Judgment:
ORDER
K.S. Lodha, J.
1. Petitioner Subhash Chandra, an accused in a criminal case, being refused permission to look into the case-diary during the cross-examination of Investigating Officer, in order to verify whether a particular note said to be appended to the diary as alleged by the Investigating Officer, was there or not, and for some such other entries in the said diary, has now challenged the vires of Section 172(3) of the Cr.P.C.
2. Section 172 of the Cr.P.C. reads as under:
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 145, as the case may be, of the Evidence Act, 1872 (1 of 1872), shall apply.
Sub-section (1) of this section provides how the police officer has to make entries from time to time and day by day during the course of his investigation. Sub-section (2) then provides that any criminal court may send for that diary and may use such diary not as evidence in the cases, but to aid it in the enquiry or trial. Then comes the crucial Sub-section (3), which is sought to be challenged in this writ petition. It debars the accused or his agents from calling for such diaries or being entitled to see them merely because they are referred to by the court, but if they are used by the police officer, who may have to refresh his memory, or if the court uses them for the purposes of contradicting such police officer, the provisions of Section 161 or Section 145, as the case may be, of the Evidence Act shall apply to such diaries.
3. learned Counsel for the petitioner has contended that for a proper enquiry or trial, the accused is entitled to know all those facts, which are necessary for proper trial or enquiry and for that purpose he should have an access to the diary so that whatever is relevant for his purpose, he may make use of it. In the second place, he urged that the secrecy of the diary from the accused does not serve any public purpose and it is also not in consonance with the provisions of Section 123 of the Evidence Act. In the connection, he placed reliance upon State of Uttar Pradesh v. Raj Narain : [1975]3SCR333 and S.P. Gupta v. President of India : [1982]2SCR365 I have given my careful consideration to the contentions of the learned Counsel for the petitioner, but am, as at present advised, unable to find anything in the said Sub-section (3) of Section 177, which may make it unconstitutional or void. As a matter of fact, Section 123 of the Evidence Act, is not at all relevant for the purpoes of considering whether Section 172(3) of the Criminal Procedure Code is unconstitutional or not, because these two provisions cater for two vary different situations and the purposes of the two sections are also different. 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 provisions of Sections 161 and 145 of the 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 because in a criminal trial or enquiry, whatever is sought to 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 right 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 something 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 any doubt about the veracity of the statement made by the Investigating Officer, he may always request the court to look into the diary and verify the facts and, thus, rights 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 document in question. 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.
4. When in the enquiry or trial, every thing 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 the cross-examination of 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 trial, I am clearly of the opinion, that the provisions under Section 172(3), Cr.P.C. cannot be said to be unconstitutional.
5. Inthesecircumstances,thewritpetition is rejected.