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CASE NO.: Appeal (crl.)  201 of 2007

PETITIONER: State of NCT of Delhi

RESPONDENT: Ravi Kant Sharma & Ors

DATE OF JUDGMENT: 13/02/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 3480 of 2006)

Dr. ARIJIT PASAYAT, J.

       Leave granted.   

Challenge in this Appeal is to the direction given by the  Delhi High Court directing that if the gists of the interrogation  can be regarded as statements under Section 161(3) of the  Code of Criminal Procedure, 1973 (in short the ’Cr.P.C.’),  although in summary form, then the same would have to be  supplied over the accused i.e. the respondents herein.  

The background facts in a nutshell are as follows:

Respondents filed a petition under Section 397 and  Section 401 read with Section 482 of the Cr.P.C. regarding the  opinion expressed by the trial court during recording of cross  examination of PW 193 (Inspector Sukhwinder Singh) with  regard to submissions alleged to have been made by PW 166  (Rakesh Bhatnagar).   

For the purpose of adjudication of the present  controversy, reference has to be made to the opinion expressed  by the trial court which reads as follows:

"It is not in dispute that this witness has  admitted to have interrogated PW Rakesh  Bhatnagar several times but copy of seven  statement (recorded by me and other IO’s)  only is supplied to accused R.K. Sharma.  In  my opinion even the gist made after  interrogating a person i.e. PW Rakesh  Bhatnagar was a statement in view of  aforesaid provision and the accused was  entitled to get copy of such gists of  statements.  Prosecution is accordingly to  supply the copies of such gists to accused  R.K. Sharma".

This opinion/direction was questioned by the appellant

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because in terms of such opinion/direction the prosecution  has been directed to supply copies of ’gists’ of statement said  to have been recorded while interrogating PW 66.  Stand of the  appellant is that these are not statements which fall within  the meaning of Section 161(3) of the Cr.P.C. and, therefore,  the accused is not entitled to any copy of the so called ’gists’.   It was pointed out that these ’gists’ were not statements but  mere observations of the investigating officer. Relevant portion  of the cross examination of PW-193 reads as follows:

"At this stage learned defence counsel  requests that he be supplied copies of the gist  of statements of interrogation of Rakesh  Bhatnagar recorded in case diary under  Section 161.  The witness submits that he did  not record the gists of statement but the gist  of interrogation which was his own  observation and not the statement."

       It was pointed out by the appellant before the trial court  that PW 193 has categorically and clearly stated that he did  not record gist of statements of PW 66.  On the other hand the  gist related to his own observation and cannot be treated as  statement of PW 66. Since the plea did not find acceptance by  the trial Court, High Court was moved by filing a revision  petition. Maintainability of revision was questioned by the  respondents.  It was also pointed out that in terms of Section  172 Cr.P.C., the investigating officer is required to maintain a  case diary. With reference to the decision of this Court in  Shamshul Kanwar v. State of Uttar Pradesh (1995 (4) SCC  430) it was submitted that in some States the case diary  comprises two parts i.e. first relating to the steps taken during  investigation and the second part consists of statements of  circumstances ascertained during the investigation. This  Court observed that these statements obviously refer to the  statements recorded by the officer in terms of Section 161  Cr.P.C. and copies of second part which mainly contains  statement of the witnesses as a matter of course are to be  supplied to the accused persons.

       After considering the rival submissions, learned Single  Judge of the High Court observed that revision was  maintainable and on merits observed as follows:

       "As regards the merits, considering all  the arguments advanced by the learned  counsel for the parties and particularly in  view of the statements made by PW 193 in the  course of his cross-examination that the gists  recorded by him were gists of his own  observation and not the statement of PW-66,  it would be necessary to ascertain by looking  at the case diary itself as to whether this  statement of PW 193 is made out or not.   There is not doubt that if the gists pertain to  only observations made by PW-193 himself  then these are not to be disclosed to the  accused/respondents.  However, if the gists  can be regarded as statements under Section  161(3) of the Cr.P.C., although in summary  form, made by PW-66 then in view of the  various decision of this Court and particularly  in the case of Shamshul Kanwar, the same  would have to be made over the

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accused/respondents.  It would be necessary  to examine the case diary to ascertain the  same.  The matter is, therefore, sent back to  the concerned trial court for determination of  this issued in view of the aforesaid guidelines.   Thereafter, the court may pass appropriate  orders.  The impugned direction/order is set  aside.

The revision petition stands disposed of."

According to the learned counsel for the appellant, the  conceptual difference between the statement of witnesses  recorded under Section 172 Cr.P.C. and case diary under  Section 161 Cr.P.C. has been lost sight of.  It is submitted  that Shamshul Kanwar’s case (supra) on which the High  Court relied dealt with cases having composite case diary  which include the statement recorded under Section 161  Cr.P.C. as well as the observation of the investigating officer  under Section 172 Cr.P.C.   It is submitted that in the State of  NCT of Delhi the case diary is being maintained separately  and hence there is no question of any portion of case diary  being looked into to find out whether statement under Section  161 have been recorded therein or not.   

Per contra learned counsel for the respondents  submitted that the statements prayed for by the respondents  are statements recorded under Section 161 Cr.P.C. and not of  statements relatable to Section 172 Cr.P.C. as projected by the  appellants. With reference to Section 172 Cr.P.C. it is  submitted that it does not contemplate recording of:  (a)  statement of witnesses; (b) gists of statement of witnesses.   Therefore, recording of statement of witnesses in case diary  would not confer such statement the protection granted under  Section 172 Cr.P.C.

Sections 161 and 172 Cr.P.C. read as follows:

"Section 161: Examination of witnesses by  police: (1) Any police officer making an  investigation under this Chapter, or any  police officer not below such rank as the State  Government may, by general or special order  prescribe in this behalf, acting on the  requisition of such officer, may examine orally  any person supposed to be acquainted with  the facts and circumstances of the case.

(2)     Such person shall be bound to answer  truly all questions relating to such case put to  him by such officer, other than questions the  answers to which would have a tendency to  expose him to a criminal charge or to a  penalty or forfeiture. (3)     The police officer may reduce into writing  any statement made to him in the course of  an examination under this section; and if he  does so, he shall make a separate and true  record of the statement of each such person  whose statement he records.

Section 172: Diary of proceeding in  investigation : (1) Every police officer making  an investigation under this Chapter shall day

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by day enter his proceeding 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.

(2)     Any Criminal Court may send for the  police diaries of a 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, not shall  he or they are 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 purpose of  contradicting such police officer, the  provisions of section 161 or section 145, as  the case may be, of the Indian Evidence Act,  1872 (1 of 1872) shall apply.

Under Section 161 Cr.P.C. the police officer may reduce  into writing any statement made to him in the course of  examination under that provision and if he does so he shall  make separate and true record of the statement of each such  person whose statement he records. The provision in other  words authorizes the police officer to reduce into writing any  statement made by a witness. In a given case the investigating  officer may record circumstances ascertained during  investigation in the case diary in terms of Section 172 Cr.P.C.  It is only when the investigating officer decides to record the  statement of witnesses under Section 161 Cr.P.C. that he  becomes obliged to make a true record of the statement which  obviously will not include the interpretation of the  investigating officer of the statements or the gists of  statement.  At this stage it will be necessary to take note of  sub-section (b) of Section 173 Cr.P.C. which authorises the  police officer to claim a sort of privilege in respect of any  statement recorded under Section 161 Cr.P.C. after giving  reasons as to why such statement may not be provided to the  accused.  Such privilege can only be claimed in respect of  statement recorded under Section 161 Cr.P.C. and not in  respect of what the officer records in the case diary i.e. the gist  of the statement under Section 172 Cr.P.C.  It will also be  necessary to take note of Section 207 Cr.P.C.  The Magistrate  has to, in terms of that provision, provide to the accused, free  of cost, copies of statements recorded under Section 161 (3)  subject to the exceptions in terms of Section 173(6). A  categorical statement has been made by the learned counsel  for the appellant that the gist of the statement has not been  produced by the prosecution to prove the guilt of the accused  and the gists of the statements were not recorded in terms of  Section 161 Cr.P.C. and accused has no right to ask for the  gists of such statements if recorded under Section 172.   

At this juncture it would be necessary to take note of sub  section (3) of Section 172 which provides that neither the  accused nor his agents shall be entitled to call for such diaries  meaning diary of proceedings in investigation nor shall he or  they be entitled to see them merely because they are referred

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to by the Court. As rightly submitted by learned counsel for the  appellant, in different States case diaries are maintained in  different ways.  Some States have a composite case diary  which includes the statements recorded under Section 161  Cr.P.C. as well as the observations of the investigating officer  under Section 172 Cr.P.C. This court, therefore, in  Shamshul Kanwar’s case (supra) held that the statements  under Section 161 need to be separated from observations  which are recorded under Section 172 in order to make  available the statement under Section 161(3) to the accused.   The position is entirely different here.  Certain observations  made by this Court in two recent cases also need to be  noted.  In Sunita Devi v. State of Bihar and Another [2005(1)  SCC 608] it was observed at para 27 as follows:

"The supervision notes can in no count be  called. They are not a part of the papers  which are supplied to the accused.  Moreover,  the informant is not entitled to the copy of the  supervision notes. The supervision notes are  recorded by the supervising officer.  The  documents in terms of Sections 207 and 208  are supplied to make the accused aware of  the materials which are sought to be utilized  against him. The object is to enable the  accused to defend himself properly. The idea  behind the supply of copies is to put him on  notice of what he has to meet at the trial. The  effect of non-supply of copies has been  considered by this Court in Noor Khan v.  State of Rajasthan (AIR 1964 SC 286) and  Shakila Abdul Gafar Khan (Smt.) v. Vasant  Raghunath Dhoble and Anr. (2003 (7) SCC  749). It was held that non-supply is not  necessarily prejudicial to the accused. The  Court has to give a definite finding about the  prejudice or otherwise.  The supervision notes  cannot be utilized by the prosecution as a  piece of material or evidence against the  accused. At the same time the accused  cannot make any reference to them for any  purpose.  If any reference is made before any  court to the supervision notes, as has noted  above they are not to be taken note of by the  concerned court.  As many instances have  come to light when the parties, as in the  present case, make reference to the  supervision notes, the inevitable conclusion is  that they have unauthorized  access to the  official records.  We,  therefore,  direct the  Chief Secretary of each State and Union  Territory and the concerned Director General  of Police to ensure that the supervision notes  are not made available to any person and to  ensure that confidentiality of the supervision  notes is protected.  If it comes to light that  any official is involved in enabling any person  to get the same appropriate action should be  taken against such official. Due care and  caution should be taken to see that while  supplying police papers supervision notes are  not given."          

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Similarly in Sidharth and Ors. v. State of Bihar [2005  (12) SCC 545] at para 27 it was noted as follows:

"Lastly, we may point out that in the present  case, we have noticed that the entire case diary  maintained by the police was made available to  the accused.  Under Section 172 of the Criminal  Procedure Code, every police officer making an  investigation has to record his proceedings 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.  It is specifically provided in sub- clause (3) of Section 172 that 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 purpose of  contradicting such police officer, the provisions  of Section 161 Cr.P.C. or the provisions of  Section 145 of the Evidence Act shall be  complied with.  The court is empowered to call  for such diaries not to use it as evidence but to  use it as aid to find out anything that happened  during the investigation of the crime.  These  provisions have been incorporated in the Code of  Criminal Procedure to achieve certain specific  objectives.  The police officer who is conducting  the investigation may come across a series of  information which cannot be divulged to the  accused.  He is bound to record such facts in the  case diary.  But if the entire case diary is made  available to the accused, it may cause serious  prejudice to others and even affect the safety  and security of those who may have given  statement to the police.  The confidentiality is  always kept in the matter of criminal  investigation and it is not desirable to make  available the entire case diary to the accused.  In  the instant case, we have noticed that the entire  case diary was given to the accused and the  investigating officer was extensively cross- examined on many facts which were not very  much relevant for the purpose of the case.  The  learned Sessions Judge should have been  careful in seeing that the trial of the case was  conducted in accordance with the provisions of  Cr.P.C."

The direction of the High Court as contained in the  impugned order is not a definite one. It only refers to  Shamshul Kanwar’s case (supra) and concludes that if the  ’gists’ can be regarded as statements under Section 161  Cr.P.C. although in summary form they would have to be  made over to the accused.  It does not factually find out that  as to whether the gists can be regarded as statements in view  of the position of law stated above. It did not take note of the  specific stand of the appellant about separate maintenance of  case diaries.  

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In view of what has been stated above, the directions of  the High Court are clearly unsustainable and are set aside.

Appeal is allowed.