Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.59 of 2013 ====================================================== 1. Dhrubnath Kumar @ Mantu Singh S/O Shree Gauri Shankar Mishra Resident Of Village- Muhammadpur, Police Station- Sakra, District- Muzaffarpur 2. Siddhnath Parasar S/O Shree Gauri Shankar Mishra Resident Of Village- Muhammadpur, Police Station- Sakra, District- Muzaffarpur Versus .... .... Petitioner/s 1. The State Of Bihar 2. Gajendra Dubey S/O Late Paltan Dubey Resident Of Mohalla- Maharaj Colony Pankha Toli, Police Station- Kazi Mohammadpur, District- Muzaffarpur .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. B.K.Sinha, Sr. Advocate Mr. Pramod Kumar, Advocate Mr. Rudal Singh, Advocate For the Respondent/s : Mr. J.P.Karn, A.A.G-IV ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH C.A.V. ORDER 3 25-02-2013 On the basis of oral statement of one Gajendra Dubey son of late Paltan Dubey of Maharaj Colony, Pankha Toli, Police Station- Kazi Mohammadpur, recorded by the Police Inspector Sudhir Kumar Singh on 10.12.2006 at 9.00 p.m., regarding an occurrence of the offence which took place on the same day at 7.00 p.m., Kazi Mohammadpur P.S.Case No. 214 of 2006 dated 10.12.2006, was registered under Sections 302, 307, 120B of the Indian Penal Code and Section 27 of the Arms Act. According to the informant, while he was on his way Patna High Court CR. WJC No.59 of 2013 (3) 2 to the residence of Ram Kumar Singh, Member of Legislative Council, for attending feast, at about 7.00 p.m., he received a telephonic call from his nephew, namely, Sonu Kumar who told him that three unknown persons after entering into the house and introduced themselves as acquaintance of one Ranvir Singh of Punaura and thereafter they resorted to indiscriminate firing at the informant‟s brother Satendra Dubey, his son Kishan Dubey, Pankaj Thakur and Manoj Thakur. The injured persons were immediately taken to Nursing Home of one Dr. Birendra Kumar at Juranpur Chapra. On getting such information, the informant rushed to the aforesaid Nursing Home. The injured persons were, thereafter, taken to SKMCH, Muzaffarpur where, in course of treatment, the injured Satendra Dueby and Kishan Dubey succumbed to their injuries. The other two injured namely, Pankaj Thakur and Manoj Thakur were being treated in the SKMCH, Muzaffarpur. On enquiry, the injured Manoj Thakur and Pankaj Thakur disclosed that while they were busy talking each other at the Verandah of the house, three persons came there pretending themselves to be the men of Ranvir Singh of Punaura. They were identified by them as Mintu Singh, Shyam Sunder Pathak alias Vinod alias Monu and Ranjeet Kumar Jha. According to them the
Legal Reasoning
miscreants took out pistol and indiscriminately fired upon the Patna High Court CR. WJC No.59 of 2013 (3) 3 aforesaid four persons. The informant has further alleged that when he came back to his house from SKMCH, Muzaffarpur, he found dead body of a young person lying at his Verandah. The police had also arrived there. The informant has also assigned motive for the alleged occurrence in the FIR. In the FIR, altogether nine persons including the two petitioners, were named as accused. The police investigated the case and submitted chargesheet against the accused persons. The learned Chief Judicial Magistrate took cognizance of the offence. Subsequently, the case was committed to the court of sessions for trial. Presently, Sessions Trial No. 862 of 2008 arising out of Kazi Mohammadpur P.S.Case No. 214 of 2006 is pending in the court of 2nd Additional Sessions Judge, Muzaffarpur. In the said sessions trial, charges were framed against the accused persons including the petitioners and the prosecution has already examined its witnesses and the prosecution case has been closed. The trial is at an advance stage. The prayer of the petitioners in
Decision
paragraph 1 of the writ petition is as under: “1.That the instant writ application is being filed for the following reliefs:- (i)For issuance of a writ in the nature of „Mandamus‟ directing the 2nd Additional Patna High Court CR. WJC No.59 of 2013 (3) 4 Sessions Judge, Muzaffarpur in Sessions Trial No. 862 of 2008 to give access to the statement of witnesses recorded by CID under the orders of the Government and/or for direction that the witnesses examined by the CID should be directed to appear as witnesses. (ii)Any other appropriate writ/writs be issued, order/orders be passed, direction/directions be given for which the petitioners may be found entitled in the facts and circumstances of the case. ” It is contended on behalf of the petitioners that they have been falsely implicated in the present case due to business rivalry. The moment they came to know about their involvement in the false case, they made an application to the Director General of Police, Patna on 25.01.2007 for CID control so that truth comes to light. On the application of the petitioners, the case was controlled by the CID vide order dated 16.07.2008. In course of inquiry conducted by the CID, new materials surfaced which proved that there was no complicity of the petitioners in the present case. Learned senior counsel appearing on behalf of the petitioners further contended that during investigation of the CID Patna High Court CR. WJC No.59 of 2013 (3) 5 it transpired conclusively that the petitioners were not present at the spot nor any occurrence is said to have taken place in the manner alleged. According to him, the statement recorded by the Officer of the CID is available on the record. The Officer of the CID had recorded the statement of several witnesses. However, the CID diary was not made available to the petitioners nor the persons examined by the CID were produced as witnesses in the court by the prosecution. Learned senior counsel further submited that the petitioners are entitled to the statement of the witnesses recorded by the Officer of the CID and denying the same would amount to unfair trial and would be violative of Article 21 of the Constitution of India. On the other hand, learned counsel appearing on behalf of the State submitted that there is no merit in the present case. The matter was investigated by the local police and the local police had already submitted chargesheet in this case. The trial court took cognizance of the offence on the basis of chargesheet submitted by the local police. He further submitted that the CID control does not mean that the investigation was being conducted by the CID. It only means that the case was being supervised by the CID. According Patna High Court CR. WJC No.59 of 2013 (3) 6 to him from the record itself it would appear that subsequently the CID found the investigation conducted by the local police to be proper and, as such, the order dated 16.07.2008 taking control of the case by the CID was vacated. The right of the accused with regard to disclosure of document is a limited right. The accused cannot claim an indefeasible legal right to claim every document of the police on file. Section 207 of the Code of Criminal Procedure (for short “the Code”) deals with the right of the accused and the duty of the Public Prosecutor to disclose certain evidence to the defence. Section 207 of the Code reads as under: “207.Supply to the accused of copy of police report and other documents:-In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:- (i) the police report; (ii) the first information report recorded under section 154; (iii)the statements recorded under sub- section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in Patna High Court CR. WJC No.59 of 2013 (3) 7 regard to which a request for such exclusion has been made by the police officer under sub-section (6) of section 173; (iv)the confessions and statements, if any, recorded under section 164; (v)any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173; Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused: Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.” From perusal of Section 207(iii) of the Code it is apparent that the prosecution is obliged to supply to the accused copy of the statements recorded under sub-section (3) of Section Patna High Court CR. WJC No.59 of 2013 (3) 8 161 of the Code of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the Police Officer under sub-section (6) of Section 173 of the Code. Here it would also be relevant to examine Section 172 of the Code which reads as under : “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. (1-A) The statement of the witnesses recorded during the course of investigation under section 161 shall be inserted in the case diary. (1-B) 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 Patna High Court CR. WJC No.59 of 2013 (3) 9 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.” Thus, it would be manifest from bare reading of sub- section (2) of Section 172 of the Code that the court is entitled at the trial or enquiry, to use the diary not as evidence in the case, but as aid to it in the enquiry or trial. Further under sub-section (3) of Section 173 of the Code neither the accused nor his agent shall be entitled to call for such case diary nor shall he or they be entitled to see them but it is only where the Investigating Officer who makes them to refresh his memory or the court uses them for contradicting such Investigating Officer in terms of section 172 of the Code then Section 161 of the Code or Section 145 of the Patna High Court CR. WJC No.59 of 2013 (3) 10 Evidence Act would apply. The entries cannot be used by the accused as evidence. In Sidharth and others v State of Bihar since reported in (2005) 12 SCC 545 the Apex Court in paragraph 27 held as under: “27. Lastly, we may point out that in the present case, we have noticed that the entire case diary maintained by the police was made available to the accused. Under section 172 of the Criminal Procedure Code, every police officer making an investigation has to record his proceedings in a diary setting forth the time at which the information reached him, the time at which he bagan and closed investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation. It is specially provided in sub- section (3) of Section 172 that 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 Patna High Court CR. WJC No.59 of 2013 (3) 11 Cr.P.C. or the provisions of Section 145 of the Evidence act shall be complied with. The court is empowered to call for such diaries not to use it as evidence but to use it as aid to find out anything that happened during the investigation of the crime. These provisions have been incorporated in the Code of Criminal Procedure to achieve certain specific objectives. The police officer who is conducting the investigation may come across a series of information which cannot be divulged to the accused. He is bound to record such facts in the case diary. But if the entire case diary is made available to the accused, it may cause serious prejudice to others and even affect the safety and security of those who may have given statements to the police. The confidentiality is always kept in the matter of criminal investigation and it is not desirable to make available the entire case diary to the accused. In the instant case, we have noticed that the entire case diary was given to the accused and the investigating officer was extensively cross-examined on many facts which were not very much relevant for the purpose of the case. The learned Sessions Judge should have been careful in seeing that the trial of the case Patna High Court CR. WJC No.59 of 2013 (3) 12 was conducted in accordance with the provisions of Cr.P.C.” From the judgment of the Apex court it is obvious that the accused is not entitled to have an access to the entire police diary. Confidentiality of investigation has to be maintained. It is pertinent to note here that on enquiry learned counsel for the petitioner disclosed that chargesheet by the local police was submitted vide chargesheet no.40 of 2007 dated 20.03.2007. Thus, apparently any control by the CID subsequent to submission of chargesheet would at best be treated as control of supervision of further investigation in terms of Section 173(8) of the Code. Admittedly, no further police report under Section 173(2) of the Code in terms of Section 173(8) of the Code has been submitted in the court by the police. Section 173(8) of the Code empowers the police to submit a further report if they are able to collect further evidence. Once such report in terms of Section 173(2) of the Code is received, the court shall take cognizance of such report. In the present case no further report in terms of Section 173(2) of the Code has ever been filed in the court. As such, the court would not take cognizance of any such Patna High Court CR. WJC No.59 of 2013 (3) 13 material which has not been submitted in the court as a report in terms of Section 173(2) of the Code. If the court itself would not take cognizance of any such material, there is no justification for this court to direct the trial court to give access to the petitioners to such documents or statements. Further, a supervision report is not a part of investigation and thus the same cannot be supplied to an accused in course of trial. For the reasons assigned, hereinabove, I do not find any merit in the present writ petition. It is dismissed, accordingly. Md.S./- (Ashwani Kumar Singh, J)