ition Nos 5670 and 6216 of 1980
Under Article 32 of the Constitution Mrs K Hingorani Mr Hingorani Mukul Mudgal and Damodar Prakash for the Petitioners
K G Bhagat and D Goburdhan for the Respondent
Miss A Subhashini for the Union of India
The Order of the Court was delivered by BHAGWATI J
The question which arises before us for consideration is whether certain documents called for by the Court by its order dated 16th February 1981 are liable to be produced by the State or their production is barred under some provision of law
The documents called for are set out in the order dated 16th February 1981 and they are as follows 1
the CID report submitted by LV Singh DIG CID Anti Dacoity on December 9 1980 2
the CID reports on all the 24 cases submitted by LV Singh and his associates between January 10 and January 20 1981 3
the letters number 4R dated 3rd January 1981 and number 20R dated 7th January 1981 from LV Singh to the IG Police 4
the files containing all correspondence and notings exchanged between LV Singh DIG and MK Jha Additional IG regarding the CID inquiry into the blindings and 5
the file presently in the office of the IG SK Chatterjee containing the reports submitted by Inspector and Sub Inspector of CID to Gajendra Narain DIG Bhagalpur on 18th July or thereabouts and his letter to KD Singh SP CID Patna which has the hand written observations of MK Jha
The State has objected to the production of these documents on the ground that they are protected from disclosure under Sections 162 and 172 of the Code of Criminal Procedure 1973 and the petitioners are not entitled to see them or to make any use of them in the present 150 proceeding
This contention raises a question of some importance and it has been debated with great fervour on both sides but we do not think it presents any serious difficulty in its resolution if we have regard to the terms of Sections 162 and 172 of the Criminal Procedure Code on which reliance has been placed on behalf of the State
We will first consider the question in regard to the reports submitted by Sh
LV Singh Deputy Inspector General CID Anti Dacoity on 9th December 1980 and the reports submitted by him and his associates Sh
RR Prasad SP Anti Dacoity and Smt
Manjuri Jaurahar SP Anti Dacoity between 10th and 20th January 1981
These reports have been handed over to us for our perusal by Mr KGBhagat learned advocate appearing on behalf of the State and it is clear from these reports and that has also been stated before us on behalf of the State that by an order dated 28 29th November 1980 made by the State Government under Section 3 of the Indian  Sh
LV Singh was directed by the State Government to investigate into 24 cases of blinding of under trial prisoners and it was in discharge of this official duty entrusted to him that he with the assistance of his associates Sh
RR Prasad and Smt
Manjuri Jaurahar investigated these cases and made these reports
These reports set out the conclusions reached by him as a result of his investigation into these cases
The question is whether the production of these reports is hit by Sections 162 and 172 of the Criminal Procedure Code
It may be pointed out that these are the only provisions of law under which the State resists production of these reports
The State has not claimed privilege in regard to these reports under Section 123 or Section 124 of the Indian Evidence Act
All that is necessary therefore is to examine the applicability of Sections 162 and 172 of the Criminal Procedure Code in the present case
Before we refer to the provisions of Sections 162 and 172 of the Criminal Procedure Code it would be convenient to set out briefly a few relevant provisions of that Code
Section 2 is the definition Section and clause g of that Section defines Inquiry  to mean every inquiry other than a trial conducted under this Code by a Magistrate or Court
Clause h of Section 2 gives the definition of investigation  and it says that investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person other than a Magistrate who is authorised by a Magistrate in this behalf
Section 4 provides 151 4 1 All offences under the Indian Penal Code shall be investigated inquired into tried and otherwise dealt with according to the provisions hereinafter contained
2 All offences under any other law shall be investigated inquired into tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner or place of investigating inquiring into trying or otherwise dealing with such offences
It is apparent from this Section that the provisions of the Criminal Procedure Code are applicable where an offence under the Indian Penal Code or under any other law is being investigated inquired into tried or otherwise dealt with
Then we come straight to Section 162 which occurs in chapter XII dealing with the powers of the Police to investigate into offences
That Section so far as material reads as under 162 1 No statement made by any person to a police officer in the course of an investigation under this chapter shall if reduced to writing be signed by the person making it nor shall any such statement or any record thereof whether in a police diary or otherwise or any part of such statement or record be used for any purpose save as hereinafter provided at any inquiry or trial in respect of any offence under investigation at the time when such statement was made Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid any part of his statement if duly proved may be used by the accused and with the permission of the Court by the prosecution to contradict such witness in the manner provided by section 145 of the  and when any part of such statement is so used any part thereof may also be used in the re examination of such witness but for the purpose only of explaining any matter referred to in his cross examination
2 Nothing in this section shall be deemed to apply to any statement falling within the provisions of claues1 152 of section 32 of the  or to affect the provisions of section 27 of that Act
 It bars the use of any statement made before a police officer in the course of an investigation under chapter XII whether recorded in a police diary or otherwise but by the express terms of the Section this bar is applicable only where such statement is sought to be used at any inquiry or trial in respect of any offence under investigation at the time when such statement was made 
If the statement made before a police officer in the course of an investigation under chapter XII is sought to be used in any proceeding other than an inquiry or trial or even at an inquiry or trial but in respect of an offence other than that which was under investigation at the time when such statement was made the bar of Section 162 would not be attracted
This section has been enacted for the benefit of the accused as pointed out by this Court in Tehsildar Singh and Another vs The State of Uttar Pradesh1 it is intended to protect the accused against the user of statements of witnesses made before the police during investigation at the trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence This Court in Tehsildar Singh s case approved the following observations of Braund J in Emperor vs Aftab Mohd Khan2 As it seems to us it is to protect accused persons from being prejudiced by statements made to police officers who by reason of the fact that an investigation is known to be on foot at the time the statement is made may be in a position to influence the maker of it and on the other hand to protect accused persons from the prejudice at the hands of persons who in the knowledge that an investigation has already started are prepared to tell untruths and expressed its agreement with the view taken by the Division Bench of the Nagpur High Court in Baliram Tikaram Marathe vs Emperor3 that the object of the section is to protect the accused both against overzealous police officers and untruthful witnesses
 Protection against the use of statement made before police during investigation is therefore granted to the accused by providing that such statement shall not be allowed to be used except for the limited purpose set out in the proviso to the section at any inquiry or trial in respect of the offence which was under in 153 vestigation at the time when such statement was made
But this protection is unnecessary in any proceeding other than an inquiry or trial in respect of the offence under investigation and hence the bar created by the section is a limited bar
It has no application for example in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution and a statement made before a police officer in the course of investigation can be used as evidence in such proceeding provided it is otherwise relevant under the 
There are a number of decisions of various High Courts which have taken this view and amongst them may be mentioned the decision of Jaganmohan Reddy J in Malakalaya Surya Rao vs Janakamma1 The present proceeding before us is a writ petition under Article 32 of the Constitution filed by the petitioners for enforcing their Fundamental Rights under Article 21 and it is neither an inquiry nor a trial in respect of any offence and hence it is difficult to see how section 162 can be invoked by the State in the present case
The procedure to be followed in a writ petition under Article 32 of the Constitution is prescribed in order XXXV of the Supreme Court Rules 1966 and sub rule 9 of Rule 10 lays down that at the hearing of the rule nisi if the court is of the opinion that an opportunity be given to the parties to establish their respective cause by leading further evidence the court may take such evidence or cause such evidence to be taken in such manner as it may deem fit and proper and obviously the reception of such evidence will be governed by the provisions of the 
It is obvious therefore that even a statement made before a police officer during investigation can be produced and used in evidence in a writ petition under Article 32 provided it is relevant under the and section 162 cannot be urged as a bar against its production or use
The reports submitted by Shri LV Singh setting forth the result of his investigation cannot in the circumstances be shut out from being produced and considered in evidence under section 162 even if they refer to any statements made before him and his associates during investigation provided they are otherwise relevant under some provision of the 
We now turn to section 172 which is the other section relied upon by the State
That section reads as follows 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 investi 154 gation 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 section 145 as the case may be of the 1 of 1872 shall apply
The first question which arises for consideration under this section is whether the reports made by Shri LV Singh as a result of the investigation carried out by him and his associates could be said to form part of case diary within the meaning of this section
The argument of Mrs Hingorani and Dr Chitale was that these reports did not form part of case diary as contemplated in this section since the investigation which was carried out by Shri LV Singh was pursuant to a direction given to him by the State Government under section 3 of the Indian  and it was not an investigation under Chapter XII of the Criminal Procedure Code which alone would attract the applicability of section 172
Mrs Hingorani sought to support this proposition by relying upon the decision of this Court in State of Bihar vs JAC Saldhana1 Mr KG Bhagat learned counsel appearing on behalf of the State however submitted that even though Shri LV Singh carried out the investigation under the direction given by the State Government in exercise of the power conferred under section 3 of the Indian  the investigation carried out by him was one under Chapter XII and section 172 was therefore applicable in respect of the reports made by him setting out the result of the investigation
He conceded that it was undoubtedly laid down by this Court in State of Bihar vs JAC Saldhana supra that the State Government has power to direct investigation or further investigation under section 3 of the 155 Indian  but contended that it was equally clear from the decision in that case that power to direct investigation or further investigation is entirely different from the method and procedure of investigation and the competence of the person who investigates He urged that section 36 of the Criminal Procedure Code provides that police officers superior in rank to an officer in charge of a police station may exercise the same powers throughout the local area to which they are appointed as may be exercised by such officer within the limits of his station and Shri LV Singh being the Deputy Inspector General of Police was superior in rank to an officer incharge of a police station and was therefore competent to investigate the offences arising from the blinding of the under trial prisoners and the State Government acted within its powers under section 3 of the Indian in directing Shri LV Singh to investigate into these offences
But the method and procedure of investigation was to be the same as that prescribed for investigation by an officer in charge of a police station under Chapter XII and therefore the investigation made by Shri LV Singh was an investigation under that Chapter so as to bring in the applicability of section 172
These rival contentions raise two interesting questions first whether an investigation carried out by a superior officer by virtue of a direction given to him by the State Government under section 3 of the Indian is an investigation under Chapter XII so as to attract the applicability of section 172 to a diary maintained by him in the course of such investigation and secondly whether the report made by such officer as a result of the investigation carried out by him forms part of case diary within the meaning of section 172
We do not however think it necessary to enter upon a consideration of these two questions and we shall assume for the purpose of our discussion that Mr KG Bhagat learned counsel appearing on behalf of the State is right in his submission in regard to both these questions and that the reports made by Shri LV Singh setting out the result of his investigation form part of case diary so as to invite the applicability of section 172
But even if that be so the question is whether these reports are protected from disclosure under section 172 and that depends upon a consideration of the terms of this section
The object of section 172 in providing for the maintenance of a diary of his proceedings by the police officer making an investigation under Chapter XII has been admirably stated by Edge CJ in Queen Empress vs Mannu1 in the following words 156 The early stages of the investigation which follows on the commission of a crime must necessarily in the vast majority of cases be left to the police and until the honesty the capacity the discretion and the judgment of the police can be thoroughly trusted it is necessary for the protection of the public against criminals for the vindication of the law and for the protection of those who are charged with having committed a criminal offence that the Magistrate or Judge before whom the case is for investigation or for trial should have the means of ascertaining what was the information true false or misleading which was obtained from day to day by the police officer who was investigating the case and what such police officer acted
 The criminal court holding an inquiry or trial of a case is therefore empowered by sub section 2 of section 172 to send for the police diary of the case and the criminal court can use such dairy not as evidence in the case but to aid it in such inquiry or trial
But by reason of sub section 3 of section 172 merely because the case diary is referred to by criminal court neither the accused nor his agents are entitled to call for such diary nor are they entitled to see it
If however the case diary is used by the police officer who has made it to refresh his memory or if the criminal court uses it for the purpose of contradicting such police officer in the inquiry or trial the provisions of section 161 or section 145 as the case may be of the would apply and the accused would be entitled to see the particular entry in the case diary which has been referred to so far either of these purposes and so much of the diary as in the opinion of the Court is necessary to a full understanding of the particular entry so used
It will thus be seen that the bar against production and use of case diary enacted in section 172 is intended to operate only in an inquiry or trial for an offence and even this bar is a limited bar because in an inquiry or trial the bar does not operate if the case dairy is used by the police officer for refreshing his memory or the criminal court uses it for the purpose of contradicting such police officer
This bar can obviously have no application where a case diary is sought to be produced and used in evidence in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution and particularly when the party calling for the case diary is neither an accused nor his agent in respect of the offence to which the case diary relates
Now plainly and unquestionably the present writ petition which has been filed under Article 32 of the Constitution to enforce the fundamental right guaranteed under Article 32 is neither an inquiry  nor a trial  for an offence 157 nor is this Court hearing the writ petition a criminal court nor are the petitioners accused or their agents so far as the offences arising out of their blinding are concerned
Therefore even if the reports submitted by Shri L V Singh as a result of his investigation could be said to form part of case diary  it is difficult to see how their production and use in the present writ petition under Article 32 of the Constitution could be said to be barred under section 172
Realising this difficulty created in his way by the specific language of section 172 Mr KG Bhagat learned advocate appearing on behalf of the State made a valiant attempt to invoke the principle behind section 172 for the purpose of excluding the reports of investigation submitted by Sh
LV Singh
He contended that if under the terms of section 172 the accused in an inquiry or trial is not entitled to call for the case diary or to look at it save for a limited purpose it is difficult to believe that the Legislature could have ever intended that the complainant or a third party should be entitled to call for or look at the case diary in some other proceeding for that would jeopardise the secrecy of investigation and defeat the object and purpose of section 172 and therefore applying the principle of that section we should hold that the case diary is totally protected from disclosure and even the complainant or a third party cannot call for it or look at in a civil proceeding
This contention is in our opinion wholly unfounded
It is based on what may be called an appeal to the spirit of section 172 which is totally impermissible under any recognised canon of construction
Either production and use of case diary in a proceeding is barred under the terms of section 172 or it is not it is difficult to see how it can be said to be barred on an extended or analogical application of the principle supposed to be underlying that section if it is not covered by its express terms
It must be remembered that we have adopted the adversary system of justice and in order that truth may emerge from the clash between contesting parties under this system it is necessary that all facts relevant to the inquiry must be brought before the Court and no relevant fact must be shut out for otherwise the Court may get a distorted or incomplete picture of the facts and that might result in miscarriage of justice
To quote the words of the Supreme Court of United States in United States vs Nixon1 The need to develop all relevant fact in the adversary system is both fundamental and comprehensive
The ends of  justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts
The very integrity 158 of the judicial system and public confidence in the system depend on full disclosure of all the facts within the frame work of the rules of evidence
 it is imperative to the proper functioning of the judicial process and satisfactory and certain ascertainment of truth that all relevant facts must be made available to the Court
But the law may in exceptional cases in order to protect more weighty compelling and competing interests provide that a particular piece of evidence though relevant shall not be liable to be produced or called in evidence
Such exceptions are to be found inter alia in sections 122 123 124 126 and 129 of the and sections 162 and 172 of the Criminal Procedure Code
But being exceptions to the legitimate demand for reception of all relevant evidence in the interest of justice they must be strictly interpreted and not expansively construed for they are in derogation of the search for truth
It would not therefore be right to extend the prohibition of section 172 to cases not falling strictly within the terms of the section by appealing to what may be regarded as the principle or spirit of the section
That is a feeble reed which cannot sustain the argument of the learned advocate appearing on behalf of the State
It would in fact be inconsistent with the Constitutional commitment of this Court to the rule of law
That takes us to the question whether the reports made by Sh
LV Singh as a result of the investigation carried by him and his associates are relevant under any provision of the so as to be liable to be produced and received in evidence
It is necessary in order to answer this question to consider what is the nature of the proceeding before us and what are the issues which arise in it
The proceeding is a writ petition under Article 32 for enforcing the fundamental right of the petitioners enshrined in Article 21
The petitioners complain that after arrest whilst under police custody they were blinded by the members of the police force acting not in their private capacity but as police officials and their fundamental right to life guaranteed under Article 21 was therefore violated and for this violation the State is liable to pay compensation to them
The learned Attorney General who at one stage appeared on behalf of the State at the hearing of the writ petition contended that the inquiry upon which the Court was embarking in order to find out whether or not the petitioners were blinded by the police officials whilst in police custody was irrelevant since in his submission even if the petitioners were so blinded the State was not liable to pay compensation to the petitioners first because the state was not constitutionally or legally responsible for the acts of the police officers outside the scope of 159 their power or authority and the blindings of the under trial prisoners effected by the police could not therefore be said to constitute violation of their fundamental right under Article 21 by the State and secondly even if there was violation of the fundamental right of the petitioners under Article 21 by reason of the blindings effected by the police officials there was on a true construction of that Article no liability on the State to pay compensation to the petitioners
The attempt of the learned Attorney General in advancing this contention was obviously to preempt the inquiry which was being made by this Court so that the Court may not proceed to probe further in the matter
But we do not think we can accede to this contention of the learned Attorney General
The two questions raised by the learned Attorney General are undoubtedly important but the arguments urged by him in regard to these two questions are not prima facie so strong and appealing as to persuade us to decide them as preliminary objections without first inquiring into the facts
Some serious doubts arise when we consider the argument of the learned Attorney General
If an officer of the State acting in his official capacity threatens to deprive a person of his life or personal liberty without the authority of law can such person not approach the Court for injuncting the State from such officer in violation of his fundamental right under Article 21  Can the State urge in defence in such a case that it is not infringing the fundamental right of the petitioner under Article 21 because the officer who is threatening to do so is acting outside the law and therefore beyond the scope of his authority and hence the State is not responsible for his action  Would this not make a mockery of Article 21 and reduce it to nullity a mere rope of sand for on this view if the officer is acting according to law there would ex concession is be no breach of Article 21 and if he is acting without the authority of law the State would be able to contend that it is not responsible for his action and therefore there is no violation of Article 21
So also if there is any threatened invasion by the State of the Fundamental Right guaranteed under Article 21 the petitioner who is aggrieved can move the Court under Article 32 for a writ injuncting such threatened invasion and if there is any continuing action of the State which is violative of the Fundamental Right under Article 21 the petitioner can approach the court under Article 32 and ask for a writ striking down the continuance of such action but where the action taken by the State has already resulted in breach of the Fundamental Right under Article 21 by deprivation of some limb of the petitioner would the petitioner have no remedy under Article 32 for breach of the Fundamental Right guaranteed to him  160 Would the court permit itself to become helpless spectator of the violation of the Fundamental Right of the petitioner by the State and tell the petitioner that though the Constitution has guaranteed the Fundamental Right to him and has also given him the Fundamental Right of moving the court for enforcement of his Fundamental Right the court cannot give him any relief
These are some of the doubts which arise in our mind even in a prima facie consideration of the contention of the learned Attorney General and we do not therefore think it would be right to entertain this contention as a preliminary objection without inquiring into the facts of the case
If we look at the averments made in the writ petition it is obvious that the petitioners cannot succeed in claiming relief under Article 32 unless they establish that their Fundamental Right under Article 21 was violated and in order to establish such violation they must show that they were blinded by the police officials at the time of arrest or whilst in police custody
This is the foundational fact which must be established before the petitioners can claim relief under Article 32 and logically therefore the first issue to which we must address ourselves is whether this foundational fact is shown to exist by the petitioners
It is only if the petitioners can establish that they were blinded by the members of the police force at the time of arrest or whilst in police custody that the other questions raised by the learned Attorney General would arise for consideration and it would be wholly academic to consider them if the petitioners fail to establish this foundational fact
We are therefore of the view as at present advised that we should first inquire whether the petitioners were blinded by the police officials at the time of arrest or after arrest whilst in police custody and it is in the context of this inquiry that we must consider whether the reports made by Sh
LV Singh are relevant under the so as to be receivable in evidence
We may at this stage refer to one other contention raised by Mr KG Bhagat on behalf of the State that if the Court proceeds to hold an inquiry and comes to the conclusion that the petitioners were blinded by the members of the police force at the time of arrest or whilst in police custody it would be tantamount to adjudicating upon the guilt of the police officers without their being parties to the present writ petition and that would be grossly unfair and hence this inquiry should not be held by the Court until the investigation is completed and the guilt or innocence of the police officers is established
We cannot accept this contention of Mr KG Bhagat
When the Court trying the writ petition proceeds to inquire into the issue whether the petitioners were blinded by police officials at the time of arrest or whilst in police custody it does so 161 not for the purpose of adjudicating upon the guilt of any particular officer with a view to punishing him but for the purpose of deciding whether the fundamental right of the petitioners under Article 21 has been violated and the State is liable to pay compensation to them for such violation
The nature and object of the inquiry is altogether different from that in a criminal case and any decision arrived at in the with petition on this issue cannot have any relevance much less any binding effect in any criminal proceeding which may be taken against a particular police officer
A situation of this kind sometimes arises when a claim for compensation for accident caused by negligent driving of a motor vehicle is made in a civil Court or Tribunal and in such a proceeding it has to be determined by the Court for the purpose of awarding compensation to the claimant whether the driver of the motor vehicle was negligent in driving even though a criminal case for rash and negligent driving may be pending against the driver
The pendency of a criminal proceeding cannot be urged as a bar against the Court trying a civil proceeding or a writ petition where a similar issue is involved
The two are entirely distinct and separate proceedings and neither is a bar against the other
It may be that in a given case if the investigation is still proceeding the Court may defer the inquiry before it until the investigation is completed or if the Court considers it necessary in the interests of Justice it may postpone its inquiry even until after the prosecution following upon the investigation is terminated but that is a matter entirely for the exercise of the discretion of the Court and there is no bar precluding the Court from proceeding with the inquiry before it merely because the investigation or prosecution is pending
It is clear from the aforesaid discussion that the fact in issue in the inquiry before the Court in the present writ petition is whether the petitioners were blinded by the members of the police force at the time of the arrest or whilst in police custody
Now in order to determine whether the reports made by Shah LV Singh as a result of the investigation carried out by him and his associates are relevant it is necessary to consider whether they have any bearing on the fact in issue required to be decided by the Court
It is common ground that Sh
LV Singh was directed by the State Government under Section 3 of the Indian to investigate into twenty four cases of blinding of under trial prisoners where allegations were made by the undertrial prisoners and First Information Reports were lodged that they were blinded by the police officers whilst in police custody
LV Singh through his associates carried out this inves 162 tigation and submitted his reports in the discharge of the official duty entrusted to him by the State Government
These reports clearly relate to the issue as to how in what manner and by whom the twenty four undertrial prisoners were blinded for that is the matter which Shri LV Singh was directed by the State Government to investigate
If that be so it is difficult to see how the State can resist the production of these reports and their use as evidence in the present proceeding
These reports are clearly relevant under section 35 of the which reads as follows 35
An entry in any public or other official book register or record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty or by any other person in performance of a duty specially enjoined by the law of the country in which such book register or record is kept is itself a relevant fact
 These reports are part of official record and they relate to the fact in issue as to how and by whom the twenty four under trial prisoners were blinded and they are admittedly made by Sh
LV Singh a public servant in the discharge of his official duty and hence they are plainly and indubitably covered by Section 35
The language of section 35 is so clear that it is not necessary to refer to any decided cases on the interpretation of that section but we may cite two decisions to illustrate the applicability of this section in the present case
The first is the decision of this Court in Kanwar Lal Gupta vs Amar Nath Chawla1
There the question was whether reports made by officers of the CID Special Branch relating to public meetings covered by them at the time of the election were relevant under section 35 and this Court held that they were on the ground that they were made by public servants in discharge of their official duty and they were relevant under the first part of section 35 of the Evidence Act since they contained statement showing what were the public meetings held by the first respondent This Court in fact followed an earlier decision of the Court in PCP Reddiar vs
section Perumal2also in Jagdat vs Sheopal3 Wazirhasan J Held that the result of an inquiry by a Kanungo under section 202 of the Code of Criminal Procedure 1898 embodied in the report is an entry in a public record stating a fact in issue and made by a public servant in the discharge of his official duties and the report is therefore admis 163 sible in evidence under section 35
We find that a similar view was taken by a Division Bench of the Nagpur High Court in Chandulal vs Pushkar Rai1 where the learned Judges held that repots made by Revenue Officers though not regarded as having judicial authority where they express opinions on the private rights of the parties are relevant under section 35 as reports made by public officers in the discharge of their official duties in so far as they supply information of official proceedings and historical facts
The Calcutta High Court also held in Lionell Edwerds Limited vs State of West Bengal1 that official correspondence from the Forest officer to his superior the conservator of Forests carried on by the Forest Officer in the discharge of his official duty would be admissible in evidence under section 35
There is therefore no doubt in our mind that the reports made by Sh
LV Singh setting forth the result of the investigation carried on by him and his associates are clearly relevant under section 35 since they relate to a fact in issue and are made by a public servant in the discharge of his official duty
It is indeed difficult to see how in a writ petition against the State Government where the complaint is that the police officials of the State Government blinded the petitioners at the time of arrest or whilst in police custody the State Government can resist production of a report in regard to the truth or otherwise of the complaint made by a highly placed officer persuant to the direction issued by the State Government
We are clearly of the view that the reports made by Shri LV Singh as a result of the investigation carried out by him and his associates are relevant under section 35 and they are liable to be produced by the State Government and used in evidence in the present writ petition
Of course what evidentially value must attach to the statements contained in these reports is a matter which would have to be decided by the Court after considering these reports
It may ultimately be found that these reports have not much evidentially value and even if they contain any statements adverse to the State Government it may possible for the State Government to dispute their correctness or to explain them away but it cannot be said that these reports are not relevant
These reports must therefore be produced by the State and taken on record of the present writ petition
We may point out that though in our order dated 16th February 1981 we have referred to these reports as having been made by Shri LV Singh and his associates between January 10 and January 20 1981 it seems that there has been some error on our part in mentioning the outer date as January 20 1981 164 for we find that some of these reports were submitted by Shri LV Singh even after January 20 1981 and the last of them was submitted on 27th January 1981
All these reports including the report submitted on 9th December 1980 must therefore be filed by the State and taken as forming part of the record to be considered by the Court in deciding the question at issue between the parties
What we have said above must apply equally in regard to the correspondence and notings referred to as items three and four in the Order dated 16th February 1981 made by us
These notings and correspondence would throw light on the extent of involvement whether by acts of commission or acts of omission of the State in the blinding episode and having been made by Shri LV Singh and Shri MK Jha in discharge of their officials duties they are clearly relevant under section 35 and they must therefore be produced and taken on record in the writ petition so also the reports submitted by Inspector and Sub Inspector of CID to Gajendra Narain DIG Bhagalpur on 18th July and his letter to Shri KD Singh Superintendent of Police CID Patna containing hand written endorsement of Shri MK Jha must for the same reasons be held to be relevant under section 35 and must be produced by the State and be taken as forming part of the record of the writ petition
Since all these documents are required by the Central Bureau of Investigation for the purpose of carrying out the investigation which has been commenced by them pursuant to the approval given by the State Government under section 6 of the Delhi Special Police Establishment Act we would direct that five sets of photostat copies of these documents may be prepared by the office one for Mrs Hingorani learned advocate appearing on behalf of the petitioners one for Mr KG Bhagat learned advocate appearing on behalf of the State one for Dr Chitale who is appearing amcius curiae at our request and two for the Court and after taking such photostat copies these documents along with the other documents which have been handed over to the Court by the State shall be returned immediately to Mr KG Bhagat learned advocate appearing on behalf of the State for being immediately made available to the Central Bureau of Investigation for carrying out its investigation so that the investigation by Central Bureau of Investigation may not be impeded or delayed
We hope and trust that the Central Bureau of Investigation will complete its investigation expeditiously without any avoidable delay
SR Application allowed


Summary:
The petitioners are certain under trials in the State of Bihar
In the Writ Petitions filed by them under Article 32 of the Constitution they complained that after their arrest whilst under police custody they were blinded by the members of the police force acting not in their private capacity but as police officials and their fundamental right to life guaranteed under Article 21 was therefore violated and for this violation the State is liable to pay compensation to them
On an application made by the petitioners several documents including CID Reports submitted by Shri LV Singh DIG CID Anti Dacoity on December 91980 and other dates were called for by the Court
The State raised an objection to the production of these documents on the ground that they are protected from disclosure under sections 162 to 172 of the Code of Criminal Procedure 1973 and that the petitioners are not entitled to see them or to make any use of them in the present proceedings
Overruling the State objection and directing the Registry to supply copies of these documents produced before the Court to the petitioner s advocate and the advocate appearing as amicus curiae the Court  HELD 11
The reports submitted by Shri LV Singh setting forth the results of his investigation cannot be shut out from being produced and considered in evidence either under section 162 or 172 of the Criminal Procedure Code even if they refer to any statements made before him and his associates during investigation provided they are otherwise relevant under the provisions of the Indian Evidence Act
In a writ petition against the State Government where the complaint is that the police officials of the State Government blinded the petitioners at the time of arrest or whilst in custody the State Government cannot resist production of a report in regard to the truth or otherwise of the complaint made by a highly placed officer pursuant to the direction issued by the State Government
163 B D 12
All the other reports covered by Items 2 to 5 of the Court s order dated 16th February 1981 are equally relevant and must therefore be produced and taken on record in the writ petition
164 B C 146 21
The procedure to be followed in a writ petition under Article 32 of the Constitution is prescribed under order XXXV of the Supreme Court Rules 1966 and sub rule 9 of Rule 10 lays down that at the hearing of the rule nisi if the court is of the opinion that an opportunity be given to the parties to establish their respective cases by leading further evidence the court may take such evidence or cause such evidence to be taken in such manner as it may deem fit and proper and obviously the reception of such evidence will be governed by the provisions of the Indian Evidence Act
It is obvious therefore that even a statement made before a police officer during investigation can be produced and used in evidence in a writ petition under Article 32 of the Constitution provided it is relevant under the Indian Evidence Act and neither section 162 nor section 172 can be urged as a bar against its production or use
153 C E 31
When the Court trying the writ petition proceeds to inquire into the issue whether the petitioners were blinded by police officials at the time of arrest or whilst in police custody it does so not for the purpose of adjudicating upon the guilt of any particular officer with a view to punishing him but for the purpose of deciding whether the fundamental right of the petitioners under Article 21 has been violated and the State is liable to pay compensation to them for such violation
The nature and object of the inquiry is altogether different from that in a criminal case and any decision arrived at in the writ petition on this issue cannot have any relevance much less any binding effect in criminal proceeding which may be taken against a particular police officer
160 G H 161 A B 4
The pendency of a criminal proceeding cannot be urged as a bar against the Court trying a civil proceeding or a writ petition where a similar issue is involved
The two are entirely distinct and separate proceedings and neither is a bar against the other
It may be that in a given case if the investigation is still proceeding the Court may defer the inquiry before it until the investigation is completed or if the Court considers it necessary in the interests of Justice it may postpone its inquiry even after the prosecution following upon the investigation is terminated but that is a matter entirely for the exercise of the discretion of the Court and there is no bar precluding the Court from proceeding with the inquiry before it merely because the investigation or prosecution is pending
161 D E 5
The fact in issue in the inquiry before the Court in the present writ petition is whether the petitioners were blinded by the members of the police force at the time of the arrest or whilst in police custody
The several reports called for by the Court clearly relate to the issue as to how in what manner and by whom the twenty four undertrial prisoners were blinded for that is the matter which Shri LV Singh was directed by the State Government to investigate
If that be so the State cannot resist the production of these reports and their use as evidence in the present proceeding
These reports are clearly relevant under section 35 of the Indian Evidence Act since they relate to a fact in issue and are made by a public servant in the discharge of his official duty
A D PCP Reddiar vs section Perumal   Kanwar Lal Gupta vs Amar Nath Chawla   followed
Jagdat vs Sheopal AIR 1927 Oudh 323 Chandulal vs Pushkar Rai AIR 1952 Nagpur 271 Lionell Edwards Limited vs State of West Bengal AIR  quoted with approval
147 6
Section 4 of the Criminal Procedure Code 1973 makes it clear that the provisions of the Criminal Procedure Code are applicable where an offence under the Indian Penal Code or under any other law is being investigated inquired into tried or otherwise dealt with
151 B C 7
Section 162 bars the use of any statement made before a police officer in the course of an investigation under Chapter XII whether recorded in a police diary or otherwise but by the express terms of the Section this bar is applicable only where such statement is sought to be used at any inquiry or trial in respect of any offence under investigation at the time when such statement was made
 If the statement made before the police officer in the course of an investigation under chapter XII is sought to be used in any proceeding other than an inquiry or trial or even at an inquiry or trial but in respect of an offence other than that which was under investigation at the time when such statement was made the bar of section 162 would not be attracted
152 A C 72
Section 162 has been enacted for benefit of the accused and to protect him against overzealous police officers and untruthful witnesses
But this protection is unnecessary in any proceeding other than an inquiry or trial in respect of the offence under investigation and hence the bar created by the section is a limited bar
It has no application in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution and a statement made before a police officer in the course of investigation can be used as evidence in such proceeding provided it is otherwise relevant under the Indian Evidence Act
152 D H 153 A B Tehsildar Singh and Another vs The State of Uttar Pradesh 1959 Supp 2 SCR 875 at 890 applied
Emperor vs Aftab Mohd Khan AIR 1940 All 291 Baliram Tikaram Maratha vs Emperor AIR 1945 Nagpur 1 Malakalaya Surya Rao vs Janakamma AIR 1964 AP 198 approved
Sub section 2 of section 172 of the Criminal Procedure Code empowers the criminal court holding an inquiry or trial of a case to send for the police diary of the case and the criminal court can use such diary not as evidence in the case but to aid it in such inquiry or trial
But by reason of sub section 3 of section 172 merely because the case diary is referred to by the criminal court neither the accused nor his agents are entitled to call for such diary nor are they entitled to see it
If however the case diary is used by the police officer who has made it to refresh his memory or if the criminal court uses it for the purpose of contradicting such police officer in the inquiry or trial the provisions of section 161 or section 145 as the case may be of the Indian Evidence Act would apply and the accused would be entitled to see the particular entry in the case diary which has been referred to for either of these purposes and so much of the diary as in the opinion of the Court is necessary to a full understanding of the particular entry so used
156 C D Queen Empress vs Mannu 1897 19 All 390 quoted with approval
State of Bihar vs JAC Saldhana   referred to
The bar against production and use of case diary enacted in section 172 is intended to operate only in an inquiry or trial for an offence and even this 148 bar is a limited bar because in an inquiry or trial the bar does not operate if the case diary is used by the police officer for refreshing his memory or the criminal court uses it for the purpose of contradicting such police officer
This bar can obviously have no application where a case diary is sought to be produced and used in evidence in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution and particularly when the party calling for the case diary is neither an accused nor his agent in respect of the offence to which the case diary relates
The present writ petition which has been filed under Article 32 of the Constitution to enforce the fundamental right guaranteed under Article 21 is neither an inquiry nor a trial for an offence nor is this court hearing the writ petition a criminal court nor are the petitioners accused or their agents so far as the offences arising out of their blinding are concerned
Therefore even if the reports submitted by Shri LV Singh as a result of his investigation could be said to form part of case diary their production and use in the present writ petition under Article 32 of the Constitution cannot be said to be barred under section 172 of the Criminal Procedure Code
156 D G 157 A B 91
It would not be right to extend the prohibition of section 172 to cases not falling strictly within the terms of the section by appealing to what may be regarded as the principle or spirit of the section
In fact to do so would be inconsistent with the constitutional commitment of the Supreme Court to the rule of law
Either production and use of case diary in a proceeding is barred under the terms of section 172 or it is not it cannot be said to be barred on an extended or analogical application of the principle supposed to be underlying that section if it is not covered by its express terms
In order that truth may emerge from the clash between contesting parties under the adversary system it is necessary that all facts relevant to the inquiry must be brought before the Court and no relevant fact must be shut out for otherwise the Court may get a distorted or incomplete picture of the facts and that might result in mis carriage of justice
It is imperative to the proper functioning of the judicial process and satisfactory and certain ascertainment of truth that all relevant facts must be made available to the Court
But the law may in exceptional cases in order to protect more weighty and compelling competing interests provide that a particular piece of evidence though relevant shall not be liable to be produced or called in evidence
Such exceptions are to be found inter alia in sections 122 123 124 126 and 129 of the Indian Evidence Act and sections 162 and 172 of the Criminal Procedure Code But being exceptions to the legitimate demand for reception of all relevant evidence in the interest of justice they must be strictly interpreted and not expansively construed for they are in derogation of the search for truth
157 E H 158 A C United States vs Nixon  41 Lawyers Edition 2nd series 1039 quoted with approval
The Court did not express any opinion regarding the two interesting questions i whether an investigation carried out by a superior officer by virtue of a direction given to him by the State Government under section 3 of the Indian is an investigation under Chapter XII so as to attract the applicability of section 172 to a diary maintained by him in the course of such investigation and ii whether the report made by such officer as a result of the investigation carried out by him forms part of case diary within the meaning of section 172 of the Criminal Procedure Code
155 D G 149