SUBHASH CHANDRA Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner Subhash Chandra, an accused in a criminal case, being refused permission to look into the case-diary during the cross-examination of Investigating Officer, in order to verify whether a particular note said to be appended to the diary as alleged by the Investigating Officer, was there or not, and for some such other entries in the said diary, has now challenged the vires of S.172(3) of the Cr.P.C.

(2.) Section 172 of the Cr.P.C. reads as under :-

(3.) Learned counsel for the petitioner has contended that for a proper enquiry or trial, the accused is entitled to know all those facts, which are necessary for proper trial or enquiry and for that purpose he should have an access to the diary so that whatever is relevant for his purpose, he may make use of it. In the second place, he urged that the secrecy of the diary from the accused does not serve any public purpose and it is also not in consonance with the provisions of S.123 of the Evidence Act. In the connection, he placed reliance upon State of Uttar Pradesh v. Raj Narain, AIR 1975 SC 865 and S.P. Gupta v. President of India, AIR 1982 SC 149 I have given my careful consideration to the contentions of the learned counsel for the petitioner, but am, as at present advised, unable to find anything in the said sub-sec. (3) of S.177, which may make it unconstitutional or void. As a matter of fact, S. 123 of the Evidence Act, is not at all relevant for the purpose of considering whether S.172(3) of the Criminal Procedure Code is unconstitutional or not, because these two provisions cater for two vary different situations and the purposes of the two sections are also different. So far as S.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 police officer, the provisions of Ss.161 and 145 of the 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 statement made by the Investigating Officer, he may always request the court to look into the diary and verify the facts and, thus, rights 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 S. 123 of the Evidence Act in order to decide whether any privilege can be claimed with respect to the document in question. Even according to the authorities relied upon by the learned counsel for the petitioner pertaining to S.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 particular affair of the State, which need not be disclosed.