assist in the inquiry or trial, but not as evidence in the case.

Hence, bail hearing by the court neither comes under the purview of inquiry or trial. Consequently, the magistrate or judge need not call for the case diary while deciding a bail petition, as this will be against the spirit of section 172 of CrPC which says that the case diary can be called for only during inquiry or trial.

From the above observation, it is clear that the intended scope of utilization for case diaries maintained under Section 172 of the CrPC is limited to inquiries and trials only, not investigations; hence the courts should not call for case diaries from the investigating officers during bail hearing of a case. This implies that bail can be granted by the courts without perusal of case diary.

Despite this clarity, it has become a common practice for courts to direct the investigating officers to produce the case diaries during investigations for bail hearings, which deviates from the statutory purpose outlined in the law. The courts may instead call for a report from the investigating officer for deciding the fate of a bail petition.

The concerned authorities may also make necessary amendment in Section 172 of the Criminal Procedure Code, 1973 by inserting the provision of production of case diary by the investigating officer during bail hearing over the prayer of a petitioner. Alternatively, the Supreme Court may also issue a standing order regarding the need for production of case diary by the investigating officer during hearing of a bail petition.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565p

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