Mohammed Shiyab vs National Investigating Agency
2024 Latest Caselaw 25438 Kant

Karnataka High Court

Mohammed Shiyab vs National Investigating Agency on 25 October, 2024

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 25TH DAY OF OCTOBER, 2024

                          PRESENT

       THE HON'BLE MR. N.V. ANJARIA, CHIEF JUSTICE

                            AND

           THE HON'BLE MR. JUSTICE K.V. ARAVIND

         WRIT APPEAL NO. 102 OF 2024 (GM-POLICE)

BETWEEN:
1.     MOHAMMED SHIYAB
       S/O MOHAMMED SAJID
       AGED ABOUT 32 YEARS
       R/AT NO.1-30, SHETTIYADKA HOUSE
       GANDHINAGAR, NAVOOR
       SULLIA TALUK, DAKSHINA KANNADA - 574 314
       (APPELLANT IS IN JUDICIAL CUSTODY)
       REP. BY HIS BROTHER
       ABDUL RIYAZ S
       S/O MOHAMMED SAJID
                                                  ... APPELLANT
(BY SRI MOHAMMED TAHIR, ADVOCATE)

AND:

1.     NATIONAL INVESTIGATING AGENCY
       MINISTRY OF HOME AFFAIRS, (GOI)
       HYDERABAD BRANCH
       REP. BY ITS STANDING COUNSEL
       SRI PRASANNA KUMAR
       OFFICE AT HIGH COURT COMPLEX
       OPP. VIDHAN SOUDHA
       BANGALORE - 560 001
                                             ... RESPONDENT

(BY SRI P. PRASANNA KUMAR, ADVOCATE)

THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE ORDER DATED 20.12.2023 IN WRIT PETITION No.1781/2023 PASSED BY THE HON'BLE HIGH COURT OF KARNATAKA, BENGALURU AND GRANT THE PRAYERS AS PRAYED FOR IN THE WRIT PETITION No.1781/2023.

THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, JUDGMENT WAS PRONOUNCED AS UNDER:

CORAM: HON'BLE THE CHIEF JUSTICE MR. JUSTICE N.V. ANJARIA and HON'BLE MR JUSTICE K.V. ARAVIND

C.A.V. JUDGMENT

(PER: HON'BLE THE CHIEF JUSTICE MR. JUSTICE N.V. ANJARIA)

Heard learned Advocate Mr. Mohammed Tahir for the

appellant and learned Advocate Mr. P. Prasanna Kumar for the

respondent.

1.1 As learned Single Judge by judgment and order dated 20th

December 2023 dismissed the petition, the appellant-original

petitioner has preferred this appeal under Section 4 of the Karnataka

High Court Act, 1964.

2. What was prayed in the writ petition was to direct the trial

Court-49th Additional City Civil and Sessions Judge and Special

Court for Trial of NIA Cases at Bengaluru 'to sign or put initials to

each page of case diary of RC-36/2022/NIA/DLI registered by the

respondent under Sections 120B, 302 read with Section 34 of the

Indian Penal Code, 1860 and Sections 16 and 18 of the Unlawful

Activities (Prevention) Act, 1967, from page No.1 till the last page

and continue this practice till filing of charge sheet'. It is next prayed

to require the said court to observe the same practice in all the cases

pending before it.

3. Noticing the facts from the pleadings of the petition, it appears

that the petitioner was found to be involved in a murder incident

which took place on 26th July 2022 at Sullia town, pursuant to which,

Crime No.63 of 2022 was registered with the Police Station

concerned and subsequently the case was transferred to the

National Investigating Agency (NIA) invoking Sections 16 and 18 of

the Unlawful Activities (Prevention) Act, 1967 and the case was

registered as No.RC-36/2022/NIA/DLI. Petitioner is accused No.8 is

the said criminal proceedings.

3.1 It appears that the court passed orders of remand and in

connection with the orders, the case diary was summoned which

was taken back by the Investigating Officer. The appellant-accused

had submitted a memo with the trial court to summon the case diary

and further requested to put initial to authenticate the entries on each

page of the diary, which application came to be rejected on 16th

November 2022 by the Court, on the ground that there was no

provision.

3.2 It was contended inter alia that in the investigation, the case

diary is important piece of document which shows the progress of

the investigation and the conduct of the Investigating Officer. The

appellant-petitioner relied on Section 172 of the Code of Criminal

Procedure in support of his case. It was the case that initial was

necessary to be made on each page of the court diary when it is

produced before the Court. It was contended that this practice of

putting initials on each page was not mentioned in the Karnataka

Criminal Rules of Practice, 1968, but in the Rules of other States, it

was so provided. It was therefore, submitted that for preventing the

tampering and fabrication, initial of the investigating officer on each

page was desired and that this Court should make it mandatory.

4. Assailing the judgment and order of learned Single Judge

rejecting the prayers, it was submitted that learned Single Judge

failed to appreciate that maintenance of true entries in the case diary

was part of fairness and transparency. It was contended that

Section 167 of the Code of Criminal Procedure, 1907 (Cr.PC)

mandate the production of case diary along with remand application

and the satisfaction could be arrived at by the Magistrate on the

basis of the entries made in the case diary as per Section 172 of

Cr.PC. It was submitted that, signing diary on each page was an

implied mandate though there was no provision in that regard in the

Rules framed by the State. The Rules of other States were pressed

into service to further submit that signature of the investigating officer

on each page of the case diary would make it tamper-proof.

4.1 On the other hand, learned Advocate for the respondent

supported the impugned judgment of learned Single Judge by

submitting that the petitioner wants an order from this Court in the

nature of legislative exercise, when there is no such provision

available in the statute for the Rules to support the prayer made in

the petition.

5. Learned Single Judge considered the provisions of Section

172 of the Cr.PC, as also the Criminal Rules of Practice notified by

the State of Karnataka in the year 1968, in particular the Rules in

Chapter-V dealing with investigation and prosecution, to observe on

that basis as under, extracting from paragraph 9 of the judgment,

"The Criminal Rules of Practice nowhere indicates that on every application for remand under Section 167 of the Cr.P.C., though the entries in the case diary maintained under Section 172(1) is to accompany the remand order, it nowhere indicates that the Magistrate has to affix his signature at every point when a remand order is passed or at every time the case diary is summoned to the Court. The Criminal Rules of Practice thus nowhere indicates that the Court can grant the prayer that is sought by the petitioner."

5.1. The submission of the petitioner that since in the Rules of

other States, such provision is mentioned, the direction should be

issued by the Court in this case also, was negatived by stating that it

amount to legislating by the Court.

5.1.1 Learned Single Judge observed in paragraph 10 in the above

regard thus,

"That would not enure to the benefit of the petitioner to seek a direction that the same practice should be followed in the State of Karnataka, notwithstanding no such mandate existing in the Criminal Rules of Practice, 1968 of the State. If the prayer of the petitioner is granted contrary to what the Criminal Rules of Practice would mandate, it would amount to this Court legislating, as it is for 12 the legislature to bring in such amendment if it deems fit. This Court in exercise of its jurisdiction under Article 226 of the Constitution of India would not legislate and direct a procedure to be followed in every case as is sought by the petitioner contrary to the Criminal Rules of Practice."

5.1.2 Learned Single Judge elaborately discussed the decisions of

the Supreme Court laying down the principle that it is not the function

of the Court to enlarge the jurisdiction by entering into legislative

task. It was rightly observed that the Court cannot read anything

further when the language of the provision is unambiguous and that

the Court cannot redirect or add something or read additional words

in the statute.

5.1.3 The submission that the non-signing of case diary on each

page by the investigating officer would lead to abuse and tampering,

was not accepted by referring to the principle that there can't be

presumption for abuse of power. The fairness in investigation is

always a question of fact to be considered in the facts of each case.

5.2 While this Court is in agreement with the view taken by

learned Single Judge, Section 172, Cr.PC may be noticed with

relevance,

"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.

(1A) The statements of witnesses recorded during the course of investigation under section 161 shall be inserted in the case diary.

(1B) The diary referred to in sub-section (1) shall be a volume and duly paginated.

(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 section 161 or section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), shall apply."

5.3 The aforesaid provision says that the police officer would enter

his proceedings in the investigation day to day in the diary noting

therein the time, places visited and the statement of circumstances

ascertained through investigation. The statement of the witnesses

recorded under Section 161 would be inserted in the case diary.

Sub-Section (2) of Section 172 in terms provide that the police

diaries may be called for by the Court, however the diary cannot be

used as evidence in the case. It can be used only to aid the inquiry

or trial. Sub-Section (3) contemplates that the accused or his agents

are not entitled to call for such diaries nor they are entitled to see

that.

5.4 It is therefore provided that the police diary is not to be treated

as part of evidence, but the court takes the assistance and aid

therefrom. The section does not contemplate anywhere that every

page of such diary should be signed by the investigating officer. The

Rules of Practice of the Karnataka State regarding investigation also

do not contain any such providence.

5.5 Neither the statute nor the Rules anywhere provide that the

diary should be signed at each page by the investigating officer.

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Therefore, it is not possible to add words or such providence or read

such requirement by supplying to the language. It is well settled

principle of statutory interpretation and legal application that the

court would act on the basis of plain words in the statute without

adding anything to the language. Adding was supplying to the

language would amount to legislating, which is not permissible. The

court cannot cross the boundary to trench upon by creating what is

not provided in the law. The function of the court ends where the

realm of legislature starts. The task of the court is to interpret the

law as it is, and not to enact law in the guise of interpretation.

Supplying something more than what is mentioned in black and

white is not permissible.

5.6 It is well settled parameters for issuance of writ of mandamus.

The pre-requisite is that there must be a corresponding duty where

the writ of mandamus is to be addressed. A writ of mandamus would

not lie for doing something which is not contemplated in a statutory

provision. Applicable statutory provision guides the course and path

of mandamus. There has to be positive obligation cast, and

available from or backed by a statutory provision to justify the

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issuance of writ of mandamus to do some act or to omit from the

doing.

5.7 Even otherwise, no factor circumstance could be

demonstrated by the petitioner, or found to be existent to justify the

grant of prayers made in the petition.

6. No error could be booked in the judgment and order of learned

Single Judge dismissing the petition.

7. The challenge thereto fails. The present appeal is dismissed.

Sd/-

(N.V. ANJARIA) CHIEF JUSTICE

Sd/-

(K.V. ARAVIND) JUDGE

AHB