Monday, 1 May 2017

Whether accused can be permitted to call general police diary?

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


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