MUKUND LAL & ANR. versus UNION OF INDIA.& ANR.

THAKKAR, J, Constitutional validity enjoining a police officer engaged in an investigation XII of the Code of Criminal Procedure (Cr.P.C.) question. The provision which so enjoins embodied in Section 172, Clause (1) whereof part of this provision namely clause (3) challenge made by one of the two accusect in Court' having repulsed the challenge, the accused Court by way of the present petition in order on the premise that the High Court had erred of the impugned provision.

p. 526, margin A

The analysis of Section 172, Clause (3) the challenge to its constitutionally reveals:

p. 526, margin C

( 1) That it embodies a complete scheme maintaining a diary. (2) Clause ( 1) imposes the obligation the contents thereof. (3) The Court is empowered to call (!) Section 172(3)-"Neither the accused call for such diaries, nor shall he or they because they are referred to by tho Court; police officer who made them to refresh them for the urpose of contradicting of Section oi as the case may shall apply.''

p. 526, margin D

161-"Any last preceding sections must be produced if 145-"A inquiry or trial subject to the rider that it can not be used as evidence thereat. (4) Merely because the Court calls for the diary, the accused (or his agent) can not claim the right to peruse it. (5) The accused can peruse that particular part 2 of the diary in the context of Section 161 of the Indian Evidence Act or Section 145 thereof in case: (a) if it is used by the police officer concerned to refresh his memory;

pp. 526–527, margin F

or (b) if the Court uses it for contradicting the police official concerned.

p. 527, margin C

The High Court has repelled the plea by recourse. to the reasoning reflected in the relevant passage extracted hereinbelow:

p. 527, margin D

"So far as Section 172(3) is concerned, the embargo on the right of the accused or his representative in calling for the diary or seeing any part of it is only a partial one and not absolute because if a part of the diary has been used by the police officer to refresh his memory or the court uses it for the purpose of contradicting such police officer, the provi· sions of Section 161 and 145 of the Indian Evidence Act, will be applicable. So far as the other parts are concerned, the accused need not necessarily have a right of access to them 1'ecause in a criminal 'trial or enquiry, whatever is sought tQ be proved against the accused, will have to be proved by the evidence other than the diary itself and the diary can only be used for a very limited· purpose by the Court or the police officer as stated above. Even then, a safeguard has already been provided in the Section itself to protect the rl:!ht of the accused. The investigating Officer deposes before the Court on the basis of the entries in the diary. If the accused ·or his counsel thinks that he is stating some· thing against the diary or is trying to hide something which may be in the diary he can put question in that respect to the Investigating Officer, and if the accused or his counsel has •ny doubt about the veracity of the statement made by the Investigation Officer, he may always request the court to look into the diary and verify the facts and, this right of the accused can always be safeguarded. It is true that it is for the court to decide whether the facts stated are borne out by the diary or not, but then this much reliance has always to be placed on the court and it has to be trusted as it is trusted in the case under Section 123 of the Evidence Act in order to decide whether any privilege can be claimed with respect to the documents in quest.ion. Even according to the authorities relied upon by the learned counsel for the petitioner pertaining to Section 123 of the Evidence Act, it is the right of the court to decide whether the privileged document contains any material affecting the public interest or a particular affair of the State, which need not be disclosed. ·

pp. 527–528, margin D

When in the enquiry or trial, everything which may appear against the accused has to be established and brought before the Court by evidence other than the diary and the accused can have the benefit of cross-examining the witnesses and the court has power to call for the diary and use it, of course not as evidence but in aid of the enquiry or tr~, I am clearly of the opinion, that the provisions under Section 172(3) Cr.P.C. cannot be said to be

p. 528, margin C

unconstitutional." We fully endorse the reasoning of the High Court and concur with its conclusion. We are of the opinion that the provision embodied in sub-section (3) of Section 172 of the Cr.P.C. cannot be characterised as unreasonable or arbitrary. Under sub-section(2) of section 172 Cr.P.C. the Court itself has the unfettere"d 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 dairy 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 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 contfadicting

p. 528, margin E

the police officer with reference to the contents of the diaries. In view -0f this safeguard, the charge of unreasonableness or arbitrariness cannot stand scrutmy. The petitloriers claim an unfetterred 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 unfetterred right is conferred and recognised, the embargo engrafted in sub-section(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 sorne 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, AIR 1932 (Lahore) page 103 ( 104):

pp. 528–529, margin G

"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

p. 529, margin C

attaching to them by statute is strictly enforced." and also as observed in Mahabirji Birajman Mandir v. Prem Narain Shukla & Ors., A.LR. 1965 (Allahabad) p. 494.

p. 529, margin E

"The case diary contains not only the statements of witnesses .recorded under s. 161 Cr.P.C. and the site plan or other documents prepared by the Investigating Officer, but also reports or observations of the Investigating Officer or his superiors. These reports are of a confidential nature and privilege can be claimed thereof. Further, the disclosure of the contents of such reports cannot help any of the parties to the litigation, as the report invariably contains the opinion of such officers and their opinion is inadmissible in

p. 529, margin E

evidence.''

p. 529, margin G

The public interest requirement from the stand point 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. This is a factor which must be accorded its due weight. There would be no prejudice or failure of justice to the accused persnn since the court can be trusted to look into the police diary for the purpose of protecting his interest. Therefore, the public interest requirement from the perspective of safeguarding the interest of all persons standing trial, is not compromised. On the other hand the public interest requirement from the perspective of enabling the investigation agency to investigate the crime against the society in order that the interest of the community to ensure that a culprit is traced and brought to book is also ·safeguarded. The argument inspired by the observations in Raj Narain's case [ 1975] 3 S.C.R. p. 333. and S.P. Gupta's case [ 1982] 2 S.C.R. p. 365 (at pp. 622, 624) in the context of claim for privilege in regard to section 123 of Evidence Act, which have no direct bearing, is also effectively answered in the light of the foregoing discussion as the 'Public Interest' aspect is also taken care of. In the ultimate analysis, it is not possible to sustain the plea of the petitioners, which is rooted in the mistrust of the court itself, that the provision is unreasonable and arbitrary. There is also another dimension of the issue. Section 172 embodies a composite scheme. The duty cast under Clause (1) and the rider added by Clause 1(3) thereof from integral part of the scheme. Clause (3) cannot be struck down in isolation whilst retaining Clause (1). The legislature in its wisdom has cast this obligation only subject to the rider. Clause (3) cannot be viewed in isolation. Under the circumstances, we concur with the view of the High Court and repulse the challenge. These are the reasons which impelled us to dismiss the petitions. N.V.K. Petitions dismissed.

pp. 529–530, margin G