Madhya Pradesh High Court
Ashish Gupta vs The State Of Madhya Pradesh on 9 August, 2021
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
M.Cr.C. No.39214/2021
(Ashish Gupta Vs. State of Madhya Pradesh)
(1)
Gwalior, dated : 09.08.2021
Shri Sankalp Sharma, learned counsel for the petitioner.
Shri Dheeraj Budholiya, learned Panel Lawyer for the
respondent/State.
I.A. No.23358/2021, an application for urgent hearing is considered and allowed.
Heard on the question of admission.
In this petition under Section 482 of Cr.P.C. the challenge has been made to the order dt.17.02.2021, whereby the application filed by the petitioner under Section 91 of Cr.P.C. has been rejected and further directions has been sought to call for the Rojnamcha and Daak Book of Police Station w.e.f. 08.05.2016 to 12.05.2016, which was relied on by P.W.12.
2. Learned counsel for the petitioner submitted that the learned Court below dismissed the application on the ground that the defence cannot compel the prosecution to produce a document that the defence can use for their defence. During examination, P.W.12 was asked whether, at the time of incident, he went to the spot and entered the detail in his Rojnamcha. P.W.12 stated that he had entered the detail in Rojnamcha. On this, the petitioner asked for production of Rojnamcha to contradict the same.
3. Section 172 (3) of Cr.P.C. is relevant for the purpose, which is reproduced as under:
HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.Cr.C. No.39214/2021 (Ashish Gupta Vs. State of Madhya Pradesh) (2) "(3) Neither the accused nor his agent shall be entitled to call for such diaries, nor shall he or they be entitled to see time 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."
4. Learned counsel further relied on the provisions of Rule 68 and Rule 69 of the Rules and Orders (Criminal).
Rule 68 and 69 of the Rules and Orders (Criminal) are reproduced as under :-
"68. In all cognizable offences investigated the proceedings subsequent to the recording of the information and the dispatch of the intimation report are recorded in a special diary called the case diary. A police officer investigating a non-cognizable offence under the orders of a magistrate will not ordinarily write a case-diary unless specially ordered to do so by the District Magistrate or District Superintendent of Police.
69. Under Section 172(2) of the Code any criminal court may send for the police diary of a case under enquiry or trial before it and may use it for the purpose laid down in that section. Entries in the diary are not evidence in the case but they may be of considerable value in indicating the names of persons whose evidence may be material, and the nature of questions which should be put to witnesses for the purpose of eliciting their full knowledge and for doing real HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.Cr.C. No.39214/2021 (Ashish Gupta Vs. State of Madhya Pradesh) (3) justice in the case. Bearing in mind the observation in Chapter 5, rule 118 the courts will realize the great importance of examining those diaries. It is often of great important to trace the steps leading to a confession or to the recovery and identification of stolen property or of the implement with which a particular offence has been committed and to be able to elucidate such matter by suitable questions to the witnesses."
5. On the other hand, learned Government Advocate opposed the prayer and submitted that Court below has rightly rejected the application and prays for dismissal of the petition.
6. Heard the learned counsel for the parties.
7. The learned trial Court came to the conclusion that the trial is at the stage of examination of prosecution witnesses and the application has been made by the petitioner for summoning the Daak Book and Rojnamcha for the purpose of recording the evidence. The defence cannot compel the prosecution to produce a document that the defence can use for their defence. The accused do not have such right for the purpose of their defence. If at all there is any defence available, then the same can be produced at the time of examination of defence witnesses and accordingly rejected the application.
8. On perusal of Section 172(3) of Cr.P.C., it is clear that neither accused nor his agents are entitled to call for the case diary nor they are entitled to see it merely because they are referred. However, the trial Court has a power to inspect the diary and get itself satisfied and HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.Cr.C. No.39214/2021 (Ashish Gupta Vs. State of Madhya Pradesh) (4) thereafter direct accordingly. The Rules and Orders (Criminal) also provides under Section 172(2) of Cr.P.C. that any Criminal Court may send for the police diaries of a case under inquiry or trial before it and may use it for the purpose laid down in that Section 69 of the aforesaid Rules. It is important to examine the diary so as to come to the correct conclusion. According to Section 145 of the Indian Evidence Act, the witness may be cross-examined as to the previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved. It is the right of the accused to cross-examine the applicant on any document made by him or reduced into writing. In the present case P.W.12 has relied on the document (Rojnamcha) and it is the right of the accused to cross-examine him on the said document, if the trial Court is satisfied. Such satisfaction can only be recorded after going through the case diary. In order to prevent miscarriage of justice to either of the parties, in considered opinion of this Court, the learned trial Court ought to have call for the diary and inspect the same and thereafter, pass an appropriate orders on the application, which has not been done in the present case.
9. Accordingly, the impugned order dated 17.02.2021 is hereby set aside. The matter is remanded back to the trial Court from the stage of calling the case diary/Rojnamcha. It is further directed that the trial Court after inspecting the case diary/Rojnamcha pass a HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.Cr.C. No.39214/2021 (Ashish Gupta Vs. State of Madhya Pradesh) (5) reasoned and speaking order in accordance with law as expeditiously as possible.
Petition stands allowed to the extent indicated herein above.
(S.A.Dharmadhikari) Judge Shanu SHANU RAIKWAR 2021.08.10 17:16:16 -07'00'