Full Judgment Text
- 1 -
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 25 DAY OF OCTOBER, 2024
PRESENT
THE HON’BLE MR. N.V. ANJARIA, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE K.V. ARAVIND
WRIT APPEAL NO. 102 OF 2024 (GM-POLICE)
BETWEEN
:
1 . MOHAMMED SHIYAB
S/O MOHAMMED SAJID
AGED ABOUT 32 YEARS
R/AT NO.1-30, SHETTIYADKA HOUSE
GANDHINAGAR, NAVOOR
SULLIA TALUK, DAKSHINA KANNADA - 574 314
(APPELLANT IS IN JUDICIAL CUSTODY)
REP. BY HIS BROTHER
ABDUL RIYAZ S
S/O MOHAMMED SAJID
... APPELLANT
(BY SRI MOHAMMED TAHIR, ADVOCATE)
AND :
1 . NATIONAL INVESTIGATING AGENCY
MINISTRY OF HOME AFFAIRS, (GOI)
HYDERABAD BRANCH
REP. BY ITS STANDING COUNSEL
SRI PRASANNA KUMAR
OFFICE AT HIGH COURT COMPLEX
OPP. VIDHAN SOUDHA
BANGALORE – 560 001
... RESPONDENT
(BY SRI P. PRASANNA KUMAR, ADVOCATE)
- 2 -
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO ALLOW THE
APPEAL BY SETTING ASIDE THE ORDER DATED 20.12.2023 IN WRIT
PETITION No.1781/2023 PASSED BY THE HON’BLE HIGH COURT OF
KARNATAKA, BENGALURU AND GRANT THE PRAYERS AS PRAYED
FOR IN THE WRIT PETITION No.1781/2023.
THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY,
JUDGMENT WAS PRONOUNCED AS UNDER:
CORAM: HON'BLE THE CHIEF JUSTICE MR. JUSTICE
N.V. ANJARIA
and
HON'BLE MR JUSTICE K.V. ARAVIND
C.A.V. JUDGMENT
(PER: HON'BLE THE CHIEF JUSTICE
MR. JUSTICE N.V. ANJARIA)
Heard learned Advocate Mr. Mohammed Tahir for the
appellant and learned Advocate Mr. P. Prasanna Kumar for the
respondent.
th
1.1 As learned Single Judge by judgment and order dated 20
December 2023 dismissed the petition, the appellant-original
petitioner has preferred this appeal under Section 4 of the Karnataka
High Court Act, 1964.
2. What was prayed in the writ petition was to direct the trial
th
Court-49 Additional City Civil and Sessions Judge and Special
- 3 -
Court for Trial of NIA Cases at Bengaluru ‘to sign or put initials to
each page of case diary of RC-36/2022/NIA/DLI registered by the
respondent under Sections 120B, 302 read with Section 34 of the
Indian Penal Code, 1860 and Sections 16 and 18 of the Unlawful
Activities (Prevention) Act, 1967, from page No.1 till the last page
and continue this practice till filing of charge sheet’. It is next prayed
to require the said court to observe the same practice in all the cases
pending before it.
3. Noticing the facts from the pleadings of the petition, it appears
that the petitioner was found to be involved in a murder incident
th
which took place on 26 July 2022 at Sullia town, pursuant to which,
Crime No.63 of 2022 was registered with the Police Station
concerned and subsequently the case was transferred to the
National Investigating Agency (NIA) invoking Sections 16 and 18 of
the Unlawful Activities (Prevention) Act, 1967 and the case was
registered as No.RC-36/2022/NIA/DLI. Petitioner is accused No.8 is
the said criminal proceedings.
3.1 It appears that the court passed orders of remand and in
connection with the orders, the case diary was summoned which
- 4 -
was taken back by the Investigating Officer. The appellant-accused
had submitted a memo with the trial court to summon the case diary
and further requested to put initial to authenticate the entries on each
th
page of the diary, which application came to be rejected on 16
November 2022 by the Court, on the ground that there was no
provision.
inter alia
3.2 It was contended that in the investigation, the case
diary is important piece of document which shows the progress of
the investigation and the conduct of the Investigating Officer. The
appellant-petitioner relied on Section 172 of the Code of Criminal
Procedure in support of his case. It was the case that initial was
necessary to be made on each page of the court diary when it is
produced before the Court. It was contended that this practice of
putting initials on each page was not mentioned in the Karnataka
Criminal Rules of Practice, 1968, but in the Rules of other States, it
was so provided. It was therefore, submitted that for preventing the
tampering and fabrication, initial of the investigating officer on each
page was desired and that this Court should make it mandatory.
- 5 -
4. Assailing the judgment and order of learned Single Judge
rejecting the prayers, it was submitted that learned Single Judge
failed to appreciate that maintenance of true entries in the case diary
was part of fairness and transparency. It was contended that
Section 167 of the Code of Criminal Procedure, 1907 (Cr.PC)
mandate the production of case diary along with remand application
and the satisfaction could be arrived at by the Magistrate on the
basis of the entries made in the case diary as per Section 172 of
Cr.PC. It was submitted that, signing diary on each page was an
implied mandate though there was no provision in that regard in the
Rules framed by the State. The Rules of other States were pressed
into service to further submit that signature of the investigating officer
on each page of the case diary would make it tamper-proof.
4.1 On the other hand, learned Advocate for the respondent
supported the impugned judgment of learned Single Judge by
submitting that the petitioner wants an order from this Court in the
nature of legislative exercise, when there is no such provision
available in the statute for the Rules to support the prayer made in
the petition.
- 6 -
5. Learned Single Judge considered the provisions of Section
172 of the Cr.PC, as also the Criminal Rules of Practice notified by
the State of Karnataka in the year 1968, in particular the Rules in
Chapter-V dealing with investigation and prosecution, to observe on
that basis as under, extracting from paragraph 9 of the judgment,
“The Criminal Rules of Practice nowhere indicates
that on every application for remand under
Section 167 of the Cr.P.C., though the entries in
the case diary maintained under Section 172(1) is
to accompany the remand order, it nowhere
indicates that the Magistrate has to affix his
signature at every point when a remand order is
passed or at every time the case diary is
summoned to the Court. The Criminal Rules of
Practice thus nowhere indicates that the Court
can grant the prayer that is sought by the
petitioner.”
5.1. The submission of the petitioner that since in the Rules of
other States, such provision is mentioned, the direction should be
issued by the Court in this case also, was negatived by stating that it
amount to legislating by the Court.
5.1.1 Learned Single Judge observed in paragraph 10 in the above
regard thus,
- 7 -
“That would not enure to the benefit of the
petitioner to seek a direction that the same practice
should be followed in the State of Karnataka,
notwithstanding no such mandate existing in the
Criminal Rules of Practice, 1968 of the State. If the
prayer of the petitioner is granted contrary to what
the Criminal Rules of Practice would mandate, it
would amount to this Court legislating, as it is for 12
the legislature to bring in such amendment if it
deems fit. This Court in exercise of its jurisdiction
under Article 226 of the Constitution of India would
not legislate and direct a procedure to be followed
in every case as is sought by the petitioner contrary
to the Criminal Rules of Practice.”
5.1.2 Learned Single Judge elaborately discussed the decisions of
the Supreme Court laying down the principle that it is not the function
of the Court to enlarge the jurisdiction by entering into legislative
task. It was rightly observed that the Court cannot read anything
further when the language of the provision is unambiguous and that
the Court cannot redirect or add something or read additional words
in the statute.
5.1.3 The submission that the non-signing of case diary on each
page by the investigating officer would lead to abuse and tampering,
was not accepted by referring to the principle that there can’t be
presumption for abuse of power. The fairness in investigation is
always a question of fact to be considered in the facts of each case.
- 8 -
5.2 While this Court is in agreement with the view taken by
learned Single Judge, Section 172, Cr.PC may be noticed with
relevance,
“ 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 investigation 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.
(1A) The statements of witnesses recorded during
the course of investigation under section 161 shall
be inserted in the case diary.
(1B) The diary referred to in sub-section (1) shall be
a volume and duly paginated.
(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.”
- 9 -
5.3 The aforesaid provision says that the police officer would enter
his proceedings in the investigation day to day in the diary noting
therein the time, places visited and the statement of circumstances
ascertained through investigation. The statement of the witnesses
recorded under Section 161 would be inserted in the case diary.
Sub-Section (2) of Section 172 in terms provide that the police
diaries may be called for by the Court, however the diary cannot be
used as evidence in the case. It can be used only to aid the inquiry
or trial. Sub-Section (3) contemplates that the accused or his agents
are not entitled to call for such diaries nor they are entitled to see
that.
5.4 It is therefore provided that the police diary is not to be treated
as part of evidence, but the court takes the assistance and aid
therefrom. The section does not contemplate anywhere that every
page of such diary should be signed by the investigating officer. The
Rules of Practice of the Karnataka State regarding investigation also
do not contain any such providence.
5.5 Neither the statute nor the Rules anywhere provide that the
diary should be signed at each page by the investigating officer.
- 10 -
Therefore, it is not possible to add words or such providence or read
such requirement by supplying to the language. It is well settled
principle of statutory interpretation and legal application that the
court would act on the basis of plain words in the statute without
adding anything to the language. Adding was supplying to the
language would amount to legislating, which is not permissible. The
court cannot cross the boundary to trench upon by creating what is
not provided in the law. The function of the court ends where the
realm of legislature starts. The task of the court is to interpret the
law as it is, and not to enact law in the guise of interpretation.
Supplying something more than what is mentioned in black and
white is not permissible.
5.6 It is well settled parameters for issuance of writ of mandamus.
The pre-requisite is that there must be a corresponding duty where
the writ of mandamus is to be addressed. A writ of mandamus would
not lie for doing something which is not contemplated in a statutory
provision. Applicable statutory provision guides the course and path
of mandamus. There has to be positive obligation cast, and
available from or backed by a statutory provision to justify the
- 11 -
issuance of writ of mandamus to do some act or to omit from the
doing.
5.7 Even otherwise, no factor circumstance could be
demonstrated by the petitioner, or found to be existent to justify the
grant of prayers made in the petition.
6. No error could be booked in the judgment and order of learned
Single Judge dismissing the petition.
7. The challenge thereto fails. The present appeal is dismissed.
Sd/-
(N.V. ANJARIA)
CHIEF JUSTICE
Sd/-
(K.V. ARAVIND)
JUDGE
AHB