Gujarat High Court
Shaktisinh Yogendrasinh Gohel vs State Of Gujarat on 25 March, 2025
NEUTRAL CITATION
R/SCR.A/12021/2022 CAV ORDER DATED: 25/03/2025
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Reserved On : 12/03/2025
Pronounced On : 25/03/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 12021 of
2022
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SHAKTISINH YOGENDRASINH GOHEL Versus STATE OF GUJARAT & ANR.
========================================================== Appearance:
MR PRATIK Y JASANI(5325) for the Applicant(s) No. 1 MR KIRTIDEV R DAVE(3267) for the Respondent(s) No. 2 MR RAHUL K DAVE(3978) for the Respondent(s) No. 2 MR HARDIK A DAVE, PUBLIC PROSECUTOR WITH MS SHRUTI PATHAK, APP for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI CAV ORDER
1. By way of preferring present petition under Articles 226 and 227 of the Constitution of India, the petitioner seeks to invoke extra-ordinary jurisdiction of this Court, inter alia, praying for the following main relief:
"A. YOUR LORDSHIPS may be pleased to issue an appropriate writ, order or direction, interfering with the impugned order dated 01.10.2022 passed by Ld. 5th Addl. District and Sessions Judge, Kachchh at Bhuj below application Ex. 63 in Sessions Case No.44 of 2021 so far as it allows application Ex. 63 only in part, and further be pleased to allow Ex. 63 preferred by the Petitioner in Sessions Case No.44 of 2021 in its entirety, in the Page 1 of 23 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 23:04:36 IST 2025 NEUTRAL CITATION R/SCR.A/12021/2022 CAV ORDER DATED: 25/03/2025 undefined interest of justice;"
2. The case of the prosecution can be summarized in nutshell as under:
2.1. One FIR being C.R.No.11205032210048 of 2021 came to be registered with Mundra Police Station, District Kachchh for the offence punishable under Sections 302, 343, 330, 331, 326, 212, 201, 34 and 114 of the Indian Penal Code read with Section 135 of the Gujarat Police Act against the present petitioner and other accused persons. Pursuant to the registration of the said FIR, investigation commenced and ultimately at the end of the day, the investigating officer concerned has submitted charge-sheet before the competent Court against the accused persons, which ultimately resulted into committal of case to the learned Court of Sessions where the same is culminated into Sessions Case No.44 of 2021.
Thereafter, the petitioner has preferred one application under Section 91 of the Code of Criminal Procedure, 1973 seeking direction against the investigating officer concerned for production of the documents recovered by him during the course of investigation. The learned Court concerned has, by way of impugned order, partly allowed the said application. Being aggrieved by the said order, present petition is preferred.
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3. Heard learned advocate Mr. Pratik Y. Jasani for the petitioner, learned Public Prosecutor Mr. Hardik A. Dave assisted by learned APP Ms. Shruti Pathak for respondent No. 1 - State and learned advocate Mr. Kirtidev R. Dave for respondent No.2 - original complainant.
4. Learned advocate Mr. Jasani submits that petitioner herein is the police officer and he is shown as accused No.1 in the present proceedings. The charges levelled against the accused persons are to the effect that petitioner and other accused persons have made custodial torture and atrocities upon the victim persons, due to which, two persons have succumbed and one person has sustained grave and serious injuries and therefore prosecution has been launched against the accused persons. Learned advocate Mr. Jasani further submits that during the pendency of the trial and before the framing of the charges, an application under Section 91 of the Code of Criminal Procedure, 1973 has been preferred by the petitioner before the concerned Sessions Court with a specific request that case of the prosecution is based upon certain documents and therefore directions be issued to the concerned investigating officer to produce those important documents. He further submits that very grave and serious charges have been levelled against the petitioner and investigation has not been carried out by the investigating officer in Page 3 of 23 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 23:04:36 IST 2025 NEUTRAL CITATION R/SCR.A/12021/2022 CAV ORDER DATED: 25/03/2025 undefined proper direction and with a sole intent to frame the present petitioner in the said offence, investigation has been carried out in perfunctory manner and therefore certain important documents are required to be brought on record. The petitioner has, therefore, preferred an application under Section 91 of the Code. The learned Court concerned issued notice to the other side, which was duly served and other side has raised serious objection for production of said documents. However, ultimately, the said application preferred by the petitioner is partly allowed by the Court concerned, whereby the learned Court concerned issued direction to the investigating officer concerned to produce certain documents in a sealed cover before the Court. Therefore, being aggrieved by and dissatisfied with the said order, present petition is preferred.
5. Learned advocate Mr. Jasani further submits that for production of the documents in question, the petitioner had given a detailed and credible explanation about the inevitability and requirement of said documents/information to come up on record for proving his innocence. At the time of entertaining the application, though the learned Court has concurred with the grounds urged by the petitioner and assigned positive findings, the learned Court has partly allowed the said application. Learned advocate Mr. Jasani submits that Page 4 of 23 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 23:04:36 IST 2025 NEUTRAL CITATION R/SCR.A/12021/2022 CAV ORDER DATED: 25/03/2025 undefined once the learned Court comes to the conclusion that said documents are materially important, relevant and inevitable one for arriving at a just decision, in that event, the impugned order passed by the learned Court in not allowing the said application in its entirety is required to be modified by giving access of the said documents to the petitioner. He submits that the order impugned suffers from patent illegality and therefore the same is required to be modified and/or quashed.
6. Learned advocate Mr. Jasani further submits that the documents which are well within the custody of the investigating agency are very much required for the defence of the accused - present petitioner to prove his innocence and therefore before the order of framing of charge could be passed, an application is preferred by the petitioner with a sole intent to get the access of the said documents on the basis of which the petitioner can prefer an application for discharge. Learned advocate Mr. Jasani further submits that the investigating officer concerned had submitted charge-sheet before the Court concerned and along with the charge-sheet papers, recording of CCTV footage of the police station has also been supplied. The learned defence counsel has thoroughly examined the recording of the said CCTV footage and came to the conclusion that immediately after the arrest of the accused persons movement of the commando of the Page 5 of 23 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 23:04:36 IST 2025 NEUTRAL CITATION R/SCR.A/12021/2022 CAV ORDER DATED: 25/03/2025 undefined investigating officer is found out in the lock-up room. Learned advocate Mr. Jasani further submits that co-accused had also inflicted blows upon the deceased and injured victim, due to which, they sustained serious injuries, which ultimately resulted into oozing of blood from their bodies. He further submits that nowhere in the entire charge-sheet papers, narration of those facts have been mentioned.
7. Learned advocate Mr. Jasani further submits that it is the settled proposition of law that the documents which were not part of the charge-sheet but seized and/or collected by the investigating officer during the investigation of the offence cannot be withheld by the prosecution merely on the ground that the documents sought to be summoned are not part of the charge-sheet. He further submits that the learned Court has passed order of production of some of the documents in a sealed cover and therefore it can safely be said that the application preferred by the petitioner is allowed by the Court concerned but due to specific observations made by the Court concerned, petitioner herein could not get access to the contents of the said documents and without going through the same, petitioner would not be able to prepare discharge application and/or make out his defence in proper manner to prove his innocence and therefore the said view adopted by the learned Judge is required to be quashed and set aside by modifying Page 6 of 23 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 23:04:36 IST 2025 NEUTRAL CITATION R/SCR.A/12021/2022 CAV ORDER DATED: 25/03/2025 undefined the impugned order by supplying copy of the said materials/documents to the petitioner. Learned advocate Mr. Jasani further submits that during the course of investigation, the investigating officer concerned has recorded statement of number of witnesses as well as collected certain documents/materials to prove the charges levelled against the accused persons and only those documents which support the case of the prosecution were submitted along with the charge-sheet papers but the documents/materials in support of the case of the accused persons were not part of the charge-sheet papers. It is settled proposition of law that whatever documents/materials collected by the investigating officer during the course of investigation are required to be given to the accused persons. Learned advocate Mr. Jasani has put reliance upon the decision of the Hon'ble Apex Court in the case of P. Ponnusamy v. State of Tamil Nadu, reported in (2023) 12 SCC 666, and more particularly, the observations made in para 11, 13 and 14 of the said decision and submitted that the ratio laid down by the Hon'ble Apex Court clearly goes on to show that the documents collected by the investigating agency during the course of investigation are required to be supplied to the accused person. He further submits that the documents, which the petitioner is seeking, are very much material and important which ultimately assist the Court concerned Page 7 of 23 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 23:04:36 IST 2025 NEUTRAL CITATION R/SCR.A/12021/2022 CAV ORDER DATED: 25/03/2025 undefined in arriving at a just decision. He, therefore, submits that present petition may be allowed modifying the impugned order by allowing access to the documents sought for by the petitioner.
8. Learned Public Prosecutor Mr. Hardik A. Dave has vehemently opposed the petition and forcefully submitted that in fact present petition is preferred by one of the accused persons with a sole intent to prepare discharge application. He has read the application preferred by the petitioner before the Court below and submitted that the sum and substance of the application is that after going through the contents of the said set of documents petitioner would be in a position to prepare a discharge application. However, thereafter much water has flown under the bridge and even the discharge application preferred by the present petitioner as well as co- accused persons have been dismissed by the learned Trial Court. They have challenged the said order before this Court and during the pendency of those proceedings, in fact charges have been framed by the Court concerned and therefore those proceedings have been withdrawn by the accused persons. Learned Public Prosecutor Mr. Dave further submits that thereafter one of the accused has preferred bail application before this Court wherein the Court has given specific direction to expedite the proceedings and therefore trial is moving on an accelerated pace and Page 8 of 23 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 23:04:36 IST 2025 NEUTRAL CITATION R/SCR.A/12021/2022 CAV ORDER DATED: 25/03/2025 undefined except the investigating officer almost all witnesses have been examined and the matter is at the stage of fag end of the trial. He further submits that within a week summons will be issued to the investigating officer and from next week onward the evidence of the investigating officer would be recorded. Therefore, the cause mentioned in the application has become infructuous and therefore on this count alone the petition preferred by the petitioner is required to be dismissed.
9. Learned Public Prosecutor Mr. Dave further submits that it is the specific case of the prosecution that one offence of the theft has been registered within the territorial jurisdiction of the petitioner accused. He has apprehended deceased Arjan Gadhvi on 12.01.2021 and thereafter on 16.01.2021 other co-accused persons have been arrested. Despite the fact that accused persons were arrested on 12.01.2021 and 16.01.2021 respectively, they have not been shown as accused persons and produced before the Court of law and they were kept in illegal confinement and during that illegal confinement they have been brutally beaten to admit the guilt of commission of crime by making confessional statement. The act of brutality was so severe that ultimately out of three accused, two have succumbed due to the grave and severe injuries sustained by them and one accused has sustained serious/grievous injuries. As Page 9 of 23 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 23:04:36 IST 2025 NEUTRAL CITATION R/SCR.A/12021/2022 CAV ORDER DATED: 25/03/2025 undefined incident of accidental death has occurred, the FIR in question is registered against the accused persons. Immediately after registration of the FIR, the petitioner herein being a police officer evaded his arrest at the hands of the investigating officer and ran away and he was arrested after three months. He further submits that being a police officer, the petitioner is well aware about the legal proceedings and consequence and he has to follow the directions issued by the Hon'ble Apex Court in the case of D. K. Basu in stricto sensu. Learned Public Prosecutor Mr. Dave has further submitted that by taking law in his hand, the petitioner herein and other accused persons have acted in a highhanded manner and committed atrocities upon the accused persons - victims and it is an admitted position of fact that petitioner is one of the accused persons of the same crime reported before the concerned police station.
10. Learned Public Prosecutor Mr. Dave has further submitted that pursuant to the registration of the FIR in question, investigation commenced and ultimately at the end of the day, the investigating officer concerned has filed charge-sheet against the accused persons. It is further submitted that present petition is preferred with a sole intent to delay the proceedings of the trial. He has further submitted that in fact all the 7 accused persons have preferred discharge application. The said discharge application Page 10 of 23 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 23:04:36 IST 2025 NEUTRAL CITATION R/SCR.A/12021/2022 CAV ORDER DATED: 25/03/2025 undefined is already dismissed by this Court. He further submits that during the interregnum period trial Court has already framed charges and proceeded further with the trial and now the trial is reached at its fag end. He further submits that if the Hon'ble Court would make cursory glance upon the prayer made by the petitioner before the learned Trial Court, in that event, it would be found out that now the petition has become infructuous as except the investigating officer almost all witnesses have been examined and now if the present application is allowed then it would amount to delaying the trial. Learned Public Prosecutor Mr. Dave has further submitted that the application preferred by the petitioner before the learned Trial Court is partly allowed and almost all documents sought for by the petitioner are ordered to be placed before the Court in a sealed cover and the investigating officer concerned has complied with the said directions and all those materials/documents are already supplied and lying in the custody of the learned Trial Court. Learned Public Prosecutor Mr. Dave further submits that at the time of deciding the said application, the learned Trial Court has considered the judgments relied on and referred by the rival parties and after considering and appreciating the ratio laid down by the Hon'ble Apex Court in those cases as well as material available on record, the learned Trial Court has passed just, fair and reasonable order. He Page 11 of 23 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 23:04:36 IST 2025 NEUTRAL CITATION R/SCR.A/12021/2022 CAV ORDER DATED: 25/03/2025 undefined further submits that there is specific statutory bar under Section 173(2) of the Cr.P.C. and proceeding of the police diary cannot be given to the accused persons. He further submits that with a sole intent to arrive at a just decision, if the learned Court needs verification of the contents of the police diary, in that event, court can demand but the said set of documents cannot be handed over to the accused persons. During the course of trial, after leading evidence, if the learned Court is of the opinion that certain questions are required to be asked under Section 145 of the Evidence Act to the investigating officer to arrive at a just decision and to impart justice to the litigant with the aid of police diary, in that event, for the purpose of questioning the IO, the learned Court concerned can definitely direct the investigating officer for production of police diary. Therefore, by no stretch of imagination, it can be said that petitioner is entitled to get lawful access of the said set of documents and considering the principle of law laid down by the Hon'ble Apex Court in number of decisions as well as statutory provisions engrafted in the statute, the learned Trial Court has passed just, fair and reasonable order based on sound principle of law and no interference is required to be made by this Court at this stage. In support of his submission, learned Public Prosecutor Mr. Dave has put reliance upon the decision of the Bombay High Court in the case of Page 12 of 23 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 23:04:36 IST 2025 NEUTRAL CITATION R/SCR.A/12021/2022 CAV ORDER DATED: 25/03/2025 undefined Pratim @ Peter Mukherjea v. Union of India rendered in Writ Petition No.4400 of 2017. Learned Public Prosecutor Mr. Dave further submits that as observed and held by the Hon'ble Apex Court in the case of P. Ponnusamy (supra), the petitioner could have sought recourse by filing an appropriate application, in accordance with the procedures set out, but as contended above, though the petitioner has filed the application before the order of framing of charge could be passed, but at present the trial is at the fag end and therefore the present petition at such belated stage may not be entertained.
11. Learned Public Prosecutor Mr. Dave further submits that in fact as per the statutory provisions of law, before passing the order of framing of charge, learned Public Prosecutor used to open the case of the prosecution by exercising powers under Section 226 of the Code of Criminal Procedure. Here in this case, at the time of opening of the case, learned Public Prosecutor concerned has opened the case by reading the police papers. It is the specific case of the prosecution that in fact the deceased victims have been arrested by the accused persons in altogether different proceedings wherein incident of severe beating is occurred with an intent to pressurize them to make confessional statement. Therefore, considering the said material available on record, the Court concerned has invoked the Page 13 of 23 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 23:04:36 IST 2025 NEUTRAL CITATION R/SCR.A/12021/2022 CAV ORDER DATED: 25/03/2025 undefined provisions of Section 120B of the Code. He further submits that in fact it is the settled proposition of law that if at the time of framing of charge particular charge is not incorporated in the body of the charge, in that event, by exercising powers under Section 216 of the Cr.P.C. said charge can be altered and addition of charge can also be made but deletion of charge cannot be made by any cost and in number of case laws, the Hon'ble Apex Court has held that at the time of invocation of provisions of Section 216 of Cr.P.C. the legislature has thought it fit to add and/or altered the charge but the word 'deletion' is conspicuously missing in the definition of the said section and therefore once the charge is framed, particular phrase in the form of charge incorporated in the order cannot be deleted.
12. Learned Public Prosecutor Mr. Hardik Dave has further submitted that in fact under the guise of preparing defence, petitioner has tried to obtain the action taken by the police officials by demanding station diary/activities carried out by those persons during the course of investigation but in fact movement of those police officers did not assume much importance and could not lead to any logical conclusion and that is why the prayer made in the application has not been entertained by the Court concerned. He further submits that most of the documents sought for by the petitioner are called for Page 14 of 23 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 23:04:36 IST 2025 NEUTRAL CITATION R/SCR.A/12021/2022 CAV ORDER DATED: 25/03/2025 undefined and lying in the custody of the Trial Court and learned Judge of the Trial Court can appreciate the said set of documents so as to arrive at a just decision. He, therefore, submits that the impugned order passed by the learned Trial Court is just, fair and reasonable and does not warrant any interference by this Court.
11. Learned advocate Mr. Kirtidev R. Dave appearing for the respondent No.2 - original complainant has objected present petition with vehemence and submitted that almost all issues have been covered by the learned Public Prosecutor at the time of canvassing his arguments and therefore he is adopting those arguments. He has further submitted that as per the ratio laid down by the Hon'ble Apex Court in the case of Balakram v. State of Uttarakhand & Ors., reported in (2017) 7 SCC 668, the petitioner is not entitled to get access to the set of documents sought for by him and the learned Trial Court has not committed any error while passing the impugned order. He has, therefore, submitted that the present petition is required to be dismissed.
12. Having heard the learned counsels appearing for the respective parties and having considered the materials placed on record, it is found out that the petitioner was the police officer and one of the accused persons against whom the charges of offence Page 15 of 23 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 23:04:36 IST 2025 NEUTRAL CITATION R/SCR.A/12021/2022 CAV ORDER DATED: 25/03/2025 undefined of 302, 343, 330, 331, 326, 212, 201, 34 and 114 of the Indian Penal Code read with Section 135 of the Gujarat Police Act have been levelled. It is the case of the prosecution that the petitioner is one of the accused persons against whom the charge of custodial death of two accused persons of an offence of theft alleged to have been committed by them is levelled. After the registration of the said FIR, the investigation officer concerned commenced the investigation and thereafter the deceased victims were arrested and during the course of investigation, the petitioner and other accused persons have brutally beaten up the deceased victims, due to which, two of the so-called accused persons succumbed and one victim has sustained serious and grave injuries. It is the case of the petitioner that during the course of trial and before the order of framing of charge could be passed, petitioner has preferred one application seeking access to some of the documents which are very relevant and assume importance for the purpose of proving innocence of the petitioner. However, though the learned Judge was of the opinion that those documents are important and relevant to arrive at a just decision, by way of impugned order, the learned Judge has directed the investigating officer concerned to produce those documents in a sealed cover. Thus, being aggrieved by and dissatisfied with the said order, the petitioner has preferred present petition. It is the case of the Page 16 of 23 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 23:04:36 IST 2025 NEUTRAL CITATION R/SCR.A/12021/2022 CAV ORDER DATED: 25/03/2025 undefined petitioner that with a view to prefer an application for discharge, access to the said set of documents is very much needed for the petitioner.
13. On the other hand, it is the case of the prosecution that charge is already framed and trial is proceeded with and except investigating officer, almost all the witnesses have been examined and trial is at the fag end and therefore considering the prayer made by the petitioner in the application preferred before the learned Trial Court, the petition has become infructuous and at this belated stage, petition cannot be entertained. It is also the case of the prosecution that with a view to delay the trial, this petition is preferred.
14. Before delving into the issue raised in this petition, I would like to reproduce the operative part of the impugned order, which reads as under:
"1. Application is partly allowed.
2. Prosecution is hereby directed to produce following documents:
2.1. Weekly diary maintained during the investigation, case diary and logbook and details of the receipt/voucher of the vehicle used during the investigation of all the investigation officers of this case to be produced in sealed cover.
2.2. Weekly diary, movement register of Page 17 of 23 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 23:04:36 IST 2025 NEUTRAL CITATION R/SCR.A/12021/2022 CAV ORDER DATED: 25/03/2025 undefined concern investigation officer in sealed cover of the investigation officers who conducted investigation of the theft complaint lodged by Meghraj Viram Gadhvi.
2.3. Complete investigation papers of the offence of theft lodged by Meghraj Viram Gadhvi, for which deceased and victim of this case allegedly detained and ill-
treated in the custody, along with the copy to be supplied to accused.
2.4. Certified copy O.P.D. case papers and medical treatment papers of the deceased and injured victim from the concerned hospital.
3. Diaries of the proceedings produced above by investigation shall not be proposed as evidence in the case, but to be used for the purpose of aid in trial.
4. The prosecution shall comply the order within 15 days from the date of receipt of this order.
5. Necessary memorandum shall be forwarded to concern police station for due compliance.
Prepared & Pronounced in teh open Court today."
15. Thus, from the aforesaid order, it is found out that the learned Court concerned after appreciating and evaluating the materials available before it thought it fit to call for certain documents in a sealed cover for the purpose of aiding in the trial. It is also pertinent to note that the learned Court has specifically observed that the entire Page 18 of 23 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 23:04:36 IST 2025 NEUTRAL CITATION R/SCR.A/12021/2022 CAV ORDER DATED: 25/03/2025 undefined investigation papers of the offence of theft based on which the petitioner is made an accused of an offence of custodial death of the victims, be supplied to all the accused persons. Thus, when the learned Trial Court, after appreciating and considering the materials available before it has called for the documents in a sealed cover which are already lying in the custody of the concerned Court for the purpose of aiding in the trial, prima facie, in the opinion of this Court, the learned Trial Court has not committed any error while passing the impugned order. The learned Public Prosecutor has specifically submitted that though it is true that the petitioner has preferred the said application before the order of framing of charge could be passed but at present much water is flown and now the charge is already framed and trial is proceeded with and except investigating officer, almost all the witnesses are examined and the matter is at the fag end of trial.
16. There is no dispute with regard to the ratio laid down by the Hon'ble Apex Court in the case of P. Ponnusamy (supra), however, as observed herein above, when the learned Trial Court has, after appreciating and evaluating the materials available before it, already called for the documents in question in a sealed cover for the purpose of aiding in the trial, the aforesaid decision would not be of any help to the petitioner.
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17. At this juncture, I would like to refer to the decision of the Hon'ble Apex Court in the case of Balakram (supra), wherein the Hon'ble Apex Court has observed and held as under:
"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 Page 20 of 23 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 23:04:36 IST 2025 NEUTRAL CITATION R/SCR.A/12021/2022 CAV ORDER DATED: 25/03/2025 undefined 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 Page 21 of 23 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 23:04:36 IST 2025 NEUTRAL CITATION R/SCR.A/12021/2022 CAV ORDER DATED: 25/03/2025 undefined 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."
18. Thus, from the aforesaid decision, 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. In view of the aforesaid discussion when the learned Trial Court after appreciating and evaluating the materials available before it thought it fit to Page 22 of 23 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 23:04:36 IST 2025 NEUTRAL CITATION R/SCR.A/12021/2022 CAV ORDER DATED: 25/03/2025 undefined call for certain documents in a sealed cover, it is not proper for this Court to interfere with the said view taken by the learned Trial Court at this stage. It is also pertinent to note that co-accused has preferred an application seeking bail before this Court, wherein, the Coordinate Bench of this Court, vide order dated 16.01.2025, directed the learned Trial Court to conclude the trial within a period of two months and therefore as per the submission of learned Public Prosecutor the trial is accelerated and except investigating officer, almost all witnesses have been examined and now the trial is at the fag end. I have also considered the reasoning recorded by the learned Trial Court at the time of passing the impugned order and I do not find any error which warrants any interference by this Court. Hence, the petition is required to be dismissed and accordingly dismissed.
(DIVYESH A. JOSHI,J) LAVKUMAR J JANI Page 23 of 23 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 23:04:36 IST 2025