Himachal Pradesh High Court
Dinesh Chander Sharma vs Surinder Kumar Sharma on 3 January, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 334 of 2017 Reserved on: 29112019 Date of Decision: Jan. 3, 2020 .
Dinesh Chander Sharma ...Petitioner.
Versus Surinder Kumar Sharma ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge. Whether approved for reporting? YES Petitioner in person.
For the respondent: Mr. N.K. Thakur, Senior Advocate with Mr. Divya Raj Singh, Advocate.
Anoop Chitkara, Judge Challenging the judgment of dismissal passed by the Court of Sessions, at Una, upholding the order of dismissal of the criminal complaint under Section 203 CrPC, by Judicial Magistrate, the complainant, who is a practicing Advocate, has come up before this Court, to set these aside and issuance of directions to the Judicial Magistrate to issue process and proceed under Section 204 CrPC.
2. The gist of the facts apposite to decide the present petition traces its history to a complaint filed by the petitioner under Section 190 CrPC, against the respondent, Inspector ::: Downloaded on - 06/01/2020 20:25:42 :::HCHP 2 Surinder Kumar Sharma, for the commission of an offence punishable under Section 500 of IPC.
3. The petitioner had filed the complaint on May 23, .
2005, in the Court of Chief Judicial Magistrate, Una, District Una, HP. The order sheets of the Court reflect that the learned Additional Chief Judicial Magistrate, Una, vide order dated Jun 14, 2005, took cognizance of the offence, and asked the complainant to produce preliminary evidence. After recording the evidence, and taking the documentary evidence in the inquiry, vide order dated Aug 13, 2012, passed in this Criminal Complaint No. 71II2006, Judicial Magistrate 1st Class, Court No.1, Una, HP, dismissed it under Section 203 CrPC and did not proceed further under Section 204 of CrPC.
4. Challenging the dismissal of the complaint, the petitioner filed a Criminal Revision Petition in Sessions Court, Una.
Vide order dated Jul 21, 2006, passed in Criminal Revision No. 23 of 2012, the Additional Sessions JudgeI, Una, DistrictUna, HP, upheld the impugned order and dismissed the Criminal Revision Petition.
5. Feeling aggrieved, by these two verdicts, the petitioner has come up before this Court by filing Revision Petition under ::: Downloaded on - 06/01/2020 20:25:42 :::HCHP 3 Section 227 of the Constitution of India read with Section 482 of CrPC, seeking prosecution of accused of commission of an offence punishable under Section 500 of IPC.
.
6. I have heard the Petitioner, Sh. Dinesh Chander Sharma, who appeared in person, and counsel for the respondent. I have also waded through the entire record.
ANALYSIS AND REASONING:
7. The fundamental defect in the complaint, filed by the petitioner, is that he had filed the complaint, after a gap of almost five years, from the commission of the said offences.
8. The allegations mentioned in the complaint, relating to an investigation, conducted by the accused Surinder Kumar Sharma, who at that time investigated an FIR No. 60 of 1999, registered under Section 498A, 506 of IPC. The said FIR pertained to the information given by the sisterinlaw of the complainant. In the said FIR, the Investigating Officer recorded the summary of his investigation in the police case diary. The mentioned summary contained the allegations that the complainant was interested in marrying the informant, his widow sisterinlaw.
9. The complainant mentioned that the information was given by his sisterinlaw, that led to the registration of FIR, was ::: Downloaded on - 06/01/2020 20:25:42 :::HCHP 4 false and concocted. The complainant further stated that the contents of the case diary dated 22111999, prepared by the Investigating Officer, was a concoction. The complainant also made .
other allegations that are not worth mentioning.
10. The complainant stated that the Investigating Officer knew that the narration of the summary that he had scribed in the case diary, relating to complainant interested in marrying his sisterinlaw, was false and concocted.
11. The complainant further mentioned that ASP, Una conducted an inquiry for the said allegations. In the said inquiry, the SHO reiterated his investigation qua the desire of the present petitioner, marrying his widow sisterinlaw. Thus, the moral and intellectual character of the complainant lowered in the eyes of the inquiry officer. Consequently, the SHO committed an offence under Section 500 of IPC.
12. The complainant specifically mentioned that the Inquiry Officer read the case diary on Feb 24, 2004, and that is why the complaint filed by him on May 23, 2005, was within the period of limitation.
13. Even if this complaint is read under Section 473 of CrPC, seeking an extension of time still, there is hardly any ::: Downloaded on - 06/01/2020 20:25:42 :::HCHP 5 explanation. The offence, if any, was committed on Nov 22, 1999, when the Investigating Officer wrote the case diary, and thus the limitation expired after three years.
.
14. This above complaint was hopelessly barred by limitation. In the absence of any application for extension of time, the Trial Court committed illegality in taking its cognizance in its order dated Jun 14, 2005. The Court had no jurisdiction to take cognizance of a complaint barred by limitation.
15. There is another aspect of this matter. Even if the contents of the complaint are seen and analyzed, still there is hardly any defamation. Even if somebody intended to marry a lady, and this fact is known to the world, then there is no defamation.
The complaint is silent that such intention was before the death of her husband. Be that as it may, in any case, such normal human behavior can never cause defamation to anyone. Even if every allegation is taken as gospel truth, still it does not amount to libel, either in the eyes of the law, or any society.
16. In Balakram v. State of Uttarakhand, (2017) 7 SCC 668, a threemember bench of Supreme Court holds,
8. Before proceeding further it would be relevant to note the provisions of Section 172 Cr.P.C. and ::: Downloaded on - 06/01/2020 20:25:42 :::HCHP 6 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 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. Crossexamination as to previous statements in writing.A witness may be crossexamined 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 ::: Downloaded on - 06/01/2020 20:25:42 :::HCHP 7 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."
9. The aforementioned provisions are to be read .
conjointly and homogenously. It is evident from subsection (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 officer as provided in subsection (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 subsection (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.
10. Coming to the use of police diary by the accused, subsection (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 ::: Downloaded on - 06/01/2020 20:25:42 :::HCHP 8 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 crossexamine 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.
11. 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 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.
12. 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 crossexamined 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 ::: Downloaded on - 06/01/2020 20:25:42 :::HCHP 9 aspects of the same matter and should, therefore, be read together.
13. 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 may be crossexamined 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.
14. In case of Malkiat Singh and others v. State of Punjab, 1991(2) R.C.R.(Criminal) 436 : 1991(4) SCC 341 this Court while considering the scope of Section 172 (3) Cr.P.C. with reference to section 145 of the Indian Evidence 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 subsection (2) the court is entitled at the trial or enquiry to use the diary not as evidence in the case, but as ::: Downloaded on - 06/01/2020 20:25:42 :::HCHP 10 aid to it in the inquiry or trial. Neither the accused, nor his agent, by operation of subsection (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 reexamination 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."
15. 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.
16. This Court in the case of Mukund Lal v. Union of India and Anr., 1988(2) R.C.R (Criminal) 583 :
AIR 1989 SC 144 while considering the question ::: Downloaded on - 06/01/2020 20:25:42 :::HCHP 11 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 subsection (3) of Section 172 of the Cr.P.C. cannot be .
characterised as unreasonable or arbitrary. Under subsection (2) of Section 172 Cr.P.C. 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 subsection (3) of Section 172 of the Cr.P.C. 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 ::: Downloaded on - 06/01/2020 20:25:42 :::HCHP 12 cannot be said that unless such unfettered right is conferred and recognised, the embargo engrafted in subsection (3) of Section 172 of the Cr.P.C. 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 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 ::: Downloaded on - 06/01/2020 20:25:42 :::HCHP 13 persons standing the trial, is fully safeguarded."
17. From the aforementioned, 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.
17. During the investigation, the Investigating Officer is under an obligation to record whatever information he gets may be accurate or to be decided on truthfulness. Therefore, even if Investigating Officer has mentioned such narration, still he acted under the discharge of his official function.
18. The second exception to Section 499 of IPC, adequately protects the SHO, who had written his case diary. If an investigation cannot write her sources, suspicions, apprehensions, information, or calculated guess, even in her case diary, then the entire system of investigation would crumble under the outpaced law of defamation, which is not in synchronization with the changing times. Be that as it may, it lies in the domain of the Legislature, and now, under any circumstances, not with this Court.
19. Given the protection under Section 499 of IPC, it was not permissible for the complainant to seek prosecution of the ::: Downloaded on - 06/01/2020 20:25:42 :::HCHP 14 Investigating Officer for the narration of the investigation mentioned in the case diary.
20. There is another aspect of this matter. After dismissal .
of the complaint, the petitioner challenged the dismissal of order before Sessions Court, Una, HP, by filing a revision petition under Section 397 of IPC. The time limitation to file such Criminal Revision was ninety days as prescribed under Article 131 of the Limitation Act. The petitioner in the heading of the petition mentioned it as a composite petition under Section 397 of CrPC. He did not file any application under Section 5 of the Limitation Act to condone the delay. It amounts to circumventing the provisions of the Limitation Act and not permissible.
21. Given the above, I find no merits in this petition, and the same is dismissed. All pending application(s), if any, stand closed.
(Anoop Chitkara) Judge.
Jan 3, 2020 (NK) ::: Downloaded on - 06/01/2020 20:25:42 :::HCHP