Tripura High Court
Unknown vs Union Of on 5 July, 2017
Author: S. Talapatra
Bench: S. Talapatra
Noting by Officer or Serial Date Office notes, reports, orders or
Advocate No Proceedings with signature
AB 61 OF 2017
BEFORE
THE HON'BLE MR. JUSTICE S. TALAPATRA
05.07.2017 Heard Mr. A Lodh, learned counsel for the petitioner as well as Mr. RC Debnath, learned Addl. PP for the State.
Mr. Debnath has produced the up to date case diary before this Court for consideration in terms of the order dated 04.07.2017.
This is an application under Section 438 CrPC for pre-arrest bail in connection with Airport PS case No. 23/2017 under Section 302/34 IPC read with Section 10 of the POCSO Act.
A complaint was filed on 23.06.2017 in the wake of death of one Rakesh Kumar Sukla Das in Narsingarh IVH. Complainant is the mother of the deceased. Based on the complaint Airport PS Case No. 2017/23/ARP under Section 302/34 IPC and S.10 of the POCSO Act has been registered. This Court has also observed the post-mortem report available in the case diary and also carefully observed the opinion of the forensic expert in respect of the cause of death.
Having regard to the materials so far collected by the investigating agency in respect of the involvement of the applicant, this Court is of the view that this is a fit case where the applicant can be extended with the benefit of pre-arrest bail. Accordingly, it is ordered.
In the event of arrest of the applicant namely, Sukla Deb (Roy) in connection with the said case, she shall be released on bail on furnishing a bail bond of Rs.30,000/- supported Page 1 of 8 lodh Noting by Officer or Serial Date Office notes, reports, orders or Advocate No Proceedings with signature by two sureties of the like amount to the satisfaction of the arresting authority subject to the condition that she will not leave her ordinary place of residence as given in this application without the prior permission from the Elaka Magistrate.
That apart, whenever for purpose of investigation she would be called by the IO or any other superior officer, without any pre-text she would appear before them and answer the relevant questions. Further, the applicant shall not interfere with the investigation nor she would try to influence or threaten any person seized of any material information in connection with this case.
Before parting with the records, this Court would like to record the observation in respect of the practise that has surfaced from the record that either the officer-in-charge or the investigating officers have now started submitting the statements recorded under Section 161 of the CrPC in the Court, open to perusal when the investigation could not be completed within 24 hours under Section 57 of the CrPC.
Section 167(1) CrPC requires the officer-in- charge or the investigating officers wherever any person is arrested and detained in custody and it appears that the investigation cannot be completed within 24 hours as fixed by Section 57 CrPC, and there are grounds for believing that the accusation or information is well- founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to the nearest Page 2 of 8 lodh Noting by Officer or Serial Date Office notes, reports, orders or Advocate No Proceedings with signature Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to the Magistrate. This provision does not warrant the officer in charge or the investigating officer to submit the statement recorded in full and making it open for perusal in the Court. They may extract the relevant part of those statements for perusal in a form of memo and that can they place even making the same for perusal. The name of the witnesses and their address be suppressed till the final police report under Section 173(2) is submitted or a report terminating the investigation is submitted.
A court has powers under Section 172 CrPC to call for the diary. Section 172 CrPC binds the police officers making investigation under the chapter to maintain the diary day by day and enter his proceedings in the investigation in that 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. Section 172(1A) further provides that the statement of the witnesses recorded during the course of investigation under Section 161 shall be inserted in the police diary whereas Section 172 (1B) provides that the diary referred to in sub- section (1) of Section 172 shall be a volume and duly paginated.
There is a prohibition under Section 172 (3) CrPC which records that neither the accused nor his agent shall be entitled to call for such Page 3 of 8 lodh Noting by Officer or Serial Date Office notes, reports, orders or Advocate No Proceedings with signature diary 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 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, shall apply.
This Court should observe that during the investigation accused may have so many other rights but the accused does not have any right to peruse what has been written by the investigating officer in the case diary. It is the prerogative of the Court and the Court only under Section 172(2) of the CrPC to send for the police diaries of a case under inquiry or trial in such court and may use such diary not as evidence in the Court but to aid it in such inquiry or trial.
The Apex Court in Mukund Lal Vs. Union of India and Anr., reported in 1989 Suppl. (1) SCC 622 has observed as under:
"The High Court has repelled the plea by recourse to the reasoning reflected in the relevant passage extracted hereinbelow:
'So far as Section 172(3) is concerned, the embargo on the right of the accused or his representative in calling for the diary or seeing any part of it is only a partial one and not absolute because if a part of the diary has been used by the police officer to refresh his memory or the court uses it for the purpose of contradicting such police officer, the provisions of Section 161 and 145 of the Indian Evidence Act, will be applicable. So far as the other parts are concerned, the accused need not necessarily have a right of access to them because in a criminal trial or enquiry, whatever is sought to be proved against the accused, will Page 4 of 8 lodh Noting by Officer or Serial Date Office notes, reports, orders or Advocate No Proceedings with signature have to be proved by the evidence other than the diary itself and the diary can only be used for a very limited purpose by the Court or the police officer as stated above. Even then, a safeguard has already been provided in the Section itself to protect the right of the accused. The investigating Officer deposes before the Court on the basis of the entries in the diary. If the accused or his counsel thinks that he is stating something against the diary or is trying to hide something which may be in the diary he can put question in that respect to the Investigating Officer, and if the accused or his counsel has any doubt about the veracity of the statement made by the Investigation Officer, he may always request the court to look into the diary and verify the facts and, this right of the accused can always be safeguarded. It is true that it is for the court to decide whether the facts stated are borne out by the diary or not, but then this much reliance has always to be placed on the court and it has to be trusted as it is trusted in the case under Section 123 of the Evidence Act in order to decide whether any privilege can be claimed with respect to the documents in question. Even according to the authorities relied upon by the learned counsel for the petitioner pertaining to Section 123 of the Evidence Act, it is the right of the court to decide whether the privileged document contains any material affecting the public interest or a particular affair of the State, which need not be disclosed.
When in the enquiry or trial, everything which may appear against the accused has to be established and brought before the Court by evidence other than the diary and the accused can have the benefit of cross-examining the witnesses and the court has power to call for the diary and use it, of course not as evidence but in aid of the enquiry or trial, I am clearly of the opinion, that the provisions under Section 172(3) Cr.P.C. cannot be said to be unconstitutional.' Page 5 of 8 lodh Noting by Officer or Serial Date Office notes, reports, orders or Advocate No Proceedings with signature We fully endorse the reasoning of the High Court and concur with its conclusion. We are of the opinion that the provision embodied in sub-section (3) of Section 172 of the Cr.P.C. cannot be characterised as unreasonable or arbitrary. Under sub-
section(2) of section 172Cr.P.C. 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 dairy 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 Cr.P.C. 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 unfetterred 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 unfetterred right is conferred and recognised, the embargo engrafted in sub-section(3) of section 172 of the Cr.P.C. 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, AIR 1932 Lah 103, 104:
'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 Page 6 of 8 lodh Noting by Officer or Serial Date Office notes, reports, orders or Advocate No Proceedings with signature with the provisions of Sections 162and 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.' and also as observed in Mahabirji Birajman Mandir v Prem Narain Shukla & Ors, A.I.R. 1965 All 494, 495, para 12:
"The case diary contains not only the statements of witnesses recorded under s. 161 Cr. P.C. and the site plan or other documents prepared by the Investigating Officer, but also reports or observations of the Investigating Officer or his superiors. These reports are of a confidential nature and privilege can he claimed thereof. Further, the disclosure of the contents of such reports cannot help any of the parties to the litigation, as the report invariably contains the opinion of such officers and their opinion is inadmissible in evidence."
The Superintendent of Police, West Tripura was asked to appear in person. Mr. Abhijit Saptarshi, I.P.S., Superintendent of Police, West Tripura has appeared in person before this Court. He has clearly submitted that he has taken a serious note of this practice and in future he shall ask the investigation officers under his jurisdiction to submit the case diary in a sealed cover with superscription "Only for use of the Court and not to be perused by any other person including the accused". This is one part of the story. The other part of the story is more shocking. The Court not only has displayed those statements as recorded under Section 161 CrPC by the IO in this case, which is in the fledgling state, but has also supplied the certified copies of those statements recorded under Section 161 CrPC. There are two aspects. One, the Court should know that these are statements which cannot be displayed at this stage and second, Page 7 of 8 lodh Noting by Officer or Serial Date Office notes, reports, orders or Advocate No Proceedings with signature these are not the documents which can be certified by the Court. In future, all the courts in the State shall take serious notice in this regard, else the stern action will follow.
However, before sealing the case diary the conducting Public Prosecutor/Asst. Public Prosecutor may see the case diary so that he can make proper submission before the Court on the basis of the case diary.
A copy of this order shall be furnished to Mr. RC Debnath, learned Addl. PP for placing the same before the Director General of Police, Tripura, and to the Registrar General, High Court of Tripura for circulation to all the judicial officers for taking note of the observation as made above.
Accordingly, this petition stands allowed and is disposed of.
JUDGE Page 8 of 8 lodh