Full Judgment Text
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PETITIONER:
KHATRI & ORS. ETC.
Vs.
RESPONDENT:
STATE OF BIHAR & ORS.
DATE OF JUDGMENT10/03/1981
BENCH:
BHAGWATI, P.N.
BENCH:
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
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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]
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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.
147
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,
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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
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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]
149
JUDGMENT:
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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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of under-trial prisoners where allegations were made by the
undertrial 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 inves-
162
tigation 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 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, 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 admis-
163
sible 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
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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
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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.
165