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PETITIONER: KHATRI & ORS. ETC.

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT10/03/1981

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. ISLAM, BAHARUL (J)

CITATION:  1981 AIR 1068            1981 SCR  (3) 145  1981 SCC  (2) 493        1981 SCALE  (1)531

ACT:      Constitution of  India, 1950,  Article 32-Production by the State  of certain  documents called  for by  the Supreme Court, whether barred by sections 162 to 172 of the Criminal Procedure  Code,   1973,  when  the  State  does  not  claim privilege in regard to them under section 123 or section 124 of the  Indian Evidence Act-Scope of writ jurisdiction under Article 32  of the  Constitution-Section 162 of the Criminal Procedure  Code,   object   and   scope,   explained-Whether investigation ordered  by the State Government under section 3 of  the Indian  Police Act, 1861 is an investigation under Chapter XII  of the  Criminal Procedure  Code, 1973  and the reports submitted  pursuant  thereto,  form  part  of  "case diary"  within  the  meaning  of  section  172  of  Criminal Procedure Code.

HEADNOTE:      The petitioners  are certain  under trials in the State of Bihar.  In the Writ Petitions filed by them under Article 32 of  the Constitution  they complained  that  after  their arrest, whilst under police custody they were blinded by the members of  the police  force, acting  not in  their private capacity but as police officials and their fundamental right to life  guaranteed under Article 21 was therefore, violated and  for   this  violation   the  State  is  liable  to  pay compensation  to   them.  On  an  application  made  by  the petitioners,  several  documents  including  C.I.D.  Reports submitted by  Shri L.V. Singh, D.I.G., C.I.D, (Anti Dacoity) on December  9,1980 and  other dates  were called for by the Court. The  State raised  an objection  to the production of these documents  on the  ground that they are protected from disclosure under sections 162 to 172 of the Code of Criminal Procedure, 1973 and that the petitioners are not entitled to see them  or  to  make  any  use  of  them  in  the  present proceedings.      Overruling  the   State  objection  and  directing  the Registry to supply copies of these documents produced before the Court,  to the  petitioner’s advocate  and the  advocate appearing as amicus curiae, the Court ^      HELD: 1:1.  The reports  submitted by  Shri L.V.  Singh setting forth  the results  of his  investigation cannot  be

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shut out  from being  produced and  considered  in  evidence either under  section 162  or 172  of the Criminal Procedure Code, even  if they  refer to any statements made before him and his  associates during  investigation, provided they are otherwise  relevant  under  the  provisions  of  the  Indian Evidence  Act.   In  a   writ  petition  against  the  State Government where  the complaint is that the police officials of the  State Government blinded the petitioners at the time of arrest  or whilst in custody, the State Government cannot resist production  of a  report in  regard to  the truth  or otherwise of  the complaint, made by a highly placed officer pursuant to  the direction  issued by  the State Government. [163 B-D]      1:2. All  the other  reports covered by Items 2 to 5 of the Court’s  order dated  16th February,  1981  are  equally relevant and  must, therefore,  be  produced  and  taken  on record in the writ petition. [164 B-C] 146      2:1. The  procedure to  be followed  in a writ petition under Article  32 of  the Constitution  is prescribed  under order XXXV  of the  Supreme Court  Rules, 1966, and sub-rule (9) of  Rule 10  lays down  that at  the hearing of the rule nisi if  the court  is of the opinion that an opportunity be given to  the parties to establish their respective cases by leading further  evidence, the  court may take such evidence or cause  such evidence to be taken in such manner as it may deem fit  and proper  and obviously  the reception  of  such evidence will  be governed  by the  provisions of the Indian Evidence  Act.   It  is  obvious,  therefore,  that  even  a statement made  before a police officer during investigation can be  produced and  used in  evidence in  a writ  petition under Article 32 of the Constitution provided it is relevant under the  Indian Evidence  Act and  neither section 162 nor section 172  can be urged as a bar against its production or use. [153 C-E]      3:1. When  the Court  trying the writ petition proceeds to inquire  into the  issue  whether  the  petitioners  were blinded by  police officials at the time of arrest or whilst in police  custody, it  does so,  not  for  the  purpose  of adjudicating upon the guilt of any particular officer with a view to  punishing him  but  for  the  purpose  of  deciding whether the  fundamental  right  of  the  petitioners  under Article 21  has been violated and the State is liable to pay compensation to  them for  such violation.  The  nature  and object of the inquiry is altogether different from that in a criminal case  and any  decision  arrived  at  in  the  writ petition on  this issue  cannot have any relevance much less any binding  effect, in  criminal proceeding  which  may  be taken against  a particular police officer. [160 G-H, 161 A- B]      4. The  pendency of  a criminal  proceeding  cannot  be urged as  a bar  against the Court trying a civil proceeding or a  writ petition  where a  similar issue is involved. The two are  entirely  distinct  and  separate  proceedings  and neither is  a bar  against the  other. It  may be  that in a given case,  if the  investigation is  still proceeding, the Court  may   defer  the   inquiry  before   it   until   the investigation is  completed or  if the  Court  considers  it necessary in  the interests  of Justice, it may postpone its inquiry  even  after  the  prosecution  following  upon  the investigation is  terminated, but  that is a matter entirely for the exercise of the discretion of the Court and there is no bar precluding the Court from proceeding with the inquiry before it merely because the investigation or prosecution is pending. [161 D-E]

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    5. The fact in issue in the inquiry before the Court in the present  writ petition  is whether  the petitioners were blinded by  the members  of the  police force at the time of the arrest  or whilst in police custody. The several reports called for  by the  Court clearly  relate to the issue as to how, in  what manner  and by whom the twenty-four undertrial prisoners were  blinded, for  that is  the matter which Shri L.V.  Singh   was  directed   by  the  State  Government  to investigate. If  that be  so, the  State cannot  resist  the production of these reports and their use as evidence in the present proceeding. These reports are clearly relevant under section 35 of the Indian Evidence Act since they relate to a fact in  issue and  are made  by a  public  servant  in  the discharge of his official duty. [161 F, 162 A-D]      P.C.P. Reddiar  v. S.  Perumal, [1972]  2  S.C.R.  646; Kanwar Lal  Gupta v.  Amar Nath Chawla, [1975] 3 S.C.C. 646; followed.      Jagdat v.  Sheopal, A.I.R.  1927 Oudh 323; Chandulal v. Pushkar Rai, A.I.R. 1952 Nagpur 271; Lionell Edwards Limited v. State  of West  Bengal, A.I.R, 1967 Cal. 191, quoted with approval. 147      6. Section 4 of the Criminal Procedure Code, 1973 makes it clear  that the provisions of the Criminal Procedure Code are applicable  where an offence under the Indian Penal Code or under  any other law is being investigated, inquired into tried or otherwise dealt with. [151 B-C]      7. Section  162 bars  the use  of  any  statement  made before a  police officer  in the  course of an investigation under Chapter  XII, whether  recorded in  a police  diary or otherwise, but,  by the  express terms  of the Section, this bar is  applicable only where such statement is sought to be used "at  any inquiry  or trial  in respect  of any  offence under investigation  at the  time when  such  statement  was made." If  the statement  made before  the police officer in the course  of an  investigation under chapter XII is sought to be  used in any proceeding other than an inquiry or trial or even  at an inquiry or trial but in respect of an offence other than  that which  was under  investigation at the time when such  statement was  made, the bar of section 162 would not be attracted. [152 A-C]      7:2. Section  162 has  been enacted  for benefit of the accused  and  to  protect  him  against  overzealous  police officers and  untruthful witnesses.  But, this protection is unnecessary in any proceeding other than an inquiry or trial in respect  of the offence under investigation and hence the bar created  by the  section is  a limited  bar. It  has  no application in  a civil  proceeding or in a proceeding under Article 32  or 226  of the Constitution and a statement made before a  police officer  in the course of investigation can be used  as evidence  in such  proceeding,  provided  it  is otherwise relevant under the Indian Evidence Act. [152 D, H, 153 A-B]      Tehsildar Singh  and Another  v.  The  State  of  Uttar Pradesh, [1959] Supp. 2 S.C.R. 875 at 890, applied.      Emperor v.  Aftab Mohd.  Khan, A.I.R.  1940  All.  291; Baliram Tikaram  Maratha v.  Emperor, A.I.R.  1945 Nagpur 1; Malakalaya Surya  Rao v.  Janakamma, A.I.R.  1964 A.P.  198; approved.      8:1. Sub-section  (2) of  section 172  of the  Criminal Procedure  Code  empowers  the  criminal  court  holding  an inquiry or  trial of  a case to send for the police diary of the case  and the  criminal court can use such diary, not as evidence in  the case,  but to  aid it  in such  inquiry  or trial. But,  by reason  of sub-section  (3) of  section 172,

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merely because the case diary is referred to by the criminal court, neither  the accused  nor his  agents are entitled to call for  such diary  nor are  they entitled  to see  it. If however the case diary is used by the police officer who has made it  to refresh his memory or if the criminal court uses it for  the purpose  of contradicting such police officer in the inquiry  or trial,  the provisions  of  section  161  or section 145,  as the  case may be of the Indian Evidence Act would apply  and the  accused would  be entitled  to see the particular entry  in the  case diary which has been referred to for  either of these purposes and so much of the diary as in  the  opinion  of  the  Court  is  necessary  to  a  full understanding of the particular entry so used. [156 C-D]      Queen-Empress v. Mannu, [1897] 19 All. 390, quoted with approval.      State of  Bihar v. J.A.C. Saldhana, [1980] 2 S.C.R. 16, referred to.      8:2. The  bar against  production and use of case diary enacted in  section 172  is intended  to operate  only in an inquiry or trial for an offence and even this 148 bar is  a limited  bar, because  in an inquiry or trial, the bar does not operate if the case diary is used by the police officer for refreshing his memory or the criminal court uses it for  the purpose  of contradicting  such police  officer. This bar  can obviously  have no  application where  a  case diary is  sought to  be produced  and used  in evidence in a civil proceeding  or in a proceeding under Article 32 or 226 of the  Constitution and particularly when the party calling for the  case diary  is neither  an accused nor his agent in respect of  the offence to which the case diary relates. The present writ  petition which has been filed under Article 32 of  the   Constitution  to  enforce  the  fundamental  right guaranteed under  Article 21  is neither  an "inquiry" nor a "trial" for  an offence  nor is  this court hearing the writ petition a  criminal court  nor are the petitioners, accused or their  agents so far as the offences arising out of their blinding are  concerned.  Therefore,  even  if  the  reports submitted  by   Shri  L.V.   Singh  as   a  result   of  his investigation could  be said  to form  part of  "case diary" their production  and use in the present writ petition under Article 32  of the  Constitution cannot be said to be barred under section  172 of the Criminal Procedure Code. [156 D-G, 157 A-B]      9:1. It would not be right to extend the prohibition of section 172  to cases  not falling strictly within the terms of the  section, by appealing to what may be regarded as the principle or  spirit of  the section. In fact to do so would be inconsistent  with the  constitutional commitment  of the Supreme Court  to the rule of law. Either production and use of case  diary in  a proceeding is barred under the terms of section 172  or it is not, it cannot be said to be barred on an extended  or  analogical  application  of  the  principle supposed to be underlying that section, if it is not covered by its  express terms.  In order  that truth may emerge from the clash  between contesting  parties under  the  adversary system, it  is necessary  that all  facts  relevant  to  the inquiry must  be brought  before the  Court and  no relevant fact must  be shut-out,  for otherwise  the Court  may get a distorted or  incomplete picture of the facts and that might result in  mis-carriage of  justice. It is imperative to the proper functioning  of the judicial process and satisfactory and certain  ascertainment of  truth that all relevant facts must be  made available  to the  Court. But  the law may, in exceptional cases,  in order  to protect  more  weighty  and

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compelling competing  interests, provide  that a  particular piece of  evidence, though  relevant, shall not be liable to be produced or called in evidence. Such exceptions are to be found, inter  alia, in sections 122, 123 124, 126 and 129 of the Indian  Evidence Act  and sections  162 and  172 of  the Criminal  Procedure   Code  But   being  exceptions  to  the legitimate demand  for reception of all relevant evidence in the interest  of justice,  they must be strictly interpreted and not  expansively construed,  "for they are in derogation of the search for truth". [157 E-H, 158 A-C]      United States  v. Nixon, 418 US 683: 41 Lawyers Edition (2nd series) 1039, quoted with approval.      10. The Court did not express any opinion regarding the two interesting  questions,  (i)  whether  an  investigation carried out  by a  superior officer by virtue of a direction given to  him by the State Government under section 3 of the Indian Police  Act, 1861  is an  investigation under Chapter XII so  as to  attract the applicability of section 172 to a diary maintained  by him in the course of such investigation and (ii) whether the report made by such officer as a result of the  investigation carried  out by him forms part of case diary within  the meaning  of section  172 of  the  Criminal Procedure Code. [155 D-G] 149

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition Nos. 5670 and 6216 of 1980.      (Under Article 32 of the Constitution)      Mrs. K.  Hingorani, Mr.  Hingorani,  Mukul  Mudgal  and Damodar Prakash for the Petitioners.      K G. Bhagat and D. Goburdhan for the Respondent.      Miss A. Subhashini for the Union of India.      The Order of the Court was delivered by,      BHAGWATI, J.  The question  which arises  before us for consideration is whether certain documents called for by the Court by  its order  dated 16th February, 1981 are liable to be produced by the State or their production is barred under some provision  of law. The documents called for are set out in the  order dated  16th February,  1981 and  they  are  as follows:      1.    the  CID report submitted by L.V. Singh, DIG, CID           Anti-Dacoity) on December 9, 1980;      2.    the  CID reports on all the 24 cases submitted by           L.V. Singh  and his  associates between January 10           and January 20, 1981;      3.   the letters number 4/R dated 3rd January, 1981 and           number 20/R dated 7th January 1981 from L.V. Singh           to the IG, Police;      4.     the  files  containing  all  correspondence  and           notings exchanged between L.V. Singh, DIG and M.K.           Jha, Additional IG, regarding the CID inquiry into           the blindings, and      5.    the file (presently in the office of the IG, S.K.           Chatterjee containing  the  reports  submitted  by           Inspector and  Sub-Inspector of  CID  to  Gajendra           Narain, DIG, Bhagalpur on 18th July or thereabouts           and his letter to K.D. Singh, SP, CID, Patna which           has the hand written observations of M.K. Jha. The State  has objected to the production of these documents on the  ground that they are protected from disclosure under Sections 162  and 172 of the Code of Criminal Procedure 1973 and the  petitioners are not entitled to see them or to make

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any use of them in the present 150 proceeding.  This  contention  raises  a  question  of  some importance and  it has  been debated  with great  fervour on both sides  but we  do not  think it  presents  any  serious difficulty in its resolution, if we have regard to the terms of Sections  162 and  172 of  the Criminal Procedure Code on which reliance has been placed on behalf of the State.      We will  first consider  the question  in regard to the reports  submitted  by  Sh.  L.V.  Singh,  Deputy  Inspector General CID  (Anti-Dacoity) on  9th December,  1980 and  the reports submitted by him and his associates Sh. R.R. Prasad, S.P. (Anti-Dacoity)  and Smt.  Manjuri Jaurahar, S.P. (Anti- Dacoity) between  10th and 20th January, 1981. These reports have  been  handed  over  to  us  for  our  perusal  by  Mr. K.G.Bhagat learned advocate appearing on behalf of the State and it  is clear  from these reports, and that has also been stated before  us on  behalf of  the State, that by an order dated 28-29th  November, 1980  made by  the State Government under Section  3 of  the Indian  Police Act  1861, Sh.  L.V. Singh was  directed by  the State  Government to investigate into 24  cases of  blinding of  under trial prisoners and it was in discharge of this official duty entrusted to him that he with the assistance of his associates Sh. R.R. Prasad and Smt. Manjuri  Jaurahar investigated  these  cases  and  made these reports. These reports set out the conclusions reached by him  as a  result of  his investigation into these cases. The question  is whether  the production of these reports is hit by  Sections 162 and 172 of the Criminal Procedure Code. It may  be pointed out that these are the only provisions of law under  which  the  State  resists  production  of  these reports. The  State has  not claimed  privilege in regard to these reports under Section 123 or Section 124 of the Indian Evidence Act.  All that is necessary therefore is to examine the applicability  of Sections  162 and  172 of the Criminal Procedure Code in the present case.      Before we  refer to  the provisions of Sections 162 and 172 of  the Criminal  Procedure Code, it would be convenient to set  out briefly  a few relevant provisions of that Code. Section 2  is the  definition Section and clause (g) of that Section defines  ’Inquiry’ to mean "every inquiry other than a trial conducted under this Code by a Magistrate or Court". Clause  (h)   of  Section   2  gives   the   definition   of ’investigation’ and it says that investigation includes "all the proceedings  under  this  Code  for  the  collection  of evidence conducted  by a  police officer  or by  any  person (other than  a Magistrate) who is authorised by a Magistrate in this behalf". Section (4) provides: 151      "4   (1) All offences under the Indian Penal Code shall           be  investigated,   inquired  into,   tried,   and           otherwise dealt  with according  to the provisions           hereinafter contained.           (2) All  offences under  any other  law  shall  be           investigated, inquired  into, tried, and otherwise           dealt with  according to  the same provisions, but           subject to  any enactment  for the  time being  in           force  regulating   the   manner   or   place   of           investigating inquiring  into, trying or otherwise           dealing with such offences. It is  apparent from this Section that the provisions of the Criminal Procedure  Code are  applicable  where  an  offence under the  Indian Penal Code or under any other law is being investigated, inquired  into tried  or otherwise dealt with. Then we come straight to Section 162 which occurs in chapter

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XII dealing  with the  powers of  the Police  to investigate into offences.  That Section,  so far  as material, reads as under:      "162 (1)   No  statement made by any person to a police                officer in  the course  of  an  investigation                under this  chapter,  shall,  if  reduced  to                writing be  signed by  the person  making it,                nor shall  any such  statement or  any record                thereof,  whether   in  a   police  diary  or                otherwise, or  any part  of such statement or                record be  used  for  any  purpose,  save  as                hereinafter provided, at any inquiry or trial                in respect of any offence under investigation                at the time when such statement was made:                     Provided that when any witness is called                for the  prosecution in such inquiry or trial                whose statement has been reduced into writing                as aforesaid,  any part  of his statement, if                duly proved,  may be  used by the accused and                with the  permission of  the  Court,  by  the                prosecution, to  contradict such  witness  in                the manner  provided by  section 145  of  the                Indian Evidence  Act, 1872; and when any part                of  such  statement  is  so  used,  any  part                thereof  may   also  be   used  in   the  re-                examination of  such  witness,  but  for  the                purpose  only   of  explaining   any   matter                referred to in his cross-examination.           (2)   Nothing in  this section  shall be deemed to                apply to  any statement  falling  within  the                provisions of claues(1) 152                of section  32 of  the Indian  Evidence  Act,                1872, or  to affect the provisions of section                27 of that Act."      It bars  the use  of any statement made before a police officer in the course of an investigation under chapter XII, whether recorded  in a police diary or otherwise, but by the express terms  of the  Section this  bar is  applicable only where such  statement is  sought, to be used ’at any inquiry or trial  in respect  of any  offence under investigation at the time  when such  statement was  made’. If  the statement made  before   a  police   officer  in   the  course  of  an investigation under  chapter XII is sought to be used in any proceeding other  than an  inquiry or  trial or  even at  an inquiry or  trial but  in respect  of an  offence other than that which  was under  investigation at  the time  when such statement was  made, the  bar of  Section 162  would not  be attracted. This  section has been enacted for the benefit of the accused, as pointed out by this Court in Tehsildar Singh and Another  v. The State of Uttar Pradesh(1) it is intended "to protect  the accused  against the  user of statements of witnesses made  before the  police during  investigation, at the  trial  presumably  on  the  assumption  that  the  said statements  were  not  made  under  circumstances  inspiring confidence." This  Court, in Tehsildar Singh’s case approved the following observations of Braund, J. in Emperor v. Aftab Mohd. Khan(2)           "As it  seems to  us  it  is  to  protect  accused      persons from  being prejudiced  by statements  made  to      police officers  who by  reason of  the  fact  that  an      investigation is  known to  be on  foot at the time the      statement is  made, may  be in  a position to influence      the maker  of it,  and, on  the other  hand, to protect      accused persons  from the  prejudice at  the  hands  of

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    persons who  in the knowledge that an investigation has      already started, are prepared to tell untruths." and expressed  its agreement  with the  view  taken  by  the Division Bench  of the  Nagpur High Court in Baliram Tikaram Marathe v.  Emperor(3) that "the object of the section is to protect the accused both against overzealous police officers and untruthful  witnesses." Protection  against the  use  of statement  made   before  police  during  investigation  is, therefore, granted  to the  accused by  providing that  such statement shall  not be  allowed to  be used  except for the limited purpose  set out  in the  proviso to the section, at any inquiry  or trial  in respect  of the  offence which was under in- 153 vestigation at  the time  when such  statement was made. But this protection  is unnecessary in any proceeding other than an  inquiry  or  trial  in  respect  of  the  offence  under investigation and  hence the bar created by the section is a limited bar.  It has  no application, for example in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution and a statement made before a police officer in the course  of investigation can be used as evidence in such proceeding, provided  it is  otherwise  relevant  under  the Indian Evidence  Act. There  are a  number of  decisions  of various High  Courts which  have taken this view and amongst them may be mentioned the decision of Jaganmohan Reddy J. in Malakalaya Surya  Rao v. Janakamma(1) The present proceeding before us  is a  writ  petition  under  Article  32  of  the Constitution filed  by the  petitioners for  enforcing their Fundamental Rights  under Article  21 and  it is  neither an "inquiry" nor  a "trial" in respect of any offence and hence it is difficult to see how section 162 can be invoked by the State in the present case. The procedure to be followed in a writ petition  under  Article  32  of  the  Constitution  is prescribed in  order XXXV  of the Supreme Court Rules, 1966, and sub-rule (9) of Rule 10 lays down that at the hearing of the rule-nisi,  if the  court is  of  the  opinion  that  an opportunity be  given to  the  parties  to  establish  their respective cause  by leading  further evidence the court may take such  evidence or  cause such  evidence to  be taken in such manner  as it may deem fit and proper and obviously the reception  of   such  evidence   will  be  governed  by  the provisions of  the  Indian  Evidence  Act.  It  is  obvious, therefore, that  even  a  statement  made  before  a  police officer during  investigation can  be produced  and used  in evidence in  a writ petition under Article 32 provided it is relevant under  the Indian  Evidence  Act  and  section  162 cannot be  urged as a bar against its production or use. The reports submitted  by Shri  L.V.  Singh  setting  forth  the result of his investigation cannot, in the circumstances, be shut out  from being  produced and  considered  in  evidence under section 162, even if they refer to any statements made before him and his associates during investigation, provided they are  otherwise relevant  under some  provision  of  the Indian Evidence Act.      We now  turn to  section 172 which is the other section relied upon by the State. That section reads as follows:-      "172. Diary of proceedings in investigation-      (1) Every  police officer making an investigation under      this Chapter  shall day by day enter his proceedings in      the investi- 154      gation 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

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    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, 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 or      section 145, as the case may be, of the Indian Evidence      Act, 1872 (1 of 1872) shall apply. The first question which arises for consideration under this section is  whether the reports made by Shri L.V. Singh as a result of  the investigation  carried out  by  him  and  his associates could  be said  to form part of case diary within the meaning  of this section. The argument of Mrs. Hingorani and Dr.  Chitale was that these reports did not form part of case diary  as  contemplated  in  this  section,  since  the investigation which  was carried  out by Shri L.V. Singh was pursuant to a direction given to him by the State Government under section,  3 of  the Indian Police Act 1861, and it was not an  investigation under  Chapter  XII  of  the  Criminal Procedure Code  which alone  would attract the applicability of section  172.  Mrs.  Hingorani  sought  to  support  this proposition by  relying upon  the decision  of this Court in State of  Bihar  v.  J.A.C.  Saldhana(1)  Mr.  K.G.  Bhagat, learned counsel  appearing on  behalf of  the State however, submitted that  even though  Shri L.V. Singh carried out the investigation  under   the  direction  given  by  the  State Government in  exercise of the power conferred under section 3 of  the Indian Police Act, 1861, the investigation carried out by  him was  one under  Chapter XII  and section 172 was therefore applicable  in respect  of the reports made by him setting out  the result  of the  investigation. He  conceded that it  was undoubtedly laid down by this Court in State of Bihar v.  J.A.C. Saldhana  (supra) that the State Government has power  to direct  investigation or further investigation under section 3 of the 155 Indian Police  Act 1861,  but contended  that it was equally clear from  the decision  in that case that "power to direct investigation or further investigation is entirely different from the  method and  procedure  of  investigation  and  the competence of  the person  who investigates."  He urged that section 36  of the  Criminal Procedure  Code  provides  that police officers  superior in rank to an officer in-charge of a police station may exercise the same powers throughout the local area  to which  they are appointed as may be exercised by such  officer within  the limits  of his station and Shri L.V. Singh being the Deputy Inspector General of Police, was superior in  rank to an officer incharge of a police station and was,  therefore, competent  to investigate  the offences arising from  the blinding  of the under-trial prisoners and the State Government acted within its powers under section 3 of the  Indian Police  Act 1861 in directing Shri L.V. Singh to investigate  into these  offences. But,  "the method  and procedure of  investigation" was  to be  the  same  as  that prescribed for  investigation by  an officer  in charge of a police  station   under  Chapter   XII  and   therefore  the investigation made  by Shri  L.V. Singh was an investigation under that  Chapter so  as to  bring in the applicability of

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section 172.  These rival  contentions raise two interesting questions, first,  whether an investigation carried out by a superior officer  by virtue  of a  direction given to him by the State  Government under  section 3  of the Indian Police Act, 1861  is an  investigation under  Chapter XII  so as to attract  the   applicability  of  section  172  to  a  diary maintained by  him in  the course  of such investigation and secondly, whether  the report  made by  such  officer  as  a result of the investigation carried out by him forms part of case diary  within the  meaning of  section 172.  We do not, however think  it necessary to enter upon a consideration of these two  questions and  we shall assume for the purpose of our  discussion   that  Mr.  K.G.  Bhagat,  learned  counsel appearing on behalf of the State, is right in his submission in regard  to both these questions and that the reports made by  Shri   L.V.  Singh   setting  out   the  result  of  his investigation form  part of  case diary  so as to invite the applicability of  section 172.  But, even if that be so, the question  is   whether  these  reports  are  protected  from disclosure  under  section  172  and  that  depends  upon  a consideration of the terms of this section.      The  object   of  section  172  in  providing  for  the maintenance of  a diary  of his  proceedings by  the  police officer making  an investigation  under Chapter XII has been admirably stated  by Edge, C.J. in Queen-Empress v. Mannu(1) in the following words: 156           "The  early  stages  of  the  investigation  which      follows on  the commission  of a crime must necessarily      in the  vast majority  of cases  be left to the police,      and until the honesty, the capacity, the discretion and      the judgment  of the  police can be thoroughly trusted,      it is  necessary, for  the  protection  of  the  public      against criminals,  for the  vindication of the law and      for the protection of those who are charged with having      committed a  criminal offence  that the  Magistrate  or      Judge before  whom the case is for investigation or for      trial should  have the  means of  ascertaining what was      the information,  true, false,  or misleading which was      obtained from  day to day by the police officer who was      investigating the  case and  what such  police  officer      acted." The criminal  court holding an inquiry or trial of a case is therefore empowered  by sub-section  (2) of  section 172  to send for the police diary of the case and the criminal court can use  such dairy, not as evidence in the case, but to aid it in  such inquiry  or trial. But, by reason of sub-section (3) of  section 172,  merely  because  the  case,  diary  is referred to  by criminal  court, neither the accused nor his agents are  entitled to  call for  such diary  nor are  they entitled to see it. If however the case diary is used by the police officer  who has  made it to refresh his memory or if the criminal  court uses it for the purpose of contradicting such police  officer in the inquiry or trial, the provisions of section  161 or  section 145,  as the case may be, of the Indian Evidence  Act would  apply and  the accused  would be entitled to see the particular entry in the case diary which has been  referred to so far either of these purposes and so much of  the diary  as  in  the  opinion  of  the  Court  is necessary to a full understanding of the particular entry so used. It  will thus  be seen that the bar against production and use  of case diary enacted in section 172 is intended to operate only in an inquiry or trial, for an offence and even this bar  is a  limited bar, because in an inquiry or trial, the bar  does not  operate if  the case dairy is used by the

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police officer  for refreshing  his memory  or the  criminal court uses  it for  the purpose of contradicting such police officer. This  bar can obviously have no application where a case diary  is sought to be produced and used in evidence in a civil  proceeding or  in a  proceeding under Article 32 or 226 of  the Constitution  and particularly  when  the  party calling for  the case  diary is  neither an  accused nor his agent in  respect of  the offence  to which  the case  diary relates. Now  plainly and  unquestionably the  present  writ petition which  has been  filed  under  Article  32  of  the Constitution to  enforce the  fundamental  right  guaranteed under Article  32 is  neither an ’inquiry’ nor a ’trial’ for an offence 157 nor is this Court hearing the writ petition a criminal court nor are  the petitioners,  accused or their agents so far as the offences  arising out  of their  blinding are concerned. Therefore, even if the reports submitted by Shri L. V. Singh as a  result of his investigation could be said to form part of ’case diary’, it is difficult to see how their production and use in the present writ petition under Article 32 of the Constitution could be said to be barred under section 172.      Realising this  difficulty created  in his  way by  the specific language  of section  172, Mr. K.G. Bhagat, learned advocate appearing  on behalf  of the  State, made a valiant attempt to  invoke the  principle behind section 172 for the purpose of  excluding the reports of investigation submitted by Sh.  L.V. Singh. He contended that if, under the terms of section 172,  the accused  in an  inquiry or  trial  is  not entitled to  call for  the case diary or to look at it, save for a  limited purpose,  it is difficult to believe that the Legislature could have ever intended that the complainant or a third  party should be entitled to call for or look at the case  diary   in  some  other  proceeding,  for  that  would jeopardise the  secrecy  of  investigation  and  defeat  the object and  purpose of  section 172  and therefore, applying the principle  of that section, we should hold that the case diary is  totally protected  from disclosure  and  even  the complainant or  a third  party cannot call for it or look at in a  civil proceeding.  This contention  is in  our opinion wholly unfounded.  It is  based on  what may  be  called  an appeal to  the  spirit  of  section  172  which  is  totally impermissible under  any recognised  canon of  construction. Either production  and use  of case diary in a proceeding is barred under  the terms  of section  172 or  it is not it is difficult to  see how  it can  be said  to be  barred on  an extended or analogical application of the principle supposed to be  underlying that  section, if it is not covered by its express terms.  It must  be remembered  that we have adopted the adversary  system of justice and in order that truth may emerge from  the clash between contesting parties under this system, it  is necessary  that all  facts  relevant  to  the inquiry must  be brought  before the  Court and  no relevant fact must  be shut-out,  for otherwise  the Court  may get a distorted or  incomplete picture of the facts and that might result in  miscarriage of justice. To quote the words of the Supreme Court  of United States in United States v. Nixon(1) "The need  to develop  all relevant  fact in  the  adversary system is  both fundamental  and comprehensive.  The ends of ...justice would be defeated if judgments were to be founded on a  partial or  speculative presentation of the facts. The very integrity 158 of the  judicial system  and public confidence in the system depend on  full disclosure of all the facts within the frame

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work of  the rules  of evidence.",  it is  imperative to the proper functioning  of the judicial process and satisfactory and certain  ascertainment of  truth that all relevant facts must be  made available  to the  Court. But  the law may, in exceptional  cases,   in  order  to  protect  more  weighty, compelling  and   competing  interests,   provide   that   a particular piece  of evidence, though relevant, shall not be liable to be produced or called in evidence. Such exceptions are to  be found, inter  alia in sections 122, 123, 124, 126 and 129  of the Indian Evidence Act and sections 162 and 172 of the  Criminal Procedure Code. But being exceptions to the legitimate demand  for reception of all relevant evidence in the interest  of justice,  they must be strictly interpreted and not  expansively construed,  "for they are in derogation of the  search for truth". It would not, therefore, be right to extend  the prohibition  of  section  172  to  cases  not falling  strictly  within  the  terms  of  the  section,  by appealing to what may be regarded as the principle or spirit of the  section. That  is a feeble reed which cannot sustain the argument  of the learned advocate appearing on behalf of the State.  It  would  in  fact  be  inconsistent  with  the Constitutional commitment of this Court to the rule of law.      That takes  us to the question whether the reports made by Sh.  L.V. Singh  as a result of the investigation carried by him  and his  associates are relevant under any provision of the Indian Evidence Act so as to be liable to be produced and received  in evidence.  It is  necessary,  in  order  to answer this  question, to consider what is the nature of the proceeding before  us and what are the issues which arise in it. The  proceeding is  a writ petition under Article 32 for enforcing the fundamental right of the petitioners enshrined in Article  21. The  petitioners complain that after arrest, whilst under  police  custody,  they  were  blinded  by  the members of  the police  force, acting  not in  their private capacity, but  as police  officials  and  their  fundamental right to  life guaranteed  under Article  21  was  therefore violated and  for this violation, the State is liable to pay compensation to  them. The  learned Attorney  General who at one stage  appeared on behalf of the State at the hearing of the writ  petition contended that the inquiry upon which the Court was  embarking in order to find out whether or not the petitioners were  blinded by  the police officials whilst in police custody  was irrelevant,  since, in  his  submission, even if  the petitioners  were so blinded, the State was not liable to pay compensation to the petitioners first, because the state  was not  constitutionally or  legally responsible for the acts of the police officers outside the scope of 159 their power  or authority  and the  blindings of  the under- trial prisoners  effected by  the police could not therefore be said  to constitute  violation of their fundamental right under Article  21 by  the State  and secondly, even if there was violation  of the  fundamental right  of the petitioners under Article  21 by reason of the blindings effected by the police officials,  there was, on a true construction of that Article, no  liability on  the State  to pay compensation to the petitioners. The attempt of the learned Attorney General in advancing  this contention  was obviously  to preempt the inquiry which  was being  made by  this Court,  so that  the Court may not proceed to probe further in the matter. But we do not think we can accede to this contention of the learned Attorney General.  The two  questions raised  by the learned Attorney General are undoubtedly important but the arguments urged by  him in regard to these two questions are not prima facie so  strong and  appealing as  to persuade us to decide

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them as  preliminary objections without first inquiring into the facts.  Some serious  doubts arise  when we consider the argument of  the learned  Attorney General. If an officer of the State  acting in  his  official  capacity  threatens  to deprive a person of his life or personal liberty without the authority of law, can such person not approach the Court for injuncting the  State from  such officer in violation of his fundamental right  under Article  21 ? Can the State urge in defence in  such a  case  that  it  is  not  infringing  the fundamental  right  of  the  petitioner  under  Article  21, because the  officer who  is threatening  to do so is acting outside the  law and  therefore  beyond  the  scope  of  his authority and  hence the  State is  not responsible  for his action ?   Would  this not  make a mockery of Article 21 and reduce it  to nullity,  a mere  rope of  sand, for,  on this view, if  the officer is acting according to law there would ex concession  is be  no breach  of Article  21 and if he is acting without the authority of law, the State would be able to contend  that it  is not  responsible for  his action and therefore there  is no  violation of  Article 21. So also if there is  any  threatened  invasion  by  the  State  of  the Fundamental  Right   guaranteed  under   Article   21,   the petitioner who is aggrieved can move the Court under Article 32 for  a writ  injuncting such  threatened invasion  and if there is  any  continuing  action  of  the  State  which  is violative of  the Fundamental  Right under  Article 21,  the petitioner can  approach the  court under Article 32 and ask for a writ striking down the continuance of such action, but where the  action taken by the State has already resulted in breach  of   the  Fundamental  Right  under  Article  21  by deprivation of  some  limb  of  the  petitioner,  would  the petitioner have no remedy under Article 32 for breach of the Fundamental Right guaranteed to him ? 160 Would the  court permit  itself to become helpless spectator of the  violation of the Fundamental Right of the petitioner by the  State  and  tell  the  petitioner  that  though  the Constitution has guaranteed the Fundamental Right to him and has also given him the Fundamental Right of moving the court for enforcement  of his  Fundamental Right, the court cannot give him  any relief.  These are  some of  the doubts  which arise in our mind even in a prima facie consideration of the contention of  the learned  Attorney General  and we do not, therefore,  think  it  would  be  right  to  entertain  this contention as a preliminary objection without inquiring into the facts  of the  case. If we look at the averments made in the writ petition, it is obvious that the petitioners cannot succeed in  claiming relief  under Article  32  unless  they establish that  their Fundamental Right under Article 21 was violated and in order to establish such violation, they must show that  they were  blinded by the police officials at the time of  arrest or  whilst in  police custody.  This is  the foundational fact  which  must  be  established  before  the petitioners can  claim relief under Article 32 and logically therefore the first issue to which we must address ourselves is whether  this foundational  fact is shown to exist by the petitioners. It  is only  if the  petitioners can  establish that they were blinded by the members of the police force at the time  of arrest  or whilst  in police  custody that  the other questions raised by the learned Attorney General would arise for  consideration and  it would be wholly academic to consider them  if the  petitioners fail  to  establish  this foundational fact.  We are,  therefore, of  the view,  as at present advised,  that we  should first  inquire whether the petitioners were blinded by the police officials at the time

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of arrest  or after arrest, whilst in police custody, and it is in  the context  of this  inquiry that  we must  consider whether the  reports made  by Sh.  L.V. Singh  are  relevant under the  Indian Evidence  Act so  as to  be receivable  in evidence.      We may  at this  stage refer  to one  other  contention raised by Mr. K.G. Bhagat on behalf of the State that if the Court  proceeds   to  hold  an  inquiry  and  comes  to  the conclusion that  the petitioners were blinded by the members of the  police force  at the  time of  arrest or  whilst  in police custody,  it would be tantamount to adjudicating upon the guilt of the police officers without their being parties to the  present writ  petition and  that  would  be  grossly unfair and  hence this  inquiry should  not be  held by  the Court until  the investigation is completed and the guilt or innocence of  the police  officers is established. We cannot accept this  contention of  Mr. K.G.  Bhagat. When the Court trying the  writ petition proceeds to inquire into the issue whether the  petitioners were blinded by police officials at the time of arrest or whilst in police custody, it does so, 161 not for  the purpose  of adjudicating  upon the guilt of any particular  officer with a view to punishing him but for the purpose of  deciding whether  the fundamental  right of  the petitioners under Article 21 has been violated and the State is liable  to pay  compensation to  them for such violation. The nature and object of the inquiry is altogether different from that  in a criminal case and any decision arrived at in the with  petition on  this issue  cannot have any relevance much less  any binding  effect, in  any criminal  proceeding which may  be taken  against a  particular police officer. A situation of  this kind  sometimes arises  when a  claim for compensation for  accident caused  by negligent driving of a motor vehicle  is made  in a  civil Court or Tribunal and in such a proceeding, it has to be determined by the Court, for the  purpose  of  awarding  compensation  to  the  claimant, whether the  driver of  the motor  vehicle was  negligent in driving, even  though a criminal case for rash and negligent driving may be pending against the driver. The pendency of a criminal proceeding  cannot be  urged as  a bar  against the Court trying  a civil  proceeding or a writ petition where a similar issue is involved. The two are entirely distinct and separate proceedings and neither is a bar against the other. It may  be that  in a  given case,  if the  investigation is still proceeding,  the Court may defer the inquiry before it until  the  investigation  is  completed  or  if  the  Court considers it  necessary in  the interests of Justice, it may postpone  its  inquiry  even  until  after  the  prosecution following upon  the investigation is terminated, but that is a matter  entirely for the exercise of the discretion of the Court  and  there  is  no  bar  precluding  the  Court  from proceeding with  the inquiry  before it  merely because  the investigation or prosecution is pending.      It is clear from the aforesaid discussion that the fact in issue in the inquiry before the Court in the present writ petition is  whether the  petitioners were  blinded  by  the members of  the police  force at  the time  of the arrest or whilst in  police custody. Now in order to determine whether the reports  made by  Shah L.V.  Singh as  a result  of  the investigation carried  out by  him and  his  associates  are relevant, it  is necessary to consider whether they have any bearing on  the fact  in issue required to be decided by the Court. It  is common ground that Sh. L.V. Singh was directed by the State Government under Section 3 of the Indian Police Act, 1861  to investigate into twenty four cases of blinding

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of under-trial  prisoners where allegations were made by the undertrial prisoners  and  First  Information  Reports  were lodged that  they were blinded by the police officers whilst in police  custody. Sh.  L.V. Singh  through his  associates carried out this inves- 162 tigation and  submitted his  reports in the discharge of the official duty  entrusted to  him by  the  State  Government. These reports clearly relate to the issue as to how, in what manner and by whom the twenty-four undertrial prisoners were blinded, for  that is  the matter  which Shri L.V. Singh was directed, by the State Government to investigate. If that be so, it  is difficult  to see  how the  State can  resist the production of these reports and their use as evidence in the present proceeding. These reports are clearly relevant under section 35  of  the  Indian  Evidence  Act  which  reads  as follows:           "35. An  entry in  any public  or  other  official      book, register  or record,  stating a  fact in issue or      relevant fact,  and made  by a  public servant  in  the      discharge of  his official duty, or by any other person      in performance  of a duty specially enjoined by the law      of the  country in  which such book, register or record      is kept, is itself a relevant fact." These reports are part of official record and they relate to the fact  in issue  as to  how, and  by whom the twenty-four under-trial prisoners  were blinded  and they are admittedly made by  Sh. L.V.  Singh, a public servant, in the discharge of  his  official  duty  and  hence  they  are  plainly  and indubitably covered  by Section  35. The language of section 35 is  so clear  that it  is not  necessary to  refer to any decided cases  on the interpretation of that section, but we may cite  two decisions  to illustrate  the applicability of this section  in the present case. The first is the decision of this  Court in  Kanwar Lal  Gupta v. Amar Nath Chawla(1). There the  question was  whether reports made by officers of the CID (Special Branch) relating to public meetings covered by them  at the  time of  the election  were relevant  under section 35 and this Court held that they were, on the ground that they  were" made  by public  servants in  discharge  of their official  duty and  they were relevant under the first part of section 35 of the Evidence Act, since they contained statement showing  what were the public meetings held by the first respondent.  "This Court  in fact  followed an earlier decision of  the Court in P.C.P. Reddiar v.S. Perumal(2)also in Jagdat  v. Sheopal(3)  Wazirhasan J. Held that the result of an  inquiry by a Kanungo under section 202 of the Code of Criminal Procedure  1898 embodied  in the report is an entry in a  public record  stating a  fact in  issue and made by a public servant  in the  discharge of his official duties and the report is therefore admis- 163 sible in  evidence under  section 35. We find that a similar view was  taken by a Division Bench of the Nagpur High Court in Chandulal v. Pushkar Rai(1) where the learned Judges held that repots made by Revenue Officers, though not regarded as having judicial authority where they express opinions on the private rights  of the parties are relevant under section 35 as reports made by public officers in the discharge of their official duties,  in so  far as  they supply  information of official proceedings and historical facts. The Calcutta High Court also  held in Lionell Edwerds Limited v. State of West Bengal(1)  that  official  correspondence  from  the  Forest officer to his superior, the conservator of Forests, carried on by  the Forest  Officer in  the discharge of his official

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duty would be admissible in evidence under section 35. There is therefore  no doubt  in our mind that the reports made by Sh. L.V. Singh setting forth the result of the investigation carried on  by him  and his  associates are clearly relevant under section  35 since  they relate  to a fact in issue and are made  by a  public  servant  in  the  discharge  of  his official duty.  It is  indeed difficult to see how in a writ petition against the State Government where the complaint is that the  police officials  of the  State Government blinded the petitioners  at the  time of  arrest or whilst in police custody, the  State Government  can resist  production of  a report in regard to the truth or otherwise of the complaint, made by  a highly  placed officer  persuant to the direction issued by  the State  Government. We are clearly of the view that the  reports made by Shri L.V. Singh as a result of the investigation carried  out by  him and  his  associates  are relevant under section 35 and they are liable to be produced by the  State Government and used in evidence in the present writ petition.  Of  course,  what  evidentially  value  must attach to  the statements  contained in  these reports  is a matter which  would have  to be  decided by  the Court after considering these  reports. It  may ultimately be found that these reports  have not  much evidentially value and even if they contain  any statements adverse to the State Government it may  possible for  the State  Government to dispute their correctness or  to explain  them away, but it cannot be said that these  reports are  not relevant.  These  reports  must therefore be  produced by  the State  and taken on record of the present  writ petition.  We may point out that though in our order  dated 16th  February 1981,  we have  referred  to these reports as having been made by Shri L.V. Singh and his associates between January 10 and January 20, 1981, it seems that there has been some error on our part in mentioning the outer date as January 20, 1981, 164 for we  find that  some of  these reports  were submitted by Shri L.V.  Singh even after January 20, 1981 and the last of them was  submitted on  27th January 1981. All these reports including the  report submitted  on 9th  December, 1980 must therefore be filed by the State and taken as forming part of the record  to be  considered by  the Court  in deciding the question at issue between the parties.      What we have said above must apply equally in regard to the correspondence  and notings  referred to  as items three and four  in the  Order dated 16th February 1981 made by us. These notings  and correspondence  would throw  light on the extent of involvement, whether by acts of commission or acts of omission, of the State in the blinding episode and having been made  by Shri L.V. Singh and Shri M.K. Jha in discharge of their  officials duties,  they are clearly relevant under section 35  and they must therefore be produced and taken on record in  the writ  petition, so also the reports submitted by Inspector  and Sub-Inspector  of CID  to Gajendra Narain, DIG, Bhagalpur  on 18th  July and  his letter  to Shri  K.D. Singh, Superintendent of Police, CID, Patna containing hand- written endorsement  of Shri  M.K. Jha  must  for  the  same reasons be  held to be relevant under section 35 and must be produced by  the State  and be  taken as forming part of the record of the writ petition.      Since all  these documents  are required by the Central Bureau of  Investigation for the purpose of carrying out the investigation which  has been  commenced by them pursuant to the approval  given by  the State Government under section 6 of the  Delhi Special  Police Establishment  Act,  we  would direct that five sets of photostat copies of these documents

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may be  prepared by  the office,  one  for  Mrs.  Hingorani, learned advocate appearing on behalf of the petitioners, one for Mr. K.G. Bhagat, learned advocate appearing on behalf of the State one for Dr. Chitale who is appearing amcius curiae at our  request and two for the Court, and after taking such photostat copies,  these  documents  along  with  the  other documents which  have been  handed over  to the Court by the State shall  be returned  immediately to  Mr.  K.G.  Bhagat, learned advocate appearing on behalf of the State, for being immediately  made   available  to   the  Central  Bureau  of Investigation for carrying out its investigation so that the investigation by  Central Bureau of Investigation may not be impeded or  delayed. We  hope and  trust  that  the  Central Bureau of  Investigation  will  complete  its  investigation expeditiously without any avoidable delay. S.R.                                    Application allowed. 165