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PETITIONER: STATE OF KERALA

       Vs.

RESPONDENT: BABU & ORS.

DATE OF JUDGMENT:       04/05/1999

BENCH: S.N.Hegde, G.B.Pattanaik

JUDGMENT:

     SANTOSH HEGDE, J.

     In  a pending Sessions Case, on behalf of the  accused persons,  applications were made to summon the case diary of a case registered as Cr.  No.81/91 for confronting a witness with  his previous statement as found in the said case diary and  to  recall the said PW-5.  The learned  Sessions  Judge allowed the said applications which came to be challenged in criminal  petitions filed before the High Court of Kerala by the  State  as well as the brother of the  deceased.   These petitions came to be dismissed by an Order of the High Court dated  17th  August, 1993.  Both the Sessions Court and  the High  Court  held that there is no bar in law to summon  the case  diary of a case even other than the one which is being tried,  for the purpose of contradicting the evidence of the prosecution witnesses.  In this appeal by special leave, the State of Kerala has raised the following questions of law :

     (a)  Whether the Statement of a witness recorded  u/s. 161  of  Cr.P.C.   in  one particular crime  could  be  used against  that  witness  in  any   other  trial  enquiry   or proceedings  by  the  accused.    (b)  Whether  the  learned Sessions  Judge  can call for the police diaries of  a  case which is not under inquiry or trial before him and permit it to  be  used  by  the accused for  contradicting  a  witness examined  in  another  case  under trial  before  him.   (c) Whether  Section  162  of  the Cr.P.C.  permit  the  use  of statement  recorded  under  Section 161 of Cr.P.C.   in  any other  proceeding other than the inquiry or trial in respect of the offence for which the investigation was conducted.

     It  is  contended on behalf of the appellant that  the case  diary sought to be summoned being a case diary not  of the  case  which is being tried in the sessions trial  under Section  172 of the Code of Criminal Procedure  (hereinafter referred  to  as  the Code), it is impermissible  for  the court  to summon the case diary nor the statements  recorded therein  could  be permitted to be used for contradicting  a witness  who  is being examined in a trial arising out of  a totally different case.  On behalf of the respondents, it is contended  that any prior statement of a witness can be used for  the purpose of contradicting a witness as provided  for in  Section 162 of the Code and Section 145 of the  Evidence Act.   It was contended that in view of the fact that  those

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provisions  having  been  enacted  for the  benefit  of  the accused,  a  liberal  construction should be  given  to  the provisions  of Section 172 of the Code.  Reliance was placed upon  a  judgment of the High Court of Calcutta rendered  in the  case  of  Ahmed Mia and Ors.  Vs.   Emperor  (AIR  1944 Cal.243)  and of this Court in Khatri & Ors.  Vs.  State  of Bihar  & Ors.  (1981 2 SCC 493).  The brief facts  necessary to  appreciate the contentions of the parties in this appeal are as follows :

     In  the course of trial of Sessions Case No.157/92, on the  file of the Sessions Judge at Thrissur, it was  noticed by  the  defence that on the very day of the incident  which was  subject matter of the sessions case, there was  another crime  registered  in  Cr.No.81/91 and in  that  during  the course  of investigation, a statement of the witness who  is being  examined  in the sessions case as PW-5, was  recorded under  Section  161  of  the Code  which,  the  defence  has contended,  contradicts  the statement made by PW- 5 in  the course of the sessions trial.  Therefore, for the purpose of establishing  the contradiction in the evidence of PW-5  and in order to impeach the said witness, the defence wanted the case  diary  in  Crime  No.81/91  to  be  summoned  with   a consequential  prayer  for recalling PW-5.  This  prayer  to summon  the  case  diary  of  Crime  No.81/91,  having  been allowed, the above controversy has arisen primarily based on the language of Section 172 of the Code.

     Before  examining the applicability of Section 172  of the  Code, we will first consider the right of an accused to cross-examine  a  witness  with reference  to  the  previous statement  of  a  witness in a trial.  Section  145  of  the Evidence Act provides :- A witness may be cross-examined as to  previous  statements made by him in writing  or  reduced into  writing, and relevant to matters in question,  without such writing being shown to him, or being proved;  but if it is  intended to contradict him by the writing, his attention must,  before the writing can be proved, be called to  those parts  of  it  which  are  to be used  for  the  purpose  of contradicting him.

     A  perusal  of  this Section shows that  this  Section permits  the cross-examination of the witness in any  trial, with  reference  to his previous statement, to  establish  a contradiction  and  the manner in which such  contradictions can  be  established.   Section  155  of  the  Evidence  Act provides  that  the previous statement of a witness  can  be made use of during the cross-examination of that witness for the  purpose of impeaching the credit of the witness.  Thus, it  is seen it is the right of a party in a trial to use the previous  statements of a witness either for the purpose  of establishing  a  contradiction  in his evidence or  for  the purpose of impeaching the credit of the witness.  This right given  to  a  party  in a trial under  Section  145  of  the Evidence  Act  is somewhat controlled in criminal trials  by the  provisions  made in the Code.  Section 161 of the  Code provides  that  the police officer investigating a  case  is entitled  to examine any person and reduce the statement  of such person in writing.  This statement recorded by a police officer  under  Section  161  even   though  is  a  previous statement  for  the purpose of Section 145 of  the  Evidence Act,  such  statement  can  be   used  for  the  purpose  of establishing a contradiction or impeaching the credit of the witness  only  in the manner provided for in Section 162  of the  Code.  The use of the previous statement recorded under

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section  161 of the Code is controlled by Section 162 of the Code.   The proviso which which actually controls the use of Section 162 of the Code reads thus :-

     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 (I of 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.

     Therefore,  it  is seen even in a criminal  trial  the previous  statement of a witness can be used by the  accused for the limited purpose mentioned in Section 162 of the Code as  provided  for in Section 145 of the Evidence  Act.   The object  of enacting Section 162 is noticed by this Court  in the  case  of  Tasildar Singh and Anr.  Vs.  State  of  U.P. (AIR 1959 SC 1012) wherein it was held thus :

     It  is,  therefore,  seen  that  the  object  of  the legislature  throughout has been to exclude the statement of a  witness  made before the police during the  investigation from being made use of at the trial for any purpose, and the amendments made from time to time were only intended to make clear  the said object and to dispel the cloud cast on  such intention.  The Act of 1808 for the first time introduced an exception  enabling the said statement reduced to writing to be  used  for  impeaching the credit of the witness  in  the manner  provided by the Evidence Act.  As the phraseology of the  exception  lent  scope  to defeat the  purpose  of  the legislature,  by the Amendment Act of 1923, the section  was redrafted  defining  the  limits  to   confine  it  only  to contradict  the witness in the manner provided under section 145  of the Evidence Act.  If one could guess the  intention of  the legislature in framing the section in the manner  it did in 1923, it would be apparent that it was to protect the accused against the user of the 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.  Both the section and the proviso intended to serve primarily the same purpose i.e., the interest of the accused.

     Therefore,  on  a reading of Section 162 of  the  Code bearing  in mind the object of the said Section and  Section 145  of  the Evidence Act, it is clear that an accused in  a criminal  trial  has the right to make use of  the  previous statements of a witness including the statements recorded by the   investigating   agency  during   the  course   of   an investigation   for   the   purpose    of   establishing   a contradiction  in the evidence of a witness or to  discredit the  witness.  The question then arises how does the accused confront  the  previous statement made by a witness  in  the course of an investigation to establish the contradiction in the  evidence given by the witness in the trial.  So far  as the  statements  made during the course of investigation  of the  case  being tried is concerned, there is no  difficulty because an accused is entitled under Section 207 of the Code for  the supply of free copies of the documents referred  to

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in  the  said Section which includes the previous  statement recorded  under sub-section (3) of Section 161 of the  Code. The accused does not have such a right as a matter of course in  regard to other previous statements;  more so, in regard to the statements recorded by the investigating agency under Section 161 in a case other than the one that is being tried by  the court.  Therefore, in the instant case, the  accused made  an  application for summoning the case diary of  Crime No.81/91 invoking the provisions of Section 172 of the Code. But  the State contends that this Section does not apply  to summoning the case diary of cases other than the one that is being  tried.  Therefore, we will now examine the contention of the State with reference to Section 172 of the Code which Section reads thus :

     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 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, 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,  of 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.

     Sub-section  (1)  of the above Section  mandates  that every  police officer making an investigation shall maintain a  case  diary  of that case in which among  other  entries, shall  maintain the statements of the witnesses examined  by him during the course of his investigation.  Sub-section (2) of  the  same Section empowers a criminal court to send  for such police diaries of a case under inquiry or trial in such Court,  (emphasis  supplied)  and permits the  use  of  such diaries,  not as evidence in the case, but to aid it in such inquiry  or  trial.   The words used in sub-section  (2)  of Section  172,  more particularly police diaries of  a  case under  inquiry or trial in such Court, indicates it is only that  police  diary  in which  the  concerned  investigating officer  had  made  entries of his investigation  and  which pertains  to the case being tried by the court alone can  be sent  for.   Sub-section (3) of Section 172 further  imposes restrictions in the manner in which such diaries can be used by  the  court.  It also specifically bars the right  of  an accused  or his agent to call for such diaries.  Thus, on  a plain  language  of  this  Section, it is  clear  that  this Section  cannot be used for the purpose of summoning a  case diary  which  does not pertain to the investigation  of  the case  which is being tried by the court.  It also stands  to reason  because  so far as the accused is concerned  in  the case in which he is being tried, he would have been supplied with  all the documents referred to under Section 207 of the Code.   Therefore,  the question of he using the entries  in the case diary would not arise.  Section 172 is specifically meant for the contingencies when court finds it necessary to

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look  into the case diary for the purpose of finding an  aid in  the  trial  or for the purpose of assisting  the  police officer  to refresh his memory.  Therefore, Section 172 does not  contemplate summoning of the case diary for the purpose of  assisting  the  accused to have a look at  the  previous statements  of the witness for using it for his benefit,  as contemplated  in  Section 162 of the Code.  The trial  court and  the  High Court in this case proceeded on  the  footing that there is no bar under the Code to summon the case diary relating  to  the  cases other than the one  that  is  being tried.   Hence, placed reliance on Section 172 of the  Code. We  are  unable to subscribe to that part of the finding  of the courts below that the source of power to summon the case diary  of  a  case other than the one that is  being  tried, emanates  from  Section 172 of the Code.   Respondents  have sought to place reliance on a Division Bench judgment of the High  Court of Calcutta in the case of Ahmed Mia & Ors.  Vs. Emperor (AIR 1944 Cal.  243) wherein the High Court observed thus :-

     Section  172  relates  to the Police  diary  made  in respect  of a case under enquiry or trial by the Court which calls for it and therefore does not in terms apply where the diary relates not to the case which was actually being tried by the Court but to the counter case, but the principles set out  in  the  section apply.  There is no provision  in  the Criminal  Procedure Code which would prevent the Court  from looking  into  the diary of the counter case, or from  using the  diary  in  the  counter case in the way  laid  down  in S.172(2).

     These observations of the court proceeded on the basis that  there  is no provision in the Criminal Procedure  Code which would prevent the court from looking into the diary of the counter case or from using the diary in the counter case in  the way laid down in Section 172(2) of the Code.   There can  be  no quarrel in regard to the fact that there  is  no prohibition in the Criminal Procedure Code against any court from  looking into the diary of a counter case or from using the  diary  of a counter case in the trial of another  case. But this does not mean that the right of the court to summon the  case diary of another case is derived from Section  172 of  the Code or by the application of principles of  Section 172  because ex facie Section 172 of the Code does not  help the  accused  in making use of a case diary.  Therefore,  we are  of  the opinion that the judgment of the Calcutta  High Court  does  not fully support the case of the  respondents. On the contrary, it is seen that this Court in Khatris case (supra)  has observed thus :  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 of an offence.

     which  also indicate the fact that Section 172 relates to  summoning  of  the case diary of a case which  is  under enquiry  or  trial  only.  The High Court  in  the  impugned judgment proceeded on the basis that a statement recorded by an  investigating  officer  in  any  case  which  was  under investigation,  being a statement made under Section 161  of the  Code,  the  same can be used for  the  limited  purpose provided under Section 162 of the Code read with Section 145 of  the  Evidence  Act.  There can be no quarrel  with  this approach  of  the  High Court in regard to the  use  of  the previous  statements  of  a witness made in  the  course  of

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another  investigation  being used in the course of  another criminal  trial.   This  is  because,   as  seen  from   the observations  of  this Court in the case of Tahsildar  Singh (supra),  the very object of enactment of Section 161 of the Code  and  Section  145 of the Evidence Act is to  create  a right  in the accused to make use of the previous statements of  the  witnesses for the purpose of contradiction and  for impeaching  the  merit of the witness.  This right  has  not been  taken away by Section 172 of the Code and, as  noticed above,  there  is no prohibition in regard to this right  of the accused either under the Code or under the Evidence Act. But  the question for consideration is, how does the accused exercise  this right with reference to a previous  statement of  a witness made in another case which is recorded by  the investigating  officer in that case under the provisions  of Section  161  of  the  Code.  In  our  opinion,  this  right certainly does not flow under Section 172 of the Code nor is the  accused  entitled  to these previous  statements  under Section  207 of the Code.  But, this does not mean that  the accused  is denied of his limited benefit of using the  said previous  statements  recorded during the course of  another investigation.    The  answer  to   this  question,  in  our considered  view,  lies in Section 91(1) of the  Code  which reads thus :

     91.  Summons to produce document or other thing.- (1) Whenever  any  Court  or any officer in charge of  a  police station  considers  that the production of any  document  or other  thing  is necessary or desirable for the purposes  of any  investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue  a  summons, or such officer a written order,  to  the person  in whose possession or power such document or  thing is  believed to be, requiring him to attend and produce  it, or  to  produce  it,  at the time and place  stated  in  the summons  or  order.   (2)  Any person  required  under  this section merely to produce a document or other thing shall be deemed  to  have complied with the requisition if he  causes such  document or thing to be produced instead of  attending personally to produce the same.  (3) Nothing in this section shall be deemed ---

     (a)  to  affect  Sections 123 and 124  of  the  Indian Evidence  Act,  1872  (1  of 1872), or  the  Bankers  Books Evidence  Act,  1891  (13  of 1891), or (b) to  apply  to  a letter,  postcard, telegram or other document or any  parcel or  thing  in  the  custody  of  the  postal  or   telegraph authority.

     The  language  of  Section 91 is much wider  than  the language  of Section 172 and by no stretch of imagination it could  be  contended  that the case diary  maintained  under Section  172  of the Code is not a document as  contemplated under  Section 91(1) of the Code.  If that be so and if  the court  comes  to the conclusion that the production of  such document is necessary or desirable then, in our opinion, the court  is entitled to summon the case diary of another  case under  Section  91  of the Code de hors  the  provisions  of Section  172  of  the  Code for the  purpose  of  using  the statements  made  in  the said diary,  for  contradicting  a witness.   When  a case diary, as stated above, is  summoned under  Section  91(1)  of  the Code  then  the  restrictions imposed  under sub-sections (2) and (3) of Section 172 would

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not apply to the use of such case diary but we hasten to add that  while using a previous statement recorded in the  said case  diary, the court should bear in mind the  restrictions imposed under Section 162 of the Code and Section 145 of the Evidence Act because what is sought to be used from the case dairy  so  produced,  are the previous  statements  recorded under Section 161 of the Code.

     In  this  view of the matter, in our opinion,  a  case diary  of another case, not pertaining to the trial in  hand can  be summoned if the court trying the case considers that production  of  such a case diary is necessary or  desirable for the purpose of trial, under Section 91 of the Code.  For the  above  reasons,  this appeal fails  and  the  judgments impugned  are  confirmed  though for a different  reason  as indicated above.