ORDER

1. Petitioners are before this Court under Articles 226 & 227 of the Constitution of India read with Section 482 Cr.PC seeking for the following reliefs:- i. Issue writ of Certiorari or any other appropriate writ and set aside the trial court rejection order i.e., ANNEXURE-A to A4 dated 14.08.2023 passed by the Hon'ble 49th City Civil & Sessions Judge (Special Court for trial of NIA cases) (CCH-50) at Bangalore, consequently appreciate the application filed by the petitioners under Section 171 of Cr.PC i.e., ANNEXURE-B to B4 and direct the respondent police to produce the entire case diary of the case, which can be used as per the mandate of Section 172 of Cr.PC.

ii. To pass any other orders which the court deems fit in the interest of justice, equity and good conscience.

2. Heard the learned Counsel for the parties.

3. Petitioners herein are being tried for the offences under the Indian Penal Code, Explosive Substances Act 1908, Prevention of Damage to Public Property Act 1984, and Unlawful Activities (Prevention) Act, 1967, before the Court of XLIX City Civil & Sessions Judge (Special Court of Trial of NIA cases), Bengaluru, in S.C.Nos.868/2013, 869/2013, 870/2013 & 871/2013.

4. After the Investigation Officer in the case was examined by the prosecution in the aforesaid cases, the petitioners had filed separate applications in the aforesaid cases under Section 172 read with 91 Cr.PC with a prayer to direct the prosecution to produce the complete case diary of the case for the perusal of the Trial Court. The said application was opposed by the prosecution by filing objections. The Trial Court, after hearing the arguments addressed on both sides, has rejected the said applications vide order impugned dated 14.08.2023. Being aggrieved by the same, the petitioners are before this Court.

5. Learned Counsel for the petitioners having reiterated the grounds urged in the petition, submits that the Investigation Officer during the course of his examination before the Trial Court has looked into the case diary for refreshing his memory, and therefore, in view of Section 172(3) of Cr.PC, the Trial Court ought to have allowed the applications. He submits that even if the accused do not have a right to look into the case diary, but since the Investigation Officer has looked into the case diary to refresh his memory while he was examined before the Court, for the purpose of verification of the court whether the statement made by the Investigation Officer are contradictory, the case diary ought to have been called for by the Trial Court.

6. Per contra, learned SPP-1 has opposed the petition. He submits that there is nothing on record to show that the Investigation Officer has used the case diary for the purpose of refreshing his memory while he was examined in the court. The applications filed by the petitioners before the Trial Court do not say so. Therefore, under Section 172(3) of Cr.PC, the accused or his agent will not be entitled to call for the case diary. However, he fairly submits that in the interest of justice and also with a view to see that fair trial is not denied to the accused, the court may direct the Trial Court to call for the case diary/police diary under Section 172(2) of Cr.PC for the purpose of satisfying itself about any contradictions in the evidence of the Investigation Officer.

7. Section 172 of Cr.PC provides that every police officer making an investigation is required to enter his proceedings in the investigation in a diary, setting forth all the particulars of the information on a day by day basis and also shall mention the time when the investigation was started and closed and also the places visited for the purpose of investigation. The statement of witnesses recorded during the course of investigation under Section 161 of Cr.PC are also required to be inserted in the case diary.

8. Section 172(2) & 172(3) of Cr.PC reads as under:

"(2) Any Criminal Court may send for the police diaries of a case under inquir