Punjab-Haryana High Court
Sh. Vijay Kumar Chopra And Others vs Sheetal Viz on 8 December, 2011
Author: Alok Singh
Bench: Alok Singh
CRM No. M-37042 of 2011 (O&M)
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM No. M-37042 of 2011 (O&M)
Date of decision: 08.12.2011
Sh. Vijay Kumar Chopra and others
....Petitioners
Versus
Sheetal Viz
....Respondent
CORAM: HON'BLE MR. JUSTICE ALOK SINGH
Present: - Mr. Puneet Jindal, Advocate, for the petitioners.
1.Whether Reporters of local papers may be allowed to see the judgment?
2.Whether to be referred to the Reporters or not?
3.Whether the judgment should be reported in the Digest?
*****
ALOK SINGH, J (ORAL)
Accused/petitioners have invoked jurisdiction of this Court under Section 482 Cr.P.C. assailing the order dated 19.9.2011 whereby learned trial Court de-exhibited case diary, which was earlier exhibited as DW10/F. Brief facts inter alia are that respondent herein filed a private complaint for offences punishable under Sections 500, 501, 502 IPC. Accused were summoned to face trial by learned Magistrate. Accused have examined number of witnesses, including Sh. Rajesh Kumar, Deputy Superintendent of Police, who at the relevant time was posted as Inspector-SHO Police Station Sadar, Hamirpur. Sh. Rajesh Kumar, DSP, defence witness, has tendered/produced case diary before the Court in the present case, which was exhibited as DW10/F subject to the objections. Complainant has moved an application requesting de- CRM No. M-37042 of 2011 (O&M) -2- exhibiting DW10/F stating that case diary maintained by the police under Section 172 Cr.P.C. cannot be read in evidence except for the purpose for contradicting a witness. Learned Magistrate, while placing reliance on the judgment of Hon'ble Apex Court in the case of Md. Ankoos and others Vs. The Public Prosecutor, High Court of A.P., AIR 2010 Supreme Court 566, having observed that case diary cannot be read as piece of evidence directly or indirectly, allowed the application directing the de-exhibiting DW10/F. I have heard Mr. Puneet Jindal, learned counsel for the petitioners at length and have perused the record.
Mr. Puneet Jindal, learned counsel for the petitioners, has vehemently argued that this case diary was prepared by Sh. Rajesh Kumar, defence witness, when he was posted as Inspector SHO, P.S. Sadar, Hamirpur, in a case registered against Sh. Gaurav Kapoor. To prove that news item published by the accused/petitioners in Punjab Kesri daily edition dated 29.5.2006 was on the basis of contents of the case diary being maintained by Investigating Officer and no false, frivolous, defamatory news was published by the petitioners, petitioners have produced Rajesh Kumar, DSP, the them Inspector, Investigating Officer, in a defence evidence. Learned counsel has further argued that case diary pertaining to another criminal case can be produced in a subsequent case and bar under Section 172 Cr.P.C. shall not come in the way. He has placed reliance on the judgment of the Hon'ble Apex Court in the case of State of Kerala Vs. Babu, 1999(2) RCR (Criminal) 662 :
1999(4) SCC 621. Learned counsel further argued that once case diary was exhibited, rightly or wrongly, the question about the admissibility of CRM No. M-37042 of 2011 (O&M) -3- the case diary in evidence or the question as to whether case diary can be read as substantive evidence in a subsequent proceeding, should be left to be decided at the final disposal of the trial and learned Magistrate ought not to have allowed the application de-exhibiting the case diary.
Hon'ble Apex Court in the case of Md. Ankoos (supra) in paragraph No.24 has observed as under: -
"24. A criminal court can use the case diary in the aid of any inquiry or trial but not as an evidence. This position is made clear by Section 172(2) of the Code. Section 172(3) places restrictions upon the use of case diary by providing that accused has no right to call for the case diary but if it is used by the police officer who made the entries for refreshing his memory or if the Court uses it for the purpose of contradicting such police officer, it will be so done in the manner provided in Section 161 of the Code and Section 145 of the Evidence Act. Court's power to consider the case diary is not unfettered. In light of the inhibitions contained in Section 172 (2), it is not open to the Court to place reliance on the case diary as a piece of evidence directly or indirectly. This Court had an occasion to consider Section 172 of the Code vis-à-vis Section145 of the Evidence Act and Section 162 of the Code in the case of Mahabir Singh v. State of Haryana (2001 AIR SCW 2757) and it was stated as follows:
"14. A reading of the said sub-sections makes the position clear that the discretion given to the court to use such diaries is only for aiding the court to decide on a point. It is made abundantly clear in sub-section (2) itself that the court is forbidden from 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 diary for contradicting a police officer it should be done only in the manner provided in Section 145 of the Evidence Act i.e. by giving the author of the statement an opportunity to explain the contradiction, after his attention is called to that part of the statement which is intended to be so used for contradiction. In other words, the power conferred on the court for perusal of the diary under Section 172 of the Code is not intended for explaining a contradiction which the defence has winched to the fore through the channel permitted by law. The interdict contained in Section 162 of the Code, debars the court from using the power under CRM No. M-37042 of 2011 (O&M) -4- Section 172 of the Code for the purpose of explaining the contradiction."
Hon'ble Apex Court in the case of State of Kerala (supra) in paragraphs No.12, 13 and 14 has observed as under: -
"12. The High Court in the impugned judgment proceeded on the basis that a statement recorded by an investigating officer in any case which was under investigation, being a statement made under Section 161 of the Code, the same can be used for the limited purpose provided under Section 162 of the Code read with Section 145 of the Evidence Act. There can be no quarrel with this approach of the High Court in regard to the use of the previous statements of a witness made in the course of another investigation being used in the course of another criminal trial. This is because, as seen from the observations of this Court in the case of Tahsildar Singh (supra), the very object of enactment of Section 161 of the Code and Section 145 of the Evidence Act is to create a right in the accused to make use of the previous statements of the witnesses for the purpose of contradiction and for impeaching the merit of the witness. This right has not been taken away by Section 172 of the Code and, as noticed above, there is no prohibition in regard to this right of the accused either under the Code or under the Evidence Act. But the question for consideration is, how does the accused exercise this right with reference to a previous statement of a witness made in another case which is recorded by the investigating officer in that case under the provisions of Section 161 of the Code. In our opinion, this right certainly does not flow under Section 172 of the Code nor is the accused entitled to these previous statements under Section 207 of the Code. But, this does not mean that the accused is denied of his limited benefit of using the said previous statements recorded during the course of another investigation. The answer to this question, in our considered view, lies in Section 91(1) of the Code which reads thus :
"91. Summons to produce document or other thing.- (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the CRM No. M-37042 of 2011 (O&M) -5- summons or order.
(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed ---
(a) to affect Sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers Books Evidence Act, 1891 (13 of 1891), or
(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority."
13. The language of Section 91 is much wider than the language of Section 172 and by no stretch of imagination it could be contended that the case diary maintained under Section 172 of the Code is not a document as contemplated under Section 91(1) of the Code. If that be so and if the court comes to the conclusion that the production of such document is necessary or desirable then, in our opinion, the court is entitled to summon the case diary of another case under Section 91 of the Code de hors the provisions of Section 172 of the Code for the purpose of using the statements made in the said diary, for contradicting a witness. When a case diary, as stated above, is summoned under Section 91 (1) of the Code then the restrictions imposed under sub-
sections (2) and (3) of Section 172 would not apply to the use of such case diary but we hasten to add that while using a previous statement recorded in the said case diary, the court should bear in mind the restrictions imposed under Section 162 of the Code and Section 145 of the Evidence Act because what is sought to be used from the case dairy so produced, are the previous statements recorded under Section 161 of the Code.
14. In this view of the matter, in our opinion, a case diary of another case, not pertaining to the trial in hand can be summoned if the court trying the case considers that production of such a case diary is necessary or desirable for the purpose of trial, under Section 91 of the Code."
From the dictum of Hon'ble Apex Court in the case of Md. Ankoos (supra) as well as State of Kerala (supra) it is, thus, clear that a case diary cannot be produced and read in evidence and accused as no right to call for the case diary, however, if it is used by the police officer, CRM No. M-37042 of 2011 (O&M) -6- who made entries for refreshing his memory or if the Court uses it for the purpose of contradicting such police officer, it will be so done in the manner provided in Section 161 Cr.P.C. and Section 145 of the Evidence Act. It is not open to the Court to place reliance on the case diary as a piece of evidence directly or indirectly. Case diary of another case, not pertaining to the present trial, can be summoned by the Court if Court considers that production of such diary is necessary or desirable for the purpose of trial under Section 91 Cr.P.C.
In the present case, Gaurav Kapoor, who was accused in the previous case, is not an accused. In the present case, Rajesh Kumar, DSP, is not an Investigating Officer. In the present case, DSP was summoned as a defence witness to prove that he has made certain entries in the case diary and on the basis of those entries news item in question was published by the accused/petitioners in the Punjab Kesri daily edition dated 29.5.2006.
In the opinion of this Court, since case diary cannot be read in evidence, except for the purpose of Section 145 of the Evidence Act, therefore, it cannot be exhibited. If Court has wrongly exhibited it, Court has ample power to de-exhibit the same.
Mr. Puneet Jindal, learned counsel for the petitioners, while placing reliance on the judgment of Hon'ble Apex Court in the case of Bipin Shantilal Panchal Vs. State of Gujarat and another, AIR 2001 Supreme Court 1158, has argued that the question as to whether case diary was rightly exhibited ought to have been left to be decided at the final stage and application for de-exhibiting the same should have not been entertained during the trial.
CRM No. M-37042 of 2011 (O&M) -7- Hon'ble Apex Court in the case of Bipin Shantilal (supra) in paragraphs No.12, 13 and 14 has observed as under: -
"12. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fall out of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional court, when the same question is re- canvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings.
13. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)
14. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court CRM No. M-37042 of 2011 (O&M) -8- regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses."
It is true that whenever question arises about the admissibility of the evidence, ordinarily it should not be decided during the trial because it causes undue delay and should be left to be decided at the final stage of the trial, however, there is a caveat to it. Undisputedly, case diary cannot be produced and read in evidence, then the question, as to whether it was rightly exhibited or not, should be left to be decided at the final stage seems to be unjustified. Moreover, only on the ground that question of de-exhibiting the case diary should be decided at the final stage does not mean that order impugned de-exhibiting the case diary should be set aside. De-exhibition, on the facts of the case, is found to be correct, therefore, no interference is called for.
Dismissed.
(Alok Singh) Judge December 08, 2011 R.S.