This Criminal Original Petition has been filed to set aside the order dated 21.03.2018 passed in Cr.M.P.No.252 of 2018 in S.C.No.592 of 2016 by the IV Additional Sessions Judge, Tirunelveli, Tiruneveli District.

2. According to the petitioners, they have been arrayed as accused Nos.5 to 8 in S.C.No.592 of 2016 on the file of the IV Additional Sessions Judge, Tirunelveli, for the offences punishable under Sections 120-B (1), 148, 153-A (1)(b), 364, 302, 302 r/w 149 IPC. The prosecution has examined 40 witnesses and at the stage of examining the accused under Section 313 Cr.P.C, the petitioners/accused Nos.5 to 8 have filed the application under Section 91 Cr.P.C., to send for the General Diaries of Thirukurungudi and Earvadi Police Stations for the period from 21.12.2015 to 31.12.2015. The Court below has dismissed the said petition. Challenging the order of dismissal, this petition has been filed.

3. The learned Senior Counsel appearing for the petitioners submitted that the petitioners are giving cooperation to complete the examination of the prosecution witnesses in the aforesaid criminal case. At one instance, after examination of the Investigating Officer, the prosecution wanted to mark the document relates to sanction under Section 153(A) IPC and another instance, the prosecution has recalled the Investigating Officer and relevant document has been marked on their side. On the said two occasions, the defence has raised only formal objection, instead of dragging on the proceedings. The General Diaries sought to be sent for by the petitioners are essential and necessary to prove the case of the defence. But, the said fact was not taken into account by the trial Court and the trial Court has lost sight in considering the case of the petitioners. Hence, the order passed by the Court below is liable to be set aside.

4. The present application has been filed under Section 91 Cr.P.C. and the same reads as follows:

“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 of or other thing is necessary or desirable for the purposes of any investigation, inquiry, 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.?

5. The learned Senior Counsel further submitted that by exercising power under Section 91 Cr.P.C., the petitioners/accused are entitled to send for the relevant documents which are possessed by the police officer under section 172 Cr.P.C. The aforesaid provision reads as follows:

“172.Diary of proceeding in investigation.

(1) Every police officer making an investigation under this Chapter shall day by day enter his proceeding 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 o