Madhya Pradesh High Court
S.P. Choudhary vs Union Of India on 27 August, 2019
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1 WA-1370-2019
The High Court Of Madhya Pradesh
WA-1370-2019
(S.P. CHOUDHARY Vs UNION OF INDIA)
Jabalpur, Dated : 27-08-2019
Shri Imtiaz Husain, learned counsel with Shri Anirben Ray, learned
counsel for the appellants.
Shri J.K. Jain, learned Assistant Solicitor General for
respondents/Union of India.
The present intra-court appeal is filed under Section 2(1) of the Madhya Pradesh Uchch Nyayalaya (Khand Nyaypeeth ko Appeal) Adiniyam, 2005 being aggrieved by the order dated 25-6-2019 passed by the learned Single Judge, whereby a challenge to the order dated 22.3.2018 passed by the learned Special Judge, Bhopal in the criminal appeals rejecting the petitioners' application seeking direction to the C.B.I. for production of case diary remained unsuccessful.
The facts of the case, briefly stated, are that criminal proceedings were initiated against the petitioners/appellants and other persons in respect of Bhopal Gas Tragedy which took place in the intervening night of 2nd and 3rd December, 1984. The writ petitioners and other five accused persons were tried and convicted by the learned Chief Judicial Magistrate, Bhopal in Criminal Case No.8460/1996 for commission of the offence punishable under sections 304-A/34 and 336 of the IPC, vide judgment dated 7-6-2010. Against the said judgment criminal appeals have also been preferred in the year 2010 by the petitioner before the Court of Sessions which are still pending pending. In the aforesaid appeals, on 30-8-2016 an application was filed by the petitioners-appellants for production of case diary alleging that the investigation conducted by the CBI in the case was malafide, malicious, motivated and fraudulent.
The learned counsel for the appellants submitted that the learned Single Judge has dismissed the writ petition affirming the order passed by the trial Court rejecting their application for summoning the case diary, mainly on the 2 WA-1370-2019 ground that the appellants had not filed any application to summon the case diary before the trial Court and copy of the said application was also not filed before the writ Court.
The learned counsel for the respondents/Union of India submitted that the said application was rightly rejected by the appellate Court taking into consideration the provisions envisaged in Section 172 of the CrPC. It is further asseverated that the incident had taken place in the year 1984 and the case was registered with the CBI on 6-12-1984. After due investigation charge-sheet was filed on 01-12-1987 under sections 324, 326 and 429 read with section 34 of the IPC. As per order of the Supreme Court in Criminal Appeal No.1670/1996, it was directed that the case be tried under Section 304-A of the IPC and the matter was remanded back to the Court for trial. The actual trial commenced in the year 1996 and after about 14 years the final judgment was delivered on 7-6-2010. The said judgment was assailed in criminal appeals in which an application to summon the case diary was filed by the appellants on 30-8-2016 in the appeal after a period of six years. There was no justifiable ground to summon the case diary. Therefore, the appellate Court has rightly rejected the same by the impugned order.
We have heard the learned counsel for the parties and bestowed our anxious consideration on the order passed by the learned Single Judge.
The learned Single Judge has considered the entire gamut of facts and also taken note of the fact that it took about 14 years to conclude the trial and despite the fact that though the accused persons were being represented by senior and expert lawyers, but they did not file any application during course of trial, even in the appeal, after a period of six years from the date of filing of the appeal. Only at the time of final hearing of the appeal, the appellants opted to file the said application to summon the case diary.
The learned counsel appearing for the appellants could not advance the grounds and purpose, for which he needs production of the case diary at appellate stage at the time of hearing of appeal, specially when no such 3 WA-1370-2019 application was filed before the trial Court.
At this juncture, it is useful to refer Section 172 of the CrPC. Sub- sections (2) and (3) of that Section being relevant, are extracted hereunder :
"172. Diary of proceedings in investigation.-
(1). .....
(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 provision of section 161 or section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), shall apply."
Section 172(3) of the CrPC specifically bars the accused to call for case diary except in the instances provided thereunder. The accused cannot resort to Section 172(2) of the CrPC, requesting the Court to call for case diary to aid in inquiry or trial. What cannot be done directly, cannot be done indirectly. If Section 172(3) specifically bars the accused from calling for his case diary except in the instances mentioned therein, the accused cannot be permitted to seek help of Section 172(2) of CrPC, which empowers the Court to call for case diary to aid it in an inquiry or trial.
The law relating to summoning of case diary has been laid down by the Apex Court in the case of Balakram vs. State of Uttarakhand and others, (2017) 7 SCC 668, wherein it is held that police diary is only a record of day-to-day investigation made by investigating officer. Neither the accused nor his agent is entitled to call for such case diary and also are not entitled to see them during course of inquiry or trial. Powers have been conferred under law on the Court to examine entries of police diary which would not allow the 4 WA-1370-2019 accused to claim similar right to inspect case diary. The right of an accused to cross-examine the police officer with reference to entries in police diary is also very limited. In the said case denial of right to accused to inspect case diary was characterized as reasonable. It was held that confidentiality is always kept in the matter of investigation and it is not desirable to make available the police diary to accused on his demand.
In the present case admittedly, no request has been made in the trial stage for case diary and the request came up in that behalf for the first time, before the appellate Court. The appellate Court elaborately discussed the grounds on which the appellant had requested to call the case diary and thereafter observed that the reason mentioned for calling the case diary is vague and non-justifiable.
In view of the aforesaid, we do not perceive any error in the order passed by the learned Single Judge warranting any interference in the present intra-court appeal. However, since no reason has been assigned for imposing cost while dismissing the writ petition, we set aside the direction relating to imposition of cost as contained in para 12 of the impugned order.
Accordingly, the writ appeal stands dismissed to the extent indicated hereinabove.
RAVI SHANKAR JHA) (VIJAY KUMAR SHUKLA)
ACTING CHIEF JUSTICE JUDGE
ac
Digitally signed by AJAY KUMAR CHATURVEDI
Date: 2019.08.31 13:46:43 +05'30'