O R D E R

The petitioner herein is the sole accused in C.C.No.1769 of 2021 for the offence under Sections 279, 338 of IPC and Section 134(a), 134(b), 181(3) and 196 of Motor Vehicle Act. Pending trial, the petitioner has filed an application under Section 91 of Cr.P.C for production of the following documents from the custody of Investigating Officer:

a) General Section Diary for the period of 15.10.2021 to

18.10.2021 of the respondent.

b) General Diary for the period of 15.10.2021 to 18.10.2021 of the respondent.

c) PSR for the period of 15.10.2021 to 18.10.2021 of the respondent which are under the custody of the respondent. ( The Inspector of Police, N-2, Kasimedu Traffic Investigation Police Station, Kasimedu, Chennai-600 013.

2. The said application was supposed by the prosecution on the ground that the documents sought by the petitioner being the general dairy and PSR maintained by the respondent police in the course of their discharge of duty, there is a bar under Section 172(3) of Cr.P.C to part away the copy of the documents to the accused.

3. The learned III Metropolitan Magistrate, George Town, Chennai District on considering the submissions made by the respective parties and the law had dismissed the application relying upon judgment of this Court rendered in Haji Mohammed and three others /vs/ State represented by the Inspector of Police, Koradacheri Police Station, Tiruvarur District and also relying upon the judgement of the Hon'ble Supreme Court rendered in Hardeep Singh /vs/ State of Punjab and others reported in (2014) 3 SCC 92 .

4. The Judgement rendered in Haji Mohammed and three others /vs/ State represented by the Inspector of Police, Koradacheri Police Station, Tiruvarur District judgement referred by the learned counsel appearing for the petitioner has been overruled by the Hon'ble Supreme Court in Malkiat Singh and Others -Vs-State of Punjab/MANU/SC/0622/1991. In Mohammed Zoha -Vs-State in Crl.OP.No.452 of 2024 dated 11.01.2024, the Single Judge has held that the right of the accused filing an application under Section 91 of Cr.P.C is not restricted to any time or stage of the trial, it can be done at any stage and there can be no fixed formula for such a request.

5. The learned counsel therefore being aggrieved by the dismissal of the application filed under Section 91 of Cr.P.C calling for general diary and PSR maintained by the Police is before this Court to set aside the order of the trial Court and allow the application under Section 91 of Cr.P.C.

6. The learned Government Advocate (Crl.Side) appearing for the State submits that the law on this point is well settled. Neither the Division Bench Judgement cited by the learned Judge nor the Single Judge Judgement regarding the right of the accused filing petition under Section 91 of Cr.P.C at any stage of the trial does not lend any support to the case of the petitioner to set aside the order passed by the trial Court. He further submits that Section 91 of Cr.P.C, can be exercised by the accused at any stage, but, what are the documents he is entitled to call for under Section 91 is subject to Section 172 (3) of Cr.P.C. The Courts had time and again held that the general diary maintained by the police is the confidential record and if any thing referred by the witness in the course of examination from the general diary while refreshing his memory then the accused will have a right of cross examining the witness pertaining to the entry made in the general diary. Even at that stage, it is for the Court to examine the general diary and it cannot be shared with the accused persons.

7. The contention of the learned counsel that the trial Court reference to Haji Mohammed case which has been overruled by the Division Bench also appears to be not correct, since the Division while discussing Haji Mohammed case has not considered whether under Section 91 of Cr.P.C the general diary of the police can be summoned by the accused. The judgement of the Division Bench only c