Karnataka High Court
Appu vs State Of Karnataka on 30 June, 2010
_3. Msfiojy 1 Crl.P 491/05 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 30"'DAy or JUNE, 2010 BEFORE:' THE HON'BLE MR. JasT:cE A.S. pAcHHA9UREg*f},*_ CRIMINAL PETITION No.491 gg 2005jl BETWEEN: 1, Appu, S/o. Armugam, Aged about 68 years, Residing at No.761, Near Manipal Motors, -or Kodihalli, 18"'Maifi}Road,.y" Bangalore. iv," A 7* 2. Gangadhar,K_Q S/o,=Velayudhan, Aged about 38 years}_ Residing at fio,132,g " Chinnappa LinéTf." ,i'" KodihaIli,_Banga1ore: . S/o.¢Appu, . 'Aged about 25 years, _"aésid;ng"atf&o.761, '.y1sFh1aa1n,gK¢aiha11i,. +ganga;¢ra;A ... PETITIONER/S iW_y [By Sri.uHashmath Pasha, Adv.) nistate of Karnataka ._ "By Jeevan Bheemanagar Police, "~Bangalore City. Rep. by learned State Public Prosecutor. ... RESPONDENT/S [By Sri. A.V. Ramakrishna, HCGP.§ 2 Crl,I? 491/05 This Crl. Petition is filed u/Section 482 Cr.P.C praying to set aside the orders dt. 06.01.2005 and 20.01.2005 passed. by the IV .Add1. C.C. & S.J., Bangalore City in S.C.No.615/2000. ,e This Crl. Petition coming on for Hearing} this day the Court made the following: .w» v 'f" ORDER
The petitioners have challenged7 the .0rders "
dated 05.01.2005 and 20.01.2005 :1-A:e'je'e1_ii.e;; "';~;jn.ei'=;g request to direct the Po1ic'e'«.Qffice_rV' to d.f'u:i:;n.i_eh the case diary for the purpose of crosswexaminatidn.
2. ,The.facts relevant for the purpose of this case are as'under:r_I The petitionerst are' charged for the offence gpunisha§Ie* under=e$ections 302 and 506(B) IPC r/w.
034. *PfW,i9 is the Investigating Officer in the case and._#as "efiamined by the prosecution. During the courseV off his examination, he stated that he is eflhdeposing the evidence by refreshing his memory and 'looking'to the case diary. In the circumstances, a ':request was made by the learned counsel for the A"»petitioners to direct the Investigating Officer to furnish the case diary to the petitioners to look 3 Crl.P 491/O5 into it for the purpose of crossmexamination in view of Section 172(2) and (3) Cr.P.C. Vide Order dated 06.01.2005 and 20.01.2005, the learned Sessions Judge has rejected. the request of' the petitidners", though. P.W.l9 stated in his evidence pthai .5§= draw looked into the case diary to refresh fi;s;ms§§;g}7;§H the circumstances, aggrieved h§Q_thej said .¢ra.;s.s this petition has been filed}! x
3. I have heard the learned counsel for the petitioners and also the learned Government Pleader. of P.W.1§.heldVonrQ0;0i.iO05, he states during the cross--examination _that the saw the case diary and _case records fdr the purpose of additional evidence. dIt.is,in_such circumstances that on the same day the leernedd counsel" for the petitioners requested. the Vtrial Court to pass an Order directing P.W.19 to idddpermit him. to look into the case diary for the 'purpose' of cross~examination. The trial court ':holding that the learned counsel for the accused has "*»5¢ right or authority to look into the case diary and notes prepared, rejected his request. It is in these circumstances, on 20.01.2005 a request wax 'C>K.___ 4 Crl.P 491/05 made to the trial Court to decide the question regarding the authority of the petitioners to look into the case diary. The Court after hearingq the learned counsel for the petitioners fend iktheti prosecutor passed a separate Order dated 20iOl:200Sr rejecting the request.
5. As could be seen from the provisions of Section 172 Cr.P.C. it reads inns:
"Diary offV_ proceedingsfl in" "
investigation.~(1f"'g Every ii police officer making an investigation under this Chapter shali day by day enter his proceeding; in the investigation in a dairyh settingxforth the time at which_ the" infornation reached him, v"ny the time at nhich he began and closed 'Vihis q investigation, the place or lf_placesh,_uisited by him, and a Astatementi of the circumstances ascertained though his investigation. _ (2) Any Criminal Court may send Vyfor the police diaries of a case hunder 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. §<i@m Crl.P 491/05 (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 nerely because.fi they are referred. to by the Court, _ u"
but, if they are used by the"policefilr officer who made them to refresh his"V memory, or if the Court.uses them foreui the purpose of contradicting" such police officer, ,the xprovisionslfiofypf Section 161 or Vsection {£45, gas _the case may be, of the Indianahvidence Act, 1872 {lief 1372); shall a§p;y n So, under Clause 3gnf the above said provision, it is provided that tss»s¢stses nor his agents shall be entitled to call for subh diaries, nor shall he or they be entitled to see them merely because they are ztreferred ts by the Court, but if they are used by the' Policsaubfficer, who made thenl to refresh his ' i'memory, or if the Court uses them for the purpose of "€f*contradicting such Police Officer, the provisions of x«Section5161 or Section 145, as the case may be, of i*athe,indian Evidence Act, 1872 shall apply.
6. So, it is very much clear from the provision that in case during the cross~examination of the Police Officer if he looked into the case %sitWl 6 Cr1.P 491/O5 diary for the purpose of refreshing his memory, the accused gets right to look into the case diary for the purpose of Section 161 or Section 145 oiflllthe Indian Evidence Act.
7. On this aspect of the hatter, the learned "
counsel for the petitioners has ,te1iealpupenf;the1 decision of the Apex Court. reported in ~§ip: £9SS Supreme Court 1748 [ShamshulV:hanwarh_¢é,7 state of U.P.3. The Hon'b1;:ea"~V.,. teitine into consideration the prouisicnsi of eSection 172(3) Cr.P.C. held:
1t"in vcasehrtherqpolice officer uses the entries to refresh his memory or if the Court uses then for the purpose of fiohtradicting such police officer then . 'provisions, of Section 161, or Section Vlfiogjfashithe case may be, of the cfiuidence Act would apply."
1" Sat, at the same time; it is relevant to note that the accused are entitled to use it for the purpose wof contradicting such police officer in the inquiry i"or trial, in the context of Section 161 or Section 145 of the Indian Evidence Act and so much of entries in the case diary which has been referred to sé.
7 Crl.P 491/O5 can be used for either of these purposes and so much of the diary as in the opinion of the Court is necessary could be used for a full understandind of the particular entry so used. It will thus fig §éénKy that the bar against production and _usex of ~casé~ diary enacted in Section 172 is intended to cperatet only in an inquiry or trial for an offence and even' this bar is a limited bar. So, in the circumstances, though the accused. are_ entitled. to look? into the case diary, the Court has formed an opinion as to in respect of which ,entries din Vthe icase diary, the petitioners .are aentitled to whave a recourse of provisions 'of 'Sections nlély and 145 of the Indian Evidence Actiuiv . _ .$ 8 --.The learned Government Pleader has placed Idrelianee on the decision of Punjab and Haryana High Court reported is 2001 Cri.L.J. 3945 [Mahabir Singh V"s,Vs. State of fiaryana}; wherein it is also held:
' ttThe discretion given to the Court runder sub--sections of S. 172 to use Vfcase diaries is only for aiding the hcourt to decide on a point. It is made abundantly clear in subwsection (2) itself that the Court is forbidden from 8 Crl.P 493/05 using the entries of such diaries as evidence. What cannot be used as evidence against the accused cannot be used in any other' manner against him. If the Court uses the entries in a case hfi"le* Diary for contradicting a police ,ihl officer it should be done only in tgg * manner provided in S. il45p ef 'the' Evidence Act i.e., by giving the author,; id of the statement an "opportunltyhp£§ic explain the contradiction;_ after "hiss attention is called to that part of that statement which is eintehdedf to %he so used for contraction .'in othergwords, the power 'conferred eon".the»_Qourt for perusal of the diary under S. 172 of the Code ¢e*5e§%ifitehaea for explaining a contraction" which Jthe defence has winched to the fore through the channel permfihted hby» ..... "law. The interdict . "censeined in s. 162 of the Code, debars vethe.c¢grt firom using the power under S. "l§2 ofh the Code for the purpose of enplaining the contraction."
iBut it is relevant to refer here that the appellant ishali not be entitled to unlimited right of cross- i"»examination of the Police Officer for any irrelevant purposes and the exercise of the authority is vested with him is only under Sections 161 and 145 of thef. K. 9 Crl.P 491/05 Indian Evidence Act shall be limited to such entries, which are relevant and were referred to by the Police Officer at the time of the evidence} "*0?
9. Hence I am of the opinion.that_..tAh'e_ passed by the trial Judge dated d06.03$2Q05'[and*. 21.01.2005 are erroneous anq fienc§Vtpey erg gfiashed and the matter is remitted hack to the trial Court permitting the appellants. ggj iéég fiinto the case diary directing .the ~c§¢;t=§b§i¢Qyg£§ give an opportunity to the apoellants or their counsel to look into the gage diary end permit them to refer to the relevant entries for the pdrpose of Sections 161 and 145 ot'the Indian hvidefice Act and not to cross» examine on any irrelevant questions and be confined jtgatheflfiurposes stated in the body of this Order.
"'_T5¢.pé£i:i§n is accordingly allowed.