Section 172(3) of the Cr. P. C., which restricts the accused's right to inspect the case diary during cross-examination of the Investigating Officer, is constitutional and does not violate the accused's right to a fair trial or right to know all facts necessary for proper enquiry or trial.

K. S. LODHA, J.

( 1 ) PETITIONER Subhash Chandra, an accused in a criminal case, being refused permission to look into the case-diary during the cross-examination of Investigating Officer, in order to verify whether a particular note said to be appended to the diary as alleged by the Investigating Officer, was there or not, and for some such other entries in the said diary, has now challenged the vires of S. 172 (3) of the Cr. P. C.

( 2 ) SECTION 172 of the Cr. P. C. reads as under :-"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, or if the Court uses them for the purpose of contradicting such police officer, the provisions of S. 161 or 145, as the case may be, of the Evidence Act, 1872 (1 of 1872), shall apply. "sub-section (1) of this section provides how the police officer has to make entries from time to time and day by day during the course of his investigation. Sub-sec. (2) then provides that any criminal court may send for that diary and may use such diary not as evidence in the cases, but to aid it in the enquiry or trial. Then comes the crucial sub-sec. (3), which is sought to be challenged in this writ petition. It debars the accused or his agents from calling for such diaries or being entitled to see them merely because they are referred to by the court, but if they are used by the police officer, who may have to refresh his memory, or if the court uses them for the purposes of contradicting such police officer, the provisions of S. 161 or S. 145, as the case may be, of the Evidence Act shall apply to such diaries.

( 3 ) LEARNED counsel for the petitioner has contended that for a proper enquiry or trial, the accused is entitled to know all those facts, which are necessary for proper trial or enquiry and for that purpose he should have an access to the diary so that whatever is relevant for his purpose, he may make use of it. In the second place, he urged that the secrecy of the diary from the accused does not serve any public purpose and it is also not in consonance with the provisions of S. 123 of the Evidence Act. In the connection, he placed reliance upon State of Uttar Pradesh v. Raj Narain, AIR 1975 SC 865 and S. P. Gupta v. President of India, AIR 1982 SC 149 I have given my careful consideration to the contentions of the learned counsel for the petitioner, but am, as at present advised, unable to find anything in the said sub-sec. (3) of S. 177, which may make it unconstitutional or void. As a matter of fact, S. 123 of the Evidence Act, is not at all relevant for the purpose of considering whether S. 172 (3) of the Criminal Procedure Code is unconstitutional or not, because these two provisions cater for two vary different situations and the purposes of the two sections are also different. So far as S. 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 Ss. 161 and 145 of the Evidence Act, will