IMPORTANT POINT
Accused or his agent is prohibited to call for case diary or even see them. It is not even open for the accused to produce certain pages of police diary obtained by him under the provisions of Right to Information Act for the purpose of contradicting the police officer.

JUDGMENT

MOHAN M. SHANTANAGOUDAR, J.

Leave granted.

2. The judgment in Miscellaneous application No. 1123 of 2016, passed by the High Court of Uttarakhand at Nainital setting aside the order dated 31.8.2016 in I.A. No. 174 Kha in S.T. No. 1 of 2015 is called on question in this appeal.

3. Respondent No.3 herein, along with another accused, is facing trial in ST No. 01 of 2015 before the Sessions Court, Champawat for the offences punishable under Section 302 and 201 of IPC. During the course of the trial, after the completion of examination in chief of PW-15, an application was filed by the respondent No.3 herein (one of the accused), the contents of which read thus:-

“In the above mentioned case applicant wants to submit some key and relevant documents which are necessary for the fair and just trial of instant case.

It is therefore, humbly prayed that your Honour may kindly grant permission for the same in the interest of justice.”

4. Along with the application, list of documents to be produced was also filed. The documents are stated to be copies of certain pages of Police diary maintained under Section 172 of the Code of Criminal Procedure, 1973 (for brevity, Cr.P.C.), by the Investigation Officer (PW-15), which were obtained by respondent No.3 by making an application under the provisions of Right to Information Act, 2005. The respondent No. 3 proposes to confront PW 15 with those documents.

5. Such application was opposed by the appellant herein/complainant on the ground that the fresh documents cannot be allowed to be produced by the accused at the premature stage of trial and it is always open for the accused to produce such documents during the stage of recording of statements of the accused under Section 313, Cr.P.C. It was further contended by the appellant that it is open for the accused to lead evidence on their behalf after recording of the statements of the accused under Section 313, Cr.P.C.

6. The application came to be rejected by the Sessions Court on 31.8.2016. Being aggrieved by the same, respondent No.3 herein filed Misc. Application No. 1123 of 2016 before the High Court of Uttarakhand at Nainital under Section 482 Cr.P.C. By the impugned order the High Court allowed the said miscellaneous application.

7. Learned counsel for the appellant taking us through the order of the Courts below, argued that entries made in the police diary referred to in Section 172 of the Cr.P.C. cannot be used for the purpose of Section 145 of the Indian Evidence Act, 1872 unless the conditions laid down under Section 172(2) and (3) of Cr.P.C are satisfied; that the High Court is not justified in allowing the accused/respondent herein to produce certain pages of police diary obtained by the respondent under the provisions of Right to Information Act. He argued in support of the order of the Trial Court.

8. Per contra, advocate for the respondent argued in support of the order of the High Court contending that the documents sought to be produced were for confronting PW 15-Investigation Officer who is the author of those documents; the defence will lose an opportunity to confront the investigation officer, in case the respondent is not allowed to produce the documents in question. According to him, it is always open to the accused to produce the documents to be relied upon by him at the time of recording his statement under Section 313 of the Cr.P.C. but the accused would not get chance to confront the Investigation Officer with such documents.

9. Before proceeding further it would be relevant to note the provisions of Section 172 Cr.P.C. and Section 145 of the Indian Evidence Act for deciding the issue involved:-

“Section 172 of the Code of Criminal Procedure, 1973

       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