1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 432 OF 2007 Public Information Officer, Superintendent of Police, South Goa, Margao. ... Petitioner versus Shri Joao C. Pereira H. No. 40, Acsona, Utorda, Majorda, Salcete-Goa. ... Respondent Ms. Winnie Coutinho, Government Advocate for the Petitioner. Mr. Valmiki Menezes, Advocate for the Respondent. CORAM : N. A. BRITTO, J. DATE : 12TH SEPTEMBER, 2008. ORAL ORDER Challenge in this Writ Petition is to the Order dated 20-4-2007 of the Goa State Information Commission(Commission, for short) by which the Commission has upheld the Order of the First Appellate Authority/Deputy Inspector General of Police dated 13-12-2006 and rejected his request for reconsideration of his own order and further has directed the Public Information Officer to provide access to all papers to the Complainant/Respondent No.3 2 herein, in the inquiry conducted in the file of Surjit Borkar i.e. Crime No.74/05 under Sections 341, 504, 506(ii) r/w 34 I.P.C. The said Complainant appears to be an Accused in the said Crime and the said Surjit Borkar, the first informant. 2. Ms. Winnie Coutinho, learned Government Advocate on behalf of the Public Information Officer/Superintendent of Police, contends that the information ordered to be given by the Commission was an information which came within the purview of Section 8(i)(h) and also under Section 173(3) of the Code of Criminal Procedure, 1973 and as such the Commission could not have directed the said information to be given to the said Complainant. 3. In support of the submission that the Accused does not have an unfettered right to the inspection of case diaries, Ms. Coutinho has placed reliance on the case of Mukund Lal v. Union of India and another(AIR 1989 SC 144) wherein the Apex Court has stated thus:- “The High Court has repelled the plea by recourse to the reasoning reflected in the relevant passage extracted herein below:- “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 3 police officer, the provisions of Sections 161 and 145 of the Indian Evidence Act, will be applicable. So far as the other parts are concerned, the accused need not necessarily have a right of access to them 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 statements made by the Investigating Officer, he may always request the Court to look into the diary and verify the facts and, this right of the accused can always be safeguarded. It is true that it is for the Court to decide whether the facts stated are borne out by the diary or not, but then this much reliance has always to be placed on the Court and it has to be trusted as it is trusted in the case under Section 123 of the Evidence Act in order to decide whether any privilege can be claimed with respect to the documents in 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 4 particular affair of the State, which need not be disclosed. When in the enquiry or trial, everything which may appear against the accused has to be established and brought before the Court by evidence other than the diary and the accused can have the benefit of cross-examining the witnesses and the court has power to call for the diary and use it, of course not as evidence but in aid of the enquiry or trial, I am clearly of the opinion, that the provisions under Section 172(3), Cr. P. C. cannot be said to be un- constitutional.” We fully endorse the reasoning of the High Court and concur with its conclusion. We are of the opinion that the provision embodied in sub- section(3) of Section 172 of the Cr. P. C. cannot be characterised as unreasonable or arbitrary. Under sub- section(2) of Section 172, Cr. P. C. the court itself has the unfettered power to examine the entries in the diaries. This is a very important safeguard. The Legislature has reposed complete trust in the Court which is conducting the inquiry or the trial. It has empowered the Court to call for any such relevant case diary, if there is any inconsistency or contradiction arising in the context of the case diary the Court can use the entries for the purpose of contradicting the Police Officer as provided in sub- section(3) of Section 172 of the Cr. P. C. Ultimately there can be no better custodian or guardian of the interest of justice than the Court trying the case. No Court will deny to itself the power to make use of the entries in the diary to the advantage of the accused by contradicting the police officer with reference to the contents of the diaries. 5 In view of this safeguard, the charge of unreasonableness or arbitrariness cannot stand scrutiny. The petitioners claim an unfettered right to make roving inspection of the entries in the case diary regardless of whether these entries are used by the police officer concerned to refresh his memory or regardless of the fact whether the Court has used these entries for the purpose of contradicting such police officer. It cannot be said that unless such unfettered right is conferred and recognised, the embargo engrafted in sub-section(3) of Section 172 of the Cr.P.C. would fail to meet the test of reasonableness. For instance in the case diary there might be a note as regards the identity of the informant who gave some information which resulted in investigation into a particular aspect. Public Interest demands that such an entry is not made available to the accused for it might endanger the safety of the informants and it might deter the informants from giving any information to assist the investigating agency, as observed in Mohinder Singh v. Emperor, AIR 1932 Lahore 103)104): “The accused has no right to insist upon a police witness referring to his diary in order to elicit information which is privileged. The contents of the diary are not at the disposal of the defence and cannot be used except strictly in accordance with the provisions of Sections 162 and 172. Section 172 shows that witness may refresh his memory by reference to them but such use is at the discretion of the witness and the Judge, whose duty it is to ensure that the privilege attaching to them by statute is strictly enforced.” and also as observed in Mahabirji 6 Birajman Mandir v. Prem Narain Shukla, AIR 1965 All 494(at p.495). “The case diary contains not only the statements of witnesses recorded under S.161,Cr. P. C. and the site plan or other documents prepared by the Investigating Officer, but also reports or observations of the Investigating Officer or his superiors. These reports are of a confidential nature and privilege can be claimed thereof. Further, the disclosure of the contents of such reports cannot help any of the parties to the litigation, as the report invariably contains the opinion of such officers and their opinion is inadmissible in evidence.” 4. On the other hand, Mr. Valmiki Menezes, learned Counsel appearing on behalf of the said Complainant has submitted that all that the Commission has done is to uphold the very first Order of the Deputy Inspector General of Police/First Appellate Authority dated 13-12-2006 and nothing more. Learned Counsel further submits that the said Deputy Inspector General of Police having passed the said Order dated 13-12-2006, he had become functus officio and could not review his Order by another Order dated 14-3-2007. Learned Counsel points out to Section 22 of the Right to Information Act, 2005 to say that it overrides any other provision of law. 5. In my view, the submissions made on behalf of the Petitioner , are quite irrelevant. The facts of the case, as recorded by the Commission, show that on 30-8-2008 the said Complainant sought inspection with the Superintendent of 7 Police/Public Information Officer, of certain files of Verna Police Station and the said application was partly granted by the said Superintendent of Police by his Order dated 25-9-2006. The Commission was handicapped as not to know what was allowed and what was not allowed. A copy of the said letter shows that only the Complainant was allowed to take inspection and not in the company of his four witnesses. As against that, the Complainant preferred an appeal on 14-11-2006 before the Deputy Inspector General of Police and his appeal came to be allowed and the inspection of all records was ordered by Order dated 13-12-2006 to be given to the Complainant as per his letter/request dated 30-8-2006. 6. Pursuant to the said Order dated 13-12-2006 the Complainant went to Verna Police Station on 20th, 22nd and 23rd January, 2007 with some witnesses, for inspection of the files and on 23rd January, 2001, being the last date of inspection, the Complainant raised a grievance before the Deputy Inspector General of Police that he was shown only three files and one important file relating to the inquiry of one Surjit Borkar was not shown to him by the Police Inspector, Verna. Needless to say, that the said Police Inspector, Verna was bound to obey the orders of the Superintendent of Police as P.I.O. or the Deputy Inspector General of Police, as First Appellate Authority, and, his only role was to give information, of whatever he was directed, to be given. It appears that the Complainant was shown some papers from the said inquiry of Surjit Borkar but the grievance of the Complainant was that the said file was shown by the said Police Inspector of Verna Police Station by transferring some papers in another 8 file and retaining some papers in the original file and his grievance before the Commission was that he was being shown the newly constructed inquiry file of Surjit Borkar and not the original file. Needless to say, in case the Police Inspector of Verna did what the Complainant alleged, it only showed that the Police Inspector, Verna had no consideration or respect for the orders passed by his superiors, namely the Public Information Officer as well as the First Appellate Authority. 7. The point considered and decided by the Commission is whether the Police Inspector could reconstruct the file by removing some papers from the original file and allow the inspection of the reconstructed file by the Complainant on the face of the orders passed by the Deputy Inspector General of Police/First Appellate Authority. The Commission has noted that not only the P.I. obstinately refused to show the file of Surjit Borkar to the Complainant thereby disobeying the orders of both the First Appellate Authority and the Public Information Officer who are his own superiors in the Department but had the audacity to write a letter to the Complainant dated 3-3-2007 inventing another reason for not providing access to the file. By the said letter the Police Inspector stated that the original case papers were forwarded to the A.P.P., J.M.F.C. Court, Margao for conducting the prosecution and that he was already shown the copy of the charge-sheet filed against the Complainant and in the same letter he also stated that the Complainant was “not entitled for inspection of case diaries in the above case under Section 9 8(i)(h ) of the Right to Information Act, 2005”. That letter by the Police Inspector appears to have been written to the Complainant based on a letter dated 2-3-2007 by which the Superintendent of Police directed the Police Inspector that he could refuse to the Complainant the inspection of the case diaries of Verna Police Station Crime No.74/2005 under Sections 341, 504, 506(ii) r/w 34 I.P.C. It also appears that thereafter the Deputy Inspector General of Police by another letter dated 14-3-2007 informed the Complainant that the Superintendent of Police, South by his first letter dated 2-3-2007 was instructed to refuse his request for inspecting the case diaries. It is not the case of the Petitioner that all the case papers of Crime No.74/2005 or for that matter the case diaries were shown to the Petitioner. 8. The objections now taken on behalf of the Petitioner and reproduced herein above that no inspection could be given to the Complainant of the said case papers of Crime No.74/2005 was not considered by the Superintendent of Police/Public Information Officer and the Deputy Inspector General of Police/First Appellate Authority at the time of partly allowing and then fully allowing, respectively the request of the Complainant for the inspection of the case papers of the said Crime number. In case any of the case papers were forwarded to the A.P.P. nothing prevented the said Police Inspector from collecting the same and given the inspection to the Complainant as earlier ordered by the very Deputy Inspector General of Police by his Order dated 13-12-2006. Having first allowed the inspection to be taken by the Complainant, in my view, the Superintendent of Police or for that matter the Deputy Inspector General of Police were not entitled 10 to review their orders and thereby deny the inspection which was earlier granted. All that the Commission has done is upheld the first orders passed by the Superintendent of Police as modified by the Deputy Inspector General of Police and therefore the said authorities are now not entitled to contend that no inspection could be given under one or the other provisions of the Act or the Code. Therefore, the Order of the Commission, per se cannot be faulted. In fact, the Commission, before proceeding to decide the controversy ought to have directed either of the parties to produce the correspondence exchanged by them relating to the controversy. There is nothing in the letter/request of the Complainant dated 30-9-2006 to suggest that he had sought the inspection of case diaries of Crime No.74/05 registered at the instance of the said Surjit Borkar, investigations of which were completed on 11-6-2006. Therefore, the inspection of case diaries of the said crime were not within the scope of Order dated 25-9-2006 of Superintendent of Police or Order dated 3-12-2006 of the Deputy Inspector General of Police and as such the Complainant could make no grievance before the Commission that he was not provided with the inspection of case diaries. In other words, the Complainant was only entitled to inspect the file/case papers of Crime No.74/05 registered at the instance of Surjit Borkar. 6. Considering the above, I find there is no merit in this petition and consequently the same is hereby dismissed. 11 Authenticated copy of the order be given to the learned Government Advocate. N. A. BRITTO, J RD