Madras High Court
Banumathi vs Asaithambi on 30 September, 2021
Crl.O.P.No.17426 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.09.2021
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P.No.17426 of 2021
Banumathi. ... Petitioner
Versus
1. Asaithambi.
2. The State Rep. by
The Inspector of Police
Kumaratchi Police Station,
Cuddalore District.
(Cr.No145 of 2018). ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of the
Code of Criminal Procedure, to call for the records and set aside the
order passed by the Learned II Additional District and Sessions Judge,
Chidambaram in Crl.M.P.No.83 of 2021 in S.C.No.96 of 2019 dated
16.08.2021.
For Petitioner : Mr.G.Pugazhenthi.
For Respondents : Mr.A.Damodharan,
Addl. Public Prosecutor
for Respondent R2.
Page No.1 of 9
https://www.mhc.tn.gov.in/judis/
Crl.O.P.No.17426 of 2021
ORDER
The petitioner/de-facto complainant in Crime No. 145 of 2018 has
filed this petition to set aside the order passed in Crl.M.P.No.83 of 2021
in S.c.No.96 of 2019 dated 16.08.2021, by the II Additional District and
Sessions Judge, Chidambaram.
2. The contention of the petitioner is that she is the wife of the
deceased Krishnamoorthi, who was murdered by the first
respondent/accused in S.C.No.96 of 2019 on the file of the II Additional
District and Sessions Court, Chidambaram. A case in Crime No.153 of
2018 under Sections 147, 148, 448, 379, 294(b), 506(i) of IPC and
Sections 3 and 4 of PPD Act 1992 has been registered against the
petitioner on the complaint of the wife of the accused/first respondent
herein. On 22.07.2021, the first respondent/accused, had filed a petition
under Section 91 Cr.P.C., before the trial Court to call for case diary in
Crime No. 153 of 2018 from the respondent police. Despite a counter
filed by the respondent police objecting for the same, the trial court had
passed an order allowing the petition. Hence the present petition.
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Crl.O.P.No.17426 of 2021
3. In support of his contention, the learned counsel for the
petitioner has relied upon a judgment passed by the Hon'ble Supreme
Court of India in Crl.A.No.694 of 2017, dated 19.04.2017. The relevant
portion of the said order reads as follows :-
16. The Police diary is only a record of day to day
investigation made by the Investigating Officer. Neither
the accused nor his agent is entitled to call for sch case
diary and also are not entitled to see them during the
course of inquiry or trial. The unfettered power conferred
by the Statute under Section 172(2) of Cr.P.C on the Court
to examine the entries of the police diary would not allow
the accused to claim similar unfettered right to inspect the
case diary.
17. This Court in the case of Mukund Lal /vs/ Union
of India and another, 1988(2) RCR (Criminal ) 583 : AIR
1989 SCC 144 while considering the question relating to
inspection of the entries made in the case diary by the
accused has observed thus:-
"We are of the opinion that the provision embodied
in Sub-section (3) of Section 172 of the CrPC cannot be
characterised as unreasonable or arbitrary. Under sub-
section(2) of Section 172 Cr.P.C. the court itself has the
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Crl.O.P.No.17426 of 2021
unfettered power to examine the entries in the diaries.
This is a very important safeguard. The legislature has
reposed complete trust in the Court which is conducting
the inquiry or the trial. It has empowered the court to call
for any such relevant case diary; if there is any
inconsistency or contradiction arising in the context of the
case diary the court can use the entries for the purpose of
contradicting the police officer as provided in sub Section
(3) of Section 172 of the CrPC. Ultimately, there can be
no better custodian or guardian of the interest of justice
than the court trying the case. No court will deny to itself
the power to make use of the entries in the diary to the
advantage of the accused by contradicting the police
officer with reference to the contents of the diaries. In
view of this safeguard, the charge of unreasonableness or
arbitrariness cannot stand scrutiny. The petitioners claim
an unfettered right to make roving inspection of the entries
in the case diary regardless of whether these entries are
used by the police officer concerned to refresh his memory
or regardless of the fact whether the court has used these
entries for the purpose of contradicting such police officer.
It cannot be said that unless such unfettered right is
conferred and recognized, the embargo engrafted in sub
section (3) of Section 172 of the CrPC would fail to meet
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Crl.O.P.No.17426 of 2021
the test of reasonableness. For instance in the case diary,
there might be a note as regards the identity of the
informant who gave some information which resulted in
investigation into a particular aspect. Public interest
demands that such an entry is not made available to hte
accused for it might endanger the safety or the informants
and it might deter the informants from giving any
information to assist the investigating agency, as observed
in Mohinder Singh /vs Emperor.
4. The learned Additional Public Prosecutor submitted that in this
case, the accused in S.C.No.96 of 2019 has filed a petition under Section
91 Cr.P.C. calling for case diary in Crime No.153 of 2018 before the
lower court. A detailed counter has been filed stating that the accused
has no locus standi to call for records pertaining to different crime
number and different occurrence. He further submitted that as per
Section 172(2) (3) Cr.P.C., the accused is not entitled to call for case
diary.
5. This Court considered the submissions and perused the materials
available on records carefully.
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Crl.O.P.No.17426 of 2021
6. On perusal of the submissions, it is seen that the petitioner/de-
facto complainant had rightly filed this petition. The lower court, against
the first Principle of Law, allowed the petition filed under Section 91
Cr.P.C. by the 2nd respondent/accused to call for case diary in Crime
No.153 of 2018. The Court is permitted to call for case diary, peruse the
same if it is in aid of any investigation, enquiry or trial and it is for the
Court to decide whether it is needed or not for its perusal. No case diary
can be summoned to be produced, since the accused are not entitled to
call for such case diary and further they are also not entitled to see it.
7. The case diaries can be perused by the police Officer or by the
Court for the purpose of contradiction as per the provisions of 161 Cr.P.C
and 145 Evidence Act. When there is specific prohibition that no
accused can ask for the case diary, this Court is surprised to know how
the trial Judge, namely, II Additional District and Sessions Judge,
Chidambaram, had allowed such petition since the Order is against the
first Principles of Law.
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Crl.O.P.No.17426 of 2021
8. In view of the same, the Criminal Original Petition is allowed
and the order passed by the II Additional District and Sessions Judge,
Chidambaram, in Crl.M.P.No.83 of 2021, dated 16.08.2021 is set aside.
30.09.2021
Index: Yes/No
mrp
Note:Issue order copy on 01.10.2021.
To
1. The Inspector of Police
Kumaratchi Police Station,
Cuddalore District.
2. The Public prosecutor,
High court, Madras.
https://www.mhc.tn.gov.in/judis/
Crl.O.P.No.17426 of 2021
M.NIRMAL KUMAR, J.
mrp
CRL.O.P.No.17426 of 2021
30.09.2021
https://www.mhc.tn.gov.in/judis/
Crl.O.P.No.17426 of 2021
CRL.O.P.No.17426 of 2021
M.NIRMAL KUMAR., J.
The Registry is directed to
call for explanation from the II
Additional District and Sessions
Judge, Chidambaram, who had
passed the Order in Crl.M.P.No.83
of 2021, dated 16.08.2021, on or
before 25.10.2021. The report
shall be placed before this Court
on 01.11.2021.
Post on 01.11.2021.
30.09.2021
mrp
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