Crl. Misc. No.M-17996 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No.M-17996 of 2010 Date of Decision : .03.2011 Shiv Raj Singh .....Petitioner Versus The State (Union Territory, Chandigarh ....Respondent Crl. Misc. No.M-22279 of 2010 Ravdeep Kaur ....Petitioner Versus State of Punjab ...Respondent Crl. Rev. No.2075 of 2010 State (Union Territory, Chandigarh) .....Petitioner Versus Dr. Ravdeep Kaur and another ....Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Baldev Singh, Sr. Advocate with Mr. Sudhir Sharma, Advocate for the petitioner in Crl. Misc. No.M-22279 of 2010 Mr. Sukant Gupta, Advocate for U.T. Chandigarh for the petitioner in Crl. Rev. No.2075 of 2010 & CRM-M 17996-2010 Mr. P.K. Khindria, Advocate for U.T.Chandigarh in Crl. Misc. No.M-17996 of 2010 and Crl. Misc. No.M-22279 of 2010 Mr. Gautam Dutt, Advocate for the petitioner in Crl. Misc. No.M-17996 of 2010 ***** 1. Whether Reporters of Local Newspapers may be Crl. Misc. No.M-17996 of 2010 2 allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. Crl. Misc. No.M-17996 of 2010, Crl. Misc. No.M-22279 of 2010 and Crl. Rev. No.2075 of 2010 shall stand disposed of vide this common order as the impugned order dated 26.05.2010 passed by the Additional Sessions Judge, Chandigarh, in all the cases, is same. FIR No.321 dated 14.10.2005 under Sections 302/34 of the Indian Penal Code was registered at Police Station Civil Lines, Patiala for the murder of Shri Vijay Singh, Additional Sessions Judge, Labour Court, Chandigarh at Patiala. The case was investigated by the police at Patiala and after the investigation, challan against the accused was presented in the Court at Patiala. Thereafter, the case has been transferred to the Courts at Chandigarh under the orders of this Court for the purpose of trial. The issue herein is that Inspector Sewa Singh PW56 (now Deputy Superintendent of Police) recorded the statement of various witnesses including that of Satinder Singh Sekhon @ Channi and Harchand Singh. The prosecution is stated to have supplied statement of witnesses recorded by Inspector Sewa Singh but not those recorded by Inspector Jassa Singh. Accordingly, during the course of trial, when the case was fixed for 16.01.2010 for further cross examination of Deputy Superintendent of Police Sewa Singh, who was also the Investigating Officer, Dr. Ravdeep Kaur accused moved an application before this Court for supply of copies of statements recorded by Inspector Jassa Singh, who was earlier examined as PW47, Satinder Singh Sekhon PW9 and Harchand Singh PW20, as also of Ram Singh alias Kala, in the case diary. The Additional Sessions Judge, Chandigarh, vide order dated 26.05.2010 ordered that the statement of Satinder Singh Sekhon alias Channi Crl. Misc. No.M-17996 of 2010 3 recorded by Inspector Jassa Singh in his case diary be supplied to the petitioner, while declining the prayer for supply of other entries made in the case diary. Aggrieved, the complainant has filed Crl. Misc. No.M-17996 of 2010 challenging the impugned order, vide which, the statement of Satinder Singh Sekhon @ Channi, recorded by Inspector Jassa Singh has been supplied by raising two fold arguments :- Firstly, the law is well settled as held by the Hon'ble Supreme Court that under Section 172(3) Cr.P.C, the accused is not entitled to call for the diaries. The safeguard has been provided only to the Court and it has been unfettered power to examine diaries in order to contradict the police officer and placed reliance on the judgment of Hon'ble the Apex Court rendered in the case of Md. Ankoos and ors. vs. The Public Prosecutor, High Court of A.P. reported as 2010(1) RCR (Crl.) 917, Mukund Lal, petitioner vs. Union of India and another, respondents vs. Mohinder Singh, petitioner vs. Union of India and another, respondents, reported as AIR 1989 Supreme Court, 144 and Mahabir Singh, appellant vs. State of Haryana, respondent with Sultan, appellant vs. State of Haryana, respondent and Sis Pal, appellant vs. State of Haryana, respondent and Ranbir Singh, appellant vs. State of Haryana, respondent reported as AIR 2001 Supreme Court 2503. Secondly, Inspector Jassa Singh had never maintained a composite diary during investigation, Crl. Misc. No.M-17996 of 2010 4 which also includes the statements of witnesses under Section 161 of the Cr.P.C. This fact has been made clear by PW47 Inspector Jassa Singh during his cross examination dated 03.01.2009. Further, he had specifically stated that he did not need to use the same for refreshing his memory and nor is the Court relying on the same. As such, the same cannot be supplied in view of the well settled proposition of law as held by Hon'ble the Apex Court in 2010(1) RCR (Criminal) 917, as well as, on account of the provisions of Section 172 (3) of the Cr.P.C., as well as Rule 1 of Chapter 12 of the High Court Rules and Regulations, Volume 3. Further, the relevant statement under Section 161 Cr.P.C by all the Investigating Officers during investigation have already been supplied to the accused and the relevant witnesses have been brought before the Court for their examination and cross examination by the accused. Crl. Rev. No.2075 of 2010 has been filed by the State (Union Territory, Chandigarh) against the order dated 26.05.2010 supporting the case of the complainant while stating therein that the statement of Satinder Singh Sekhon @ Channi recorded by Inspector Jassa Singh PW47 in his case diary was not a statement under Section 161 of the Cr.P.C. No reliance was placed on the said statement which was recorded by Inspector Jassa Singh PW47. As such, the accused applicant was not entitled for the same under the provisions of Cr.P.C. All the other statements which are relied by the prosecution during trial has been supplied to the accused in total compliance of the provisions of Cr.P.C. On the other hand, Crl. Misc. No.M-22279 of 2010 has been Crl. Misc. No.M-17996 of 2010 5 filed by the accused, wherein, the accused is aggrieved with the fact that although the statements recorded by Inspector Sewa Singh were given but they have been deprived of the statement recorded by Inspector Jassa Singh. The Additional Sessions Judge, Chandigarh, in the impugned order, has allowed the accused to get the statement of Satinder Singh Sekhon recorded by Jassa Singh by holding that the same is the statement under Section 161 Cr.P.C but has not allowed the statement of Harchand Singh, which has been recorded in the same way as that of Satinder Singh Sekhon. As such, the statement of Harchand Singh entered in the diary of Jassa Singh is not an entry but a statement under Section 161 Cr.P.C and should also be handed over. While challenging the order dated 26.05.2010 refusing to hand over the alleged statement of Harchand Singh as also the other entries in the diary learned counsel submitted as under :- (a) A bare perusal of evidence of Inspector Jassa Singh, Investigating Officer, PW47 reveals that besides recording statements of Satinder Singh Sekhon @ Channi PW9, he had also recorded statement of PW20 Harchand Singh son of Ralla Singh on 15.10.2005 at his village Baran and whatever told by PW to the Investigating Officer must have found mention in the records prepared by him. PW20 Harchand Singh has stated that his statement was recorded by the police on 20.10.2005 at the residence of the deceased. Copy of this statement was supplied to the petitioner and her co-accused and was also produced along with the report under Section 173 Cr.P.C. However, the statement recorded by Jassa Singh Inspector/Investigating Officer on 15.10.2005 has not been supplied to the petitioner or produced in Court along with report under Section 173 Cr.P.C. It is, thus, evident that prosecution had purposely concealed and suppressed the statement of PW20 Harchand Singh recorded by Jassa Singh, Inspector on 15.10.2005. That was the first statement of the PW and also of Ram Crl. Misc. No.M-17996 of 2010 6 Singh @ Kala dated 15.10.2005 recorded by Inspector Jassa Singh. Since the statements of these witnesses are very material documents to examine/cross-examine the PWs in the light of the said statements and also to confront them under Section 145 of the Evidence Act, as such, these are very material documents, copies of the same, therefore, deserve to be supplied to the petitioner and her co-accused. (b) Secondly, a perusal of Sections 162 Cr.P.C., 173 Cr.P.C, as well as, Section 207 Cr.P.C shows that the statement of witnesses, if recorded more than once by different Investigating Officers, the accused is entitled to copies of all these statements. Reliance is placed on the judgment of Hon'ble the Apex Court rendered in the case of State of Punjab, petitioner vs. Mohinder Singh and others, respondents reported as 1974 CLR 301, Gara Singh, petitioner vs. State of Punjab, respondent reported as 1976 CLR (Punjab & Haryana) 330, S.J. Chowdhary, petitioner vs.The State, respondent reported as 1984 Crl. L.J. 864 (Delhi High Court), Lalchand etc. etc., appellants vs. State of Haryana, respondent reported as 1984 Crl. L.J. 164 (Supreme Court), State of Kerala vs. Raghavan reported as 1974 Crl. L.J. 1373 (Kerala High Court). (c) Thirdly, the denial of prayer of petitioner regarding copies of statements of PW20 Harchand Singh dated 15.10.2005 recorded by Inspector Jassa Singh PW47 and of Ram Singh @ Kala recorded on 15.10.2005 by Inspector Jassa Singh, is on the face of it illegal and had caused grave injustice to the petitioner and her co-accused. The learned trial Judge had got transcription of copies of statements not only of Satinder Singh Sekhon @ Channi PW9, but also of Harchand Singh PW20 and Rama Singh @ Kala (not examined). A bare perusal of the same reveal that these were statements of the witnesses and not the observations of the Investigating Officer. These Crl. Misc. No.M-17996 of 2010 7 statements have been cleverly recorded by Jassa Singh, Inspector in the case diary and not separately under Section 161 Cr.P.C as required under Section 162 Cr.P.C. Therefore, merely because the Investigating Officer had chosen to record these statements in the case diary and not separately, does not disentitle the petitioner's right to obtain the copies of the same. Heard. For proper adjudication of the case, it would be relevant to refer to some of the provisions of Cr.P.C. Sections 172(2) and 172(3) of the Cr.P.C are relevant and read as under :- “ (1) xx xx xx (2)Any Criminal Court may send for the police diaries of the 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 purposes of contradicting such police officer, the provisions of Sec. 161 or Sec. 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872) shall apply.” Section 207 of the Cr.P.C reads as under :- “207. Supply to the accused of copy of police report and other documents. - In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following :- i) the police report ; ii) the first information report recorded under Section 154; Crl. Misc. No.M-17996 of 2010 8 iii)the statements recorded under sub-section (3) of Section 161 of all persons whom the prosecution purposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub-section (6) of Section 173; iv)the confessions and statements, if any, recorded under Section 164; v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of Section 173; Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused: Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.” A bare perusal of the above Sections reveal that there is restriction upon the use of case diary. The police diary is stated to be meant for police officer investigating a criminal case for recording its day to day notings. The police officer can also record the statement of any witnesses therein. However, neither the accused nor his agent have the right to see them. The said privilege is exclusively of the Court. More so, if they are neither relied upon by the police officer who entered them and nor are used by the Court. Thus, the accused is entitled to only the copies of documents as referred to in Section 207 of the Cr.P.C and the statements Crl. Misc. No.M-17996 of 2010 9 in a case diary only if ; (a) whether the said statement entered in the case diary is relied on by the Inspector Jassa Singh to refresh his memory or not. (b) whether the Court is using the same for contradicting the police officer. Admittedly, on 23.12.2005, the Judicial Magistrate Ist Class, passed the following order :- “ Present APP for State Accused in custody Copies of documents supplied to the accused free of cost as required under Section 207 Cr.P.C. Separate statements also been recorded to this effect. Now put up before the Illaqa Magistrate on 24.12.2005 for scrutiny of documents.” Thus, all the documents were supplied to the accused before committal of the case. No objection was raised by the accused. No further demand was made with respect to the documents supplied to him by the prosecution. As such, all the statements under Section 161 Cr.P.C were supplied. It is an admitted position that the statements of witnesses Harchand Singh and Satinder Singh Sekhon @ Channi recorded by Inspector Sewa Singh were duly supplied. The accused moved an application for supply of the alleged statements recorded by Inspector Jassa Singh as late as on 12.01.2010 on the ground that Jassa Singh, Investigating Officer PW47 has deposed as under :- “.. However, Satinder Singh Sekhon met me at 22 number Phatak where I made inquiries from him. During the course of inquiries, he had told me that he received a telephonic call from Abdul Noori from Delhi who told him that Judge Vijay Singh is not picking up the phone and he smell some foul play and further he was asked to go to Vijay Singh to see as to what is Crl. Misc. No.M-17996 of 2010 10 the matter. He further told that he proceeded towards the house of Judge Vijay Singh. Whatsoever, was told to me by Satinder Singh Sekhon, PW, I had mentioned the same in my Zimni. .... I had also made inquiries from Harchand Singh PW20 by going to his village Baran on 15.10.2005. I must have made a mention of the facts coming out of the inquiries made from Harchand Singh PW. I did not record his statement..” Whereas, during his cross-examination, he had specifically stated as under :- “Whatsoever was told to me by Satinder Singh Sekhon, PW. I had mentioned the same in my Zimni. I do not remember as to if Satinder Singh Sekhon had told me that he was the first one to reach at the spot and he had seen the Balero Vehicle occupied by three persons leaving the spot. I do not want to see the Zimni in this regard. I did not record the statement of Satinder Singh Sekhon.” Thus, it is evident that the said diary or the zimnies entered by Jassa Singh have not been used to refresh his memory. The statement as recorded, cannot be held under Section 161 Cr.P.C as the statements under Section 161 Cr.P.C recorded by Inspector Sewa Singh have already been supplied. No reliance has been placed on the statement which was recorded by Inspector Jassa Singh. Inspector Jassa Singh has refused to refer to the case diary for refreshing his memory. The accused has no right on a statement which is neither part of the challan and nor referred to by the police officer to refresh his memory. The proposition of law is well settled by Hon'ble the Apex Court in the case of Md. Ankoos & Ors. (supra). Para 24 of the same reads as under :- “24. A criminal court can use the case diary in the aid of any inquiry or trial but not as an evidence. This position is made clear by Section 172(2) of the Crl. Misc. No.M-17996 of 2010 11 Code. Section 172(3) places restrictions upon the use of case diary by providing that accused has no right to call for the case diary but if it is used by the police officer who made the entries for refreshing his memory or if the Court uses it for the purpose of contradicting such police officer, it will be so done in the manner provided in Section 161 of the Code and Section 145of the Evidence Act. Court's power to consider the case diary is not unfettered. In light of the inhibitions contained in Section 172(2), it is not open to the Court to place reliance on the case diary as a piece of evidence directly or indirectly. This Court had an occasion to consider Section 172 of the Code vis-a-vis Section 145 of the Evidence Act and Section 162 of the Code in the case of Mahabir Singh vs. State of Haryana, 2001(3) R.C.R.(Criminal) 685 : (2001) 7 SCC 148 and it was stated as follows : “14. 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 intended 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 Crl. Misc. No.M-17996 of 2010 12 the Code for the purpose of explaining the contradiction.” Thus, the accused has no right to call for the case diary but if it is used by the police officer who made the enteries for refreshing his memory or if the Court uses it for the purpose of contradicting such police officer. Hon'ble the Supreme Court even earlier, too, in the case of Mukund Lal (supra) had held that the denial to the accused of an unfettered right to make roving inspection of the entries in the case diary was not unreasonable and thereafter, went on to hold in para 3 as under :- “ 3. xxx xxx xxx 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 contradicting the police officer with reference to the contents of the diaries. 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 Crl. Misc. No.M-17996 of 2010 13 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. Th 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 a 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 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. Crl. Misc. No.M-17996 of 2010 14 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.” However, the trial Court while partly allowing the application dated 12.01.2010 fell in error by holding that the accused had unfettered right to the entries in the case diary, whereas, Hon'ble the Supreme Court in the case of Mukund (supra) had laid down that the power of the Court to examine the case diary is