IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.7.2008 CORAM THE HONOURABLE MR. JUSTICE K. MOHAN RAM CRIMINAL REVISION CASE NO.618 OF 2008 and M.P.No.1 of 2008 Maruthachalamoorthy ... Petitioner Vs. State by Inspector of Police All Women Police Station Coimbatore East Crime No.13 of 2006 Coimbatore District. ... Respondent Criminal Revision Petition filed under Sections 397 and 401 of Cr.P.C., against the order dated 11.4.2008 made in Crl.M.P.No.73 of 2008 in S.C.No.305 of 2006 on the file of the Magalir Neethimandram (Mahila Court) of Coimbatore. For Petitioner : Mr.N. Manokaran For Respondent : Mr. Hasam Mohamed Jinnah Government Advocate (Crl.Side) O R D E R
The petitioner, who is the second accused in S.C.No. 305 of 2006 on the file of the Magalir Neethimandram (Mahila Court) of Coimbatore filed Crl.M.P.No.73 of 2008 under Section 91 of Cr.P.C., to send for the following documents:
i) The personal note book of the Station Writer and Police Constables attached to All Women Police, Coimbatore East during the period of 30.4.2006 to 3.5.2006.
ii) The copy of the complaint made by the mother of the petitioner, the entire enquiry file conducted by the Inspector of Police, B-9, Saravanampatti Police Station on 26.7.2006 along with the statements of witnesses and the findings given thereon. But the learned Judge placing reliance on the decision of the Apex Court in SIDHARTH VS. STATE OF BIHAR reported in AIR 2005 SUPREME COURT 4352, dismissed the petition and being aggrieved by that, the petitioner has filed the above criminal original petition.
2. Heard both.
3. The learned counsel for the petitioner submitted that the decision of the Apex Court in SIDHARTH VS. STATE OF BIHAR reported in AIR 2005 SUPREME COURT 4352 does not apply to the facts of this case, but the learned Judge has erroneously applied the legal principles laid down therein and dismissed the petition. In the said decision, the Apex Court has laid down in paragraph-27. The Apex Court has observed as under:-
” 27. Lastly, we may point out that in the present case, we have noticed that the entire case diary maintained by the police was made available to the accused. Under Section 172 of the Criminal Procedure Code, every police officer making an investigation has to record his proceedings 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. It is specifically provided in sub-clause (3) of Section 172 that 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 CrPC or the provisions of Section 145 of the Evidence Act shall be complied with. The court is empowered to call for such diaries not to use it as evidence but to use it as aid to find out anything that happened during the investigation of the crime. These provisions have been incorporated in the Code of Criminal Procedure to achieve certain specific objectives. The police officer who is conducting the investigation may come across a series of information which cannot be divulged to the accused. He is bound to record such facts in the case diary. 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. ”
4. Based on the aforesaid submission, Mr.N.Manokaran, learned counsel for the petitioner submits that since in that case, the case diary relating to the case which are being tried had been ordered to be sent for. The said observation came to be made ….. the learned counsel in the case on hand. The petitioner-accused is not seeking the production of any case diary relating to S.C.No.305 of 2006 but the case diary relating to some other case and as sich the bar contained under Section 172(3) of Cr.P.C. Will not apply.
5. In support of the said contention, Mr.N.Manokaran, learned counsel placing reliance on the decision of the Apex Court in STATE OF KERALA VS. BABU AND OTHERS reported in AIR 1999 SUPREME COURT 2161. In the said decision, paragraphs 12 and 3, the Apex Court has observed as under:-
” 12. The language of Section 91 is much wider than the language of Section 172 and by no stretch of imagination it could be contended that the case diary maintained under Section 172 of the Code is not a document as contemplated under Section 91(1) of the Code. If that be so and if the court comes to the conclusion that the production of such a document is necessary or desirable then, in our opinion, the court is entitled to summon the case diary of another case under Section 91 of the Code dehors the provisions of Section 172 of the Code for the purpose of using the statements made in the said diary, for contradicting a witness. When a case diary, as stated above, is summoned under Section 91(1) of the Code then the restrictions imposed under sub-sections (2) and (3) of Section 172 would not apply to the use of such case diary but we hasten to add that while using a previous statement recorded in the said case diary, the court should bear in mind the restrictions imposed under Section 162 of the Code and Section 145 of the Evidence Act because what is sought to be used from the case diary so produced are the previous statements recorded under Section 161 of the Code.
13. In this view of the matter, in our opinion, a case diary of another case not pertaining to the trial in hand can be summoned if the court trying the case considers that production of such a case diary is necessary or desirable for the purpose of trial, under Section 91 of the Code.”
6. On the aforesaid submissions, Mr. Hasan Mohamed Jinnah, learned Government Advocate (Crl.Side) has been heard and he has fairly submitted that the law laid down in STATE OF KERALA VS. BABU AND OTHERS reported in AIR 1999 SUPREME COURT 2161 applies to the facts of the case on hand and the law laid down in the decision in SIDHARTH VS. STATE OF BIHAR reported in AIR 2005 SUPREME COURT 4352 is not at all applied to the facts of this case and submitted that if the Court is inclined to set aside the order passed by the Court below,the order may be set aside with a direction to the Sessions Court to consider the petition afresh on merits and in accordance with law.
7. I have carefully considered the said submissions made on either side.
8. The decision reported in SIDHARTH VS. STATE OF BIHAR reported in AIR 2005 SUPREME COURT 4352 explains the scope of applicability of Section 172(3) of Cr.P.C. In that case, the entire case diary was directed to be made available to the accused by the Court trying the case and would consider the sustainability of such direction, the Apex Court observed that such a direction 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. The Supreme Court noticed that the entire case diary was made available and the investigating officer was extensively cross examined on many facts which were not very much relevant for the purpose of the case and hence, the Apex Court set aside the direction issued by the lower Court. As submitted by the learned counsel for the petitioner in the case on hand, the petitioner is not seeking for the production of any case diary pertaining to the case in which the petitioner is facing trial, but the personal note book of the Station Writer and Police Constables attached to All Women Police, Coimbatore East during the period of 30.4.2006 to 3.5.2006 pertaining to some other case and similarly, the petitiner has prayed for sending for the copy of the complaint of the mother of the petitioner in some other case. Therefore, as rightly contended by the learned counsel for the petitioner, the legal principles laid down in SIDHARTH VS. STATE OF BIHAR reported in AIR 2005 SUPREME COURT 4352 are not applicable to the facts of this case, whereas the law laid down in STATE OF KERALA VS. BABU AND OTHERS reported in AIR 1999 SUPREME COURT 2161 squarely covers the issue that arise for consideration. The case diary of another case not pertaining to the case on hand can be summoned if the Court trying such a case considers that Production of such cases are desirable for the purpose of trial under Section 91 of Cr.P.C.
9. Therefore, the order passed by the learned Judge in Crl.M.P.No.73 of 2008 in S.C.No.305 of 2006 dated 11.4.2008 is hereby set aside and the learned Judge is hereby directed to consider afresh Crl.M.P.No.73 of 2008 in S.C.No.305 of 2006 in the light of the law laid down by the Apex Court in STATE OF KERALA VS. BABU AND OTHERS reported in AIR 1999 SUPREME COURT 2161 and dispose of the same on merits as expeditiously as possible but preferably within a period of one month from the date of receipt of a copy of this order after giving opportunity to the petitioner as well as the respondent. It is made clear that this order does not express any opinion on the merits of the case. Consequently, connected miscellaneous petition is closed.
Index : Yes/No 28.7.2008
Internet : Yes/No
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Note to Office:-
Issue order copy on 19.8.2008
K. MOHAN RAM, J.
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To
1. State
by Inspector of Police
All Women Police Station
Coimbatore East
Crime No.13 of 2006
Coimbatore District.
2. The Public Prosecutor
High Court, Chennai.
Crl.R.C.No.618 of 2008
28.7.2008