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Allahbad High Court
D.S.MATHUR
Mahabirji Birajman Mandir - Appellant
Versus
Prem Narain Shukla - Respondent
Decided On : 07/28/1964
CRIMINAL PROCEDURE CODE - SECTION 162 - EVIDENCE ACT - SECTIONS 123, 124, 125 - PRIVILEGE - CASE DIARY - STATEMENTS OF WITNESSES - SITE PLAN - CONFIDENTIAL REPORTS - ADMISSIBILITY IN EVIDENCE.
Fact of the Case:
The plaintiff filed a suit for demolition of a wall constructed by the defendants, which obstructed the flow of air and light through his windows, and for a mandatory injunction to restrain the defendants from interfering with his construction of a shed to protect the rain water from reaching the room through the said windows. The plaintiff summoned the case diary of a criminal case investigated by the local police to show that the windows existed even in 1954 when the criminal offence had been so investigated. The case diary was summoned from the Superintendent of Police and was produced before the Munsif by a clerk of the police office. The Superintendent of Police did not formally address the Court claiming privilege but the clerk was directed to claim privilege. The Investigating Sub-Inspector who had investigated the offence had also been summoned. The Munsif allowed the claim of privilege with the result that that evidence could not come on the record. The suit was eventually dismissed with costs and the plaintiff went up in appeal. The lower appellate Court was of Opinion that the privilege was not claimed in a proper form, nor by the Head of the Department, and consequently, set aside the decree of the trial Court though leaving the matter open in case the privilege was claimed afresh.
Finding of the Court:
The court held that the case diary is one in which a police officer investigating a crime enters daily proceedings including statements of witnesses examined by him or his own observations on inspection of the locality. Other information received or his own opinion about witnesses is also entered therein. The case diary so prepared is confidential in the sense that a person accused of that offence cannot call for such diary not can he peruse it during the trial. However, under S. 172(2), Criminal P.C. a criminal Court holding, the enquiry for can, if it considers necessary, send for such diaries and utilize them for doing justice in the case. Case diary is thus a document which cannot be made available to accused persons and on this ground should not be made available for the perusal of litigants in civil cases also. But there is no legal bar to the use of statements recorded by the police during the investigation of the crime. In an enquiry or trial resulting from that investigation the use of such statements is restricted by S. 162, Criminal P.C. The bar imposed by S. 162 applies to that enquiry or trial but not to an enquiry or trial of other offences. Consequently, the statements of witnesses recorded by a police officer during the investigation of a crime can be used in civil litigation as their previous statement. It is a different thing what weight the courts may attach to such statements, which under S. 162, Criminal P.C. cannot be signed by the witnesses. In fact, the witness may not know what statement had been taken down by the police officer in the case diary.
Issues: 1. Whether the case diary is a privileged document and its contents cannot be made use of in another case? 2. Whether the statements of witnesses recorded by a police officer during the investigation of a crime can be used in civil litigation as their previous statement? 3. Whether the site plan prepared by the Investigating Officer, and other documents prepared during the police investigation, are admissible in evidence?
Ratio Decidendi: 1. The court held that the case diary is not a privileged document and its contents can be made use of in another case, except for the confidential reports or communications. 2. The court held that the statements of witnesses recorded by a police officer during the investigation of a crime can be used in civil litigation as their previous statement. 3. The court held that the site plan prepared by the Investigating Officer, and other documents prepared during the police investigation, are admissible in evidence.
Final Decision: The court dismissed the appeal and held that it shall be open to the plaintiff to prove the site plan etc. prepared by the Investigating Officer in accordance with the law, and to the defendants to raise objections to the relevancy or admissibility of such evidence.
JUDGMENT :- This is an appeal by Sidh Mahabirji Birajman Mandir through Pandit Mahabir Prasad Dixit and by Mahabir Prasad Dixit himself, defendants, against the order of the lower appellate Court allowing the appeal and remanding the suit for a fresh hearing after affording the plaintiff, Prem Narain Shukla, an opportunity to produce his evidence in the case which was permitted by the trial Court under order dated 10-3-1961. It was also ordered that the defendants would be entitled to give evidence in rebuttal. This order was made subject to another direction that the trial Court will look into the question of privilege if raised in a proper manner and by a competent authority.
2. The plaintiff had instituted the present suit for demolition of the wall which the defendants had constructed by the side of the windows in the western wall of his house and thereby stopping the tree flow of air and light through such windows, and also for a mandatory injunction to restrain the defendants from interfering with the plaintiff's construction of a shed to protect the rain water from reaching the room through the said windows and from interfering with the plaintiffs using the windows and ventilators. In, addition, damages were claimed.
3. The plaintiff summoned the case diary of a criminal case investigated by the local police to show that the windows existed even in 1954 when the criminal offence had been so investigated. The case diary was summoned from the Superintendent of Police and was produced before the Munsif by a clerk of the police office. The Superintendent of Police did not formally address the Court claiming privilege but the clerk was directed to claim privilege. The Investigating Sub-Inspector who had investigated the offence had also been summoned. The Munsif allowed the claim of privilege with the result that that evidence could not come on the record. The suit was eventually dismissed with costs and the plaintiff went up in appeal. The lower appellate Court was of Opinion that the privilege was not claimed in a proper form, nor by the Head of the Department, and consequently, set aside the decree of the trial Court though leaving the matter open in case the privilege was claimed afresh.
4. The contesting defendants have now come up in appeal against the order of the lower appellate Court remanding the suit for a fresh hearing. It was contended before me that the case diary maintained by a police officer during the investigation of a crime was a confidential document with regard to which privilege could be claimed and no evidence could be allowed to come on the record. Reliance was also placed upon two reported decisions to which I shall make a reference later.
5. Confusion has arisen on account of proper steps not being taken in adducing the necessary evidence. It shall, therefore be necessary to make comments not only on the general question of privilege but also what can or cannot be proved and if it can be proved, in what manner ?
6. In Jagannath Rao Dani v. Emperor, AIR 1935 Nag 231 it was observed that the statements in. the police diary were ordinarily privileged and could not be given to outsiders except under S. 162, Criminal P.C., and that was limited to the case of an accused who was being tried for an offence under investigation at the time when the statement was made. Similarly in Emperor v. Dharam Vir, AIR 1933 Lah 498 it was observed that the subject-matter of police diaries would ordinarily be privileged under the provisions of S. 124 of the Evidence Act and certain particulars may also be privileged under the provisions of Ss. 123 and 125 of the Evidence Act. None of these cases lay down a general rule that the case diary is privileged and its contents cannot be made use of in another case. But if the intention of Vivian Bose, A.J.C. deciding the case of AIR 1935 Nag 23 and Dalip Singh and Monroe, JJ., deciding the other case was to lay down that in majority of cases the contents of case diary prepar
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