Jesubalan vs State Inspector Of Police on 19 July, 2010

Madras High Court
Jesubalan vs State Inspector Of Police on 19 July, 2010




DATED: 19/07/2010


Criminal Revision Case (MD) No.387 of 2010
M.P.(MD) No. 1 of 2010

Jesubalan				.. Petitioner


State Inspector of Police,
Gangaikondan Police Station,
Tirunelveli District.
Crime No.168/06				.. Respondent

	Criminal Revision filed under Sections 397 and 401 of Cr.P.C. to call for
the records in Cr.M.P.No.103 of 2010 in S.C.No.266 of 2007, on the file of the
Sessions Judge, Mahila Court, Tirunelveli and set aside the order dated
08.04.2010 made in Cr.M.P.No.103 of 2010.

!For Petitioner	... Mr.P.Ramasamy
^For Respondent	... Mr.P.Rajendran,
 		    Government Advocate (Crl. side)


This criminal revision has been filed to call for the records in
Cr.M.P.No.103 of 2010 in S.C.No.266 of 2007, on the file of the Sessions Judge,
Mahila Court, Tirunelveli and set aside the order dated 08.04.2010 made in
Cr.M.P.No.103 of 2010.

2. The petitioner is the accused in S.C.No.266 of 2007, on the file of the
Mahila Court, Tirunelveli, pending trial, he filed an application in
Cr.M.P.No.103 of 2010 under Section 91 of Cr.P.C. In the petition, he has
alleged that P.W.1, the victim girl gave her complaint on 17.11.2006 at 10.00
hours and subsequently on 19.11.2006 First Information Report was registered,
that the fact was admitted by P.W.1 and P.W.14 Sub Inspector of Police, during
the course of their cross examination, that P.W.14 had deposed that before
registering the case he made secret enquiry on the advice of the Inspector of
Police and on the basis of the information collected by him in the said enquiry,
he registered the case, that the particulars of information collected by him and
the persons examined by him are very much essential to prove the defence and to
disprove the prosecution case also and that in the interest of justice, the
documents mentioned in the petition may be sent for to the Court. The
particulars of documents to be sent for are as follows:

Sl.No.   Particulars of documents                 From whom

1       General diary of Gangaikondan        Inspector of Police, Gangaigondan
        Police Station for the period        Police Station.
        from 13.11.2006 to 19.11.2006

2       Daily Diary of Muthu Subramanian,    Muthukrishnan,
        Sub Inspector of Police,             S/o. Gurusamy,
        Gangaigondan for the period          Sub-Inspector of Police,
        from 13.11.2006 to 19.11.2006        Gangaigondan Police Station.

3       Daily Diary of Chandrasekaran,       Inspector of Police,
        then Inspector of Police,            Gangaigondan Police Station.
        Gangaigondan Police Station for
        the period from 13.11.2006
        to 19.11.2006.

3. In the counter filed by the respondent, it is stated that after the
trial commenced, the petition has been filed in a belated stage, that the secret
information could not be divulged, that the petitioner has the liberty to seek
the diary for the period from 17.11.2006 to 19.11.2006 only but the request from
13.11.2006 is not tenable and no reason has been mentioned in the petition for
seeking the document and that the petition may be dismissed.

4. The learned Judge of the Mahila Court, Tirunelveli, has dismissed the
application by observing that in view of the petition filed by the respondent on
06.04.2010 stating that the documents required by the petitioner could not be
traced due to the lapse of time.

5. Mr.P.Ramasamy, learned counsel appearing for the petitioner would
submit that the police is expected to maintain the diaries which are mentioned
in the petition, that under Section 91 of Cr.P.C, the accused has got every
right to send for any document and that the enquiry relating to the registration
of the case would reveal the real state of things.

6. Contending contra, Mr.P.Rajendran, Government Advocate (Criminal Side),
would submit that as per Section 172 Cr.P.C., the accused is not entitled to
send for the records from the police station and hence, the petition has to
fail. Section 172 Cr.P.C. provides for maintenance of police diaries, which goes

“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.”

7. The statute requires entry of the events which constitute stages in the
investigation which was conducted day by day with reference to the particulars
as to time at which he began and closed his investigation, the places visited by
him and the circumstances ascertained by him during the investigation. The
provision enables the Court to send for the diaries for its reference to get
assistance to decide the case. It does not give any right to the accused to
call for the diaries. Even if the Court calls for the diaries, it can be
referred to only by the Court and even at the time, neither the accused nor his
counsel would refer the same.

8. The learned Government Advocate (Criminal Side) placed reliance upon a
decision reported in the case of Shamshul Kanwar v. State of U.P., AIR 1995
Supreme Court 1748, wherein Their Lordships have held as follows:
“It can therefore be seen that the right of accused to cross examine the
police officer with reference to the entries in the General 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 and that again is subject to the limitations of
Section 145 and 161 of the Evidence Act and for that limited purpose only the
accused in the discretion of the Court may be permitted to peruse the particular
entry and 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
the entries even to that limited extent does not arise. The accused person is
not entitled to require a police officer to refresh his memory during his
examination in Court by referring to the diary. At the most the accused can on
a reasonable basis seek the Court to look into the diary and do the needful
within the limits of Section 172 Cr.P.C. However, the Court is not bound to
compel the police witness to look at the diary in order to refresh his memory
nor the accused is entitled to insist that he should do so. If there is such a
refusal what inference should be drawn depends on the facts and circumstances of
each case. Section 172, does not deal with any recording of statements made by
witnesses and what is intended to be recorded is what the police officer did
namely the places where he went, the people he visited and what he saw etc. It
is Section 161, Cr.P.C. which provides for recording of such statements.
Assuming that there is failure to keep a diary as required by Section 172,
Cr.P.C. the same cannot have the effect of making the evidence of such police
officer inadmissible and what inference should be drawn in such a situation
depends upon the facts of each case. It is well-settled that the entries of the
police diary are neither substantive nor corroborating evidence and they cannot
be used by or against any other witness than the police officer and can only be
used to the limited extent indicated above. The above stated principles are
reiterated in many decisions rendered by the Courts.”

9. When the law does not permit the accused specifically in Section 172,
the petitioner could not invoke Section 91 to send for such diaries. The
provision does not expect a police officer to record and maintain in the police
station, the events, enquiries and all the particulars which happened earlier to
the investigation. All the more, it requires that he should record every stage
in the investigation with particulars. To put it otherwise, Section 172 does
not impose a duty on a police officer to record the happenings anterior to the
investigation. Nowhere in the Code it is stated that the police officer has to
record with minute details, the events which he comes across before he started
the investigation. Sl.No.1 General diary is the one covered by Section 172 of
the Code. Indisputably the said diary could not be brought to the Court at the
behest of the accused. Insofar as the diaries mentioned as Sl.Nos.2 and 3 are
concerned, they are stated to be the personal diaries of the concerned police
officers which allegedly contained the particulars which came to their knowledge
earlier than 19.11.2006, when the case was registered. The law does not expect
the police personnel to maintain the diaries as described in Sl.No.2 and 3.
Even though they do not maintain such diaries, they could not be found fault
with. As held by the Hon’ble Apex Court in the decision mentioned supra, even
if the diaries mentioned in Section 172 Cr.P.C. were not maintained by the
police officers, there could not have any legal consequences adverse to the
prosecution and no adverse inference could be drawn in this regard. It is the
law that they do not contain any substantive or corroborative evidence which
would assist the Court to decide the case.

10. The learned counsel for the petitioner also says that even in the
counter, the respondent has stated that the petitioner has liberty to seek the
diary for the period from 17.11.2006 to 19.11.2006. However, it was reported
before the Court on a later occasion that the diaries could not be traced. In
this context, the Court cannot direct to send for the records.

11. In view of the above said observations and in the light of the
principles laid down in the decision of the Hon’ble Apex Court, I am of the
considered opinion that the accused is not entitled to call for the diaries
described in the list of documents in his petition and the order challenged
before this Court does not suffer from any infirmity legally or factually, which
deserves to be confirmed and it is confirmed accordingly. The revision has to
suffer dismissal.

In fine, the Criminal Revision is dismissed. Consequently, connected
miscellaneous petition is closed.



The Sessions Judge,
(Mahila Court),

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