Achal Khemka v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDated:- 20.01.2009Coram:-The Hon'ble Mr. Justice R.REGUPATHICrl.R.C. No.1609 of 2008andM.P. Nos.1 and 2 of 2008Achal Khemka... Petitionervs.State, rep. byThe Inspector of Police, K4 Anna Nagar Police Station Traffic Investigation. ... RespondentPetition filed under Section 397 and 401 to call for the records inJC No.81 of 2008 on the file of the XII Metropolitan Magistrate,Juvenile Justice Board, Kellys, and to set aside the order passed inCrl.M.P. No.803 of 2008 dated 01.12.2008. For petitioner: Mr.R.Shanmugasundaram,Sr. Counsel for Mr.Anil KumarFor Respondent: Mr.R.Muniyapparaj,Govt. Advocate.O R D E R The petitioner is the sole accused in the proceedings taken onfile by the XII Metropolitan Magistrate/Juvenile Justice Board,Kellys, in J.C. No.81 of 2008, for the offence under Section 304 (A)IPC. In the course of trial, among other documents, the statement ofPW-13 recorded by the Investigating Officer during investigation andalso a letter written by the said witness, were supplied to theaccused under Section 207 Cr.P.C. Further, PW-13 admitted beforecourt about such letter having been written by him and the admissionwas made by him when he was confronted with a xerox copy of theletter. Under such circumstances, a petition ie., Crl. M.P. No.803of 2008 in J.C. No.81 of 2008, under Section 91 read with 172 Cr.P.C.was filed by the defence for production of original of the letterwritten by PW-13. By the impugned order, the request was turned downand aggrieved thereby, the petitioner has come up with the present https://hcservices.ecourts.gov.in/hcservices/ Revision Case.2. Learned Senior Counsel for the petitioner submits thatavailability of the original of the letter is not denied and, infact, a copy of the said letter has already been supplied to theaccused under Section 207 Cr.P.C. Further, PW-13 emphaticallyadmitted during the course of cross examination the factum of havingwritten such letter; that being so, the accused is entitled to markthe same for the purpose of impeaching the merit of the witness.3. Per contra, learned Government Advocate submits that acase diary could not be marked as evidence and that the same can besummoned by the court if such course is warranted for the purpose ofits reference.4. I have perused the materials available on record withreference to the submissions made on either side.5. It is not in dispute that PW-13, while giving statementduring investigation, had also written a letter to the police andadmittedly, a copy thereof has been furnished to the accused as perSection 207 Cr.P.C. During cross examination, a xerox copy of theletter was shown to the witness and when he was confronted with thecontents of the same, it was admitted that the letter was written byhim alone. Unfortunately, the original was not produced before court,however, it is available with the Investigating Officer. The letterwritten by PW-13, in such circumstances, forms part of the statementgiven by him. Not only the statement given by a witness but a letteror document or any other material furnished during the course ofinvestigation by such witness to the Investigating Officer could beused for the purpose of contradicting or impeaching the credibilityof the witness.6. The Supreme Court, in State of Kerala v. Babu (1999 SCC (Crl.)611, referring to Tahsildar Singh's case (AIR 1959 SC 1012), heldthat a statement recorded by an Investigating Officer in any casewhich was under investigation, being a statement under Section 161 ofthe Code, the same can be used for the limited purpose provided underSection 162 of the Code read with Section 145 of the Evidence Act.Further, Section 91(1) Cr.P.C. stipulates that whenever any courtconsiders that production of any document or thing is necessary ordesirable for the purposes of trial, such court may issue summons tothe person in whose possession such documents is available and mayrequire him for production of the same.Section 91 (3) Cr.P.C. is not applicable to the case on hand,for, Sec.91(3)(b) provides that nothing in Section 91 shall be deemedto apply to a letter, postcard, telegram or other document or anyparcel or thing in the custody of the postal or telegraph authority. https://hcservices.ecourts.gov.in/hcservices/

7. The case law reported in 1991 (4) SCC 341 (Malkiat Singh vs.State of Punjab), has been referred to, wherein, after adverting toSection 172 Cr.P.C., at paragraph No.11, it was held as follows," 11. It is manifest from its bare reading withoutsubjecting to detailed and critical analysis that the casediary is only a record of day to day investigation of theinvestigating officer to ascertain the statement ofcircumstances ascertained through the investigation. Undersub-section (2) the court is entitled at the trial or enquiryto use the diary not as evidence in the case, but as aid to itin the inquiry or trial. Neither the accused, nor his agent,by operation of sub-section (3), shall be entitled to call forthe diary, nor shall he be entitled to use it as evidencemerely because the court referred to it. Only right giventhereunder is that if the police officer who made the entriesin the diary uses it to refresh his memory or if the courtuses it for the purpose of contradicting such witness, byoperation of Section 161 of the code and Section 145 of theEvidence Act, it shall be used for the purpose ofcontradicting the witness ie., Investigation Officer or toexplain it in re-examination by the prosecution, withpermission of the court. It is, therefore, clear that unlessthe investigating officer or the court uses it either torefresh the memory or contradicting the investigating officeras previous statement under Section 161 that too after drawinghis attention thereto as is enjoined under Section 145 of theEvidence Act, the entries cannot be used by the accused asevidence. Neither PW5 nor PW6, nor the court used the casediary. Therefore, the free use thereof for contradicting theprosecution evidence is obviously illegal and it isinadmissible in evidence. Thereby the defence cannot placereliance thereon. But even if we were to consider the same asadmissible that part of the evidence does not impinge upon theprosecution evidence. "Since Section 172 (2) Cr.P.C. is not applicable to the facts andcircumstances of the case, the above case law is distinguishable onfacts, for, it deals with entries in the case diary and not inrespect of a document already furnished under Section 207 of theCode. In the case on hand, a copy of the letter in question wassupplied to the accused along with the statement of PW-13. Further,PW-13 admitted that he himself had written the letter. In suchcircumstances, the defence is entitled to use the same for thepurpose of Section 162 Cr.P.C. and Section 145 of the Evidence Act. 8. In this view of the matter, the impugned order is liable tobe set aside; accordingly, set aside. The trial court is directed toreceive the original letter in question from the prosecuting agencyand if necessary, allow it to be marked as evidence at the instance https://hcservices.ecourts.gov.in/hcservices/ of the defence.9. With this observation, the Revision Case is ordered. ConnectedMiscellaneous Petitions are closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarJI.To1.The XII Metropolitan Magistrate,Juvenile Justice Board,Kellys, Chennai 600 010.2.-Do- Thro the Chief Metropolitan Magistrate,Egmore, Madras.3.The Inspector of PoliceK-4, Anna Nagar Police StationTraffic Investigation, Chennai.4.The Public Prosecutor, High Court, Madras.2 CC To Mr.M.Krishnanmoorthy, Advocate, SR NO.2082Crl.R.C. No.1609/08mtk(co)pmk/5.2.2009.