Holding

Section 172(3) of the Criminal Procedure Code, 1973 is constitutionally valid and cannot be struck down.

Summary

Mukund Lal and another, accused persons, challenged the constitutional validity of Section 172(3) of the Criminal Procedure Code, 1973, which bars the accused or his agents from calling for or inspecting the police case diary, except when the diary is used to refresh a police officer's memory or to contradict the officer in court. The High Court upheld the provision, holding that the restriction is only partial and that safeguards exist through the court's power to examine the diary and the application of Sections 161 and 145 of the Indian Evidence Act. The petitioners appealed to the Supreme Court under Article 32, arguing that the clause was unreasonable, arbitrary and violated the right to a fair trial. The Supreme Court affirmed the High Court's view, stating that Section 172(3) forms an integral part of a composite legislative scheme and that the court’s unfettered power to inspect the diary provides sufficient protection for the accused. It held that the provision does not infringe public interest or the accused’s right to a fair trial and therefore is constitutionally valid. Consequently, the writ petitions were dismissed.

Issues considered

The constitutionality of Section 172(3) of the Criminal Procedure Code, 1973 under Article 32 of the Constitution.
Whether the restriction on the accused’s access to the police case diary is unreasonable or arbitrary.
Whether the provision violates the accused’s right to a fair trial and the principles of natural justice.

Legislation cited

Code of Criminal Procedure, 1973s. 172(1), s. 172(2), s. 172(3)
Indian Evidence Act, 1872s. 123, s. 145, s. 161

Subjects

Constitutional lawCriminal ProcedureCase diaryArticle 32Fair trialEvidence ActPublic interestProcedural safeguards

Judgment

A MUKUND LAL & ANR.
v.
UNION OF INDIA.& 'ANR.

OCTOBER 14, 1988

B [M.P. THAKKAR AND B.C. RAY, JJ.]

Criminal Procedure Cade, 1973: Section 172(3)-Constitutionat
validity of-Case diary and entries therein-Only Court entitled to call
for and examine-Accused not entitled to cal/for diary.

Constitution of India, 1950: Article 32_.:..Constitutional validity of
c Section 172(3) Cr.P.C. 1973.

Section 172(3) of the Criminal Procedure Code, 1973 provides
that neither the accused nor his agents shall be entitled to call for the
case diary, nor shall they be entitled to see them merely because they
D are referred to by the Court, but if they are used by the Police Officers
to refresh his memory or ff the Court uses them for the 'purpose of
contradicting such Police Officer, the provisions of section 161 or 145 as
the case may be of the Indian Evidence Act, 1872 shall apply.

The petitioners challenged the constitutional validity of the
E aforesaid provision in the High Court but the High Court repelled the
same on the ;:round that the embargo placed by section 172(3) Cr.P.C.
on the right of th-- accused or his representative in calling for the diary
or seeing any part of it is only a partial one and not absolute, that a
safeguard has alrea~y been provided in the Section itself to protect the
right of the accused, that in the inquiry or trial everything which may
F appear against the accused has to be established and brought before the
Court by evidence other than the diary, and the accused can have the ·
benefit of examining the witnesses and the Court has power to call for
the diary and use it. It accordingly held that Section 172(3) cannot,
therefore, be said to be unconstitutional.

G. The High Court having repulsed the challenge, the accused who
were the petitioners in the High Court again approached this Court in
writ petitions under Art. 32, reiterating the challenge on the premise
that the High Court had erred in sustaining the validity of the said
provision.

H Dismissing the petitions, the Court,
524
MUKUND LAL v. U.O.J. 525

HELD:· 1. Section l72 embodies a composite scheme. The,j.uty A
cast under clauses (I) and ·the rider added by clause (3) thereoHorm
integral part of the scheme. Clause (3) cannot be struck down in isola-
tion whilst retaining clause (1). The legislature in its wisdom has cast
this qbligation only subject to the rider clause (3) cannot be viewed in
isolation. [530D-E)
B
2. The provision embodied in sub-section (3) of section 172 of the
- Cr.P.C. cannot be characterised as unreasonable or arbitrary. [528E-F)

3. Under sub-section (2) of section 172 Cr.P.C. the Court itself
has the unfettered power to examine the entries in the diaries. This is a
very important safeguard. The Legislature has reposed complete trust c
in the court which is conducting the inquiry of the trial. It has
empowered the court to call for any such relevant case diary, if
there is any inconsistency or contradiction arising in the context of
the case diary the Court can use the entries for the purpose of
contradicting the Police Officer as provided in sub-section (3) of
section 172 of the Cr.P.C. [528F-G) D

4. The public interest requirement from the stand point of the
need to ensure a fair trial for an accused is more than sufficiently met
by the power conferred on the court, which is the ultimate custodian of
the interest of justice and can always be trusted to be vigilant to ensure
that the interest of accused persons standing the trial, is fully E
safeguarded. [529H; 530A]

5. There would be no prejudice or failure of justice to the accused
person since the court can be trusted to look into the police diary for the
purpose of protecting his interest. Therefore, the public interest
requirement from the perspective of safeguarding the interest of all F
persons standing trial, is not compromised. [530B)

Mohinder Singh v. Emperor, AIR 1932 (Lahore) page 103(104);
Mahabirji Birajman Mandir v. Prem Narain Shukla & Ors., AIR 1965
(Allahabad) p. 494; Raj Narain's, case [1975] 3 SCR p. 333 and S.P.
Gupta's) case [1982] 2 SCR p. 365 (at pp. 622, 624), referred to. G

CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Criminal) Nos. 49 and 129 of 1987.

(Under Article 32 of the Constitution of India).
H
526 SUPREME COURT lIBPORTS [1988] Supp. 3 S.C.R.

Nund Lal, Mrs. Bagga and S.K. Bagga for the Petitioner.
A
The Judgment of the Court was delivered by

THAKKAR, J, Constitutional validity of a part of a provision
enjoining a police officer engaged in an investigation under Chapter
B XII of the Code of Criminal Procedure (Cr.P.C.) has been called into
question. The provision which so enjoins an investigation officer is
embodied in Section 172, Clause (1) whereof imposes the duty. It is a
part of this provision namely clause (3) which is the target of the
challenge made by one of the two accusect in a Criminal case. The High
Court' having repulsed the challenge, the accused have approached this
Court by way of the present petition in order to reiterate the challenge
c on the premise that the High Court had erred in sustaining the validity
of the impugned provision.

The analysis of Section 172, Clause (3) whereof has given rise to
the challenge to its constitutionally reveals:
D
( 1) That it embodies a complete scheme relating to the matter of
maintaining a diary.

(2) Clause ( 1) imposes the obligation to do so and provides for
the contents thereof.
E
(3) The Court is empowered to call for such diaries to aid it in

(!) Section 172(3)-"Neither the accused nor his agents shall be entitled to
call for such diaries, nor shall he or they be entitled to sec them merely
because they are referred to by tho Court; but, if they are used by the
police officer who made them to refresh his memory, or lf the Court uses
F them for the urpose of contradicting such poHce officer, the provisions
of Section 161 oi 145 as the case may be, of the Indian Evidence Act,
1872 shall apply.''

(2) Section 161-"Any writing referred to under the provisions of the two
last preceding sections must be produced and shown to the adverse party
if he requires it; such party may, if he pleases, cross-examine the witness
G thereupon".

(3) Section 145-"A witness may be cross-examined as to previous state-
ments 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 atten-
tion must, before the writing can be proved, called to those parts of it
H which are to be used fi:>r the purpose of contradicting him."
MUKUND LAL v. U.0.1. {THAKKAR, J.] 527

inquiry or trial subject to the rider that it can not be used as A
evidence thereat.

(4) Merely because the Court calls for the diary, the accused (or
his agent) can not claim the right to peruse it.

(5) The accused can peruse that particular part 2 of the diary in B
the context of Section 161 of the Indian Evidence Act or Section
145 thereof in case:

(a) if it is used by the police officer concerned to refresh his
memory;

or
c
(b) if the Court uses it for contradicting the police official
concerned.

The High Court has repelled the plea by recourse. to the reasoning D
reflected in the relevant passage extracted hereinbelow:

"So far as Section 172(3) is concerned, the embargo on the
right of the accused or his representative in calling for the
diary or seeing any part of it is only a partial one and not
absolute because if a part of the diary has been used by the E
police officer to refresh his memory or the court uses it for
the purpose of contradicting such police officer, the provi·
sions of Section 161 and 145 of the Indian Evidence Act,
will be applicable. So far as the other parts are concerned,
the accused need not necessarily have a right of access to
them 1'ecause in a criminal 'trial or enquiry, whatever is F
sought tQ be proved against the accused, will have to be
proved by the evidence other than the diary itself and the
diary can only be used for a very limited· purpose by the
Court or the police officer as stated above. Even then, a
safeguard has already been provided in the Section itself to
protect the rl:!ht of the accused. The investigating Officer deposes G
before the Court on the basis of the entries in the diary. If
the accused ·or his counsel thinks that he is stating some·
thing against the diary or is trying to hide something which
may be in the diary he can put question in that respect to
the Investigating Officer, and if the accused or his counsel
has •ny doubt about the veracity of the statement made by H
528 SUPRjME COURT REPORTS [1988] Supp. 3 S.C.R.

the Investigation Officer, he may always request the court
A
to look into the diary and verify the facts and, this right of
the accused can always be safeguarded. It is true that it is
for the court to decide whether the facts stated are borne
out by the diary or not, but then this much reliance has
always to be placed on the court and it has to be trusted as
B it is trusted in the case under Section 123 of the Evidence
Act in order to decide whether any privilege can be claimed
with respect to the documents in quest.ion. Even according
to the authorities relied upon by the learned counsel for the
petitioner pertaining to Section 123 of the Evidence Act, it
is the right of the court to decide whether the privileged
document contains any material affecting the public
c interest or a particular affair of the State, which need not
be disclosed. ·

When in the enquiry or trial, everything which may
appear against the accused has to be established and
D brought before the Court by evidence other than the diary
and the accused can have the benefit of cross-examining I
the witnesses and the court has power to call for the diary
and use it, of course not as evidence but in aid of the
enquiry or tr~, I am clearly of the opinion, that the provi-
sions under Section 172(3) Cr.P.C. cannot be said to be
E unconstitutional."

We fully endorse the reasoning of the High Court and concur with its
conclusion. We are of the opinion that the provision embodied in
sub-section (3) of Section 172 of the Cr.P.C. cannot be characterised
as unreasonable or arbitrary. Under sub-section(2) of section 172
F Cr.P.C. the Court itself has the unfettere"d power to examine the
entries in the diaries. This is a very important safeguard. The Legisla-
ture has reposed complete trust in the court which is conducting the
inquiry or the trial. It has empowered the court to call for any such
relevant case diary, if there is any inconsistency or contradiction aris- i
ing in the context of the case dairy the Court can use the entries for the \
G purpose of contradicting the Police Officer as provided in sub-section
(3) of Section 172 of the Cr.P.C. Ultimately there can be no better
custodian or guardian of the interest of justice than the Court trying
the case. No court will deny to itself the power to make use of the
entries in the diary to the advantage" of the accused by contfadicting
the police officer with reference to the contents of the diaries. In view
H -0f this safeguard, the charge of unreasonableness or arbitrariness can-
•
MUKUND LAL v. U.0.1. !THAKKAR, J.] 529

not stand scrutmy. The petitloriers claim an unfetterred right to make
A
roving inspection of the entries in the case diary regardless of whether
these entries are used by the. police officer concerned to. refresh his
memory or regardless of the fact whether the court has used these
entries for the purpose of contradicting such police· officer. It cannot
be said that unless such unfetterred right is conferred and recognised,
the embargo engrafted in sub-section(3) of section 172 of the Cr.P.C. B
would fail to meet the test of reasonableness. For instance in the case
diary there might be a note as regards the identity of the informant
who gave sorne information which resulted in investigation into a
particular aspect. Public Interest demands that such an entry is not
made available to the accused for it might endanger the safety of the
informants and it might deter the informants from giving any informa-
tion to assist the investigating agency, as observed in Mohinder Singh C
v. Emperor, AIR 1932 (Lahore) page 103 ( 104):

"The accused has no right to insist upon a police witness
referring to his diary in order to elicit information which is
privileged. The contents of the diary are not at the disposal D
of the defence and cannot be used except strictly in accor-
dance with the provisions of Sections 162 and 172. Section
172 shows that witness may refresh his memory by refe-
rence to them·but such use is at the discretion of the witness
and the Judge, whose duty it is to ensure that the privilege
attaching to them by statute is strictly enforced." E

and also as observed in Mahabirji Birajman Mandir v. Prem Narain
Shukla & Ors., A.LR. 1965 (Allahabad) p. 494.

"The case diary contains not only the statements of witnes-
ses .recorded under s. 161 Cr.P.C. and the site plan or other F
documents prepared by the Investigating Officer, but also
reports or observations of the Investigating Officer or his
superiors. These reports are of a confidential nature and
privilege can be claimed thereof. Further, the disclosure of
the contents of such reports cannot help any of the parties
to the litigation, as the report invariably contains the G
opinion of such officers and their opinion is inadmissible in
evidence.''

The public interest requirement from the stand point of the need
to ensure a fair trial for an accused is more than sufficiently met by the
power conferred on the court, which is, the ultimate custodian of the · H
530 SUPREME COURT REPORTS (1988] Supp. 3 S.C.R.

A interest of justice and can always be trusted to be vigilant to ensure
that the interest of accused persons standing the trial, is fully safe-
guarded. This is a factor which must be accorded its due weight. There
would be no prejudice or failure of justice to the accused persnn since
the court can be trusted to look into the police diary for the purpose of
protecting his interest. Therefore, the public interest requirement
B from the perspective of safeguarding the interest of all persons stand-
ing trial, is not compromised. On the other hand the public interest
requirement from the perspective of enabling the investigation agency
to investigate the crime against the society in order that the interest of
the community to ensure that a culprit is traced and brought to book is
also ·safeguarded. The argument inspired by the observations in
c Raj Narain's case [1975] 3 S.C.R. p. 333. and S.P. Gupta's case [1982] 2
S.C.R. p. 365 (at pp. 622, 624) in the context of claim for privilege in
regard to section 123 of Evidence Act, which have no direct bearing, is
also effectively answered in the light of the foregoing discussion as the
'Public Interest' aspect is also taken care of. In the ultimate analysis, it
is not possible to sustain the plea of the petitioners, which is rooted in
D the mistrust of the court itself, that the provision is unreasonable and
arbitrary. There is also another dimension of the issue. Section 172
embodies a composite scheme. The duty cast under Clause (1) and the
rider added by Clause 1(3) thereof from integral part of the scheme.
Clause (3) cannot be struck down in isolation whilst retaining Clause
(1). The legislature in its wisdom has cast this obligation only subject
to the rider. Clause (3) cannot be viewed in isolation. Under the
circumstances, we concur with the view of the High Court and repulse
the challenge. These are the reasons which impelled us to dismiss the
petitions.

N.V.K. Petitions dismissed.