Rajasthan High Court - Jodhpur
Anand Prakash & Anr vs State & Anr on 2 November, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 2270 / 2012
1. Anand Prakash Barmera s/o Late Shri Ratan Lal Ji, aged 61
years, b/c Soni, r/o 103, 2nd 'A' Road, Sardarpura, Jodhpur (Raj.).
2. Smt.Mukta w/o Shri Anand Prakash Barmera, aged 55 years,
b/c Soni, r/o 103, 2nd 'A' Road, Sardarpura, Jodhpur (Raj.).
----Petitioner
Versus
1. State of Rajasthan.
2. Smt.Rasida Bano w/o Shri Abdul Jabbar, b/c Muslim, at present
r/o House No.165, Sector-A, Kamla Nehru Nagar, 2nd Extension
Scheme, Jodhpur (Raj.).
----Respondent
_____________________________________________________
For Petitioner(s) : Mr. J.S. Choudhary, Senior Advocate
Mr. A.K. Dhera with Mr. M.M. Dhera
Mr. Ashok Chhangani, Mr. B.S. Rathore
Mr. S.D. Purohit, Mr. Vineet Jain
Mr. Dhirendra Singh, Mr. Suresh Kumbhat
Mr. Moti Singh, Mr. Sheetal Kumbhat
Mr. Firoz Khan
For Respondent(s) : Mr. V.S. Rajpurohit, PP, Mr. MS Panwar, PP
Mr. O.P. Rathi, PP, Mr. R.D.S.S. Kharlia
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order Reserved on 22/08/2017 Pronounced on 02/11/2017
1. This Court passed the final order dated 19.04.2017 in the present petition, which reads as under:-
"1. This criminal misc.petition under Section 482 Cr.P.C. has been preferred for quashing of FIR No.121 dated 14.03.2012, lodged at Police Station, (2 of 21) [CRLMP-2270/2012] Pratap Nagar, Jodhpur for the offence under Section 306 IPC by respondent No.2-Smt.Rasida Bano/complainant.
2. The allegation made in the FIR is that the husband of the complainant was working in the textile industry and his partners and friends tried to take their property fraudulently and on the basis of forged receipts, they were continuously harassing her husband.
3. It is stated in the FIR that Anand Barmera, Sumera Don, Geeta Devi, Bal Kishan Khatri, Haider Ali, Shakeel, Chenu @ Mohammed Farooque, Sumesh Jain, Salim Kemkhani etc. compelled the husband of the complainant to commit suicide. It is also stated there is a suicide note and the learned Public Prosecutor states that the FSL has been conducted, wherein it has been found the suicide note was in fact written by the deceased-husband of the complainant himself. It was also alleged by the complainant that certain cheques were given by her family members and those cheques were used by the accused persons to create pressure upon the deceased-husband and his family members, which resulted into his committing the suicide.
4. I have carefully perused the suicide note as well as the statements of the witnesses.
5. The connection sought to be made by the prosecution against petitioner No.2 is that there was a sale deed dated 17.03.2009, which was executed regarding House No.165, Sector-A, Kamla Nehru Nagar, 2nd Extension Scheme, Jodhpur and the amount of consideration to the tune of Rs.22,00,000/- was paid by petitioner No.2.
6. Learned counsel for the petitioners has pointed out that petitioner No.1-Anand Prakash (3 of 21) [CRLMP-2270/2012] Barmera, husband of petitioner No.2-Smt.Mukta has already expired, and therefore, the petition qua him does not survive. He further pointed out that the house in question, which allegedly implicated petitioner No.2 was in fact in a previous litigation, wherein vide a judgment passed on 30.04.2008 in respect of a decree for specific performance in Civil Suit No.162/2007, resulted into a decree in favour of Abdul Hameed Belim.
7. Learned counsel for the petitioners also took this Court through the FIR again and it is noted that the FIR attributes no role whatsoever to petitioner No.2. The second vital evidence, which is that of the suicide note is there in the case diary and the suicide note reads that the deceased husband of the complainant was forced to commit suicide under pressure. The deceased in the suicide note has stated that there was no agreement with Abdul Hameed Belim, and wherever there was an agreement, a Power of Attorney signed by the deceased person was not there.
8. It is also stated in the suicide note that one agreement was signed by the deceased under pressure and that agreement was with Geeta Devi, who took the payment alongwith Salim Kemkhani and went to Italy. It is further stated in the suicide note that Haider Ali and Shakeel had played fraud with the deceased person, and as they had taken blank cheques from the deceased person and his daughter Femida, thus were trying to extort money from him. The persons last two mentioned were also compelling the deceased to make certain payments, which they were not entitled to receive.
9. It is further stated in the suicide note that Anand Prakash Barmera and Sumera Don had committed a fraud upon him and got his property (4 of 21) [CRLMP-2270/2012] registered the same in favour of wife of Anand Prakash Barmera, i.e.petitioner No.2-Smt.Mukta. It was alleged that Geeta Devi and Bal Kishan Khatri were no more having any legal agreement with the deceased person and had in fact returned the amount of agreement, which was earlier entered into, but they were harassing the deceased person by threatening him of the dire consequences, and even to get him murdered, if he did not return the amount.
10. The deceased person has levelled allegations against Sumesh Jain for filing returns excessive to the income of the deceased person and his wife i.e.the present complainant/respondent No.2. Thus, it is noted that in the complete suicide note, which is annexed in the case diary, no role whatsoever is attributed to petitioner NO.2.
11. The learned Public Prosecutor also stated that the suicide note has been sent for FSL and report of the FSL has been received, which clearly reveals that the suicide note was written by the deceased person himself, and that fortifies the case of petitioner No.2, as her role is not there in the suicide note itself and was not there in the FIR also, which was lodged by the wife of the deceased person.
12. This Court has also seen the statements made by the daughter of the deceased, in which the only passing reference to the name of Smt.Mukta Barmera has been made to the effect that a particular sale deed was executed in her favour. However, petitioner No.2 is not implicated by any angle in the statement made by the complainant and her daughter.
13. The status report dated 09.03.2017 has also been perused by this Court and the same speaks of allegations against all others, as mentioned in the FIR and the suicide note, but does not attribute any (5 of 21) [CRLMP-2270/2012] role whatsoever to petitioner No.2. The allegations levelled against others are prima facie proved in the statements as well as in the investigation read with suicide note and the FIR, but they are not before this Court in this misc.petition, and therefore, no adjudication pertaining to them is required to be made.
14. The status report dated 09.03.2017 further has dealt with the Fard Naksha Mauka and all other evidence, which is there on record, including the substance, which was utilized for committing the suicide by the husband of the complainant. The FSL report has also been dealt with, which substantiates the suicide note to be written by the deceased, but does not have any bearing on petitioner No.2. Thus, after hearing the learned counsel for the parties as well as perusing the complete record of the case, in light of the aforementioned facts, this Court is of the opinion that petitioner No.2 does not have any role whatsoever in the alleged offence and thus, continuing with her prosecution under Section 306 IPC would tantamount to abuse of the process of law, as on the face of it, no offence is made out against her.
15. The learned Public Prosecutor and the prosecution have failed to point out any single instance, which attributes any role whatsoever to petitioner No.2 for causing harassment or any kind of act, which could result into the commission of suicide by the deceased husband of the complainant.
16. The FIR names, as mentioned above, so many persons with their specific role in provoking the deceased person to commit suicide, but does not attribute any role whatsoever to petitioner No.2.
17. The suicide note, which has been brought on record in the case diary does not attribute any role (6 of 21) [CRLMP-2270/2012] whatsoever to petitioner No.2, but attributes specific role to many others, including the husband of petitioner No.2. The statements made by the persons supporting the story of the complainant, including her daughter, also do not reveal commission of the alleged offence under Section 306 IPC by petitioner No.2, and thus, it is clear from the record that no role whatsoever is attributable to petitioner No.2 for commission of the alleged offence under Section 306 IPC.
18. In light of the discussions made hereinabove, this Court deems it proper to quash FIR No.121 dated 14.03.2012 registered at Police Station, Pratap Nagar, Jodhpur for the offence under Section 306 IPC, qua petitioner No.2 only.
19. The present misc.petition is accordingly allowed.
20. At this stage, Shri S.K.Vyas, learned Additional Advocate General/Government Advocate and Shri Vikram Singh Rajpurohit, learned Public Prosecutor raised objections that the Registry of this Court is giving certified copies of status reports and reproduction of case diaries, whereas these documents are part of the investigation and should not be given to the accused persons or any other person, as it would prejudice the case of the prosecution and would also affect the fair investigation by the prosecution.
21. Learned Public Prosecutor, Shri Vikram Singh Rajpurohit also objects to the prosecution information being given to the accused persons or any other person during pendency of the investigation.
22. The lawyers at the Bar, on the other side, however submitted that the status report is a part of the record, and thus, they are entitled to have a copy thereof, as it is a vital component of the information (7 of 21) [CRLMP-2270/2012] for their own defence.
23. In view of the above, this Court deems it proper that this objection raised by the learned Additional Advocate General and learned Public Prosecutor be decided in all fairness to the procedure, so as to ensure fair investigation. Thus, this Court deems it proper to direct the Registry to list the matter regarding the said objection on 27.04.2017 with a request to all the parties concerned, including the members of the Bar as well as the members of the prosecution team to assist this Court on the issue, so that in future, it could be decided as to whether such status reports could be provided to the learned counsel for the accused persons/accused persons or any other person by the Registry or not.
24. It is made clear that the latter part of the order shall not prejudice the merits of the present case. The allowing of the present misc.petition shall also not be prejudiced by the subsequent noting.
25. Let the matter on the latter point raised by the learned Additional Advocate General and the learned Public Prosecutor be listed on 27.04.2017. It is expected that the learned Additional Advocate General, Shri S.K.Vyas and learned Public Prosecutor, Shri Vikram Singh Rajpurohit shall assist this Court on the issue raised by them on the next date."
2. However, while the controversy was finally adjudicated by the aforequoted order, the point was raised whether the status report being submitted by the learned Public Prosecutor can be given to the counsel for the private parties for perusal, and concerns were raised from both the sides as to the requirement of such information being given to the learned counsel for the private parties.
(8 of 21) [CRLMP-2270/2012]
3. The aforesaid question was made open to the Bar at large for general address and the same was accordingly addressed.
4. The members of the Bar very keenly participated in the said question and several considerable points were raised. The team of the learned Public Prosecutors also assisted the Court on the question.
5. Learned counsels drew the attention of this Court towards the General Rules (Criminal), 1980, particularly Rule 191 and its proviso, so as to reflect the official correspondence or reports. The General Rules (Civil), 1986 were also referred, particularly Rule 142 thereof.
6. Learned counsels also referred to the Evidence Act, 1872, particularly Sections 74 and 76 read with Section 172(3) of the said Act. Learned counsels have also relied upon Sections 153, 173 and 210 of the Code of Criminal Procedure.
7. Learned counsels have categorically stated that the investigation, as per the relevant provisions of the Code of Criminal Procedure was to be kept behind the curtains with no absolute disclosures, and it is only when the investigation is complete, then the investigation can be brought to the notice of the public at large after being produced in the Court at the stage of Section 173 Cr.P.C.
8. Learned counsels however, tried to draw distinction between the status report and the case diary, and stated that since the status report is not actually the investigation and is actually relied upon by the Court for the necessary adjudication, (9 of 21) [CRLMP-2270/2012] therefore, to maintain equity of justice, the status report, which do not carry all the authenticity of the case diary, should be given to the private parties to avoid the status report being changed frequently.
9. Learned counsels also stated that the corroboration of the status report with the case diary is also an important element, and thus, the copy of the status report should be given to the private parties.
10. Learned Public Prosecutors however, opposed the aforesaid prayer stating that since the case diary itself cannot be given at the stage of collection of evidence to avoid hampering of the process thereof, therefore, any component or reflection of the case diary, which includes the status report is also required to be avoided from being disclosed to the private parties.
11. Learned Public Prosecutors also stated that it is the discretion of the Court to call the status report and it is for the Court to look upon that there should be no miscarriage of justice on account of non-calling of the status report. Since the case diary itself is a document, which could be seen by the Court, therefore, the status report cannot be shown to the private parties.
12. Learned counsels however, stated that once the status report is taken on record by the Court, then it forms part of the record of the Court and the same no more remains part of the case diary, thus, the right arises for counsel for the private parties to take the copy of the document, which has been taken on record by the Court. Learned counsels also tried to equate the same with the reply by saying that once the reply has been filed in the Court, (10 of 21) [CRLMP-2270/2012] then it was imperative upon the opposite party to receive copy of the reply, without any prejudice to the investigation.
13. Learned counsels also reflected at length the provisions of the Rajasthan High Court Rules, 1952, and particularly the provisions of Rules 871, 872, 873, 874, 882 and 883 of the said Rules, which is there in Chapter-XXXIX. The Rajasthan Police Rules, 1965, particularly Rule 6.5 of the said rules was also shown.
14. Learned counsels also tried to take the Court through Sections 154 and 173 Cr.P.C. and tried to impress upon that the scheme of the Code of Criminal Procedure was pertaining to the case diary alone during the course of investigation. The basic principle of natural justice as per the case diary stood complied at the stage of Section 207 Cr.P.C., and therefore, there was no requirement of pre-judging the investigation.
15. Learned Public Prosecutors also stated that the sanctity of the investigation shall be lost if any information, amidst the investigation, is passed on to the private parties, and thus, such indulgence, if given to the private parties, shall hamper the pending investigation. Moreover, after completion of the investigation, the information is to be provided in the shape of challan at the stage of Section 173 Cr.P.C.
16. Learned counsel for the parties have relied upon the various judgments.
17. However, learned Public Prosecutor has relied upon the latest judgment of the Hon'ble Apex Court in the case of Balakram Vs. State of Uttarakhand & Ors., reported in (11 of 21) [CRLMP-2270/2012] 2017(2) Crimes 352 (SC).
18. The judgment rendered in Balakram Vs. State of Uttarakhand & Ors. (supra) reads as under:-
"Leave granted.
2. The judgment in Miscellaneous application No.1123 of 2016, passed by the High Court of Uttarakhand at Nainital setting aside the order dated 31.8.2016 in I.A. No. 174 Kha in S.T. No. 1 of 2015 is called on question in this appeal.
3. Respondent No.3 herein, along with another accused, is facing trial in ST No. 01 of 2015 before the Sessions Court, Champawat for the offences punishable under Section 302 and 201 of IPC. During the course of the trial, after the completion of examination in chief of PW-15, an application was filed by the respondent No.3 herein (one of the accused), the contents of which read thus:-
"In the above mentioned case applicant wants to submit some key and relevant documents which are necessary for the fair and just trial of instant case.
It is therefore, humbly prayed that your Honour may kindly grant permission for the same in the interest of justice."
4. Along with the application, list of documents to be produced was also filed. The documents are stated to be copies of certain pages of Police diary maintained under Section 172 of the Code of Criminal Procedure, 1973 (for brevity, Cr.P.C.), by the Investigation Officer (PW-15), which were obtained by respondent No.3 by making an application under the provisions of Right to Information Act, 2005. The respondent No. 3 proposes to confront PW 15 with those documents.
5. Such application was opposed by the appellant herein/complainant on the ground that the fresh documents cannot be allowed to be produced by the accused at the premature stage of trial and it is always open for the accused to produce such documents during the stage of recording of statements of the accused under Section 313, (12 of 21) [CRLMP-2270/2012] Cr.P.C. It was further contended by the appellant that it is open for the accused to lead evidence on their behalf after recording of the statements of the accused under Section 313, Cr.P.C.
6. The application came to be rejected by the Sessions Court on 31.8.2016. Being aggrieved by the same, respondent No.3 herein filed Misc. Application No. 1123 of 2016 before the High Court of Uttarakhand at Nainital under Section 482 Cr.P.C. By the impugned order the High Court allowed the said miscellaneous application.
7. Learned counsel for the appellant taking us through the order of the Courts below, argued that entries made in the police diary referred to in Section 172 of the Cr.P.C. cannot be used for the purpose of Section 145 of the Indian Evidence Act, 1872 unless the conditions laid down under Section 172(2) and (3) of Cr.P.C are satisfied; that the High Court is not justified in allowing the accused/respondent herein to produce certain pages of police diary obtained by the respondent under the provisions of Right to Information Act. He argued in support of the order of the Trial Court.
8. Per contra, advocate for the respondent argued in support of the order of the High Court contending that the documents sought to be produced were for confronting PW 15-Investigation Officer who is the author of those documents; the defence will lose an opportunity to confront the investigation officer, in case the respondent is not allowed to produce the documents in question. According to him, it is always open to the accused to produce the documents to be relied upon by him at the time of recording his statement under Section 313 of the Cr.P.C. but the accused would not get chance documents.
9. Before proceeding further it would be relevant to note the provisions of Section 172 Cr.P.C. and Section 145 of the Indian Evidence Act for deciding the issue involved:-
"Section 172 of the Code of Criminal Procedure, 1973
172. Diary of proceedings in investigation.
(1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in (13 of 21) [CRLMP-2270/2012] 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, Section 145 of the Indian Evidence Act, 1872 145.
Cross-examination as to previous statementsin writing.
--A witness may be cross-examined as to 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; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
10. The afore-mentioned provisions are to be read conjointly and homogenously. It is evident from sub-section (2) of Section 172 Cr.P.C., that the Trial Court has unfettered power to call for and examine the entries in the police diaries maintained by the Investigating Officer. This is a very important safeguard. The legislature has reposed complete trust in the Court which is conducting the inquiry or the trial. If there is any inconsistency or contradiction arising in the evidence, the Court can use the entries made in the diaries for the purposes of contradicting the police (14 of 21) [CRLMP-2270/2012] officer as provided in sub-section (3) of Section 172 of Cr.P.C. It cannot be denied that Court trying the case is the best guardian of interest of justice. Under sub-section (2) the criminal court may send for diaries and may use them not as evidence, but to aid it in an inquiry or trial. The information which the Court may get from the entries in such diaries usually will be utilized as foundation for questions to be put to the police witness and the court may, if necessary in its discretion use the entries to contradict the police officer, who made them. But the entries in the police diary are neither substantive nor corroborative evidence, and that they cannot be used against any other witness than against the police officer that too for the limited extent indicated above.
11. Coming to the use of police diary by the accused, sub- section (3) of Section 172 clearly lays down that neither the accused nor his agents shall be entitled to call for such diaries nor he or they may be entitled to see them merely because they are referred to by the Court. But, in case the police officer uses the entries in the diaries to refresh his memory or if the Court uses them for the purpose of contradicting such police officer, then the provisions of Sections 145 and 161, as the case may be, of the Evidence Act would apply. Section 145 of the Evidence Act provides for cross examination of a witness as to the previous statements made by him in writing or reduced into writing and if it was intended to contradict him in writing, his attention must be called to those portions which are to be used for the purpose of contradiction. Section 161 deals with the adverse party's right as to the writing used to refresh memory. It can, therefore, be seen that, the right of the accused to cross-examine the police officer with reference to the entries in the police 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.
12. In other words, 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 (15 of 21) [CRLMP-2270/2012] memory, then the question of accused getting any right to use entries even to that limited extent does not arise. The accused persons cannot force the police officer to refresh his memory during his examination in the Court by referring to the entries in the police diary.
13. Section 145 of the Indian Evidence Act consists of two limbs. It is provided in the first limb of Section 145 that a witness may be cross-examined as to the previous statements made by him without such writing being shown to him. But the Second limb provides that, if it is intended to contradict him by the writing, his attention must before writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. Sections 155 (3) and 145 of Indian Evidence Act deal with the different aspects of the same matter and should, therefore, be read together.
14. Be that as it may, as mentioned supra, right of the accused to cross examine the police officer with reference to the entries in the police diary is very much limited in extent and even that limited scope arises only when the Court uses such entries to contradict the police officer or when the police officer uses it for refreshing his memory and that again is subject to provisions of Sections 145 and 161 of the Indian Evidence Act. Thus, a witness maybe cross-examined as to his previous statements made by him as contemplated under Section 145 of the Evidence Act if such previous statements are brought on record, in accordance with law, before the Court and if the contingencies as contemplated under Section 172(3) of Cr.P.C. are fulfilled. Section 145 of the Indian Evidence Act does not either extend or control the provisions of Section 172 of Cr.P.C. We may hasten to add here itself that there is no scope in Section 172 of the Cr.P.C. to enable the Court, the prosecution or the accused to use the police diary for the purpose of contradicting any witness other than the police officer, who made it.
15. In case of Malkiat Singh and others vs. State of Punjab, this Court while considering the scope of Section 172(3) Cr.P.C. with reference to Section 145 of the Indian Evidence (16 of 21) [CRLMP-2270/2012] Act observed thus:-
"It is manifest from its bare reading without subjecting to detailed and critical analysis that the case diary is only a record of day to day investigation of the investigating officer to ascertain the statement of circumstances ascertained through the investigation. Under sub-section (2) the court is entitled at the trial or enquiry to use the diary not as evidence in the case, but as aid to it in the inquiry or trial. Neither the accused, nor his agent, by operation of sub-section (3), shall be entitled to call for the diary, nor shall he be entitled to use it as evidence merely because the court referred to it. Only right given thereunder is that if the police officer who made the entries in the diary uses it to refresh his memory or if the court uses it for the purpose of contradicting such witness, by operation of Section 161 of the Code and Section 145 of the Evidence Act, it shall be used for the purpose of contradicting the witness, i.e. Investigation Officer or to explain it in re-examination by the prosecution, with permission of the court. It is, therefore, clear that unless the investigating officer or the court uses it either to refresh the memory or contradicting the investigating officer as previous statement under Section 161 that too after drawing his attention thereto as is enjoined under Section 145 of the Evidence Act, the entries cannot be used by the accused as evidence."
16. The police diary is only a record of day to day investigation made by the 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 the course of inquiry or trial. The unfettered power conferred by the Statute under Section 172 (2) of Cr.P.C. on the court to examine the entries of the police diary would not allow the accused to claim similar unfettered right to inspect the case diary.
(17 of 21) [CRLMP-2270/2012]
17. This Court in the case of Mukund Lal vs. Union of India and Anr., while considering the question relating to inspection of the entries made in the case diary by the accused has observed thus:-
"We are of the opinion that the provision embodied in sub-section (3) of Section 172 of the CrPC cannot be characterised as unreasonable or arbitrary. Under sub- section (2) of Section 172 CrPC 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 diary 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 CrPC. 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 unfettered 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 unfettered right is conferred and recognised, the embargo engrafted in sub-section (3) of Section 172 of the CrPC 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 (18 of 21) [CRLMP-2270/2012] 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:
"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 with the provisions of Sections 162 and 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."
The public interest requirement from the standpoint of the need to ensure a fair trial for an accused is more than sufficiently met by the power conferred on the court, which is the ultimate custodian of the interest of justice and can always be trusted to be vigilant to ensure that the interest of accused persons standing the trial, is fully safeguarded."
18. From the afore-mentioned, it is clear that the denial of right to the accused to inspect the case diary cannot be characterized as unreasonable or arbitrary. The confidentiality is always kept in the matter of investigation and it is not desirable to make available the police diary to the accused on his demand.
19. Since we are not called upon to decide the question as to whether the copy of the case diary or a portion thereof can be provided to the accused under the provisions of the Right to Information Act, we are not deciding the said question in the matter on hand. In the case of Sidharth etc. etc. vs. State of Bihar, the entire case diary maintained by the police was made available to the accused by the trial Court. In that context certain observations were made by this Court which read thus:-
(19 of 21) [CRLMP-2270/2012] "....But if the entire case diary is made available to the accused, it may cause serious prejudice to others and even affect the safety and security of those who may have given statements to the police. The confidentiality is always kept in the matter of criminal investigation and it is not desirable to make available the entire case diary to the accused. In the instant case, we have noticed that the entire case diary was given to the accused and the investigating officer was extensively cross-examined on many facts which were not very much relevant for the purpose of the case. The learned Sessions Judge should have been careful in seeing that the trial of the case was conducted in accordance with the provisions of CrPC."
20. Since in the matter on hand, neither the police officer has refreshed his memory with reference to entries in the police diary nor has the trial court used the entries in the diary for the purposes of contradicting the police officer (PW-
15), it is not open for the accused to produce certain pages of police diary obtained by him under the provisions of Right to Information Act for the purpose of contradicting the police officer.
21. In view of the above, the High Court is not justified in permitting the accused to produce certain pages of police diary at the time of cross examination of PW- 15/Investigating Officer. Accordingly, the impugned Order is liable to be set aside and the same stands set aside. The appeal is allowed."
19. After hearing learned counsels on both sides as well as perusing the material placed before the Court alongwith the precedent law cited at the Bar, this Court is of the opinion that the judgment rendered by the Hon'ble Apex Court in the case of Balakram Vs. State of Uttarakhand & Ors. (supra) amply covers the field. In fact, at the time of initial arguments and (20 of 21) [CRLMP-2270/2012] framing of the question under discussion, the said precedent law could not be brought to the knowledge of this Court. However, the said precedent law has already answered the question that was raised by the Bar at large.
20. Since this Court is bound by the precedent law laid down by the Hon'ble Apex Court, as aforequoted, therefore, this Court does not require to give its own verdict on the issue raised herein, in a situation where the complete question stood answered by the aforementioned precedent law.
21. The Hon'ble Apex Court in Balakram Vs. State of Uttarakhand & Ors. (supra) has categorically observed that the public interest requirement from the standpoint of the need to ensure a fair trial for an accused is more than sufficiently met by the power conferred on the court, which is the ultimate custodian of the interest of justice and can always be trusted to be vigilant to ensure that the interest of accused persons standing the trial, is fully safeguarded. The Hon'ble Apex Court in that case has also held that the denial of right to the accused to inspect the case diary cannot be characterized as unreasonable or arbitrary. Thus, as per the said precedent law, the confidentiality in the matter of investigation is always required to be kept in the matter of investigation and it is not desirable to make available the police diary to the accused on his demand, and the said denial, therefore, cannot be questioned.
22. The Hon'ble Apex Court in that case, has in fact only adjudicated upon the issue relating to the case dairy, and it is also observed that any part of the investigation is also not open to be (21 of 21) [CRLMP-2270/2012] available to the private parties, and thus, even production of certain pages of the police diary to the private parties is not permissible. Thus, the unfettered power conferred by the Statute under Section 172 (2) of Cr.P.C. on the Court to examine the entries of the police diary would not allow the accused to claim similar unfettered right to inspect the case diary, or any part of it.
23. The question stands answered accordingly and the prosecutors shall have the exclusive right, subject to the provisions of sub-section (2) of Section 172 Cr.P.C., to maintain the confidentiality of the status report, which is part of the case diary and the case diary itself, in terms of the precedent law laid down by the Hon'ble Apex Court in Balakram Vs. State of Uttarakhand & Ors (supra).
(DR. PUSHPENDRA SINGH BHATI)J. Skant/-