Siddappa vs The State of Karnataka

Rathnakala, J.—This petition is filed under Articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C. to set aside the order passed dated 27.10.2014 by learned Presiding Officer, Fast Track Judge and Addl. Sessions Court, Gokak in rejecting the application filed by the petitioners/accused under Section 91 read with Section 172 of Cr.P.C.

This petitioner is arrayed as accused No. 1 in the charge sheet. The allegations are in respect of the offence punishable under Sections 143 , 147 , 148 , 302 , 504 , 506 , 109 read with Section 149 of IPC. After the case was committed to the Sessions Court, it was made out to the Fast Track Court, Gokak. The charges were framed and the accused pleaded guilty. The prosecution entered into trial and examined 63 witnesses. The 64th witness is the Investigating Officer who is now retired from service as Deputy Superintendent of Police.

Sri B.V. Somapur, learned counsel for the petitioner submits that during the course of evidence of the Investigating Officer who was examined as PW-64 was referring to his diary and the same is noted down while recording his deposition. In that view of the matter, the accused/petitioner insisted that he may be allowed to see the diary for the purpose of contradicting the case on the basis of said case diary. After giving audience to both, learned Fast Track Judge dismissed the application by observing that accused has no right to peruse the case diary. Learned Judge misconceived the ruling of the Apex Court reported in Mukund Lal Vs. Union of India (UOI) and Another, and without application of mind has dismissed the application which order is beyond the scope of Section 172 of Cr.P.C. Now the evidence of the prosecution is concluded and the case is set down for recording 313 statement of the accused persons. If the accused is not permitted to cross-examine PW-64 on the basis of the case diary, which he has maintained, it will prejudice his case resulting in miscarriage of justice.

In reply, learned Government Pleader submits that accused has cross-examined the PW-64 at length and his evidence is concluded. It is not recorded that the witness gave his evidence entirely based on the case diary. It is not that the witness has completely given his evidence on the basis of the case diary but it is only thrice during the cross-examination he has perused the diary to refresh his memory which is permissible under Section 159 of Evidence Act. It is the case of 2010 and required to meet its logical end expeditiously. Furnishing the entire case diary to the accused persons is not in accordance with the letter and spirit of the judgment of the Apex Court stated supra.

On perusal of the judgment of the Apex Court reported in Mukund Lal Vs. Union of India (UOI) and Another, , which is quoted in the impugned order, it is obvious that the Apex Court was concerned about the furnishing of entire case diary to the accused which may cause prejudice to others and even affect the safety and security of those persons who have given statements to the police. The Apex Court observed that the confidentiality always has to be kept in the matter of criminal investigation and it is not desirable to make available the entire case diary to the accused. The Apex Court has further observed that if the case diary used by the police officers which made them to refresh their memory for the purpose of contradicting for such police officer, the provisions of Section 161 of Cr.P.C. or provisions of Section 145 of Evidence Act shall be complied with for the benefit of better appreciation. Let me quote the Section 161 of Cr.P.C. and Section 145 of Evidence Act for better understanding of the legal position. Section 161 of Cr.P.C. :

"161. Examination of witnesses by police-(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records:"

Section 145 of the Evidence Act

"145. Cross-examination as to previous statements in writing.--A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."

A conjoint reading of the above provisions makes it abundantly clear that the accused shall be permitted to have the benefit of recitals in the case diary which was perused by the Investigating Officer at the time of his examination-in-chief and cross-examination. On a perusal of the statement of the Investigating Officer it surfaces that he has perused the case diary pertaining to the dates of 25.06.2010 to 30.06.2010. Hence, that part of the copy of the case diary shall be made available to the accused, that he can further cross-examine the Investigating Officer. Accordingly, the petition is allowed. The order dated 27.10.2014 is set aside. The prosecution is directed to furnish a copy of the case diary pertaining to the dates of 25.06.2010 to 30.06.2010 to the petitioner forthwith.

The Trial Court shall issue summons to PW-64 and permit the accused to cross-examine the witness without insisting for any application. However, it is made clear that the advocate for the defence shall restrict his cross-examination only to the extent of contentions of the case diary, which he is contradicting.