JUDGMENT Satish Chandra, J. - This is a complainants revision directed against the order of acquittal of the opposite parties. 2. The complainant and his men as well as the accused-opposite parties are members of the same family. The complainant, Abdul Halim, is a member of the Congress Party. Haji Ramzan, who is one of the principal accused opposite parties, belongs to the Praja Socialist Party. Due to elections there was, it is alleged considerable tension between these two factions of the family. 3. In the night of March 22, 1962 an incident of mar-pit took place between these two factions in which 5 persons on the side of the complainant and one person, namely, Muhammad Yunis, on the side of the accused-opposite parties received injuries. The Kotwali received a telephonic call from some one informing the police of the incident. The Station Officer, Kotwali (Shri G. K. Saksena) along with some other police officials rushed to the spot and arrested eight persons, viz., Muhammad Yunus, Abdur Rab and Muhammad Sulaiman belonging to the accused-opposite parties and Abdul Halim, Rauf, Abdul Qayyum, Muhammad Ilyas and Muhammad Yunus belonging to the complainants party. 4. Shri G. K. Sakseha, on reaching back, made a report in the general diary, stating the information he had gathered during investigation on the spot. 5. Soon the arrested persons were released on bail and thereafter both sides filed reports in the Kotwali, Abdul Halim being the complainant on one side and Muhammad Sulaiman filed the report on behalf of the accused opposite parties. First information reports, on the basis of these reports, were prepared on March 25, 1962 at 3-30 p.m. 6. Both cases were sent up to court. The learned Magistrate acquitted the complainants party and convicted the accused-opposite parties under Sections 147 and 323 read with Section 149 of the Indian Penal Code and sentenced them to six months R. I. on each count. 7. Aggrieved the accused-opposite parties (nine in number) filed an appeal. The learned Additional Sessions Judge allowed the appeal, set aside the conviction and sentence passed on the accused. Aggrieved the complainant (Abdul Halim) has come up to this court in revision. 8. 7. Aggrieved the accused-opposite parties (nine in number) filed an appeal. The learned Additional Sessions Judge allowed the appeal, set aside the conviction and sentence passed on the accused. Aggrieved the complainant (Abdul Halim) has come up to this court in revision. 8. The main contention of Sri B. C. Saxena, appearing for the complainant, has been that the report of Shri G. K. Saksena, Station Officer, Kotwali, as entered in the general diary, and which was made by him before the parties filed their reports, was entirely inadmissible in evidence and, since the learned Sessions Judge has used it as substantive evidence substantially, the judgment of the learned Sessions Judge is vitiated and is liable to be set aside. 9. Shri P. C. Chaturvedi appearing for the accused-opposite parties has, on the other hand, stressed that the report of Shri G. K. Saksena is an exhibited document in the case (Ex. C-2) and it is admissible in evidence. He further contended that, even if it is inadmissible, its use in the appellate judgment is negligible and the judgment can be sustained on the other independent findings recorded therein. He also submitted that it is not a fit case for interference with an order of acquittal. 10. Let us first examine the question of Shri Saksenas report (Ex. C-2) is admissible in evidence. 11. It was made in the general diary before the parties filed the First Information Reports. In it Shri Saksena has mentioned the information which he gathered on inquiry at the spot. 12. Section 172 Cr.P.C. makes a specific provision as to the use of the general diary kept by the police officers. Its sub-section (2) lays down that criminal court may use such diaries not as evidence in the case but to aid it in such inquiry on trial. It can be used by the police officers to refresh his memory or by the court to contradict the police officer and, for this purpose, the provisions of Sections 145 and 161 of the Indian Evidence Act have been made applicable. 13. This provision, therefore, clearly lays down that the contents of the general diary are not substantive evidence by themselves. They can, in the circumstances mentioned in the section, be used to contradict the police officer. 14. In Queen Empress v. Mannu, I.L.R. 19 Alld. 13. This provision, therefore, clearly lays down that the contents of the general diary are not substantive evidence by themselves. They can, in the circumstances mentioned in the section, be used to contradict the police officer. 14. In Queen Empress v. Mannu, I.L.R. 19 Alld. F.B. 390 Sir John Edge, presiding over a Full Court, pointed out that "the diary may be used by the court to assist it in any inquiry or trial by suggesting means for further elucidating points which need clearing up and which are material for the purpose of doing justice between the Crown and the accused but not as contending entries which can by themselves be taken to be evidence of any date, fact or statement, therein contained. The police officer, who made the diary, may be furnished with it but not any other witness. Judge makes improper use of the diary by referring to it in his judgment and by saying that he intently perused it and the statements of I witnesses' taken in court were not in-I consistent with those that were made by the witnesses before the police officer." 15. This passage from the judgment of Sir John Edge was quoted with approval by the Supreme Court in the case of Habeeb Mohammad v. State of Hyderabad, A.I.R. 1954 S.C. 51. Mahajan, J., speaking for the I Court, observed at page 60: "Section 172 provides that any criminal court may send for the police diaries of a case under inquiry or trial in such court and may use such diaries not as evidence in the case, but to aid it in such inquiry or trial. It seems to us that the learned judge was in error in making use of the police diaries at all in his judgment and in seeking confirmation of his opinion ; on the question of appreciation of evidence from statements contained in those diaries. The only proper use he could make of these diaries was the one allowed by Section 172 Cr.P.C., i.e., during the trial he could get assistance from them by suggesting means of further elucidating points which needed clearing up and which might be material for the purpose of doing justice between the state and the accused." 16. The only proper use he could make of these diaries was the one allowed by Section 172 Cr.P.C., i.e., during the trial he could get assistance from them by suggesting means of further elucidating points which needed clearing up and which might be material for the purpose of doing justice between the state and the accused." 16. His Lordship further pointed out :- "It is difficult to say to what extent the perusal of the case diaries at that stage influenced the mind of the judge in the decision of the case. It may well be that that perusal strengthened the view of the judge on the evidence against the appellant and operated to his prejudice." 17. From these authorities it is clear that the contents of the police diary cannot be used as substantive evidence or to discredit the prosecution evidence. See also Raja Ram v. King Emperor, A.I.R. 1927 Oudh 64, and Emperor v. Ram Rang, AIR 1928 Lahore 920. Section 172 Cr P. C. not only regulates the procedure but also the power of the court in respect of police diaries. Without confronting the police officer who had made the entry in the diary, the diary cannot be used. See State v. Fateh Bahadur and others, A.I.R. 1958 Alld. 1, para. 18. 18. Shri P. C. Chaturvedi countered this submission by relying on Section 35 of the Indian Evidence Act. He submitted that the report of Shri G. K. Saksena in the police diary (Ex. C-2) was admissible in evidence as an entry in any public book made by a public servant in the discharge of his official duty. In support reliance has been placed on two decisions reported in Muhammad Salim v. Ram Kumar Singh and others, A.I.R. 1928 Alld. 710, 712 and Abheraj Singh v. Gaya Singh and another, A.I.R. 1932 Oudh 137. 19. Section 35 of the Indian Evidence Act is the general provision about the relevancy of official statements. The principle underlying this section is that the law reposes such confidence in public officers entrusted with public duties that it is presumed that they will discharge their duties with accuracy and fidelity. This section is an exception to the hearsay rule. The object is to enable the public making use of the entry and being able to refer to it any judicial inquiry. This section is an exception to the hearsay rule. The object is to enable the public making use of the entry and being able to refer to it any judicial inquiry. If, by any law, any entry in a public book or record is not available to the public, such an entry would not be covered by Section 35 of the Indian Evidence Act. Section 172 Cr.P.C. specifically prohibits the accused or his agents to call for the diaries or see them. A diary is treated as a private record of the police proceedings, Section 172(2) Cr.P.C. specially lays down that only Sections 145 and 161 of the Indian Evidence Act would apply to police diaries under the circumstances mentioned in that sub-section. By implication the operation of Section 35 of the Indian Evidence Act is excluded to police diaries. Section 35 of the Evidence Act is a general provision, whereas Section 172 Cr.P.C. is a special 'rule of evidence; the latter would prevail even if the former were to apply. 20. The first information report taken down under Section 164 Cr.P.C. is not substantive evidence of the fact which it mentions. It can be used merely for corroboration or contradiction and not any further. See Chattar v. R., I.L.R. 47 All. 280. See also Ra. v. Ram Singh, 1897 A.W. No. 47. Proceedings of confidential inquiry by an assistant Settlement Officer containing an opinion on his investigations is inadmissible. Baldeo v. Sheoraj, 56 Indian Cases 807. The District Judge asked the Collector to say which of the three persons was fit for appointment as guardian of the minor and the Collector asked for a report from the Qanungo. The Qanungos report was not held to be admissible as evidence. See Subhag v. Raghunandan , I.L.R. 36 All. 232. A list of suspects drawn up by the police is not admissible in evidence. See Bawa Sarup Singh v. The Crown, AIR 1925 Lahore 299. A report of the Magistrate deputed to make a local inquiry is not evidence of possession of a party. See Raja Mohan Bikram Shah alias Ram Raja v. Deonarain Mahho and others, AIR 1945 Patna 453. See Bawa Sarup Singh v. The Crown, AIR 1925 Lahore 299. A report of the Magistrate deputed to make a local inquiry is not evidence of possession of a party. See Raja Mohan Bikram Shah alias Ram Raja v. Deonarain Mahho and others, AIR 1945 Patna 453. In Ahman and others v. Emperor, AIR 1938 Lahore 787 it was held that an entry made by a Sub-Inspector in the general diary before the recording of the First Information Report mentioning the names of some of the accused alleged to have been given to him by one of the victims is a part of the police proceedings and is not admissible in evidence for that purpose. 21. Learned counsel for the accused opposite parties relied upon the case of Muhammad Salim v. Ram Kumar Singh and others, AIR 1928 Allahabad 710. That was a case in a civil court, Section 172 Cr.P.C. was not attracted, nor was it considered. The admissibility of police papers was incidentally considered with reference to Section 35 of the Indian Evidence Act. There is an observation that "as the handwriting of the Sub-Inspectors who made the entries has been identified in Court, it would be difficult to rule them out. The importance of the entry. . . .however, is considerably discounted by the fact that Shafaatullah Khan himself was not examined." 22. Since the Sub-Inspector was not examined in Court, the entry in the police papers was not relied upon in that case. 23. The case of Abharaj Singh also is similarly distinguishable. It is a decision of a civil court. It related to the admissibility of a report made by a party at the police station. Section 172 Cr.P.C. was not at all considered. 24. In the instant case Shri G. K. Saksena made the impugned report before the First Information Reports were lodged. He was not the investigating Officer. He was not produced as a witness in court. Shri Moinuddin (P.W. 9) was the investigating officer and was produced in court. Under the circumstances, the report made by Shri G. K. Saksena on March 22, 1962 was inadmissible in evidence. Shri G. K. Saksena the maker of the report, not having come into the witness-box the contents of the report could not be used as evidence. 25. Shri Moinuddin (P.W. 9) was the investigating officer and was produced in court. Under the circumstances, the report made by Shri G. K. Saksena on March 22, 1962 was inadmissible in evidence. Shri G. K. Saksena the maker of the report, not having come into the witness-box the contents of the report could not be used as evidence. 25. From a perual of the appellate judgment it is abundantly clear that Shri Saksenas report has been used to test the veracity of the versions of the incident given by the two parties as also the trustworthiness of the prosecution witnesses. 26. The prosecution case was that the incident took place on account of the uprooting of a Congress flag by some of the accused. 27. While narrating the facts of the case, the appellate court mentioned that Shri Saksena, on return to the police station made a report in which it was mentioned that "at the time of the arrival of the police, these persons along with their associates were found exchanging brick-bats and the incident was said to have taken place on account of the breaking of the betrothal by Rais Ahmad with the niece of Abdul Haleem." 28. The breaking of the betrothal is alleged to be the cause of the incident by the accused. The first question posed by the learned Judge was whether the version given by the complainant or by the i accused-opposite parties was correct. In this connection, the learned Judge observed:- "We have in this connection Ex. C-2 report lodged at the police station on March 22, 1962 by S.O. G. K. Saksena who had reached the spot on the information Ex. C-l having been received by him. In this report there is a mention of the cause why the party of Abdul Haleem attacked the present appellants, the version that the accused have now put finds support from it." 29. Further on, having seen the contents of ; the report, the learned Judge drew a presumption against the prosecution case from the fact that Shri G. K. Saksena was not produced in evidence because the report did not support the prosecution version. 30. Further on, having seen the contents of ; the report, the learned Judge drew a presumption against the prosecution case from the fact that Shri G. K. Saksena was not produced in evidence because the report did not support the prosecution version. 30. At page 8 of his judgment the learned Judge tests the conduct of the prosecution witnesses (Abdul Haleem and others) and observes:- "This conduct on the part of Abdul Haleem and others is indicative of the fact that the version that was given in the report lodged by Sri Saksena that the party of the complainant was found indulging in brick-batting has plenty of support," 31. Here also the learned Judge uses Shri Saksenas report directly to test the veracity of the prosecution case and evidence. 32. At page 9 the learned Judge discusses the question whether the prosecution has come forward with clean hands. The prosecution case to explain the injuries received by one of the accused, namely, Mohammad Yunus, has been tested by using Shri Saksenas report as a touch-stone. The evidence of prosecution witnesses (Abdul Qayyum, Abdul Rauf), has been tested by reference to the police report. There is on record no police report other than that recorded by Shri Saksena. 33. The learned Judge has, while dealing with the defence evidence, drawn support from this report. He observes: "D. W. 6 Antoo Lal support police report about the arrest of the party of the complainant and some of the party of the appellants in the manner indicated in the report lodged at Kotwali by S. O. Saxena." 34. Learned counsel for the accused-opposite parties urged that the appellate court has recorded independent findings to the effect that the eye-witnesses produced by the prosecution were unreliable and partisan and that the First Information Report lodged by the complainant does not itself give the flag story. In respect of both these matters the learned Judge has animadverted to Shri Saksenas report as an integral part of his discussion and conclusion. 35. This report was inadmissible in evidence. It has undoubtedly been used extensively by the appellate court. A question of law arises whether the finding of the court of fact is not vitiated by reason of its having relied the evidence on record as also upon the inadmissible material. 35. This report was inadmissible in evidence. It has undoubtedly been used extensively by the appellate court. A question of law arises whether the finding of the court of fact is not vitiated by reason of its having relied the evidence on record as also upon the inadmissible material. See the Jhinajlal Girdharilal v. Commissioner of Income Tax, Bombay, A.I.R, 1955 S,C, 271 and Omar Salay Mohammad Sait v. Commissioner of Income Tax, Madras, A.I.R. 1959 S.C. 1238. Since Shri Saksenas report has formed an integral part of the very fabric of the appeal judgment, the judgment as a whole becomes vitiated. 36. In the end, Shri P. C. Chaturvedi urged that, in view of Section 167 of the Indian Evidence Act, the decision of appellate court should not be reversed merely because of improper admission of evidence if it appears to the court, as provided by Section 167 of the Evidence Act, that, independently of the evidence objected to and admitted there was sufficient evidence to justify to decision. Section 167 of the Indian Evidence Act does not apply where irrelevant evidence has been admitted in direct contravention of an imperative provision of law. See A. B. Miller v. Babu Madho Das, I.L.R. 19 All. P.C. 76. Here, Section 172, Cr. P.C. has been contravened. 37. In my opinion this case falls within those classes of cases in which, according to the Supreme Court, the High Court can interfere with the order of acquittal at the instance of the complainant. See K. Chinnaswamy Reddy v. State of Andhra Pradesh and another, A.I.R. 1962 S.C. 1788. Their Lordship observed that a case where the appeal court has wrongly held evidence, which was admitted by the trial court, to be inadmissible, would be a proper case for interference. In my opinion, the same principle would apply where inadmissible evidence has been used to record the finding of acquittal. 38. Supreme Court further observed that where the trial court had convicted the accused but the appeal court has committed an error, the High Court has the discretion to either order a re-trial or send the case back to the appeal court to re-hear the appeal. 39. In the instant case, the entire evidence has been recorded. The appeal court has erroneously relied upon a piece of inadmissible evidence. The trial Court judgment does not use it. 39. In the instant case, the entire evidence has been recorded. The appeal court has erroneously relied upon a piece of inadmissible evidence. The trial Court judgment does not use it. The proper course would be to send the appeal back for re-hearing to the appeal court. 40. It was urged that even after excluding the inadmissible evidence there was left sufficient material to justify the acquittal and that in the interest of justice no interference was called for. This court cannot alter the acquittal and convert it into a conviction. It can only order re-trial or re-hearing of the appeal. If after going into the evidence this Court comes to the conclusion that the acquittal cannot be sustained it would be, as pointed out by the Supreme Court in Nagendra Naths case and re-affirmed in Chinnaswamys case (supra). 41. Loading the dice against the accused when the case goes back for retrial or re-hearing. This is something which is improper. In Chinnaswamys case in paragraph 8 the Supreme Court held that the fact that admissible was wrongly excluded was sufficient to enable the High Court to set aside the acquittal in the case. Same position should obtain when inadmissible material has been used by the appeal court. Under the circumstances it is desirable that the appeal should be sent back for re-hearing. I do not, therefore, propose to assess the evidence myself. 42. In the result, the revision succeeds. It is allowed. The judgment of the appeal court is set aside and that of the trial court restored. The matter is remitted back to the appeal court for rehearing of the appeal filed by the accused-appellants. The appeal court shall hear and decide the case on merits in accordance with law but without taking into consideration the contents of the impugned report of Shri G K. Saksena. It would be desirable if the appeal is heard by a Judge other than Sri N. N. Chadda, the learned Judge who heard the appeal in the first instance.