However, in so far as General Diary is concerned, Section
12 of the Police Act, 2011 ( Kerala ) would give an idea as
to its purpose and intent. It reads as follows:
S.12. Police Station Diary:
Every police station shall keep a general
diary in such form as may be fixed by the
government from time to time and record
therein the substance of all complaints
made, first information reports, charges,
the names and details of complainants,
opposite parties and all arrested persons,
the details of the offences charged
against them, and properties including
weapons that may have been seized from
their possession or otherwise.
12.Thus it is pellucid that the General Diary maintained at
the Police Station is different from the Diary which is
required to be maintained by the Police Officer who is
making investigation under chapter XII of the code.
13.This misconception was taken note of by the Apex Court
in Shamshul Kanwar V State of U.P. (AIR 1995 SC
1748 ) and in paragraph No. 12 of the judgment has held
that the General Diary as well as the diary maintained
under Section 172 of the Code are essentially different.
14.What has now been sought for by the petitioner is the
copies of the entries in the general diary maintained in the
Police Station and not the Diary maintained by the
investigating officer. The Station house officer of the
Sultan Bathery Police Station was not conducting the
investigation under Chapter XII. The embargo placed
under Section 172 (3) of the Code will not apply to the
General Diary maintained in the Police Station. The finding
of the learned Additional Sessions Judge that the General
Diary maintained by the Station house officer is one
maintained under Section 172 of the Code is clearly
erroneous.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE RAJA VIJAYARAGHAVAN V
14TH DAY OF OCTOBER 2016
Crl.MC.No. 6069 of 2016
SHIJU.P.T. Vs STATE OF KERALA,
Citation: 2017 CRLJ(NOC)93 Ker
1.The petitioner herein is the 1st accused in S.C.No.86 of
2014 on the file of the Additional Sessions Court (Adhoc-
II), Kalpetta. He along with the other accused are being
proceeded against for having committed offences
punishable under sections 452, 323, 324, 326, 307 read
with 34 of the IPC.
2.After the close of prosecution evidence when it was felt
that it was not a case of no evidence, warranting acquittal
under Section 232 of the Code, the accused were called
upon to enter upon their defence. An application which is
produced as Annexure 1 was filed and three witnesses
were sought to be summoned.
(a) The defence witness No.1 was the Station House
Officer of the Sultan Bathery Police Station and he was
sought to be summoned to appear and produce the
General Diary, Log Book, Vehicle Movement Register,
Beat Book and Beat Register of Beat No.1 of the said
Station pertaining to the period from 15.12.2013 to
16.12.2013.
(b) The 2nd witness was the Superintendent of the
Government Taluk Hospital, Sulthan Bathery, and he
was required to produce the Intimation Register and
office copy of intimation of certain injured persons.
(c) The 3rd witness was the Medical Officer-in-charge,
Vinayaka Hospital, Suthan Bathery and he was sought to
be summoned to produce the Intimation Register and
office copy of the intimation of certain injured witnesses.
3.The said application filed purportedly under Section 233
(3) of the Code of Criminal Procedure was dismissed by
the learned Additional Sessions Judge by the impugned
order. According to the learned Additional Sessions Judge,
the bar under section 172 (3) would operate and the
accused is not entitled to use the General Diary and the
other documents sought for as of right. It was also held
that the petitioner could have very well applied under the
Right to Information Act to verify the said records and
could have subsequently produced it before Court. The
Court below also felt that the summoning of the
documents would delay the proceedings and defeat the
ends of justice.
4.The above order is assailed in this petition filed under
Section 482 of the Code of Criminal Procedure.
5.Heard the learned Counsel appearing for the petitioner as
well as the learned Public Prosecutor.
6.The learned counsel appearing for the petitioner would
submit that the prosecution allegation is that on
15.12.2013, the accused had attacked the first informant
and his friends owing to previous enmity. But, the FIR is
seen registered only on 17.12.2013. It was borne out
from the evidence of prosecution witnesses that the police
had reached the scene of crime on 15.12.2013 and had
sealed the room in which the incident is alleged to have
taken place. All the witnesses had also stated that the
injured were initially taken to the Government Hospital,
Sulthan Bathery and thereafter to the Vinayaka Hospital,
Sulthan Bathery. These aspects, according to the learned
counsel, if brought out in evidence, would affect the
credibility of the witnesses and would create serious dent
in the prosecution version. According to the learned
counsel, the learned Sessions Judge fundamentally erred
in dismissing the application. The bar under section 172
(3) would not apply as what was sought to be summoned
was the General Diary maintained in the Police Station
and not the Diary maintained by the Investigating Officer
under Section 172 of the Code. According to the learned
counsel, the accused is entitled as a matter of right to
have any witness named in the list he delivers, summoned
and examined. Violation of the mandate under Section
233(3) of the Code would certainly prejudice the accused
and the precious right of the accused cannot be curtailed
for reasons such as delay. The learned Counsel would
further contend that instead of summoning the witnesses
and documents as prayed for, the learned Sessions Judge
has abdicated its powers and has directed the accused to
apply under the provisions of the Right to Information Act.
This is downright illegal is the submission. It is further
submitted that the learned Sessions Judge has entered
upon a finding with regard to the defence contentions in
the impugned order and justified the flaws in the
prosecution case. Summing up it is urged that the prayer
for summoning the doctors was rejected without offering
any other reason except for delay and vexation.
7.The learned Public Prosecutor countered the submissions
of the learned counsel and submitted that no interference
is warranted.
8.I have considered the rival submissions and have gone
through the materials on record.
9.The first question is whether the General Diary and other
documents maintained in the Police Station , which was
sought to be summoned by the defense is hit by section
172 (3) of the Code. S.172 of Code of Criminal Procedure
reads thus:
(1) 'Every police officer making an
investigation under this Chapter shall day
by day enter his proceedings in the
investigation in a diary, setting forth the
time at which the information reached
him, the time at which he began and
closed his investigation, the place, or
places visited by him, and a statement of
the circumstances ascertained through
his investigation.
(1A) The Statements of Witnesses
recorded during the course of
investigation under section 161 shall be
inserted in the case diary.
(1B) The diary referred to in sub-section
(1) shall be a volume and duly paginated
(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 S.161 or S.145,
as the case may be, of the Indian
Evidence Act, 1872 (1 of 1872) shall
apply.'
10.The diary maintained by the Police Officer making the
investigation under Chapter XII should contain the
proceedings in the investigation, setting for the time at
which the information reached him, the time at which he
began and closed the investigation, the places visited by
him and a statement of the circumstances ascertained
through his investigation. The said diary shall also contain
the statement of witnesses recorded under section 161 of
the code and it should be kept as a volume and duly
paginated. Any criminal court is empowered to send for
the police diaries of a case under enquiry 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. The said diary
cannot be called for the accused or his agent and they
shall not be entitled to see them merely because they are
referred to by the court. In light of the inhibitions
contained in S.172(2), it is not open to the Court to place
reliance on the diary as a piece of evidence directly or
indirectly. However, this does not debar the court from
sending for the case diary suo motu or on the request of
the accused. The accused is not entitled to copies of the
case diary and the entries can be used only to the extent
by the court as well as by the accused as provided for in
section 172 of the Code.
11.However, in so far as General Diary is concerned, Section
12 of the Police Act, 2011 ( Kerala ) would give an idea as
to its purpose and intent. It reads as follows:
S.12. Police Station Diary:
Every police station shall keep a general
diary in such form as may be fixed by the
government from time to time and record
therein the substance of all complaints
made, first information reports, charges,
the names and details of complainants,
opposite parties and all arrested persons,
the details of the offences charged
against them, and properties including
weapons that may have been seized from
their possession or otherwise.
12.Thus it is pellucid that the General Diary maintained at
the Police Station is different from the Diary which is
required to be maintained by the Police Officer who is
making investigation under chapter XII of the code.
13.This misconception was taken note of by the Apex Court
in Shamshul Kanwar V State of U.P. (AIR 1995 SC
1748 ) and in paragraph No. 12 of the judgment has held
that the General Diary as well as the diary maintained
under Section 172 of the Code are essentially different.
14.What has now been sought for by the petitioner is the
copies of the entries in the general diary maintained in the
Police Station and not the Diary maintained by the
investigating officer. The Station house officer of the
Sultan Bathery Police Station was not conducting the
investigation under Chapter XII. The embargo placed
under Section 172 (3) of the Code will not apply to the
General Diary maintained in the Police Station. The finding
of the learned Additional Sessions Judge that the General
Diary maintained by the Station house officer is one
maintained under Section 172 of the Code is clearly
erroneous.
15.In so far as the Medical Officers who were sought to be
summoned for verifying the intimation registers, the
learned Session Judge was of the view that their
summoning will only enure to protract the trial. It will be
relevant in this context to refer to a judgment rendered by
a Division Bench of this Court in Radhanandan V State
of Kerala [1990 (1) KLT 516] wherein it was held as
follows in paragraph No 2 of the judgment :-
Every accused is entitled to a fair trial,
which includes opportunity for adducing
his own evidence also. That is his right if
he is not acquitted under S.232 on the
ground that the judge considers that
there is no evidence that he committed
the offence. In such a situation, it is
mandatory that he should be called upon
to enter on his defence and permitted to
adduce oral and documentary evidence of
his choice. On his application, the court
has the duty to issue process and secure
witnesses, documents or things. The
choice in this respect is solely on him.
Calling the accused to enter on his
defence is not an empty formality. Its
omission will be fatal to the prosecution
and the conviction will be bad. The
application of the accused for issue of
process for compelling the attendance of
any witness or the production of any
document or thing cannot be rejected by
the court as unnecessary. The discretion
of the court to reject such an application
under S.233(3) is only on the ground
that it is made for the purpose of
vexation or delay or for defeating the
ends of justice. Subject to those
restrictions, the accused is having the
unfettered right to have any witness,
document or thing summoned. Entering
on defence and adducing evidence marks
a special stage in and is an essential part
of a criminal trial. If that chance is
denied, it cannot be said to be fair trial.
The restrictions on the grounds of
vexation, delay or defeating the ends of
justice are not available in this case.
16.As held in Radhanandan (supra) the accused has the
right to adduce evidence which may be relevant for proper
appreciation of the prosecution evidence and to
substantiate his defence. Though it is open to the Session
Judge to refuse to summon a defence witness on the
ground that the application to summon him has been
made for the purpose of vexation or delay or for defeating
the ends of justice, after having gone through the facts of
the instant case, it does not appear to me that the court
below was justified in denying an opportunity to the
petitioner to advance his case. It is by now settled that
the right of the accused is statutory in nature and the
provisions of section 233 of the Code which provides an
opportunity to the accused to adduce evidence in support
of his defence is mandatory. When such an opportunity is
not granted, the conviction itself can become vitiated.
For the aforesaid reasons, I am of the view that the
impugned order cannot be sustained. The same is set
aside. Crl.M.P.No. 1641 of 2016 in S.C. No 86 of 2014 will
stand allowed. The learned Additional Judge is directed to
issue summons to the defence witnesses and proceed with
the trial in accordance with law.
Sd/-
RAJA VIJAYARAGHAVAN.V.
JUDGE
Print Page
12 of the Police Act, 2011 ( Kerala ) would give an idea as
to its purpose and intent. It reads as follows:
S.12. Police Station Diary:
Every police station shall keep a general
diary in such form as may be fixed by the
government from time to time and record
therein the substance of all complaints
made, first information reports, charges,
the names and details of complainants,
opposite parties and all arrested persons,
the details of the offences charged
against them, and properties including
weapons that may have been seized from
their possession or otherwise.
12.Thus it is pellucid that the General Diary maintained at
the Police Station is different from the Diary which is
required to be maintained by the Police Officer who is
making investigation under chapter XII of the code.
13.This misconception was taken note of by the Apex Court
in Shamshul Kanwar V State of U.P. (AIR 1995 SC
1748 ) and in paragraph No. 12 of the judgment has held
that the General Diary as well as the diary maintained
under Section 172 of the Code are essentially different.
14.What has now been sought for by the petitioner is the
copies of the entries in the general diary maintained in the
Police Station and not the Diary maintained by the
investigating officer. The Station house officer of the
Sultan Bathery Police Station was not conducting the
investigation under Chapter XII. The embargo placed
under Section 172 (3) of the Code will not apply to the
General Diary maintained in the Police Station. The finding
of the learned Additional Sessions Judge that the General
Diary maintained by the Station house officer is one
maintained under Section 172 of the Code is clearly
erroneous.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE RAJA VIJAYARAGHAVAN V
14TH DAY OF OCTOBER 2016
Crl.MC.No. 6069 of 2016
SHIJU.P.T. Vs STATE OF KERALA,
Citation: 2017 CRLJ(NOC)93 Ker
1.The petitioner herein is the 1st accused in S.C.No.86 of
2014 on the file of the Additional Sessions Court (Adhoc-
II), Kalpetta. He along with the other accused are being
proceeded against for having committed offences
punishable under sections 452, 323, 324, 326, 307 read
with 34 of the IPC.
2.After the close of prosecution evidence when it was felt
that it was not a case of no evidence, warranting acquittal
under Section 232 of the Code, the accused were called
upon to enter upon their defence. An application which is
produced as Annexure 1 was filed and three witnesses
were sought to be summoned.
(a) The defence witness No.1 was the Station House
Officer of the Sultan Bathery Police Station and he was
sought to be summoned to appear and produce the
General Diary, Log Book, Vehicle Movement Register,
Beat Book and Beat Register of Beat No.1 of the said
Station pertaining to the period from 15.12.2013 to
16.12.2013.
(b) The 2nd witness was the Superintendent of the
Government Taluk Hospital, Sulthan Bathery, and he
was required to produce the Intimation Register and
office copy of intimation of certain injured persons.
(c) The 3rd witness was the Medical Officer-in-charge,
Vinayaka Hospital, Suthan Bathery and he was sought to
be summoned to produce the Intimation Register and
office copy of the intimation of certain injured witnesses.
3.The said application filed purportedly under Section 233
(3) of the Code of Criminal Procedure was dismissed by
the learned Additional Sessions Judge by the impugned
order. According to the learned Additional Sessions Judge,
the bar under section 172 (3) would operate and the
accused is not entitled to use the General Diary and the
other documents sought for as of right. It was also held
that the petitioner could have very well applied under the
Right to Information Act to verify the said records and
could have subsequently produced it before Court. The
Court below also felt that the summoning of the
documents would delay the proceedings and defeat the
ends of justice.
4.The above order is assailed in this petition filed under
Section 482 of the Code of Criminal Procedure.
5.Heard the learned Counsel appearing for the petitioner as
well as the learned Public Prosecutor.
6.The learned counsel appearing for the petitioner would
submit that the prosecution allegation is that on
15.12.2013, the accused had attacked the first informant
and his friends owing to previous enmity. But, the FIR is
seen registered only on 17.12.2013. It was borne out
from the evidence of prosecution witnesses that the police
had reached the scene of crime on 15.12.2013 and had
sealed the room in which the incident is alleged to have
taken place. All the witnesses had also stated that the
injured were initially taken to the Government Hospital,
Sulthan Bathery and thereafter to the Vinayaka Hospital,
Sulthan Bathery. These aspects, according to the learned
counsel, if brought out in evidence, would affect the
credibility of the witnesses and would create serious dent
in the prosecution version. According to the learned
counsel, the learned Sessions Judge fundamentally erred
in dismissing the application. The bar under section 172
(3) would not apply as what was sought to be summoned
was the General Diary maintained in the Police Station
and not the Diary maintained by the Investigating Officer
under Section 172 of the Code. According to the learned
counsel, the accused is entitled as a matter of right to
have any witness named in the list he delivers, summoned
and examined. Violation of the mandate under Section
233(3) of the Code would certainly prejudice the accused
and the precious right of the accused cannot be curtailed
for reasons such as delay. The learned Counsel would
further contend that instead of summoning the witnesses
and documents as prayed for, the learned Sessions Judge
has abdicated its powers and has directed the accused to
apply under the provisions of the Right to Information Act.
This is downright illegal is the submission. It is further
submitted that the learned Sessions Judge has entered
upon a finding with regard to the defence contentions in
the impugned order and justified the flaws in the
prosecution case. Summing up it is urged that the prayer
for summoning the doctors was rejected without offering
any other reason except for delay and vexation.
7.The learned Public Prosecutor countered the submissions
of the learned counsel and submitted that no interference
is warranted.
8.I have considered the rival submissions and have gone
through the materials on record.
9.The first question is whether the General Diary and other
documents maintained in the Police Station , which was
sought to be summoned by the defense is hit by section
172 (3) of the Code. S.172 of Code of Criminal Procedure
reads thus:
(1) 'Every police officer making an
investigation under this Chapter shall day
by day enter his proceedings in the
investigation in a diary, setting forth the
time at which the information reached
him, the time at which he began and
closed his investigation, the place, or
places visited by him, and a statement of
the circumstances ascertained through
his investigation.
(1A) The Statements of Witnesses
recorded during the course of
investigation under section 161 shall be
inserted in the case diary.
(1B) The diary referred to in sub-section
(1) shall be a volume and duly paginated
(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 S.161 or S.145,
as the case may be, of the Indian
Evidence Act, 1872 (1 of 1872) shall
apply.'
10.The diary maintained by the Police Officer making the
investigation under Chapter XII should contain the
proceedings in the investigation, setting for the time at
which the information reached him, the time at which he
began and closed the investigation, the places visited by
him and a statement of the circumstances ascertained
through his investigation. The said diary shall also contain
the statement of witnesses recorded under section 161 of
the code and it should be kept as a volume and duly
paginated. Any criminal court is empowered to send for
the police diaries of a case under enquiry 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. The said diary
cannot be called for the accused or his agent and they
shall not be entitled to see them merely because they are
referred to by the court. In light of the inhibitions
contained in S.172(2), it is not open to the Court to place
reliance on the diary as a piece of evidence directly or
indirectly. However, this does not debar the court from
sending for the case diary suo motu or on the request of
the accused. The accused is not entitled to copies of the
case diary and the entries can be used only to the extent
by the court as well as by the accused as provided for in
section 172 of the Code.
11.However, in so far as General Diary is concerned, Section
12 of the Police Act, 2011 ( Kerala ) would give an idea as
to its purpose and intent. It reads as follows:
S.12. Police Station Diary:
Every police station shall keep a general
diary in such form as may be fixed by the
government from time to time and record
therein the substance of all complaints
made, first information reports, charges,
the names and details of complainants,
opposite parties and all arrested persons,
the details of the offences charged
against them, and properties including
weapons that may have been seized from
their possession or otherwise.
12.Thus it is pellucid that the General Diary maintained at
the Police Station is different from the Diary which is
required to be maintained by the Police Officer who is
making investigation under chapter XII of the code.
13.This misconception was taken note of by the Apex Court
in Shamshul Kanwar V State of U.P. (AIR 1995 SC
1748 ) and in paragraph No. 12 of the judgment has held
that the General Diary as well as the diary maintained
under Section 172 of the Code are essentially different.
14.What has now been sought for by the petitioner is the
copies of the entries in the general diary maintained in the
Police Station and not the Diary maintained by the
investigating officer. The Station house officer of the
Sultan Bathery Police Station was not conducting the
investigation under Chapter XII. The embargo placed
under Section 172 (3) of the Code will not apply to the
General Diary maintained in the Police Station. The finding
of the learned Additional Sessions Judge that the General
Diary maintained by the Station house officer is one
maintained under Section 172 of the Code is clearly
erroneous.
15.In so far as the Medical Officers who were sought to be
summoned for verifying the intimation registers, the
learned Session Judge was of the view that their
summoning will only enure to protract the trial. It will be
relevant in this context to refer to a judgment rendered by
a Division Bench of this Court in Radhanandan V State
of Kerala [1990 (1) KLT 516] wherein it was held as
follows in paragraph No 2 of the judgment :-
Every accused is entitled to a fair trial,
which includes opportunity for adducing
his own evidence also. That is his right if
he is not acquitted under S.232 on the
ground that the judge considers that
there is no evidence that he committed
the offence. In such a situation, it is
mandatory that he should be called upon
to enter on his defence and permitted to
adduce oral and documentary evidence of
his choice. On his application, the court
has the duty to issue process and secure
witnesses, documents or things. The
choice in this respect is solely on him.
Calling the accused to enter on his
defence is not an empty formality. Its
omission will be fatal to the prosecution
and the conviction will be bad. The
application of the accused for issue of
process for compelling the attendance of
any witness or the production of any
document or thing cannot be rejected by
the court as unnecessary. The discretion
of the court to reject such an application
under S.233(3) is only on the ground
that it is made for the purpose of
vexation or delay or for defeating the
ends of justice. Subject to those
restrictions, the accused is having the
unfettered right to have any witness,
document or thing summoned. Entering
on defence and adducing evidence marks
a special stage in and is an essential part
of a criminal trial. If that chance is
denied, it cannot be said to be fair trial.
The restrictions on the grounds of
vexation, delay or defeating the ends of
justice are not available in this case.
16.As held in Radhanandan (supra) the accused has the
right to adduce evidence which may be relevant for proper
appreciation of the prosecution evidence and to
substantiate his defence. Though it is open to the Session
Judge to refuse to summon a defence witness on the
ground that the application to summon him has been
made for the purpose of vexation or delay or for defeating
the ends of justice, after having gone through the facts of
the instant case, it does not appear to me that the court
below was justified in denying an opportunity to the
petitioner to advance his case. It is by now settled that
the right of the accused is statutory in nature and the
provisions of section 233 of the Code which provides an
opportunity to the accused to adduce evidence in support
of his defence is mandatory. When such an opportunity is
not granted, the conviction itself can become vitiated.
For the aforesaid reasons, I am of the view that the
impugned order cannot be sustained. The same is set
aside. Crl.M.P.No. 1641 of 2016 in S.C. No 86 of 2014 will
stand allowed. The learned Additional Judge is directed to
issue summons to the defence witnesses and proceed with
the trial in accordance with law.
Sd/-
RAJA VIJAYARAGHAVAN.V.
JUDGE
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