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Saturday, April 29, 2017

whether the copy of the case diary or a portion thereof can be provided to the accused under the provisions of the Right to Information Act, we are not deciding the said question in the matter on hand. In the case of Sidharth etc. etc. vs. State of Bihar[3], the entire case diary maintained by the police was made available to the accused by the trial Court. In that context certain observations were made by this Court which read thus:- “….But if the entire case diary is made available to the accused, it may cause serious prejudice to others and even affect the safety and security of those who may have given statements to the police. The confidentiality is always kept in the matter of criminal investigation and it is not desirable to make available the entire case diary to the accused. In the instant case, we have noticed that the entire case diary was given to the accused and the investigating officer was extensively cross-examined on many facts which were not very much relevant for the purpose of the case. The learned Sessions Judge should have been careful in seeing that the trial of the case was conducted in accordance with the provisions of CrPC.”- neither the police officer has refreshed his memory with reference to entries in the police diary nor has the trial court used the entries in the diary for the purposes of contradicting the police officer (PW-15), it is not open for the accused to produce certain pages of police diary obtained by him under the provisions of Right to Information Act for the purpose of contradicting the police officer. In view of the above, the High Court is not justified in permitting the accused to produce certain pages of police diary at the time of cross examination of PW-15/Investigating Officer. Accordingly, the impugned Order is liable to be set aside and the same stands set aside. The appeal is allowed.

                                                                  Reportable



                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO 694 OF 2017
                (Arising out of SLP (Crl.) No. 9314 of 2016)


Balakram                                    ….Appellant

                                   Versus


State of Uttarakhand & Ors.             …Respondents


                               J U D G M E N T


MOHAN M. SHANTANAGOUDAR, J.


      Leave granted.

2.    The judgment in Miscellaneous application No. 1123 of 2016, passed  by
the High Court of Uttarakhand at Nainital  setting  aside  the  order  dated
31.8.2016 in I.A. No. 174 Kha in S.T. No. 1 of 2015 is  called  on  question
in this appeal.
3.    Respondent No.3 herein, along with another accused,  is  facing  trial
in ST No. 01 of 2015 before the Sessions Court, Champawat for  the  offences
punishable under Section 302 and 201  of  IPC.  During  the  course  of  the
trial,  after  the  completion  of  examination  in  chief  of   PW-15,   an
application was filed by the respondent No.3 herein (one  of  the  accused),
the contents of which read thus:-
“In the above  mentioned  case  applicant  wants  to  submit  some  key  and
relevant documents which are necessary  for  the  fair  and  just  trial  of
instant case.
It is therefore, humbly prayed that your Honour may kindly grant  permission
for the same in the interest of justice.”

4.    Along with the application, list of documents to be produced was  also
filed.  The documents are stated to be copies of  certain  pages  of  Police
diary maintained under Section 172 of the Code of Criminal  Procedure,  1973
(for brevity, Cr.P.C.), by the Investigation  Officer  (PW-15),  which  were
obtained by respondent No.3 by making an application  under  the  provisions
of Right to Information  Act,  2005.   The  respondent  No.  3  proposes  to
confront PW 15 with those documents.
5.    Such application was opposed by the  appellant  herein/complainant  on
the ground that the fresh documents cannot be allowed to be produced by  the
accused at the premature stage of trial  and  it  is  always  open  for  the
accused  to  produce  such  documents  during  the  stage  of  recording  of
statements of the  accused  under  Section  313,  Cr.P.C.   It  was  further
contended by the appellant that it is open for the accused to lead  evidence
on their behalf after recording of  the  statements  of  the  accused  under
Section 313, Cr.P.C.
6.    The  application  came  to  be  rejected  by  the  Sessions  Court  on
31.8.2016. Being aggrieved by the same, respondent No.3 herein  filed  Misc.
Application No. 1123 of  2016  before  the  High  Court  of  Uttarakhand  at
Nainital under Section 482 Cr.P.C.  By the impugned  order  the  High  Court
allowed the said miscellaneous application.
7.    Learned counsel for the appellant taking us through the order  of  the
Courts below, argued that entries made in the police diary  referred  to  in
Section 172 of the Cr.P.C. cannot be used for the purpose of Section 145  of
the Indian Evidence Act, 1872 unless the conditions laid down under  Section
172(2) and (3)  of  Cr.P.C  are  satisfied;  that  the  High  Court  is  not
justified in allowing  the  accused/respondent  herein  to  produce  certain
pages of police diary obtained by the respondent  under  the  provisions  of
Right to Information Act. He argued in support of the  order  of  the  Trial
Court.
8.    Per contra, advocate for the  respondent  argued  in  support  of  the
order of the High Court contending that the documents sought to be  produced
were for confronting PW 15-Investigation Officer who is the author of  those
documents;  the  defence  will  lose  an   opportunity   to   confront   the
investigation officer, in case the respondent is not allowed to produce  the
documents in question. According to him, it is always open  to  the  accused
to produce the documents to be relied upon by him at the time  of  recording
his statement under Section 313 of the Cr.P.C. but  the  accused  would  not
get chance to confront the Investigation Officer with such documents.
9.    Before proceeding further it would be relevant to note the  provisions
of Section 172 Cr.P.C. and Section  145  of  the  Indian  Evidence  Act  for
deciding  the issue involved:-
“Section 172 of the Code of Criminal Procedure, 1973

172. Diary of proceedings in investigation.
(1) Every police officer making an investigation under  this  Chapter  shall
day by day enter his proceedings in the investigation in  a  diary,  setting
forth the time at which the information reached him, the time  at  which  he
began and closed his investigation, the place or places visited by him,  and
a statement of the circumstances ascertained through his investigation.

(2) 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.

(3) Neither the accused nor his agents shall be entitled to  call  for  such
diaries, nor shall he or they be entitled to see them  merely  because  they
are referred to by the Court; but, if 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 police officer, the provisions of section  161
or section 145, as the case may be, of the Indian Evidence Act, 1872  (1  of
1872 ), shall apply,

Section 145 of the Indian Evidence Act, 1872
145. Cross-examination as to previous statements in writing.—A  witness  may
be cross-examined as to previous  statements  made  by  him  in  writing  or
reduced into writing, and relevant to  matters  in  question,  without  such
writing being shown to him, or being proved;  but,  if  it  is  intended  to
contradict him by the writing, his attention must, before  the  writing  can
be proved, be called to those parts of it which  are  to  be  used  for  the
purpose of contradicting him.”


10.    The  afore-mentioned  provisions  are  to  be  read  conjointly   and
homogenously. It is evident from sub-section (2)  of  Section  172  Cr.P.C.,
that the Trial Court has unfettered  power  to  call  for  and  examine  the
entries in the police diaries maintained by the Investigating Officer.  This
is a very important safeguard. The legislature has  reposed  complete  trust
in the Court which is conducting the inquiry or the trial.  If there is  any
inconsistency or contradiction arising in the evidence, the  Court  can  use
the entries made in the  diaries  for  the  purposes  of  contradicting  the
police officer as provided in sub-section (3) of Section 172 of  Cr.P.C.  It
cannot be denied that  Court  trying  the  case  is  the  best  guardian  of
interest of justice.  Under sub-section (2) the criminal court may send  for
diaries and may use them not as evidence, but to aid it  in  an  inquiry  or
trial.  The information which the Court may get from  the  entries  in  such
diaries usually will be utilized 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 indicated above.
11.   Coming to the use of police diary by the accused, sub-section  (3)  of
Section 172 clearly lays down that neither the accused nor his agents  shall
be entitled to call for such diaries nor he or they may be entitled  to  see
them merely because they are referred to by the Court.   But,  in  case  the
police officer uses the entries in the diaries to refresh his memory  or  if
the Court uses them for the purpose of contradicting  such  police  officer,
then the provisions of Sections 145 and 161, as the  case  may  be,  of  the
Evidence Act would apply.  Section 145 of  the  Evidence  Act  provides  for
cross examination of a witness as to the previous statements made by him  in
writing or reduced into writing and if it was intended to contradict him  in
writing, his attention must be called to those  portions  which  are  to  be
used for the purpose of contradiction.  Section 161 deals with  the  adverse
party’s right as to the writing used to refresh memory.  It can,  therefore,
be seen that, the right of the accused to cross-examine the  police  officer
with reference to the entries in the police diary is very  much  limited  in
extent and even that limited scope arises  only  when  the  Court  uses  the
entries to contradict the police officer or when the police officer uses  it
for refreshing his memory.
12.   In other words, in case if the Court does not use  such  entries   for
the purpose of  contradicting the police officer or if  the  police  officer
does not use the same for  refreshing  his  memory,  then  the  question  of
accused getting  any right to use entries even to that limited  extent  does
not arise.  The accused persons cannot force the police officer  to  refresh
his memory during his examination in the Court by referring to  the  entries
in the police diary.
13.   Section 145 of the Indian Evidence Act consists of two limbs.   It  is
provided in the first limb of Section 145  that  a  witness  may  be  cross-
examined as to the previous statements made  by  him  without  such  writing
being shown to him.   But the Second limb provides that, if it  is  intended
to contradict him by the writing, his attention  must before writing can  be
proved, be called  to those parts of  it  which  are  to  be  used  for  the
purpose of contradicting him. Sections 155 (3) and 145  of  Indian  Evidence
Act deal  with  the  different  aspects  of  the  same  matter  and  should,
therefore, be read together.
14.   Be that as it may, as mentioned supra, right of the accused  to  cross
examine the police officer with reference  to  the  entries  in  the  police
diary is very much limited in extent and  even  that  limited  scope  arises
only when the Court uses such entries to contradict the  police  officer  or
when the police officer uses it for refreshing his memory and that again  is
subject to provisions of Sections 145 and 161 of the  Indian  Evidence  Act.
Thus, a witness may be cross-examined as to his previous statements made  by
him as contemplated under Section 145 of the Evidence Act if  such  previous
statements are brought on record, in accordance with law, before  the  Court
and if the contingencies as contemplated under  Section  172(3)  of  Cr.P.C.
are fulfilled.  Section 145 of the  Indian  Evidence  Act  does  not  either
extend or control the provisions of Section 172 of Cr.P.C. We may hasten  to
add  here itself that there is no scope in Section 172  of  the  Cr.P.C.  to
enable the Court, the prosecution  or the accused to use  the  police  diary
for the purpose of contradicting any witness other than the police  officer,
who made it.
15.   In case of Malkiat Singh and  others  vs.  State  of  Punjab[1],  this
Court while considering the scope of Section 172(3) Cr.P.C.  with  reference
to Section 145 of the Indian Evidence Act observed thus:-
“It is manifest from its bare reading without  subjecting  to  detailed  and
critical analysis that the case diary  is  only  a  record  of  day  to  day
investigation of the investigating officer to  ascertain  the  statement  of
circumstances ascertained through the investigation. Under  sub-section  (2)
the court is entitled at the trial or  enquiry  to  use  the  diary  not  as
evidence in the case, but as aid to it in the inquiry or trial. Neither  the
accused, nor his agent, by operation of sub-section (3), shall  be  entitled
to call for the diary, nor shall he  be  entitled  to  use  it  as  evidence
merely because the court referred to it.  Only  right  given  thereunder  is
that if the police officer who made the entries in  the  diary  uses  it  to
refresh his memory or if the court uses it for the purpose of  contradicting
such witness, by operation of Section 161 of the Code  and  Section  145  of
the Evidence Act, it shall be used for  the  purpose  of  contradicting  the
witness, i.e. Investigation Officer or to explain it  in  re-examination  by
the prosecution, with permission of the court. It is, therefore, clear  that
unless the investigating officer or the court uses it either to refresh  the
memory or contradicting the  investigating  officer  as  previous  statement
under Section 161 that  too  after  drawing  his  attention  thereto  as  is
enjoined under Section 145 of the Evidence Act, the entries cannot  be  used
by the accused as evidence.”

16.   The police diary is only a record of day to day investigation made  by
the investigating officer.  Neither the accused nor his  agent  is  entitled
to call for such case diary and also are not entitled  to  see  them  during
the course of inquiry or trial.   The  unfettered  power  conferred  by  the
Statute under Section 172 (2)  of  Cr.P.C.  on  the  court  to  examine  the
entries of the police diary would not allow the  accused  to  claim  similar
unfettered right to inspect the case diary.
17.   This Court in the case of Mukund Lal vs. Union of India  and  Anr[2].,
while considering the question relating to  inspection of the  entries  made
in the case diary by the accused has observed thus:-

“We are of the opinion that the provision embodied  in  sub-section  (3)  of
Section  172  of  the  CrPC  cannot  be  characterised  as  unreasonable  or
arbitrary. Under sub-section (2) of Section 172 CrPC the  court  itself  has
the unfettered power to examine the entries in the diaries. This is  a  very
important safeguard. The legislature  has  reposed  complete  trust  in  the
court which is conducting the inquiry or the trial.  It  has  empowered  the
court  to  call  for  any  such  relevant  case  diary;  if  there  is   any
inconsistency or contradiction arising in the context of the case diary  the
court can use the entries  for  the  purpose  of  contradicting  the  police
officer as  provided  in  sub-section  (3)  of  Section  172  of  the  CrPC.
Ultimately there can be no better custodian or guardian of the  interest  of
justice than the court trying the case. No court will  deny  to  itself  the
power to make use of the entries in  the  diary  to  the  advantage  of  the
accused by contradicting the police officer with reference to  the  contents
of the diaries. In view of this safeguard, the  charge  of  unreasonableness
or arbitrariness cannot stand scrutiny. The petitioners claim an  unfettered
right to make roving inspection of the entries in the case diary  regardless
of whether these entries  are  used  by  the  police  officer  concerned  to
refresh his memory or regardless of the fact  whether  the  court  has  used
these entries for the purpose  of  contradicting  such  police  officer.  It
cannot  be  said  that  unless  such  unfettered  right  is  conferred   and
recognised, the embargo engrafted in sub-section (3) of Section 172  of  the
CrPC would fail to meet the test of  reasonableness.  For  instance  in  the
case diary there might be a note as regards the identity  of  the  informant
who gave some information which resulted in investigation into a  particular
aspect. Public interest demands that such an entry is not made available  to
the accused for it might endanger the safety of the informants and it  might
deter  the  informants  from  giving   any   information   to   assist   the
investigating agency, as observed in Mohinder Singh v. Emperor:

“The accused has no right to insist upon a police witness referring  to  his
diary in order to elicit information which is privileged.  The  contents  of
the diary are not at the disposal of the defence and cannot be  used  except
strictly in accordance with the provisions of Sections 162 and 172.  Section
172 shows that witness may refresh his memory by reference to them but  such
use is at the discretion of the witness and the judge, whose duty it  is  to
ensure  that  the  privilege  attaching  to  them  by  statute  is  strictly
enforced.”

The public interest requirement from the standpoint of the need to ensure  a
fair trial for an accused  is  more  than  sufficiently  met  by  the  power
conferred on the court, which is the ultimate custodian of the  interest  of
justice and can always  be  trusted  to  be  vigilant  to  ensure  that  the
interest of accused persons standing the trial, is fully safeguarded.”

18.   From the afore-mentioned, it is clear that the denial of right to  the
accused to inspect the case diary cannot be  characterized  as  unreasonable
or  arbitrary.  The  confidentiality  is  always  kept  in  the  matter   of
investigation and it is not desirable to make available the police diary  to
the accused on his demand.
19.   Since we are not called upon to decide the question as to whether  the
copy of the case diary or a portion thereof can be provided to  the  accused
under the provisions of the Right to Information Act, we  are  not  deciding
the said question in the matter on hand. In the case of Sidharth  etc.  etc.
vs. State of Bihar[3],   the entire case diary maintained by the police  was
made available to the accused by the trial Court. In  that  context  certain
observations were made by this Court which read thus:-

“….But if the entire case diary is made available to  the  accused,  it  may
cause serious prejudice to others and even affect the  safety  and  security
of those who may have given statements to the  police.  The  confidentiality
is always kept in the  matter  of  criminal  investigation  and  it  is  not
desirable to make available the entire case diary to  the  accused.  In  the
instant case, we have noticed that the entire case diary was  given  to  the
accused and the investigating  officer  was  extensively  cross-examined  on
many facts which were not very much relevant for the purpose  of  the  case.
The learned Sessions Judge should have  been  careful  in  seeing  that  the
trial of the case was conducted in accordance with the provisions of CrPC.”


20.    Since  in  the  matter  on  hand,  neither  the  police  officer  has
refreshed his memory with reference to entries in the police diary  nor  has
the trial  court  used  the  entries  in  the  diary  for  the  purposes  of
contradicting the police officer (PW-15), it is not open for the accused  to
produce certain pages of police diary obtained by him under  the  provisions
of Right to Information Act for the  purpose  of  contradicting  the  police
officer.
21.   In view of the above, the High Court is not  justified  in  permitting
the accused to produce certain pages of police diary at the  time  of  cross
examination of PW-15/Investigating Officer. Accordingly, the impugned  Order
is liable to be set aside and the same stands  set  aside.   The  appeal  is
allowed.

                                                           …….…………………………..J.
                                   (Dipak Misra)


                                                           …….…………………………..J.
                                 (A.M. Khanwilkar)


                                                             …………………………………J.
                                                   (Mohan M. Shantanagoudar)
New Delhi
Dated: April 19, 2017
-----------------------
[1]   . 1991(4) SCC 341

[2]    AIR 1989 SC 144

[3]    AIR 2005 SC 4352