JUDGMENT

THAKKAR, J.:— Constitutional validity of a part of a provision enjoining a police officer engaged in an investigation under Chapter XII of the Code of Criminal Procedure (Cr. P.C.) has been called into question. The provision which so enjoins an investigation officer if embodied in Section 172, Clause (1) whereof imposes the duty. It is a part of this provision namely Clause (3) which is the target of the challenge made by one of the two accused in a criminal case. The High Court having repulsed the challenge, the accused have approached this Court by way of the present petition in order to reiterate the challenge on the premise that the High Court had erred in sustaining the validity of the impugned provision.

2. The analysis of Section 172*1, Clause (3) whereof has given rise to the challenge to its constitutionality reveals :

(1) That it embodies a complete scheme relating to the matter of maintaining a diary.

(2) Clause (1) imposes the obligation to do so and provides for the contents thereof.

(3) The Court is empowered to call for such diaries to aid it in inquiry or trial subject to the rider that it cannot be used as evidence thereat.

(4) Merely because the Court calls for the diary, the accused (or his agent) cannot claim the right to peruse it.

(5) The accused can peruse that particular part of the diary in the context of Section 161*2 of the Indian Evidence Act or Section 145*3 thereof in case

* 1. Section 172(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 145 as the case may be, of the Indian Evidence Act, 1872 shall apply."

* 2. Section 161 - "Any writing referred to under the provisions of the two last preceding sections must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness thereupon."

* 3. Section 145 - "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 for being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, called to those parts of it which are to be used for the purpose of contradicting him."

(a) if it is used by the police officer concerned to refresh his memory;

or

(b) if the Court uses it for contradicting the police official concerned.

3. The High Court has repelled the plea by recourse to the reasoning reflected in the relevant passage extracted hereinbelow :

"So far as Section 172(3) is concerned, the embargo on the right of the accused or his representative in calling for the diary or seeing any part of it is only a partial one and not absolute because if a part of the diary has been used by the police officer to refresh his memory or the Court uses it for the purpose of contradicting such police officer, the provisions of Sections 161 and 145 of the Indian Evidence Act, will be applicable. So far as the other parts are concerned, the accused need not necessarily have a right of access to them because in a criminal trial or enquiry, whatever is sought to be proved against the accused, will have to be proved by the evidence other than the diary itself and the diary can only be used for a very limited purpose by the Court or the police officer as stated above. Even then, a safeguard has already been provided in the Section itself to protect the right of the accused. The Investigating Officer deposes before the Court on the basis of the entries in the diary. If the accused or his counsel thinks that he is stating something against the diary or is trying to hide something which may be in the diary he can put question in th