Madras High Court
Jesubalan vs State Inspector Of Police on 19 July, 2010
Author: S.Palanivelu
Bench: S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/07/2010 Coram THE HONOURABLE MR.JUSTICE S.PALANIVELU Criminal Revision Case (MD) No.387 of 2010 and M.P.(MD) No. 1 of 2010 Jesubalan .. Petitioner Vs State Inspector of Police, Gangaikondan Police Station, Tirunelveli District. Crime No.168/06 .. Respondent Criminal Revision filed under Sections 397 and 401 of Cr.P.C. to call for the records in Cr.M.P.No.103 of 2010 in S.C.No.266 of 2007, on the file of the Sessions Judge, Mahila Court, Tirunelveli and set aside the order dated 08.04.2010 made in Cr.M.P.No.103 of 2010. !For Petitioner ... Mr.P.Ramasamy ^For Respondent ... Mr.P.Rajendran, Government Advocate (Crl. side) *** :ORDER
This criminal revision has been filed to call for the records in Cr.M.P.No.103 of 2010 in S.C.No.266 of 2007, on the file of the Sessions Judge, Mahila Court, Tirunelveli and set aside the order dated 08.04.2010 made in Cr.M.P.No.103 of 2010.
2. The petitioner is the accused in S.C.No.266 of 2007, on the file of the Mahila Court, Tirunelveli, pending trial, he filed an application in Cr.M.P.No.103 of 2010 under Section 91 of Cr.P.C. In the petition, he has alleged that P.W.1, the victim girl gave her complaint on 17.11.2006 at 10.00 hours and subsequently on 19.11.2006 First Information Report was registered, that the fact was admitted by P.W.1 and P.W.14 Sub Inspector of Police, during the course of their cross examination, that P.W.14 had deposed that before registering the case he made secret enquiry on the advice of the Inspector of Police and on the basis of the information collected by him in the said enquiry, he registered the case, that the particulars of information collected by him and the persons examined by him are very much essential to prove the defence and to disprove the prosecution case also and that in the interest of justice, the documents mentioned in the petition may be sent for to the Court. The particulars of documents to be sent for are as follows:
Sl.No. Particulars of documents From whom
1 General diary of Gangaikondan Inspector of Police, Gangaigondan
Police Station for the period Police Station.
from 13.11.2006 to 19.11.2006
2 Daily Diary of Muthu Subramanian, Muthukrishnan,
Sub Inspector of Police, S/o. Gurusamy,
Gangaigondan for the period Sub-Inspector of Police,
from 13.11.2006 to 19.11.2006 Gangaigondan Police Station.
3 Daily Diary of Chandrasekaran, Inspector of Police,
then Inspector of Police, Gangaigondan Police Station.
Gangaigondan Police Station for
the period from 13.11.2006
to 19.11.2006.
3. In the counter filed by the respondent, it is stated that after the trial commenced, the petition has been filed in a belated stage, that the secret information could not be divulged, that the petitioner has the liberty to seek the diary for the period from 17.11.2006 to 19.11.2006 only but the request from 13.11.2006 is not tenable and no reason has been mentioned in the petition for seeking the document and that the petition may be dismissed.
4. The learned Judge of the Mahila Court, Tirunelveli, has dismissed the application by observing that in view of the petition filed by the respondent on 06.04.2010 stating that the documents required by the petitioner could not be traced due to the lapse of time.
5. Mr.P.Ramasamy, learned counsel appearing for the petitioner would submit that the police is expected to maintain the diaries which are mentioned in the petition, that under Section 91 of Cr.P.C, the accused has got every right to send for any document and that the enquiry relating to the registration of the case would reveal the real state of things.
6. Contending contra, Mr.P.Rajendran, Government Advocate (Criminal Side), would submit that as per Section 172 Cr.P.C., the accused is not entitled to send for the records from the police station and hence, the petition has to fail. Section 172 Cr.P.C. provides for maintenance of police diaries, which goes thus:
"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."
7. The statute requires entry of the events which constitute stages in the investigation which was conducted day by day with reference to the particulars as to time at which he began and closed his investigation, the places visited by him and the circumstances ascertained by him during the investigation. The provision enables the Court to send for the diaries for its reference to get assistance to decide the case. It does not give any right to the accused to call for the diaries. Even if the Court calls for the diaries, it can be referred to only by the Court and even at the time, neither the accused nor his counsel would refer the same.
8. The learned Government Advocate (Criminal Side) placed reliance upon a decision reported in the case of Shamshul Kanwar v. State of U.P., AIR 1995 Supreme Court 1748, wherein Their Lordships have held as follows:
"It can therefore be seen that the right of accused to cross examine the police officer with reference to the entries in the General 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 and that again is subject to the limitations of Section 145 and 161 of the Evidence Act and for that limited purpose only the accused in the discretion of the Court may be permitted to peruse the particular entry and 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 the entries even to that limited extent does not arise. The accused person is not entitled to require a police officer to refresh his memory during his examination in Court by referring to the diary. At the most the accused can on a reasonable basis seek the Court to look into the diary and do the needful within the limits of Section 172 Cr.P.C. However, the Court is not bound to compel the police witness to look at the diary in order to refresh his memory nor the accused is entitled to insist that he should do so. If there is such a refusal what inference should be drawn depends on the facts and circumstances of each case. Section 172, does not deal with any recording of statements made by witnesses and what is intended to be recorded is what the police officer did namely the places where he went, the people he visited and what he saw etc. It is Section 161, Cr.P.C. which provides for recording of such statements. Assuming that there is failure to keep a diary as required by Section 172, Cr.P.C. the same cannot have the effect of making the evidence of such police officer inadmissible and what inference should be drawn in such a situation depends upon the facts of each case. It is well-settled that the entries of the police diary are neither substantive nor corroborating evidence and they cannot be used by or against any other witness than the police officer and can only be used to the limited extent indicated above. The above stated principles are reiterated in many decisions rendered by the Courts."
9. When the law does not permit the accused specifically in Section 172, the petitioner could not invoke Section 91 to send for such diaries. The provision does not expect a police officer to record and maintain in the police station, the events, enquiries and all the particulars which happened earlier to the investigation. All the more, it requires that he should record every stage in the investigation with particulars. To put it otherwise, Section 172 does not impose a duty on a police officer to record the happenings anterior to the investigation. Nowhere in the Code it is stated that the police officer has to record with minute details, the events which he comes across before he started the investigation. Sl.No.1 General diary is the one covered by Section 172 of the Code. Indisputably the said diary could not be brought to the Court at the behest of the accused. Insofar as the diaries mentioned as Sl.Nos.2 and 3 are concerned, they are stated to be the personal diaries of the concerned police officers which allegedly contained the particulars which came to their knowledge earlier than 19.11.2006, when the case was registered. The law does not expect the police personnel to maintain the diaries as described in Sl.No.2 and 3. Even though they do not maintain such diaries, they could not be found fault with. As held by the Hon'ble Apex Court in the decision mentioned supra, even if the diaries mentioned in Section 172 Cr.P.C. were not maintained by the police officers, there could not have any legal consequences adverse to the prosecution and no adverse inference could be drawn in this regard. It is the law that they do not contain any substantive or corroborative evidence which would assist the Court to decide the case.
10. The learned counsel for the petitioner also says that even in the counter, the respondent has stated that the petitioner has liberty to seek the diary for the period from 17.11.2006 to 19.11.2006. However, it was reported before the Court on a later occasion that the diaries could not be traced. In this context, the Court cannot direct to send for the records.
11. In view of the above said observations and in the light of the principles laid down in the decision of the Hon'ble Apex Court, I am of the considered opinion that the accused is not entitled to call for the diaries described in the list of documents in his petition and the order challenged before this Court does not suffer from any infirmity legally or factually, which deserves to be confirmed and it is confirmed accordingly. The revision has to suffer dismissal.
In fine, the Criminal Revision is dismissed. Consequently, connected miscellaneous petition is closed.
srm To The Sessions Judge, (Mahila Court), Tirunelveli.