Judgment:
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2375 of 2016 --- Sanju Gupta, S/o late Lalan Prasad, Resident of House No. 167, Line No. 5, Kashidih Sakchi, P.O. & P.S. Sakchi, District-Singhbhum East. ....Petitioner Versus The State of Jharkhand. … Opposite Party --- CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY --- For the Petitioner : Mr. P.P.N. Roy, Sr. Advocate For the State : A.P.P. For the Informant : Mr. Niazi, Advocate --- 07/22.03.2017 Heard the parties. In this application, the petitioner has prayed for quashing of the order dated 28.9.2016, passed by the learned District & Sessions Judge-II, Jamshedpur, Singhbhum East in S.T. No. 280 of 2007, whereby and whereunder the application preferred by the petitioner to search out the original missing case diary along with the original documents has been rejected. A further prayer has been made for quashing of that part of the order dated 29.6.2008, by which the prosecution evidence has been ordered to be closed and the case has been fixed for examination of the petitioner and other accused persons under section 313 of Cr.P.C. It has been submitted by Mr. P.P.N. Roy, learned senior counsel for the petitioner that in the original case diary some relevant documents are available, which also include a letter issued by the Estate Officer, Jamshedpur Notified Area Committee. Learned senior counsel submits that Investigating Officer of the case namely Birendra Prasad Yadav who has been examined as P.W-36 had stated about the original case diary as well as the original documents getting traceless and since such documents goes to the foundation of the dispute and are most essential for disproving the case of the prosecution, the application preferred by the petitioner deserves to be allowed. Learned senior counsel on the second prayer made by the petitioner has stated that the learned court below could not have closed the prosecution case on account of the witnesses-Sanjay Kumar Singh and Jagdish Yadav having not been produced by the prosecution and the learned trial court should have awaited their presence before closing the prosecution case. It has thus been submitted that both the applications having been rejected by the -2- learned court below without considering the actual facts, the impugned order deserves to be quashed and set aside on both the counts. Countering the arguments advanced by the learned senior counsel for the petitioner, Mr. Niazi, learned counsel for the informant, has stated that there has been an inordinate delay for the petitioner to file the application to search out the original documents as the same has been done to delay the disposal of the trial. He further submits that there has been a case and counter case and so far as counter case is concerned, the evidence in the same has already been closed. Learned counsel further submits that the defence was aware about the original case diary missing since long but no objection was ever raised by the defence either before the trial or during the trial. Adverting to the second leg of argument advanced by the learned senior counsel for the petitioner, Mr. Niazi submits that the application of the prosecution was rejected with respect to production of two prosecution witnesses and the prosecution has never challenged the impugned order dated 28.9.2016 and in such circumstances therefore the petitioner cannot be permitted to step into the shoes of the prosecution. Learned counsel furthering his argument has stated that the defence can always produce those two witnesses as defence witnesses but the defence is refraining from producing those witnesses as they do not want them to be cross- examined by the prosecution. It has been stated that as per Section 172(3) of the Code of Criminal Procedure, the prosecution is not bound to give the case diary to the defence as it can only be used for the purpose of corroboration. Learned counsel thus submits that having considered section 172(3) of Cr.P.C. as well as Section 145 of the Evidence Act, learned trial court was justified in dismissing the application preferred by the petitioner as well as that by the prosecution and since the petitioner has made a deliberate attempt to delay the disposal of the trial, the present application is liable to be dismissed with exemplary costs. Before adverting to the submissions advanced by the learned counsel for the parties, it would be necessary to refer to the background facts leading to passing of the impugned order dated 28.9.2016. It appears that an application was preferred by the defence making reference to the deposition of the Investigating -3- officer that the original case diary along with the documents were found missing and therefore it was prayed to search out the original case diary as well as the documents since it was claimed that the defence case rests upon a letter issued by the Estate Officer, Jamshedpur Notified Area Committee. Apart from the aforesaid application preferred by the defence, the prosecution had also filed an application that in spite of best efforts being made by the prosecution, the witnesses-Sanjay Kumar Singh and Jagdish Yadav were not appearing and therefore necessary orders be passed. The application preferred by the defence was negated by the learned trial court on the ground that the same had been filed only to protract the trial. With respect to the application preferred by the prosecution, the prosecution evidence was closed since the same would allow protracting of the trial. Section 172 of the Code of Criminal Procedure deals with the Diary of proceedings in Investigation and Sub Section (3) of Section 172 reads as under:-
"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". Bare perusal of Section 172(3) would thus reveal the limited circumstance, in which the case diary can be called for or seen. Section 145 of the Evidence Act is with respect to the cross examination as to previous statement in writing. The value of evidence in the case diary and the related sections i.e. Section 172(3) of Cr.P.C. and Section 145 of the Evidence Act had came up for consideration in the case of Chandra Shekhar Rai Vs. State of Bihar & Others, wherein the Patna High Court by judgment dated 19.6.2013 held as follows:-
"2. The Hon?ble Supreme Court in the case of Malkiat Singh and others Vs. State of Punjab, reported in (1991) 4 SCC341has considered the value of evidence recorded by the police during investigation in the case diary and scope of cross- examination by the defence in context of recorded statement therein. The Court has considered at what situation the defence will have a liberty to put the question giving a situational fact in paragraph 11 which is as follows:
“11. 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 -4- officer to ascertain the statement of circumstances ascertained through the investigation. Under sub-section (2) the court is entitled at the trial or enquiry to use the diary not as evidence in the case, but as aid to it in the inquiry or trial. Neither the accused, nor his agent, by operation of sub-section (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 contradiction 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 re-examination 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. Neither P.W.5 nor P.W.6, nor the court used the case diary. Therefore, the free use thereof for contradicting the prosecution evidence is obviously illegal and it is inadmissible in evidence. Thereby the defence cannot place reliance thereon. But even if we were to consider the same as admissible that part of the evidence does not impinge upon the prosecution evidence.”
23. The Court has considered the similar question in the judgment of the Hon?ble Supreme Court in the case of Mahabir Singh Vs. State of Haryana, reported in (2001) 7 SCC148and has reiterated the same view as above in paragraph 14 of the judgment which is as follows: “A reading of the said sub-sections makes the position clear that the discretion given to the court to use such diaries is only for aiding the court to decide on a point. It is made abundantly clear in sub-section (2) itself that the court is forbidden from using the entries of such diaries as evidence. What cannot be used as evidence against the accused cannot be used in any other manner against him. If the Court uses the entries in a case diary for contradicting a police officer it should be done only in the manner provided in section 145 of the Evidence Act i.e. by giving the author of the statement an opportunity to explain the contradiction, after his attention is called to that part of the statement which is indented to be so used for contradiction. In other words, the power conferred on the Court for perusal of the diary under Section 172 of the Code is not intended for explaining a contradiction which -the defence has winched to the fore through the channel permitted by law. The interdict contained in section 162 of the Code, debars the court from using the power under Section 172 of the Code for the purpose of explaining the contradiction.”
24. In the recent judgment the Hon?ble Supreme Court in the case of R. Shaji Vs. State of Kerala, reported in 2013 (2) PLJR145SC has held that evidence given in a court under oath has great sanctity, that is why the same is called substantive evidence. The statements under Section 161 of the Code can be used for the purposes of contradiction whereas statement recorded under section 164 of the Code can be used for both corroboration and contradictory. It will be relevant to quote paragraph nos. 14 and 16 of the aforesaid Judgment:
“14. Evidence given in a court under oath has great sanctity, which is why the same is called substantive evidence. Statements under Section 161 Cr.P.C. can be used only for the purpose of contradiction and statements under Section 164 -5- Cr.P.C. can be used for both corroboration and contradiction. In a case where the Magistrate has to perform the duty of recording a statement under Section 164 Cr.P.C., he is under an obligation to elicit all information which the witness wishes to disclose, as a witness who may be an illiterate, rustic villager may not be aware of the purpose for which he has been brought, and what he must disclose in his statements under Section 164 Cr.P.C.. Hence, the Magistrate should ask the witness explanatory questions and obtain all possible information in relation to the said case.
16. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 Cr.P.C., can be relied upon for the purpose of corroborating statements made by witnesses in the Committal Court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 Cr. P.C., such statements cannot be treated as substantive evidence.”
25. On analysis of the aforesaid judgments the following principle emerges that the statement recorded by the police during the investigation can not be used as a evidence either at the trial or enquiry neither by the accused nor his agent or prosecution. If the Police Officer who made entries in the diary uses to refresh his memory or if the court uses it for the purpose of contradiction such witness, by operation of section 161 of the Code and Section 145 of the evidence Act, it may be used from the side of accused for the purpose of showing contradiction to the witness, including Investigating Officer with a liberty to explain it in re-examination by the prosecution, with permission of the court. So it is clear statement recorded by the police in case diary cannot be used as an evidence except for showing contradiction drawing attention to his earlier statement." It was thus held that if the entries in the diary are used for refreshing the memory of the concerned police officer or if the court uses it for the purpose of contradictions of such witness, same may be used from the side of the accused. Therefore the statements recorded under section 161 Cr.P.C. can be used only for the purpose of contradictions. Judicial Pronouncement, referred to above, and seen in the context of the provisions of Section 172(3) of Cr.P.C. and Section 145 of the Evidence Act would make it clear that the defence had no absolute right to pray for production of the documents/communications of Jamshedpur Notified Area Committee. Moreover the plea which had been taken by the defence was available to it through out and such belated prayer casts suspicion about the deliberate and delaying tactics adopted by the defence. Having answered the first submission advanced by the learned senior counsel for the petitioner in the negative, the second leg of argument is being taken up for consideration in the subsequent paragraphs. -6- Learned senior counsel for the petitioner has vehemently stated about necessity of examination of Sanjay Kumar Singh and Jagdish Yadav and that the learned trial court had not given sufficient time for the prosecution to produce those witnesses. Supporting his contention, learned senior counsel for the petitioner has referred to certain judgements, which are noted hereinbelow:- (A) T. Nagappa Vs. Y.R. Muralidhar, reported in 2008(3) East Cr. C60SC). (B) Ganesh Ram @ Ganesh Chamar Vs. State of Bihar reported in 1989 East Cr C542Pat) (C) K Chinnaswamy Reddy Vs. State of Andhra Pradesh reported in AIR1962SC1788 In the case of T.Nagappa (Supra), it was held that the accused has a right to fair trial and to adduce evidence in his defence and should be allowed to seek assistance of the Court for summoning of the witnesses. In the case of Ganesh Ram @ Ganesh Chamar(supra), it was held that the duty of the court is to enforce attendance of the witnesses even by coercive steps measures and merely because the prosecution could not produce the witnesses, that by itself cannot be a ground to acquit the accused persons. Relevant paragraphs in support of the contention of learned senior counsel for the petitioner are quoted herein below:- 24. It appears that in spite of efforts by the prosecution as well as the court neither the doctors nor the investigating officers appear. At times the prosecution as well as the court become a silent spectator of the drama where the doctor and the investigating officer do not appear for reasons best known to them. The courts go on giving dates after dates lingering the case and later becoming helpless and disgusted due to their non-appearance, with the result that the prosecution case is closed or accused is acquitted causing prejudice to the accused as well as the prosecution accordingly. But the law is not helpless. 25 In the old Criminal Procedure Code Sub-sec. (2) of Sec. 252 provided that in cases started otherwise than on police report the witnesses could be summoned by the court on report by the prosecution. There was no provision for the cases instituted on police report. The amending Act No. 26 of 1955 introduced Sec. 251-A for the purposes of warrant cases. Its object was to ensure speedy and expeditious trial either ending in acquittal or conviction. In the case of Smt. Joytimoyee Bose V/s. Birendernath Prodhan -- it was said that Sec. 251-A(6) does not enjoin upon the magistrate to compel the attendance of any witness unless it was applied for and that in a case tried under Sec. 251-A, the magistrate is not compelled he is (sic) the case is tried as a warrant case instituted other than on the police report to proceed in terms -7- of Secs. 256 and 257 of Cr.P.C. But the Allahabad High Court in the case of State V/s. Ram Lal 1961(2) CrLJ331observed that under Sec. 251A, no power has been given to the court to ask for the issue of summons and compel the attendance of prosecution witnesses and so the section does not authorise the magistrate to issue summons. However in the case of State of Orissa V/s. Sib Charan Singh -- it was observed that the court was not absolutely powerless when the parties fail to produce evidence relevant in a case, the court has a very wide powers and the court may, at any stage of a proceeding, summon any witness in order to determine the truth or otherwise of the facts of a case under trial before it. In fact, it is one of the duties of the court to summon to enforce the attendance of the witnesses even by coercive measures and merely because the prosecution could not produce the witnesses before that court, that by itself cannot be a ground to acquit the accused persons and the provisions of Sec. 251-A do not mean that it is only the prosecution which is saddled with the responsibility for producing the witnesses. Rather it is the duty of the court also to enforce the attendance of the witnesses as provided under the Code. In the case of State of Bihar V/s. Pali Mistry -- it was also observed that the provisions of Sec. 251-A are taken to mean that it is the sole duty of the prosecution to produce the witnesses in support of its case. The prosecutor either produce the witnesses through its own agency or at times secure their attendance in court through the agency of the court. If prosecution undertakes to produce the witnesses then it becomes its entire responsibility, But when the prosecutor takes recourse to the agency of the court then it becomes the duty of the -- magistrate to take steps for securing the attendance of the witnesses in the court and so the magistrate can take step to compel their attendance as provided under Sec. 90(b) of the Code. In the case of State V/s. Narashima Godwa (1965) 2 CrLJ48the prosecution was given the last opportunity after several adjournments to produce witnesses, yet witnesses were not produced and there was nothing to show as to what happened to the summons issued earlier, whereupon the magistrate acquitted the accused under Sec. 251-A (ii) of the old Code holding that there was no evidence against the accused. It was held that after the issue of the summons, the magistrate was required to enquire about the non-return or non-service of the summons. He was also then required to secure the attendance of witnesses, if there was no fault or remisness by the prosecution, Just as law requires the State to prosecute the offender similarly law requires the court to see that justice was done by a fair and speedy trial. In the case of State V/s. Nand Kishore -- , it was observed: Para 7. Ordinarily, the witnesses should be bound over by recognisances to appeal and give evidence in the matter of the charge against the accused at the trial by Police Officers (Sec. 170(2) CrPC). In case they fail to appear the court can issue a warrant against them to secure their attendance (Sec. 92 CrPC). But difficulty arises in cases where no such recognisances are taken by the police officers from the witnesses and the prosecutor finds himself unable to produce them and applies to the court to issue summons to them. Can the Court refuse to do it in such a situation is the real question? .There is no provision in the Code which empowers the prosecutor to secure the attendance of witnesses through his own agency after the case has gone to the court. The only course therefore, left to him is to apply to the court to issue summonses to the witnesses for their attendance. There is nothing in Sec. 251-A(7) which precludes the court from issuing summonses to the witnesses if so required by the prosecution. The word "produced" in Sub-sec. (7) includes the bringing forward of the witnesses by the prosecution at its -8- own instance or through the process of the court whom it desires to examine at the trial. Similar view was taken in -- and. ... However, in my view, Sec. 251-A does not in any way limit the general powers of a court to issue summons to witnesses if such request is made on behalf of the prosecution. Para 8. Looking to the Scheme of Sec. 251-A it is clear that the stage of passing an order of acquittal under Sub-sec. (11) is reached only when compliance with the other Sub-sections i.e. (8), (9) and (10) has been made. Under Sec. 251-A the Magistrate can discharge the accused if after perusing the documents referred to in Sec. 173 he finds the charge to be groundless. But in case he finds that there is ground for presuming that the accused has committed an offence he has to frame a charge against the accused. It would be defeating justice if in cases where a charge has been framed against the accused by the Magistrate, he is to be acquitted merely on this ground that the prosecution has failed to produce any evidence in the case. The Magistrate should not feel himself helpless in such situation and should exercise his inherent powers under Sec. 540 of the Code to summon such witnesses as he thinks necessary for the ends of justice. If the prosecution by its responsibility in producing witnesses it is incumbent upon the courts to examine such witnesses as it considers necessary in the ends of justice. I am supported in this view by the following decisions in -- and 1961(2) Cr.L.J.
92 (Ker). I am, therefore, of the view that Sec. 251-A does not limit the powers of the Magistrate to issue process to the witnesses for their attendance if such request is made on behalf of the prosecution and secondly if the prosecution -does not produce any witnesses it is the duty of the court to examine such witnesses as are necessary for the ends of justice before proceeding to act under Sub-sec. (11). The order of acquittal passed without examining any witnesses in the case in my opinion, is not warranted by Sub-sec. (11) of Sec. 251A. In the case of State of Mysore V/s. Ramu B. 1973 Cr.L.J.
1257 the Court held that having regard to the provisions of Sub-sec. (7) to Sec. 251-A of the Code the entire responsibility of the production of the witnesses cannot be saddled on the prosecution. A duty is cast on the court also to take coercive steps. In the case of State V/s. Mangilal 1974 CrLJ221a Division Bench of this Court observed: The correct position of law in this regard is that in a warrant case instituted on police report, the primary duty is of the prosecution to produce witnesses; but since the prosecution which is the State or the Public Prosecutor has no power on machinery to compel attendance of the witnesses, it is fully justified in seeking the help of the Court for their production. Help of the Court may be asked for by praying to the Court to issue summonses to the prosecution witnesses. If after service of summons a witness does not appear, the prosecution may ask the Court to issue warrant of arrest. But unless such a prayer is made, it is not the duty of the Court either to issue any summons to the prosecution witnesses or to issue warrant of arrest if a prosecution witness does not appear even after service of summons. I must hasten to add that there is a difference between "power of a Court and duty of a Court. Even if the prosecution does not make a prayer for issue of summons or for issue of warrant of arrest in a given case, the power is there as some of the cases have said, under the general powers of the Court, meaning thereby the inherent power of the Court, or such power to issue summonses may be spelt out under Sec. 450 of the Code and the power to issue warrants of arrest is surely thereunder Sec. 90 of the Code. It may be exercised suo motu or may be exercised on being asked to do so. But then to say that event if the prosecution is -9- negligent or does not make a prayer to issue warrants of arrest, it is imperative for the Court to follow suo motu the prosecution witnesses like a prosecutor, to say the least is not justified. It is also not correct to say that it is not the duty of the Court to issue summons or warrant of arrest when the prosecution asks the Court to do so. But ordinarily and generally, unless there are special reasons to refuse the prayer, it is the duty of the Court, meaning thereby, it is imperative for the Court to allow the prayer of the prosecution to issue summons or to issue warrant of arrest, as the case may be. The Court may refuse to do so, if it finds that the prosecution is guilty of remissness or laches. But then the Court cannot refuse this prayer merely because Sub-sec. (7) Sec. 251-A does not provide for this.
6. If on the facts and the circumstances of a case the Court finds that the prosecution has not been able to produce its witnesses even if the helping hands of the Court were extended to it, then it is justified, rather it will be its duty in a hard case where the accused has been harassed to attend the Court on many dates, to close the prosecution with law as provided in various sub-sections of Sec. 251-A after Sub-sec. (7)." In the case of K. Chinnaswamy Reddy (Supra), it was held that the evidence which the prosecution wanted to produce cannot be shut out by the learned trial court. The common thread, which runs through the judgement in the case of T. Nagappa (Supra) and Ganesh Ram @ Ganesh Chamar (supra) is that the accused cannot be allowed to unnecessarily protract the trial and that law requires the Court to see that justice was done by a fair and speedy trial. So far as the case of Chandra Shekhar Rai (supra) is concerned, same deals with the production of the prosecution witnesses, which the Court cannot shut out. In the case at hand, the application preferred by the prosecution was to pass necessary orders in view of the fact that in spite of taking all effective measures, the prosecution had failed to produce two of its witnesses namely Sanjay Kumar Singh and Jagdish Yadav. The Court having found sufficient efforts taken by the prosecution bearing no fruit had closed the prosecution evidence and had fixed the case for examination of the accused under section 313 Cr.P.C. It would be relevant to note that the prosecution had refrained from challenging the impugned order but the defence has very dexterously and assiduously camouflaged the prayer of the prosecution to suit its own cause. Lifting of the veil would clearly reveal such intention, which can best be described as tactics adopted by the defence to protract the trial. The evidence in the cross case has been closed. The trial in the present case is also on the verge of closure. A decade has passed in the meantime and the defence is taking efforts to prolong the trial. Learned trial court has correctly -10- uncovered the intention of the defence while rejecting the application of the defence as well as closing the prosecution case. No error has been caused by the learned trial court in passing the impugned order dated 28.9.2016 and such circumstance, therefore, does not necessitate any interference by this Court in the impugned order. Consequent to what has been discussed above, this application fails and the same is accordingly dismissed. (Rongon Mukhopadhyay,J) Rakesh/