Madras High Court
Surender vs State Rep By on 12 August, 2024
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.OP.No.19339 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.08.2024
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.OP.No.19339 of 2024
and
Crl.MP.No.11357 of 2024
Surender ... Petitioner
Vs.
State Rep by
The Inspector of Police,
N-2, Kasimedu Traffic Investigation
Police Station, Kasimedu,
Chennai-600 013.
(Cr.No.45/2021) ... Respondent
Prayer: Criminal Original Petition is filed under Section 482 of Cr.P.C
to set aside the order passed by the learned III Metropolitan Magistrate,
George Town, Chennai in Crl.MP.No.6463 of 2023, dated 25.06.2024.
For Petitioner : Mr.J.R.Solomon Peter Kamaldoss
For Respondent : Mr.K.M.D.Muhila
Government Advocate (Crl. Side)
https://www.mhc.tn.gov.in/judis
1/9
Crl.OP.No.19339 of 2024
ORDER
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
https://www.mhc.tn.gov.in/judis
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
https://www.mhc.tn.gov.in/judis
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
https://www.mhc.tn.gov.in/judis
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 clarifies the
position that the prosecution case cannot be thrown out merely on the
ground of discrepancy in the general diary and entry in the general diary
which is not a substantive evidence what is referred under Section 172
of Cr.P.C is only the case diary this is because the general diary is
maintained under Section 44 of the Police Act and case diary is
maintained as per the provisions of the Court. Hence, as far as police
diary is concerned Section 172(3) clearly lays down neither the accused
nor his agent shall be entitled to call for such diaries nor he or they may
be entitled to see them merely because they are referred to by the Court,
https://www.mhc.tn.gov.in/judis
but in case police use the entries in the diaries to refresh his memory or
if the Court uses them for the purpose of contradicting such police
officer, then in exercise of Sections 145 and 161 of Evidence Act, Court
has to act upon.
8. This issue as pointed out by the learned Government Advocate
(Crl.Side) been given quite long back by the Hon'ble Supreme Court in
its Judgement Mukunthlal /vs/ Union of India and Others reported in
(1989) 1 SCC 622. In this Judgement, the Hon'ble Supreme Court has
concurred the view of the High Court conclusion that the provisions
embodied in Section 172 (3) of Cr.P.C cannot be characterized as
unreasonable or arbitrariness. While under Sub Section (2) of 172 of
Cr.P.C the Court itself has unfetter power to examine the diaries which is
with a view of safeguarding the content of the diaries. The legislatures
have imposed complete trust in the Court which is conducting the
enquiry or the trial. However to examine the entries of the police dairy
maintained during the enquiry or investigation is vested only with the
Court and not to the accused. This Court following the Judgement of
Hon'ble Supreme Court rendered in Mohindar Singh /vs/ Emperor
1932 Law Book 103 equivalent to 1935 Indian Cases 205 has held that
https://www.mhc.tn.gov.in/judis
the accused has no right to insist upon a police witness referring to his
diary in order to elicitate information which is privileged. The content of
the diary or not at the disposal of the defence. He cannot be used except
strictly in accordance with the provisions of Section 162 and 172 of
Cr.P.C.
9. Under Section 161 of the Evidence Act witnesses may refresh
his memory by reference to them, but such right is at the discretion of
the witness and Judge, whose duty it is to ensure that the privilege
attached to them by statute is strictly enforced. Thus the pronouncement
of the Supreme Court makes clear that the diary maintained by the
police a privilege document cannot be shared with the accused.
Therefore, the order of the learned Magistrate is in tune with the law and
pronouncement of the Supreme Court. Haji Mohammed case which has
been discussed by the Division Bench in a Criminal Appeal for different
purpose cannot be construed as overruled.
10. With the above observation, this Criminal Original Petition is
dismissed. Consequently, the connected miscellaneous petition is closed.
Vv 12.08.2024
https://www.mhc.tn.gov.in/judis
To
1. The III Metropolitan Magistrate,
George Town, Chennai
2. The Inspector of Police,
N-2, Kasimedu Traffic Investigation
Police Station, Kasimedu,
Chennai-600 013.
3. The Public Prosecutor,
High Court of Madras.
https://www.mhc.tn.gov.in/judis
Dr.G.JAYACHANDRAN,J.
Vv
12.08.2024
https://www.mhc.tn.gov.in/judis
