Khatri & Ors Vs. State of Bihar
& Ors [1981] INSC 61 (10 March 1981)
BHAGWATI, P.N.
BHAGWATI, P.N.
ISLAM, BAHARUL (J)
CITATION: 1981 AIR 1068 1981 SCR (3) 145 1981
SCC (2) 493 1981 SCALE (1)531
ACT:
Constitution of India, 1950, Article
32-Production by the State of certain documents called for by the Supreme
Court, whether barred by sections 162 to 172 of the Criminal Procedure Code,
1973, when the State does not claim privilege in regard to them under section
123 or section 124 of the Indian Evidence Act-Scope of writ jurisdiction under
Article 32 of the Constitution-Section 162 of the Criminal Procedure Code,
object and scope, explained-Whether investigation ordered by the State
Government under section 3 of the Indian Police Act, 1861 is an investigation
under Chapter XII of the Criminal Procedure Code, 1973 and the reports
submitted pursuant thereto, form part of "case diary" within the
meaning of section 172 of Criminal Procedure Code.
HEADNOTE:
The petitioners are certain under trials in
the State of Bihar. In the Writ Petitions filed by them under Article 32 of the
Constitution they complained that after their arrest, whilst under police
custody they were blinded by the members of the police force, acting not in
their private capacity but as police officials and their fundamental right to
life guaranteed under Article 21 was therefore, violated and for this violation
the State is liable to pay compensation to them. On an application made by the
petitioners, several documents including C.I.D. Reports submitted by Shri L.V.
Singh, D.I.G., C.I.D, (Anti Dacoity) on December 9,1980 and other dates were
called for by the Court. The State raised an objection to the production of
these documents on the ground that they are protected from disclosure under
sections 162 to 172 of the Code of Criminal Procedure, 1973 and that the
petitioners are not entitled to see them or to make any use of them in the
present proceedings.
Overruling the State objection and directing
the Registry to supply copies of these documents produced before the Court, to
the petitioner's advocate and the advocate appearing as amicus curiae, the
Court
HELD: 1:1. The reports submitted by Shri L.V.
Singh setting forth the results of his investigation cannot be shut out from
being produced and considered in evidence either under section 162 or 172 of
the Criminal Procedure Code, even if they refer to any statements made before
him and his associates during investigation, provided they are otherwise
relevant under the provisions of the Indian Evidence Act. In a writ petition
against the State Government where the complaint is that the police officials
of the State Government blinded the petitioners at the time of arrest or whilst
in custody, the State Government cannot resist production of a report in regard
to the truth or otherwise of the complaint, made by a highly placed officer
pursuant to the direction issued by the State Government.
[163 B-D] 1:2. All the other reports covered
by Items 2 to 5 of the Court's order dated 16th February, 1981 are equally
relevant and must, therefore, be produced and taken on record in the writ
petition. [164 B-C] 146 2:1. The procedure to be followed in a writ petition
under Article 32 of the Constitution is prescribed under order XXXV of the
Supreme Court Rules, 1966, and sub-rule (9) of Rule 10 lays down that at the
hearing of the rule nisi if the court is of the opinion that an opportunity be
given to the parties to establish their respective cases by leading further
evidence, the court may take such evidence or cause such evidence to be taken
in such manner as it may deem fit and proper and obviously the reception of
such evidence will be governed by the provisions of the Indian Evidence Act. It
is obvious, therefore, that even a statement made before a police officer
during investigation can be produced and used in evidence in a writ petition
under Article 32 of the Constitution provided it is relevant under the Indian
Evidence Act and neither section 162 nor section 172 can be urged as a bar
against its production or use. [153 C-E] 3:1. When the Court trying the writ
petition proceeds to inquire into the issue whether the petitioners were
blinded by police officials at the time of arrest or whilst in police custody,
it does so, not for the purpose of adjudicating upon the guilt of any
particular officer with a view to punishing him but for the purpose of deciding
whether the fundamental right of the petitioners under Article 21 has been violated
and the State is liable to pay compensation to them for such violation. The
nature and object of the inquiry is altogether different from that in a
criminal case and any decision arrived at in the writ petition on this issue
cannot have any relevance much less any binding effect, in criminal proceeding
which may be taken against a particular police officer. [160 G-H, 161 A- B]
4. The pendency of a criminal proceeding
cannot be urged as a bar against the Court trying a civil proceeding or a writ
petition where a similar issue is involved. The two are entirely distinct and
separate proceedings and neither is a bar against the other. It may be that in
a given case, if the investigation is still proceeding, the Court may defer the
inquiry before it until the investigation is completed or if the Court
considers it necessary in the interests of Justice, it may postpone its inquiry
even after the prosecution following upon the investigation is terminated, but
that is a matter entirely for the exercise of the discretion of the Court and
there is no bar precluding the Court from proceeding with the inquiry before it
merely because the investigation or prosecution is pending. [161 D-E]
5. The fact in issue in the inquiry before
the Court in the present writ petition is whether the petitioners were blinded
by the members of the police force at the time of the arrest or whilst in
police custody. The several reports called for by the Court clearly relate to
the issue as to how, in what manner and by whom the twenty-four undertrial
prisoners were blinded, for that is the matter which Shri L.V. Singh was
directed by the State Government to investigate. If that be so, the State
cannot resist the production of these reports and their use as evidence in the
present proceeding. These reports are clearly relevant under section 35 of the
Indian Evidence Act since they relate to a fact in issue and are made by a
public servant in the discharge of his official duty. [161 F, 162 A-D] P.C.P.
Reddiar v. S. Perumal, [1972] 2 S.C.R. 646;
Kanwar Lal Gupta v. Amar Nath Chawla, [1975]
3 S.C.C. 646;
followed.
Jagdat v. Sheopal, A.I.R. 1927 Oudh 323;
Chandulal v. Pushkar Rai, A.I.R. 1952 Nagpur 271; Lionell Edwards Limited v.
State of West Bengal, A.I.R, 1967 Cal. 191, quoted with approval.
6. Section 4 of the Criminal Procedure Code,
1973 makes it clear that the provisions of the Criminal Procedure Code are
applicable where an offence under the Indian Penal Code or under any other law
is being investigated, inquired into tried or otherwise dealt with. [151 B-C]
7. Section 162 bars the use of any statement
made before a police officer in the course of an investigation under Chapter
XII, whether recorded in a police diary or otherwise, but, by the express terms
of the Section, this bar is applicable only where such statement is sought to
be used "at any inquiry or trial in respect of any offence under
investigation at the time when such statement was made." If the statement
made before the police officer in the course of an investigation under chapter
XII is sought to be used in any proceeding other than an inquiry or trial or
even at an inquiry or trial but in respect of an offence other than that which
was under investigation at the time when such statement was made, the bar of
section 162 would not be attracted. [152 A-C] 7:2. Section 162 has been enacted
for benefit of the accused and to protect him against overzealous police
officers and untruthful witnesses. But, this protection is unnecessary in any
proceeding other than an inquiry or trial in respect of the offence under
investigation and hence the bar created by the section is a limited bar. It has
no application in a civil proceeding or in a proceeding under Article 32 or 226
of the Constitution and a statement made before a police officer in the course
of investigation can be used as evidence in such proceeding, provided it is
otherwise relevant under the Indian Evidence Act. [152 D, H, 153 A-B] Tehsildar
Singh and Another v. The State of Uttar Pradesh, [1959] Supp. 2 S.C.R. 875 at
890, applied.
Emperor v. Aftab Mohd. Khan, A.I.R. 1940 All.
291;
Baliram Tikaram Maratha v. Emperor, A.I.R.
1945 Nagpur 1;
Malakalaya Surya Rao v. Janakamma, A.I.R.
1964 A.P. 198;
approved.
8:1. Sub-section (2) of section 172 of the
Criminal Procedure Code empowers the criminal court holding an inquiry or trial
of a case to send for the police diary of the case and the criminal court can
use such diary, not as evidence in the case, but to aid it in such inquiry or
trial. But, by reason of sub-section (3) of section 172, merely because the
case diary is referred to by the criminal court, neither the accused nor his
agents are entitled to call for such diary nor are they entitled to see it. If
however the case diary is used by the police officer who has made it to refresh
his memory or if the criminal court uses it for the purpose of contradicting
such police officer in the inquiry or trial, the provisions of section 161 or
section 145, as the case may be of the Indian Evidence Act would apply and the
accused would be entitled to see the particular entry in the case diary which
has been referred to for either of these purposes and so much of the diary as
in the opinion of the Court is necessary to a full understanding of the
particular entry so used. [156 C-D] Queen-Empress v. Mannu, [1897] 19 All. 390,
quoted with approval.
State of Bihar v. J.A.C. Saldhana, [1980] 2
S.C.R. 16, referred to.
8:2. The bar against production and use of
case diary enacted in section 172 is intended to operate only in an inquiry or
trial for an offence and even this 148 bar is a limited bar, because in an
inquiry or trial, the bar does not operate if the case diary is used by the
police officer for refreshing his memory or the criminal court uses it for the
purpose of contradicting such police officer.
This bar can obviously have no application
where a case diary is sought to be produced and used in evidence in a civil
proceeding or in a proceeding under Article 32 or 226 of the Constitution and
particularly when the party calling for the case diary is neither an accused
nor his agent in respect of the offence to which the case diary relates. The
present writ petition which has been filed under Article 32 of the Constitution
to enforce the fundamental right guaranteed under Article 21 is neither an
"inquiry" nor a "trial" for an offence nor is this court
hearing the writ petition a criminal court nor are the petitioners, accused or
their agents so far as the offences arising out of their blinding are
concerned. Therefore, even if the reports submitted by Shri L.V. Singh as a
result of his investigation could be said to form part of "case
diary" their production and use in the present writ petition under Article
32 of the Constitution cannot be said to be barred under section 172 of the
Criminal Procedure Code. [156 D-G, 157 A-B] 9:1. It would not be right to
extend the prohibition of section 172 to cases not falling strictly within the
terms of the section, by appealing to what may be regarded as the principle or
spirit of the section. In fact to do so would be inconsistent with the
constitutional commitment of the Supreme Court to the rule of law. Either
production and use of case diary in a proceeding is barred under the terms of
section 172 or it is not, it cannot be said to be barred on an extended or
analogical application of the principle supposed to be underlying that section,
if it is not covered by its express terms. In order that truth may emerge from
the clash between contesting parties under the adversary system, it is
necessary that all facts relevant to the inquiry must be brought before the
Court and no relevant fact must be shut-out, for otherwise the Court may get a
distorted or incomplete picture of the facts and that might result in
mis-carriage of justice. It is imperative to the proper functioning of the
judicial process and satisfactory and certain ascertainment of truth that all
relevant facts must be made available to the Court. But the law may, in
exceptional cases, in order to protect more weighty and compelling competing
interests, provide that a particular piece of evidence, though relevant, shall
not be liable to be produced or called in evidence. Such exceptions are to be
found, inter alia, in sections 122, 123 124, 126 and 129 of the Indian Evidence
Act and sections 162 and 172 of the Criminal Procedure Code But being
exceptions to the legitimate demand for reception of all relevant evidence in
the interest of justice, they must be strictly interpreted and not expansively
construed, "for they are in derogation of the search for truth". [157
E-H, 158 A-C] United States v. Nixon, 418 US 683: 41 Lawyers Edition (2nd
series) 1039, quoted with approval.
10. The Court did not express any opinion
regarding the two interesting questions, (i) whether an investigation carried
out by a superior officer by virtue of a direction given to him by the State
Government under section 3 of the Indian Police Act, 1861 is an investigation
under Chapter XII so as to attract the applicability of section 172 to a diary
maintained by him in the course of such investigation and (ii) whether the
report made by such officer as a result of the investigation carried out by him
forms part of case diary within the meaning of section 172 of the Criminal
Procedure Code. [155 D-G]
ORIGINAL JURISDICTION: Writ Petition Nos.
5670 and 6216 of 1980.
(Under Article 32 of the Constitution) Mrs.
K. Hingorani, Mr. Hingorani, Mukul Mudgal and Damodar Prakash for the Petitioners.
K G. Bhagat and D. Goburdhan for the
Respondent.
Miss A. Subhashini for the Union of India.
The Order of the Court was delivered by,
BHAGWATI, J. The question which arises before us for consideration is whether
certain documents called for by the Court by its order dated 16th February,
1981 are liable to be produced by the State or their production is barred under
some provision of law. The documents called for are set out in the order dated
16th February, 1981 and they are as follows:
1. the CID report submitted by L.V. Singh,
DIG, CID Anti-Dacoity) on December 9, 1980;
2. the CID reports on all the 24 cases
submitted by L.V. Singh and his associates between January 10 and January 20,
1981;
3. the letters number 4/R dated 3rd January,
1981 and number 20/R dated 7th January 1981 from L.V. Singh to the IG, Police;
4. the files containing all correspondence
and notings exchanged between L.V. Singh, DIG and M.K.
Jha, Additional IG, regarding the CID inquiry
into the blindings, and 5. the file (presently in the office of the IG, S.K. Chatterjee
containing the reports submitted by Inspector and Sub-Inspector of CID to
Gajendra Narain, DIG, Bhagalpur on 18th July or thereabouts and his letter to
K.D. Singh, SP, CID, Patna which has the hand written observations of M.K. Jha.
The State has objected to the production of
these documents on the ground that they are protected from disclosure under
Sections 162 and 172 of the Code of Criminal Procedure 1973 and the petitioners
are not entitled to see them or to make any use of them in the present 150
proceeding. This contention raises a question of some importance and it has
been debated with great fervour on both sides but we do not think it presents
any serious difficulty in its resolution, if we have regard to the terms of
Sections 162 and 172 of the Criminal Procedure Code on which reliance has been
placed on behalf of the State.
We will first consider the question in regard
to the reports submitted by Sh. L.V. Singh, Deputy Inspector General CID (Anti-Dacoity)
on 9th December, 1980 and the reports submitted by him and his associates Sh.
R.R. Prasad, S.P. (Anti-Dacoity) and Smt. Manjuri Jaurahar, S.P. (Anti-
Dacoity) between 10th and 20th January, 1981. These reports have been handed
over to us for our perusal by Mr. K.G.Bhagat learned advocate appearing on
behalf of the State and it is clear from these reports, and that has also been
stated before us on behalf of the State, that by an order dated 28-29th
November, 1980 made by the State Government under Section 3 of the Indian Police
Act 1861, Sh. L.V. Singh was directed by the State Government to investigate
into 24 cases of blinding of under trial prisoners and it was in discharge of
this official duty entrusted to him that he with the assistance of his
associates Sh. R.R. Prasad and Smt. Manjuri Jaurahar investigated these cases
and made these reports. These reports set out the conclusions reached by him as
a result of his investigation into these cases.
The question is whether the production of
these reports is hit by Sections 162 and 172 of the Criminal Procedure Code.
It may be pointed out that these are the only
provisions of law under which the State resists production of these reports.
The State has not claimed privilege in regard to these reports under Section
123 or Section 124 of the Indian Evidence Act. All that is necessary therefore
is to examine the applicability of Sections 162 and 172 of the Criminal
Procedure Code in the present case.
Before we refer to the provisions of Sections
162 and 172 of the Criminal Procedure Code, it would be convenient to set out
briefly a few relevant provisions of that Code.
Section 2 is the definition Section and
clause (g) of that Section defines 'Inquiry' to mean "every inquiry other
than a trial conducted under this Code by a Magistrate or Court".
Clause (h) of Section 2 gives the definition
of 'investigation' and it says that investigation includes "all the
proceedings under this Code for the collection of evidence conducted by a
police officer or by any person (other than a Magistrate) who is authorised by
a Magistrate in this behalf". Section (4) provides:
151 "4 (1) All offences under the Indian
Penal Code shall be investigated, inquired into, tried, and otherwise dealt
with according to the provisions hereinafter contained.
(2) All offences under any other law shall be
investigated, inquired into, tried, and otherwise dealt with according to the
same provisions, but subject to any enactment for the time being in force
regulating the manner or place of investigating inquiring into, trying or
otherwise dealing with such offences.
It is apparent from this Section that the
provisions of the Criminal Procedure Code are applicable where an offence under
the Indian Penal Code or under any other law is being investigated, inquired
into tried or otherwise dealt with.
Then we come straight to Section 162 which
occurs in chapter XII dealing with the powers of the Police to investigate into
offences. That Section, so far as material, reads as under:
"162 (1) No statement made by any person
to a police officer in the course of an investigation under this chapter,
shall, if reduced to writing be signed by the person making it, nor shall any
such statement or any record thereof, whether in a police diary or otherwise,
or any part of such statement or record be used for any purpose, save as
hereinafter provided, at any inquiry or trial in respect of any offence under
investigation at the time when such statement was made:
Provided that when any witness is called for
the prosecution in such inquiry or trial whose statement has been reduced into
writing as aforesaid, any part of his statement, if duly proved, may be used by
the accused and with the permission of the Court, by the prosecution, to
contradict such witness in the manner provided by section 145 of the Indian
Evidence Act, 1872; and when any part of such statement is so used, any part
thereof may also be used in the re- examination of such witness, but for the
purpose only of explaining any matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed
to apply to any statement falling within the provisions of claues(1) 152 of
section 32 of the Indian Evidence Act, 1872, or to affect the provisions of
section 27 of that Act." It bars the use of any statement made before a
police officer in the course of an investigation under chapter XII, whether
recorded in a police diary or otherwise, but by the express terms of the
Section this bar is applicable only where such statement is sought, to be used
'at any inquiry or trial in respect of any offence under investigation at the
time when such statement was made'. If the statement made before a police
officer in the course of an investigation under chapter XII is sought to be
used in any proceeding other than an inquiry or trial or even at an inquiry or
trial but in respect of an offence other than that which was under
investigation at the time when such statement was made, the bar of Section 162
would not be attracted. This section has been enacted for the benefit of the
accused, as pointed out by this Court in Tehsildar Singh and Another v. The
State of Uttar Pradesh(1) it is intended "to protect the accused against
the user of statements of witnesses made before the police during
investigation, at the trial presumably on the assumption that the said
statements were not made under circumstances inspiring confidence." This
Court, in Tehsildar Singh's case approved the following observations of Braund,
J. in Emperor v. Aftab Mohd. Khan(2) "As it seems to us it is to protect
accused persons from being prejudiced by statements made to police officers who
by reason of the fact that an investigation is known to be on foot at the time
the statement is made, may be in a position to influence the maker of it, and,
on the other hand, to protect accused persons from the prejudice at the hands
of persons who in the knowledge that an investigation has already started, are
prepared to tell untruths." and expressed its agreement with the view
taken by the Division Bench of the Nagpur High Court in Baliram Tikaram Marathe
v. Emperor(3) that "the object of the section is to protect the accused
both against overzealous police officers and untruthful witnesses."
Protection against the use of statement made before police during investigation
is, therefore, granted to the accused by providing that such statement shall
not be allowed to be used except for the limited purpose set out in the proviso
to the section, at any inquiry or trial in respect of the offence which was
under in- 153 vestigation at the time when such statement was made. But this
protection is unnecessary in any proceeding other than an inquiry or trial in
respect of the offence under investigation and hence the bar created by the
section is a limited bar. It has no application, for example in a civil
proceeding or in a proceeding under Article 32 or 226 of the Constitution and a
statement made before a police officer in the course of investigation can be
used as evidence in such proceeding, provided it is otherwise relevant under
the Indian Evidence Act. There are a number of decisions of various High Courts
which have taken this view and amongst them may be mentioned the decision of
Jaganmohan Reddy J. in Malakalaya Surya Rao v. Janakamma(1) The present
proceeding before us is a writ petition under Article 32 of the Constitution
filed by the petitioners for enforcing their Fundamental Rights under Article 21
and it is neither an "inquiry" nor a "trial" in respect of
any offence and hence it is difficult to see how section 162 can be invoked by
the State in the present case. The procedure to be followed in a writ petition
under Article 32 of the Constitution is prescribed in order XXXV of the Supreme
Court Rules, 1966, and sub-rule (9) of Rule 10 lays down that at the hearing of
the rule-nisi, if the court is of the opinion that an opportunity be given to
the parties to establish their respective cause by leading further evidence the
court may take such evidence or cause such evidence to be taken in such manner
as it may deem fit and proper and obviously the reception of such evidence will
be governed by the provisions of the Indian Evidence Act. It is obvious,
therefore, that even a statement made before a police officer during
investigation can be produced and used in evidence in a writ petition under
Article 32 provided it is relevant under the Indian Evidence Act and section
162 cannot be urged as a bar against its production or use. The reports
submitted by Shri L.V. Singh setting forth the result of his investigation cannot,
in the circumstances, be shut out from being produced and considered in
evidence under section 162, even if they refer to any statements made before
him and his associates during investigation, provided they are otherwise
relevant under some provision of the Indian Evidence Act.
We now turn to section 172 which is the other
section relied upon by the State. That section reads as follows:- "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
investi- 154 gation 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.
(2) Any Criminal Court may send for the
police diaries of a case under inquiry or trial in such Court, and may use such
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.
The first question which arises for
consideration under this section is whether the reports made by Shri L.V. Singh
as a result of the investigation carried out by him and his associates could be
said to form part of case diary within the meaning of this section. The
argument of Mrs. Hingorani and Dr. Chitale was that these reports did not form
part of case diary as contemplated in this section, since the investigation
which was carried out by Shri L.V. Singh was pursuant to a direction given to
him by the State Government under section, 3 of the Indian Police Act 1861, and
it was not an investigation under Chapter XII of the Criminal Procedure Code
which alone would attract the applicability of section 172. Mrs. Hingorani
sought to support this proposition by relying upon the decision of this Court
in State of Bihar v. J.A.C. Saldhana(1) Mr. K.G. Bhagat, learned counsel
appearing on behalf of the State however, submitted that even though Shri L.V.
Singh carried out the investigation under the direction given by the State
Government in exercise of the power conferred under section 3 of the Indian Police
Act, 1861, the investigation carried out by him was one under Chapter XII and
section 172 was therefore applicable in respect of the reports made by him
setting out the result of the investigation. He conceded that it was
undoubtedly laid down by this Court in State of Bihar v. J.A.C. Saldhana
(supra) that the State Government has power to direct investigation or further
investigation under section 3 of the 155 Indian Police Act 1861, but contended
that it was equally clear from the decision in that case that "power to
direct investigation or further investigation is entirely different from the
method and procedure of investigation and the competence of the person who
investigates." He urged that section 36 of the Criminal Procedure Code
provides that police officers superior in rank to an officer in-charge of a
police station may exercise the same powers throughout the local area to which
they are appointed as may be exercised by such officer within the limits of his
station and Shri L.V. Singh being the Deputy Inspector General of Police, was
superior in rank to an officer incharge of a police station and was, therefore,
competent to investigate the offences arising from the blinding of the under-trial
prisoners and the State Government acted within its powers under section 3 of
the Indian Police Act 1861 in directing Shri L.V. Singh to investigate into
these offences. But, "the method and procedure of investigation" was
to be the same as that prescribed for investigation by an officer in charge of
a police station under Chapter XII and therefore the investigation made by Shri
L.V. Singh was an investigation under that Chapter so as to bring in the
applicability of section 172. These rival contentions raise two interesting
questions, first, whether an investigation carried out by a superior officer by
virtue of a direction given to him by the State Government under section 3 of
the Indian Police Act, 1861 is an investigation under Chapter XII so as to
attract the applicability of section 172 to a diary maintained by him in the
course of such investigation and secondly, whether the report made by such
officer as a result of the investigation carried out by him forms part of case
diary within the meaning of section 172. We do not, however think it necessary
to enter upon a consideration of these two questions and we shall assume for
the purpose of our discussion that Mr. K.G. Bhagat, learned counsel appearing
on behalf of the State, is right in his submission in regard to both these
questions and that the reports made by Shri L.V. Singh setting out the result
of his investigation form part of case diary so as to invite the applicability
of section 172. But, even if that be so, the question is whether these reports
are protected from disclosure under section 172 and that depends upon a
consideration of the terms of this section.
The object of section 172 in providing for
the maintenance of a diary of his proceedings by the police officer making an
investigation under Chapter XII has been admirably stated by Edge, C.J. in
Queen-Empress v. Mannu(1) in the following words:
156 "The early stages of the
investigation which follows on the commission of a crime must necessarily in
the vast majority of cases be left to the police, and until the honesty, the
capacity, the discretion and the judgment of the police can be thoroughly
trusted, it is necessary, for the protection of the public against criminals,
for the vindication of the law and for the protection of those who are charged
with having committed a criminal offence that the Magistrate or Judge before
whom the case is for investigation or for trial should have the means of
ascertaining what was the information, true, false, or misleading which was
obtained from day to day by the police officer who was investigating the case
and what such police officer acted." The criminal court holding an inquiry
or trial of a case is therefore empowered by sub-section (2) of section 172 to
send for the police diary of the case and the criminal court can use such
dairy, not as evidence in the case, but to aid it in such inquiry or trial.
But, by reason of sub-section (3) of section 172, merely because the case,
diary is referred to by criminal court, neither the accused nor his agents are
entitled to call for such diary nor are they entitled to see it. If however the
case diary is used by the police officer who has made it to refresh his memory
or if the criminal court uses it for the purpose of contradicting such police
officer in the inquiry or trial, the provisions of section 161 or section 145,
as the case may be, of the Indian Evidence Act would apply and the accused
would be entitled to see the particular entry in the case diary which has been
referred to so far either of these purposes and so much of the diary as in the
opinion of the Court is necessary to a full understanding of the particular
entry so used. It will thus be seen that the bar against production and use of
case diary enacted in section 172 is intended to operate only in an inquiry or
trial, for an offence and even this bar is a limited bar, because in an inquiry
or trial, the bar does not operate if the case dairy is used by the police
officer for refreshing his memory or the criminal court uses it for the purpose
of contradicting such police officer. This bar can obviously have no
application where a case diary is sought to be produced and used in evidence in
a civil proceeding or in a proceeding under Article 32 or 226 of the
Constitution and particularly when the party calling for the case diary is
neither an accused nor his agent in respect of the offence to which the case
diary relates. Now plainly and unquestionably the present writ petition which
has been filed under Article 32 of the Constitution to enforce the fundamental
right guaranteed under Article 32 is neither an 'inquiry' nor a 'trial' for an
offence 157 nor is this Court hearing the writ petition a criminal court nor
are the petitioners, accused or their agents so far as the offences arising out
of their blinding are concerned.
Therefore, even if the reports submitted by
Shri L. V. Singh as a result of his investigation could be said to form part of
'case diary', it is difficult to see how their production and use in the present
writ petition under Article 32 of the Constitution could be said to be barred
under section 172.
Realising this difficulty created in his way
by the specific language of section 172, Mr. K.G. Bhagat, learned advocate
appearing on behalf of the State, made a valiant attempt to invoke the
principle behind section 172 for the purpose of excluding the reports of
investigation submitted by Sh. L.V. Singh. He contended that if, under the
terms of section 172, the accused in an inquiry or trial is not entitled to
call for the case diary or to look at it, save for a limited purpose, it is
difficult to believe that the Legislature could have ever intended that the
complainant or a third party should be entitled to call for or look at the case
diary in some other proceeding, for that would jeopardise the secrecy of
investigation and defeat the object and purpose of section 172 and therefore,
applying the principle of that section, we should hold that the case diary is
totally protected from disclosure and even the complainant or a third party
cannot call for it or look at in a civil proceeding. This contention is in our
opinion wholly unfounded. It is based on what may be called an appeal to the
spirit of section 172 which is totally impermissible under any recognised canon
of construction.
Either production and use of case diary in a
proceeding is barred under the terms of section 172 or it is not it is
difficult to see how it can be said to be barred on an extended or analogical
application of the principle supposed to be underlying that section, if it is
not covered by its express terms. It must be remembered that we have adopted
the adversary system of justice and in order that truth may emerge from the
clash between contesting parties under this system, it is necessary that all
facts relevant to the inquiry must be brought before the Court and no relevant
fact must be shut-out, for otherwise the Court may get a distorted or
incomplete picture of the facts and that might result in miscarriage of
justice. To quote the words of the Supreme Court of United States in United
States v. Nixon(1) "The need to develop all relevant fact in the adversary
system is both fundamental and comprehensive. The ends of ...justice would be
defeated if judgments were to be founded on a partial or speculative
presentation of the facts. The very integrity 158 of the judicial system and
public confidence in the system depend on full disclosure of all the facts
within the frame work of the rules of evidence.", it is imperative to the
proper functioning of the judicial process and satisfactory and certain
ascertainment of truth that all relevant facts must be made available to the
Court. But the law may, in exceptional cases, in order to protect more weighty,
compelling and competing interests, provide that a particular piece of
evidence, though relevant, shall not be liable to be produced or called in
evidence. Such exceptions are to be found, inter alia in sections 122, 123,
124, 126 and 129 of the Indian Evidence Act and sections 162 and 172 of the
Criminal Procedure Code. But being exceptions to the legitimate demand for
reception of all relevant evidence in the interest of justice, they must be
strictly interpreted and not expansively construed, "for they are in
derogation of the search for truth". It would not, therefore, be right to
extend the prohibition of section 172 to cases not falling strictly within the
terms of the section, by appealing to what may be regarded as the principle or
spirit of the section. That is a feeble reed which cannot sustain the argument
of the learned advocate appearing on behalf of the State. It would in fact be
inconsistent with the Constitutional commitment of this Court to the rule of law.
That takes us to the question whether the
reports made by Sh. L.V. Singh as a result of the investigation carried by him
and his associates are relevant under any provision of the Indian Evidence Act
so as to be liable to be produced and received in evidence. It is necessary, in
order to answer this question, to consider what is the nature of the proceeding
before us and what are the issues which arise in it. The proceeding is a writ petition
under Article 32 for enforcing the fundamental right of the petitioners
enshrined in Article 21. The petitioners complain that after arrest, whilst
under police custody, they were blinded by the members of the police force,
acting not in their private capacity, but as police officials and their
fundamental right to life guaranteed under Article 21 was therefore violated
and for this violation, the State is liable to pay compensation to them. The
learned Attorney General who at one stage appeared on behalf of the State at
the hearing of the writ petition contended that the inquiry upon which the
Court was embarking in order to find out whether or not the petitioners were
blinded by the police officials whilst in police custody was irrelevant, since,
in his submission, even if the petitioners were so blinded, the State was not
liable to pay compensation to the petitioners first, because the state was not
constitutionally or legally responsible for the acts of the police officers
outside the scope of 159 their power or authority and the blindings of the
under- trial prisoners effected by the police could not therefore be said to
constitute violation of their fundamental right under Article 21 by the State
and secondly, even if there was violation of the fundamental right of the
petitioners under Article 21 by reason of the blindings effected by the police
officials, there was, on a true construction of that Article, no liability on
the State to pay compensation to the petitioners. The attempt of the learned
Attorney General in advancing this contention was obviously to preempt the
inquiry which was being made by this Court, so that the Court may not proceed
to probe further in the matter. But we do not think we can accede to this
contention of the learned Attorney General. The two questions raised by the
learned Attorney General are undoubtedly important but the arguments urged by
him in regard to these two questions are not prima facie so strong and
appealing as to persuade us to decide them as preliminary objections without
first inquiring into the facts. Some serious doubts arise when we consider the
argument of the learned Attorney General. If an officer of the State acting in
his official capacity threatens to deprive a person of his life or personal liberty
without the authority of law, can such person not approach the Court for
injuncting the State from such officer in violation of his fundamental right
under Article 21 ? Can the State urge in defence in such a case that it is not
infringing the fundamental right of the petitioner under Article 21, because
the officer who is threatening to do so is acting outside the law and therefore
beyond the scope of his authority and hence the State is not responsible for
his action ? Would this not make a mockery of Article 21 and reduce it to
nullity, a mere rope of sand, for, on this view, if the officer is acting
according to law there would ex concession is be no breach of Article 21 and if
he is acting without the authority of law, the State would be able to contend
that it is not responsible for his action and therefore there is no violation
of Article 21. So also if there is any threatened invasion by the State of the
Fundamental Right guaranteed under Article 21, the petitioner who is aggrieved
can move the Court under Article 32 for a writ injuncting such threatened
invasion and if there is any continuing action of the State which is violative
of the Fundamental Right under Article 21, the petitioner can approach the
court under Article 32 and ask for a writ striking down the continuance of such
action, but where the action taken by the State has already resulted in breach
of the Fundamental Right under Article 21 by deprivation of some limb of the
petitioner, would the petitioner have no remedy under Article 32 for breach of
the Fundamental Right guaranteed to him ? 160 Would the court permit itself to
become helpless spectator of the violation of the Fundamental Right of the
petitioner by the State and tell the petitioner that though the Constitution
has guaranteed the Fundamental Right to him and has also given him the
Fundamental Right of moving the court for enforcement of his Fundamental Right,
the court cannot give him any relief. These are some of the doubts which arise
in our mind even in a prima facie consideration of the contention of the
learned Attorney General and we do not, therefore, think it would be right to
entertain this contention as a preliminary objection without inquiring into the
facts of the case. If we look at the averments made in the writ petition, it is
obvious that the petitioners cannot succeed in claiming relief under Article 32
unless they establish that their Fundamental Right under Article 21 was
violated and in order to establish such violation, they must show that they
were blinded by the police officials at the time of arrest or whilst in police
custody. This is the foundational fact which must be established before the
petitioners can claim relief under Article 32 and logically therefore the first
issue to which we must address ourselves is whether this foundational fact is
shown to exist by the petitioners. It is only if the petitioners can establish
that they were blinded by the members of the police force at the time of arrest
or whilst in police custody that the other questions raised by the learned
Attorney General would arise for consideration and it would be wholly academic
to consider them if the petitioners fail to establish this foundational fact.
We are, therefore, of the view, as at present advised, that we should first
inquire whether the petitioners were blinded by the police officials at the
time of arrest or after arrest, whilst in police custody, and it is in the
context of this inquiry that we must consider whether the reports made by Sh.
L.V. Singh are relevant under the Indian Evidence Act so as to be receivable in
evidence.
We may at this stage refer to one other
contention raised by Mr. K.G. Bhagat on behalf of the State that if the Court
proceeds to hold an inquiry and comes to the conclusion that the petitioners
were blinded by the members of the police force at the time of arrest or whilst
in police custody, it would be tantamount to adjudicating upon the guilt of the
police officers without their being parties to the present writ petition and
that would be grossly unfair and hence this inquiry should not be held by the
Court until the investigation is completed and the guilt or innocence of the
police officers is established. We cannot accept this contention of Mr. K.G.
Bhagat. When the Court trying the writ petition proceeds to inquire into the
issue whether the petitioners were blinded by police officials at the time of
arrest or whilst in police custody, it does so, 161 not for the purpose of
adjudicating upon the guilt of any particular officer with a view to punishing
him but for the purpose of deciding whether the fundamental right of the
petitioners under Article 21 has been violated and the State is liable to pay
compensation to them for such violation.
The nature and object of the inquiry is
altogether different from that in a criminal case and any decision arrived at
in the with petition on this issue cannot have any relevance much less any
binding effect, in any criminal proceeding which may be taken against a
particular police officer. A situation of this kind sometimes arises when a
claim for compensation for accident caused by negligent driving of a motor
vehicle is made in a civil Court or Tribunal and in such a proceeding, it has
to be determined by the Court, for the purpose of awarding compensation to the
claimant, whether the driver of the motor vehicle was negligent in driving,
even though a criminal case for rash and negligent driving may be pending
against the driver. The pendency of a criminal proceeding cannot be urged as a
bar against the Court trying a civil proceeding or a writ petition where a
similar issue is involved. The two are entirely distinct and separate
proceedings and neither is a bar against the other.
It may be that in a given case, if the
investigation is still proceeding, the Court may defer the inquiry before it
until the investigation is completed or if the Court considers it necessary in
the interests of Justice, it may postpone its inquiry even until after the
prosecution following upon the investigation is terminated, but that is a
matter entirely for the exercise of the discretion of the Court and there is no
bar precluding the Court from proceeding with the inquiry before it merely
because the investigation or prosecution is pending.
It is clear from the aforesaid discussion
that the fact in issue in the inquiry before the Court in the present writ
petition is whether the petitioners were blinded by the members of the police
force at the time of the arrest or whilst in police custody. Now in order to
determine whether the reports made by Shah L.V. Singh as a result of the
investigation carried out by him and his associates are relevant, it is
necessary to consider whether they have any bearing on the fact in issue
required to be decided by the Court. It is common ground that Sh. L.V. Singh
was directed by the State Government under Section 3 of the Indian Police Act,
1861 to investigate into twenty four cases of blinding of under-trial prisoners
where allegations were made by the under trial prisoners and First Information
Reports were lodged that they were blinded by the police officers whilst in
police custody. Sh. L.V. Singh through his associates carried out this investigation
and submitted his reports in the discharge of the official duty entrusted to
him by the State Government.
These reports clearly relate to the issue as
to how, in what manner and by whom the twenty-four under trial prisoners were
blinded, for that is the matter which Shri L.V. Singh was directed, by the
State Government to investigate. If that be so, it is difficult to see how the
State can resist the production of these reports and their use as evidence in
the present proceeding. These reports are clearly relevant under section 35 of
the Indian Evidence Act which reads as follows:
"35. An entry in any public or other
official book, register or record, stating a fact in issue or relevant fact,
and made by a public servant in the discharge of his official duty, or by any
other person in performance of a duty specially enjoined by the law of the
country in which such book, register or record is kept, is itself a relevant
fact." These reports are part of official record and they relate to the
fact in issue as to how, and by whom the twenty-four under-trial prisoners were
blinded and they are admittedly made by Sh. L.V. Singh, a public servant, in
the discharge of his official duty and hence they are plainly and indubitably
covered by Section 35. The language of section 35 is so clear that it is not
necessary to refer to any decided cases on the interpretation of that section,
but we may cite two decisions to illustrate the applicability of this section
in the present case. The first is the decision of this Court in Kanwar Lal
Gupta v. Amar Nath Chawla(1).
There the question was whether reports made
by officers of the CID (Special Branch) relating to public meetings covered by
them at the time of the election were relevant under section 35 and this Court
held that they were, on the ground that they were" made by public servants
in discharge of their official duty and they were relevant under the first part
of section 35 of the Evidence Act, since they contained statement showing what
were the public meetings held by the first respondent. "This Court in fact
followed an earlier decision of the Court in P.C.P. Reddiar v. S. Perumal (2) also
in Jagdat v. Sheopal(3) Wazirhasan J. Held that the result of an inquiry by a
Kanungo under section 202 of the Code of Criminal Procedure 1898 embodied in
the report is an entry in a public record stating a fact in issue and made by a
public servant in the discharge of his official duties and the report is
therefore admissible in evidence under section 35. We find that a similar view
was taken by a Division Bench of the Nagpur High Court in Chandulal v. Pushkar
Rai(1) where the learned Judges held that repots made by Revenue Officers,
though not regarded as having judicial authority where they express opinions on
the private rights of the parties are relevant under section 35 as reports made
by public officers in the discharge of their official duties, in so far as they
supply information of official proceedings and historical facts. The Calcutta
High Court also held in Lionell Edwerds Limited v. State of West Bengal(1) that
official correspondence from the Forest officer to his superior, the
conservator of Forests, carried on by the Forest Officer in the discharge of
his official duty would be admissible in evidence under section 35. There is
therefore no doubt in our mind that the reports made by Sh. L.V. Singh setting
forth the result of the investigation carried on by him and his associates are
clearly relevant under section 35 since they relate to a fact in issue and are
made by a public servant in the discharge of his official duty. It is indeed
difficult to see how in a writ petition against the State Government where the
complaint is that the police officials of the State Government blinded the
petitioners at the time of arrest or whilst in police custody, the State
Government can resist production of a report in regard to the truth or
otherwise of the complaint, made by a highly placed officer persuant to the
direction issued by the State Government. We are clearly of the view that the
reports made by Shri L.V. Singh as a result of the investigation carried out by
him and his associates are relevant under section 35 and they are liable to be
produced by the State Government and used in evidence in the present writ
petition. Of course, what evidentially value must attach to the statements contained
in these reports is a matter which would have to be decided by the Court after
considering these reports. It may ultimately be found that these reports have
not much evidentially value and even if they contain any statements adverse to
the State Government it may possible for the State Government to dispute their
correctness or to explain them away, but it cannot be said that these reports
are not relevant. These reports must therefore be produced by the State and
taken on record of the present writ petition. We may point out that though in
our order dated 16th February 1981, we have referred to these reports as having
been made by Shri L.V. Singh and his associates between January 10 and January
20, 1981, it seems that there has been some error on our part in mentioning the
outer date as January 20, 1981, 164 for we find that some of these reports were
submitted by Shri L.V. Singh even after January 20, 1981 and the last of them
was submitted on 27th January 1981. All these reports including the report
submitted on 9th December, 1980 must therefore be filed by the State and taken
as forming part of the record to be considered by the Court in deciding the
question at issue between the parties.
What we have said above must apply equally in
regard to the correspondence and notings referred to as items three and four in
the Order dated 16th February 1981 made by us.
These notings and correspondence would throw
light on the extent of involvement, whether by acts of commission or acts of
omission, of the State in the blinding episode and having been made by Shri
L.V. Singh and Shri M.K. Jha in discharge of their officials duties, they are
clearly relevant under section 35 and they must therefore be produced and taken
on record in the writ petition, so also the reports submitted by Inspector and
Sub-Inspector of CID to Gajendra Narain, DIG, Bhagalpur on 18th July and his
letter to Shri K.D. Singh, Superintendent of Police, CID, Patna containing
hand- written endorsement of Shri M.K. Jha must for the same reasons be held to
be relevant under section 35 and must be produced by the State and be taken as
forming part of the record of the writ petition.
Since all these documents are required by the
Central Bureau of Investigation for the purpose of carrying out the
investigation which has been commenced by them pursuant to the approval given
by the State Government under section 6 of the Delhi Special Police
Establishment Act, we would direct that five sets of photostat copies of these
documents may be prepared by the office, one for Mrs. Hingorani, learned
advocate appearing on behalf of the petitioners, one for Mr. K.G. Bhagat,
learned advocate appearing on behalf of the State one for Dr. Chitale who is
appearing amcius curiae at our request and two for the Court, and after taking
such photostat copies, these documents along with the other documents which
have been handed over to the Court by the State shall be returned immediately
to Mr. K.G. Bhagat, learned advocate appearing on behalf of the State, for being
immediately made available to the Central Bureau of Investigation for carrying
out its investigation so that the investigation by Central Bureau of
Investigation may not be impeded or delayed. We hope and trust that the Central
Bureau of Investigation will complete its investigation expeditiously without
any avoidable delay.
S.R. Application allowed.
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