Madras High Court
Banumathi vs Asaithambi on 30 September, 2021
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.O.P.No.17426 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.09.2021
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P.No.17426 of 2021
Banumathi. ... Petitioner
Versus
1. Asaithambi.
2. The State Rep. by
The Inspector of Police
Kumaratchi Police Station,
Cuddalore District.
(Cr.No145 of 2018). ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of the
Code of Criminal Procedure, to call for the records and set aside the
order passed by the Learned II Additional District and Sessions Judge,
Chidambaram in Crl.M.P.No.83 of 2021 in S.C.No.96 of 2019 dated
16.08.2021.
For Petitioner : Mr.G.Pugazhenthi.
For Respondents : Mr.A.Damodharan,
Addl. Public Prosecutor
for Respondent R2.
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Crl.O.P.No.17426 of 2021
ORDER
The petitioner/de-facto complainant in Crime No. 145 of 2018 has filed this petition to set aside the order passed in Crl.M.P.No.83 of 2021 in S.c.No.96 of 2019 dated 16.08.2021, by the II Additional District and Sessions Judge, Chidambaram.
2. The contention of the petitioner is that she is the wife of the deceased Krishnamoorthi, who was murdered by the first respondent/accused in S.C.No.96 of 2019 on the file of the II Additional District and Sessions Court, Chidambaram. A case in Crime No.153 of 2018 under Sections 147, 148, 448, 379, 294(b), 506(i) of IPC and Sections 3 and 4 of PPD Act 1992 has been registered against the petitioner on the complaint of the wife of the accused/first respondent herein. On 22.07.2021, the first respondent/accused, had filed a petition under Section 91 Cr.P.C., before the trial Court to call for case diary in Crime No. 153 of 2018 from the respondent police. Despite a counter filed by the respondent police objecting for the same, the trial court had passed an order allowing the petition. Hence the present petition. Page No.2 of 9 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.17426 of 2021
3. In support of his contention, the learned counsel for the petitioner has relied upon a judgment passed by the Hon'ble Supreme Court of India in Crl.A.No.694 of 2017, dated 19.04.2017. The relevant portion of the said order reads as follows :-
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 sch 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. This Court in the case of Mukund Lal /vs/ Union of India and another, 1988(2) RCR (Criminal ) 583 : AIR 1989 SCC 144 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 Cr.P.C. the court itself has the Page No.3 of 9 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.17426 of 2021 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 recognized, the embargo engrafted in sub section (3) of Section 172 of the CrPC would fail to meet Page No.4 of 9 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.17426 of 2021 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 hte accused for it might endanger the safety or the informants and it might deter the informants from giving any information to assist the investigating agency, as observed in Mohinder Singh /vs Emperor.
4. The learned Additional Public Prosecutor submitted that in this case, the accused in S.C.No.96 of 2019 has filed a petition under Section 91 Cr.P.C. calling for case diary in Crime No.153 of 2018 before the lower court. A detailed counter has been filed stating that the accused has no locus standi to call for records pertaining to different crime number and different occurrence. He further submitted that as per Section 172(2) (3) Cr.P.C., the accused is not entitled to call for case diary.
5. This Court considered the submissions and perused the materials available on records carefully.
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6. On perusal of the submissions, it is seen that the petitioner/de- facto complainant had rightly filed this petition. The lower court, against the first Principle of Law, allowed the petition filed under Section 91 Cr.P.C. by the 2nd respondent/accused to call for case diary in Crime No.153 of 2018. The Court is permitted to call for case diary, peruse the same if it is in aid of any investigation, enquiry or trial and it is for the Court to decide whether it is needed or not for its perusal. No case diary can be summoned to be produced, since the accused are not entitled to call for such case diary and further they are also not entitled to see it.
7. The case diaries can be perused by the police Officer or by the Court for the purpose of contradiction as per the provisions of 161 Cr.P.C and 145 Evidence Act. When there is specific prohibition that no accused can ask for the case diary, this Court is surprised to know how the trial Judge, namely, II Additional District and Sessions Judge, Chidambaram, had allowed such petition since the Order is against the first Principles of Law.
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8. In view of the same, the Criminal Original Petition is allowed and the order passed by the II Additional District and Sessions Judge, Chidambaram, in Crl.M.P.No.83 of 2021, dated 16.08.2021 is set aside.
30.09.2021 Index: Yes/No mrp Note:Issue order copy on 01.10.2021.
To
1. The Inspector of Police Kumaratchi Police Station, Cuddalore District.
2. The Public prosecutor, High court, Madras.
Page No.7 of 9 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.17426 of 2021 M.NIRMAL KUMAR, J.
mrp CRL.O.P.No.17426 of 2021 30.09.2021 Page No.8 of 9 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.17426 of 2021 CRL.O.P.No.17426 of 2021 M.NIRMAL KUMAR., J.
The Registry is directed to
call for explanation from the II
Additional District and Sessions
Judge, Chidambaram, who had
passed the Order in
Crl.M.P.No.9561 of 2021, dated
16.08.2021, on or before
25.10.2021. The report shall be
placed before this Court on
01.11.2021.
Post on 01.11.2021.
30.09.2021
mrp
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