Karnataka High Court
Ghayur Ahmad Jamali vs State By Cubbon Park Police Station on 26 March, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
W.P.NO. 21719/2023 (GM-RES)
BETWEEN:
1 . GHAYUR AHMAD JAMALI
S/O NASRULLAH JAMAL JAMALI
AGED ABOUT 33 YEARS
R/O SAKRI VILLAGE
SAKRI THANA, MADHUBHANI
DISTRICT, BIHAR STATE.
2 . AFTAB ALAM @ FAROOQ
S/O SHEIKH MOHAMMED AYUB
AGED ABOUT 35 YEARS
R/O DINESH BALWA POST
ADHANG, JALALGARH
THANA, PURMIA DISTRICT
BIHAR STATE.
3 . MOHAMMED KHATEEL SIDDIQUI
S/O MOHAMMED ZAFFER
AGED ABOUT 38 YEARS
R/O SAMAILA VILLAGE
LALGANJ POST, DARBANGH
BIHAR STATE.
...PETITIONERS
(BY SRI MOHAMMED TAHIR, ADV.)
AND:
STATE BY CUBBON PARK POLICE STATION
REP BY STATE PUBLIC PROSECUTOR
HIGH COURT COMPLEX
OPPOSITE TO VIDHANA SOUDHA
BANGALORE - 560 001.
...RESPONDENT
(BY SRI B.A. BELLIAPPA, APP-1 FOR
SRI R. RANGASWAMY, HCGP)
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THIS WRIT PETITION FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA R/W 482 OF CR.P.C.
PRAYING TO ISSUE WRIT OF CERTIORARI OR ANY OTHER
APPROPRIATE WRIT AND SET ASIDE THE TRIAL COURT
REJECTION ORDER i.e. ANNEXURE-A TO A4 DATED
14.08.2023 PASSED BY THE HONBLE 49TH CITY CIVIL AND
SESSION JUDGE (SPECIAL COURT FOR TRIAL FOR NIA CASES)
(CCH-50) AT BANGALORE, CONSEQUENTLY APPRECIATE THE
APPLICATION FILED BY THE PETITIONERS UNDER SECTION
172 OF Cr.P.C.
THIS PETITION HAVING BEEN HEARD AND RESEVED
FOR ORDERS ON 20.03.2024, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY,THE COURT MADE
THE FOLLOWING:
ORDER
1. Petitioners are before this Court under Articles 226 & 227 of the Constitution of India read with Section 482 Cr.PC seeking for the following reliefs:-
i. Issue writ of Certiorari or any other appropriate writ and set aside the trial court rejection order i.e., ANNEXURE-A to A4 dated 14.08.2023 passed by the Hon'ble 49th City Civil & Sessions Judge (Special Court for trial of NIA cases) (CCH-50) at Bangalore, consequently appreciate the application filed by the petitioners under Section 171 of Cr.PC i.e., ANNEXURE-B to B4 and direct the respondent police to produce the entire case diary of the 3 case, which can be used as per the mandate of Section 172 of Cr.PC.
ii. To pass any other orders which the court deems fit in the interest of justice, equity and good conscience.
2. Heard the learned Counsel for the parties.
3. Petitioners herein are being tried for the offences under the Indian Penal Code, Explosive Substances Act 1908, Prevention of Damage to Public Property Act 1984, and Unlawful Activities (Prevention) Act, 1967, before the Court of XLIX City Civil & Sessions Judge (Special Court of Trial of NIA cases), Bengaluru, in S.C.Nos.868/2013, 869/2013, 870/2013 & 871/2013.
4. After the Investigation Officer in the case was examined by the prosecution in the aforesaid cases, the petitioners had filed separate applications in the aforesaid cases under Section 172 read with 91 Cr.PC with a prayer to direct the prosecution to produce the complete case diary of the case for the perusal of the Trial Court. The said application was opposed by the prosecution by filing objections. The Trial Court, after hearing the arguments addressed on both sides, has rejected the said 4 applications vide order impugned dated 14.08.2023. Being aggrieved by the same, the petitioners are before this Court.
5. Learned Counsel for the petitioners having reiterated the grounds urged in the petition, submits that the Investigation Officer during the course of his examination before the Trial Court has looked into the case diary for refreshing his memory, and therefore, in view of Section 172(3) of Cr.PC, the Trial Court ought to have allowed the applications. He submits that even if the accused do not have a right to look into the case diary, but since the Investigation Officer has looked into the case diary to refresh his memory while he was examined before the Court, for the purpose of verification of the court whether the statement made by the Investigation Officer are contradictory, the case diary ought to have been called for by the Trial Court.
6. Per contra, learned SPP-1 has opposed the petition. He submits that there is nothing on record to show that the Investigation Officer has used the case diary for the purpose of refreshing his memory while he was examined 5 in the court. The applications filed by the petitioners before the Trial Court do not say so. Therefore, under Section 172(3) of Cr.PC, the accused or his agent will not be entitled to call for the case diary. However, he fairly submits that in the interest of justice and also with a view to see that fair trial is not denied to the accused, the court may direct the Trial Court to call for the case diary/police diary under Section 172(2) of Cr.PC for the purpose of satisfying itself about any contradictions in the evidence of the Investigation Officer.
7. Section 172 of Cr.PC provides that every police officer making an investigation is required to enter his proceedings in the investigation in a diary, setting forth all the particulars of the information on a day by day basis and also shall mention the time when the investigation was started and closed and also the places visited for the purpose of investigation. The statement of witnesses recorded during the course of investigation under Section 161 of Cr.PC are also required to be inserted in the case diary.
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8. Section 172(2) & 172(3) of Cr.PC reads as under:
"(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 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."
9. Section 172(2) provides that any criminal court can summon the case diary of a case for the purpose of its aid in the enquiry or trial. In the said event, the accused or his agents will not be entitled to see the diary or use the same for the purpose of cross-examination of the witnesses. But the if the police officer who is examined before the Trial Court takes assistance of the case diary for the purpose of refreshing his memory or if the court which has called for the case diary uses the same for the purpose of contradicting the police officer, then the 7 accused gets a right to cross-examine the said witness either as provided under Section 161 or Section 145 of the Evidence Act. However, if the court has summoned the case diary merely for its reference to aid it in an enquiry or trial, then the accused shall not be entitled to see it or to use the same for cross-examination of any witnesses.
10. In the present case, learned Counsel for the petitioners has strenuously argued that the Investigation Officer has made use of the case diary for refreshing his memory during the course of his examination before the court, and therefore, the application is filed before the Trial Court to summon the case diary for the purpose of reference of the court. He, however, fairly submits that the application is filed to summon the case diary only for the purpose of reference of the court and not for the purpose of the accused or his agent seeing the same or cross-examining the witness as provided under Section 161 or 145 of the Indian Evidence Act.
11. Learned SPP-1, however, has seriously disputed the fact that the Investigation Officer has used the case 8 diary for refreshing his memory during the course of his examination before the Trial Court. He submits that it is nowhere recorded that the Investigation Officer has used the case diary for refreshing his memory during the course of his examination before the Trial Court and in the application filed by the accused before the Trial Court, no such contention has been urged by them. He has submitted that if the case diary is summoned on the ground that the Investigation Officer has used the same for refreshing his memory during the course of his examination before the Trial Court, then automatically a right accrues to the accused under Section 172(3) of Cr.PC to use the case diary for the purpose of cross- examination of the said witnesses as provided under Section 161 or 145 of the Indian Evidence Act. He also submitted that he has serious objections for the case diary to be summoned by the Trial Court on the grounds urged by the petitioners' counsel, but in the interest of justice and also to ensure fair trial to the accused, the Trial Court could be directed to summon the case diary under Section 172(2) of Cr.PC only for its reference to aid it in the trial.
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12. Learned Counsel for the petitioners submits that his prayer before the Trial Court for summoning the case diary was only to ensure fair trial to the accused and if the Trial Court summons the case diary for its reference to verify whether there is any contradictions in the deposition of the Investigation Officer and the entries in the case diary, that would serve the ends of justice.
13. In view of the aforesaid submission made by the learned Counsel for the parties, petition is disposed of with a direction to the Trial Court to summon the case diary of the cases, in exercise of its powers under Section 172(2) of Cr.PC only for its reference in terms of the observations made herein above and it is made clear that the accused shall have no right either to see the same or to use the same as provided under Section 172(3) of Cr.PC.
SD/-
JUDGE KK