Case Diary 1

Punjab-Haryana High CourtSh. Vijay Kumar Chopra And Others vs Sheetal Viz on 8 December, 2011CRM No. M-37042 of 2011 (O&M) -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CRM No. M-37042 of 2011 (O&M) Date of decision: 08.12.2011

Sh. Vijay Kumar Chopra and others ....Petitioners Versus

Sheetal Viz ....Respondent

CORAM: HON'BLE MR. JUSTICE ALOK SINGH

Present: - Mr. Puneet Jindal, Advocate, for the petitioners.

1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest?

*****

ALOK SINGH, J (ORAL) Accused/petitioners have invoked jurisdiction of this Court under Section482 Cr.P.C. assailing the order dated 19.9.2011 whereby learned trial Court de-exhibited case diary,which was earlier exhibited as DW10/F.

Brief facts inter alia are that respondent herein filed a private complaint for offences punishableunder Sections 500, 501, 502 IPC. Accused were summoned to face trial by learned Magistrate.Accused have examined number of witnesses, including Sh. Rajesh Kumar, Deputy Superintendentof Police, who at the relevant time was posted as Inspector-SHO Police Station Sadar, Hamirpur. Sh.Rajesh Kumar, DSP, defence witness, has tendered/produced case diary before the Court in thepresent case, which was exhibited as DW10/F subject to the objections. Complainant has moved anapplication requesting de- CRM No. M-37042 of 2011 (O&M) exhibiting DW10/F stating that casediary maintained by the police under Section 172 Cr.P.C. cannot be read in evidence except for thepurpose for contradicting a witness. Learned Magistrate, while placing reliance on the judgment ofHon'ble Apex Court in the case of Md. Ankoos and others Vs. The Public Prosecutor, High Court ofA.P., AIR 2010 Supreme Court 566, having observed that case diary cannot be read as piece ofevidence directly or indirectly, allowed the application directing the de-exhibiting DW10/F.

I have heard Mr. Puneet Jindal, learned counsel for the petitioners at length and have perused therecord.

Sh. Vijay Kumar Chopra And Others vs Sheetal Viz on 8 December, 2011

Indian Kanoon - http://indiankanoon.org/doc/3318351/ 1

Mr. Puneet Jindal, learned counsel for the petitioners, has vehemently argued that this case diarywas prepared by Sh. Rajesh Kumar, defence witness, when he was posted as Inspector SHO, P.S.Sadar, Hamirpur, in a case registered against Sh. Gaurav Kapoor. To prove that news item publishedby the accused/petitioners in Punjab Kesri daily edition dated 29.5.2006 was on the basis ofcontents of the case diary being maintained by Investigating Officer and no false, frivolous,defamatory news was published by the petitioners, petitioners have produced Rajesh Kumar, DSP,the them Inspector, Investigating Officer, in a defence evidence. Learned counsel has further arguedthat case diary pertaining to another criminal case can be produced in a subsequent case and barunder Section 172 Cr.P.C. shall not come in the way. He has placed reliance on the judgment of theHon'ble Apex Court in the case of State of Kerala Vs. Babu, 1999(2) RCR (Criminal) 662 : 1999(4)SCC 621. Learned counsel further argued that once case diary was exhibited, rightly or wrongly, thequestion about the admissibility of CRM No. M-37042 of 2011 (O&M) the case diary in evidence orthe question as to whether case diary can be read as substantive evidence in a subsequentproceeding, should be left to be decided at the final disposal of the trial and learned Magistrateought not to have allowed the application de-exhibiting the case diary.

Hon'ble Apex Court in the case of Md. Ankoos (supra) in paragraph No.24 has observed as under: -

"24. A criminal court can use the case diary in the aid of any inquiry or trial but not asan evidence. This position is made clear by Section 172(2) of the Code. Section 172(3)places restrictions upon the use of case diary by providing that accused has no rightto call for the case diary but if it is used by the police officer who made the entries forrefreshing his memory or if the Court uses it for the purpose of contradicting suchpolice officer, it will be so done in the manner provided in Section 161 of the Code andSection 145 of the Evidence Act. Court's power to consider the case diary is notunfettered. In light of the inhibitions contained in Section 172 (2), it is not open tothe Court to place reliance on the case diary as a piece of evidence directly orindirectly. This Court had an occasion to consider Section 172 of the Code vis-à-visSection145 of the Evidence Act and Section 162 of the Code in the case of MahabirSingh v. State of Haryana (2001 AIR SCW 2757) and it was stated as follows:

"14. A reading of the said sub-sections makes the position clear that the discretiongiven 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 fromusing the entries of such diaries as evidence. What cannot be used as evidence againstthe accused cannot be used in any other manner against him. If the court uses theentries in a case diary for contradicting a police officer it should be done only in themanner provided in Section 145 of the Evidence Act i.e. by giving the author of thestatement an opportunity to explain the contradiction, after his attention is called tothat part of the statement which is intended to be so used for contradiction. In otherwords, the power conferred on the court for perusal of the diary under Section 172 ofthe Code is not intended for explaining a contradiction which the defence haswinched to the fore through the channel permitted by law. The interdict contained inSection 162 of the Code, debars the court from using the power under CRM No.



M-37042 of 2011 (O&M) Section 172 of the Code for the purpose of explaining thecontradiction."

Hon'ble Apex Court in the case of State of Kerala (supra) in paragraphs No.12, 13 and14 has observed as under: -

"12. The High Court in the impugned judgment proceeded on the basis that astatement recorded by an investigating officer in any case which was underinvestigation, being a statement made under Section 161 of the Code, the same can beused for the limited purpose provided under Section 162 of the Code read withSection 145 of the Evidence Act. There can be no quarrel with this approach of theHigh Court in regard to the use of the previous statements of a witness made in thecourse of another investigation being used in the course of another criminal trial.This is because, as seen from the observations of this Court in the case of TahsildarSingh (supra), the very object of enactment of Section 161 of the Code and Section 145of the Evidence Act is to create a right in the accused to make use of the previousstatements of the witnesses for the purpose of contradiction and for impeaching themerit of the witness. This right has not been taken away by Section 172 of the Codeand, as noticed above, there is no prohibition in regard to this right of the accusedeither under the Code or under the Evidence Act. But the question for considerationis, how does the accused exercise this right with reference to a previous statement ofa witness made in another case which is recorded by the investigating officer in thatcase under the provisions of Section 161 of the Code. In our opinion, this rightcertainly does not flow under Section 172 of the Code nor is the accused entitled tothese previous statements under Section 207 of the Code. But, this does not meanthat the accused is denied of his limited benefit of using the said previous statementsrecorded during the course of another investigation. The answer to this question, inour considered view, lies in Section 91(1) of the Code which reads thus :

"91. Summons to produce document or other thing.- (1) Whenever any Court or anyofficer in charge of a police station considers that the production of any document orother thing is necessary or desirable for the purposes of any investigation, inquiry,trial or other proceeding under this Code by or before such Court or officer, suchCourt may issue a summons, or such officer a written order, to the person in whosepossession or power such document or thing is believed to be, requiring him toattend and produce it, or to produce it, at the time and place stated in the CRM No.M-37042 of 2011 (O&M) summons or order.

(2) Any person required under this section merely to produce a document or otherthing shall be deemed to have complied with the requisition if he causes suchdocument or thing to be produced instead of attending personally to produce thesame.

(3) Nothing in this section shall be deemed ---



(a) to affect Sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or theBankers Books Evidence Act, 1891 (13 of 1891), or

(b) to apply to a letter, postcard, telegram or other document or any parcel or thing inthe custody of the postal or telegraph authority."

13. The language of Section 91 is much wider than the language of Section 172 and by no stretch ofimagination it could be contended that the case diary maintained under Section 172 of the Code isnot a document as contemplated under Section 91(1) of the Code. If that be so and if the court comesto the conclusion that the production of such document is necessary or desirable then, in ouropinion, the court is entitled to summon the case diary of another case under Section 91 of the Codede hors the provisions of Section 172 of the Code for the purpose of using the statements made in thesaid diary, for contradicting a witness. When a case diary, as stated above, is summoned underSection 91 (1) of the Code then the restrictions imposed under sub- sections (2) and (3) of Section172 would not apply to the use of such case diary but we hasten to add that while using a previousstatement recorded in the said case diary, the court should bear in mind the restrictions imposedunder Section 162 of the Code and Section 145 of the Evidence Act because what is sought to be usedfrom the case dairy so produced, are the previous statements recorded under Section 161 of theCode.

14. In this view of the matter, in our opinion, a case diary of another case, notpertaining to the trial in hand can be summoned if the court trying the case considersthat production of such a case diary is necessary or desirable for the purpose of trial,under Section 91 of the Code."

From the dictum of Hon'ble Apex Court in the case of Md.

Ankoos (supra) as well as State of Kerala (supra) it is, thus, clear that a case diary cannot beproduced and read in evidence and accused as no right to call for the case diary, however, if it isused by the police officer, CRM No. M-37042 of 2011 (O&M) who made entries for refreshing hismemory or if the Court uses it for the purpose of contradicting such police officer, it will be so donein the manner provided in Section 161 Cr.P.C. and Section 145 of the Evidence Act. It is not open tothe Court to place reliance on the case diary as a piece of evidence directly or indirectly. Case diaryof another case, not pertaining to the present trial, can be summoned by the Court if Court considersthat production of such diary is necessary or desirable for the purpose of trial under Section 91Cr.P.C.

In the present case, Gaurav Kapoor, who was accused in the previous case, is not an accused. In thepresent case, Rajesh Kumar, DSP, is not an Investigating Officer. In the present case, DSP wassummoned as a defence witness to prove that he has made certain entries in the case diary and onthe basis of those entries news item in question was published by the accused/petitioners in thePunjab Kesri daily edition dated 29.5.2006.



In the opinion of this Court, since case diary cannot be read in evidence, except for the purpose ofSection 145 of the Evidence Act, therefore, it cannot be exhibited. If Court has wrongly exhibited it,Court has ample power to de-exhibit the same.

Mr. Puneet Jindal, learned counsel for the petitioners, while placing reliance on the judgment ofHon'ble Apex Court in the case of Bipin Shantilal Panchal Vs. State of Gujarat and another, AIR2001 Supreme Court 1158, has argued that the question as to whether case diary was rightlyexhibited ought to have been left to be decided at the final stage and application for de-exhibitingthe same should have not been entertained during the trial.

CRM No. M-37042 of 2011 (O&M) Hon'ble Apex Court in the case of Bipin Shantilal (supra) inparagraphs No.12, 13 and 14 has observed as under: -

"12. It is an archaic practice that during the evidence collecting stage, whenever anyobjection is raised regarding admissibility of any material in evidence the court doesnot proceed further without passing order on such objection. But the fall out of theabove practice is this: Suppose the trial court, in a case, upholds a particularobjection and excludes the material from being admitted in evidence and thenproceeds with the trial and disposes of the case finally. If the appellate or revisionalcourt, when the same question is re- canvassed, could take a different view on theadmissibility of that material in such cases the appellate court would be deprived ofthe benefit of that evidence, because that was not put on record by the trial court. Insuch a situation the higher court may have to send the case back to the trial court forrecording that evidence and then to dispose of the case afresh. Why should the trialprolong like that unnecessarily on account of practices created by ourselves. Suchpractices, when realised through the course of long period to be hindrances whichimpede steady and swift progress of trial proceedings, must be recast or re-mouldedto give way for better substitutes which would help acceleration of trial proceedings.

13. When so recast, the practice which can be a better substitute is this: Whenever anobjection is raised during evidence taking stage regarding the admissibility of anymaterial or item of oral evidence the trial court can make a note of such objection andmark the objected document tentatively as an exhibit in the case (or record theobjected part of the oral evidence) subject to such objections to be decided at the laststage in the final judgment. If the court finds at the final stage that the objection soraised is sustainable the judge or magistrate can keep such evidence excluded fromconsideration. In our view there is no illegality in adopting such a course. (However,we make it clear that if the objection relates to deficiency of stamp duty of adocument the court has to decide the objection before proceeding further. For allother objections the procedure suggested above can be followed.)

14. The above procedure, if followed, will have two advantages. First is that the timein the trial court, during evidence taking stage, would not be wasted on account ofraising such objections and the court can continue to examine the witnesses. The



witnesses need not wait for long hours, if not days. Second is that the superior court,when the same objection is re-canvassed and reconsidered in appeal or revisionagainst the final judgment of the trial court, can determine the correctness of theview taken by the trial court CRM No. M-37042 of 2011 (O&M) regarding thatobjection, without bothering to remit the case to the trial court again for freshdisposal. We may also point out that this measure would not cause any prejudice tothe parties to the litigation and would not add to their misery or expenses."

It is true that whenever question arises about the admissibility of the evidence,ordinarily it should not be decided during the trial because it causes undue delay andshould be left to be decided at the final stage of the trial, however, there is a caveat toit. Undisputedly, case diary cannot be produced and read in evidence, then thequestion, as to whether it was rightly exhibited or not, should be left to be decided atthe final stage seems to be unjustified. Moreover, only on the ground that question ofde-exhibiting the case diary should be decided at the final stage does not mean thatorder impugned de-exhibiting the case diary should be set aside. De-exhibition, onthe facts of the case, is found to be correct, therefore, no interference is called for.

Dismissed.

(Alok Singh) Judge December 08, 2011 R.S.



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