1999 Supreme(SC) 581

1999(4) Supreme 412
Supreme Court of India
(From Kerala High Court)
S.B. Pattanaik & N. Santosh Hegde, JJ.
State of Kerala -Appellant
versus
Babu & Ors. -Respondents
Criminal Appeal No. 761 of 1993
Decided on 4-5-1999
Counsel for the Parties :
For the Appellant : G. Prakash, Advocate.
For the Respondents : Roy Abraham, Advocate for Ms. Baby Krishnan, Advocate.

Important Points
1. 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.
2. An accused does not have a right, as a matter of course, to make use of previous statements recorded by the investigating agency under Section 161 of Cr.P.C. in a case other than the one that is being tried by the Court.
3. Section 172 Cr.P.C. does not contemplate summoning of 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.
4. 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.

Headnote:(i) Code of Criminal Procedure, 1973-Sections 172 and 91-Police diary-Right of accused to summon police diary-Section 172 cannot be used for purpose of summoning case diary which does not pertain to case which is not being tried-Section 172 does not contemplate sum­moning of case diary for purpose of assisting accused to have a look at previous statement of witness for using his benefit as contemplated u/s 162-U/s 91(1) Court can summon case diary of another case.

       Held : Section 172(1) mandates the 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 which court finds it necessary to 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. (Para 9)

       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. (Para 10)

       There can be no quarrel in regard to the use of the previous statements of a witness made in the case of another course of another investigation being used in the course of another criminal trial. This is because the answer to this question lies in Section 91 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. (Para 11)

       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 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 diary 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. (Paras 12 & 13)

       (ii) Code of Criminal Procedure, 1973-Sections 161 and 162-Evidence Act, 1872-Section 145-Previous statement of witness-Right of accused to contradict state­ment of witness-Statement of a witness can be used by accused for limited purpose mentioned in Section 162 as provided for in Sec­tion 145 of Evidence Act-Accused does not have right to make use of previous statements as a matter of course in regard to state­­ments recorded by investigating agency u/s 161 in case other than one that is being tried by Court.

       Held : 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 Section 161 of the Code is controlled by Section 162 of the Code. 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. (Paras 6 & 7)

       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 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. (Para 8)

       (iii) Code of Criminal Procedure, 1973-Section 91-Summons to produce document or other thing -Police diary-Police diary maintained u/s 172 is a document as contemplated u/s 91(1)-Court can summon police diary of another case u/s 91 dehors provisions of Section 172-When a case diary is summoned u/s 91(1) restrictions imposed u/s 172(2) and (3) would not apply-Court should however bear in mind restrictions imposed u/s 162 of Cr.P.C. and Section 145 of Evidence Act. (Paras 12 & 13)