MANU/JH/0364/2017

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Cr. M.P. No. 2375 of 2016
Decided On: 22.03.2017
Appellants: Sanju Gupta
Vs.
Respondent: The State of Jharkhand
Hon'ble Judges/Coram:
Rongon Mukhopadhyay, J.
Counsels:
For Appellant/Petitioner/Plaintiff: P.P.N. Roy, Sr. Advocate
For Respondents/Defendant: A.P.P.
JUDGMENT
Rongon Mukhopadhyay, J.
1. Heard the parties.
2 . In this application, the petitioner has prayed for quashing of the order dated
28.9.2016, passed by the learned District & Sessions Judge-II, Jamshedpur,
Singhbhum East in S.T. No. 280 of 2007, whereby and whereunder the application
preferred by the petitioner to search out the original missing case diary along with
the original documents has been rejected. A further prayer has been made for
quashing of that part of the order dated 29.6.2008, by which the prosecution
evidence has been ordered to be closed and the case has been fixed for examination
of the petitioner and other accused persons under section 313 of Cr.P.C.
3. It has been submitted by Mr. P.P.N. Roy, learned senior counsel for the petitioner
that in the original case diary some relevant documents are available, which also
include a letter issued by the Estate Officer, Jamshedpur Notified Area Committee.
Learned senior counsel submits that Investigating Officer of the case namely Birendra
Prasad Yadav who has been examined as P.W-36 had stated about the original case
diary as well as the original documents getting traceless and since such documents
goes to the foundation of the dispute and are most essential for disproving the case
of the prosecution, the application preferred by the petitioner deserves to be allowed.
Learned senior counsel on the second prayer made by the petitioner has stated that
the learned court below could not have closed the prosecution case on account of the
witnesses-Sanjay Kumar Singh and Jagdish Yadav having not been produced by the
prosecution and the learned trial court should have awaited their presence before
closing the prosecution case. It has thus been submitted that both the applications
having been rejected by the learned court below without considering the actual facts,
the impugned order deserves to be quashed and set aside on both the counts.
4 . Countering the arguments advanced by the learned senior counsel for the
petitioner, Mr. Niazi, learned counsel for the informant, has stated that there has
been an inordinate delay for the petitioner to file the application to search out the
original documents as the same has been done to delay the disposal of the trial. He
further submits that there has been a case and counter case and so far as counter
case is concerned, the evidence in the same has already been closed. Learned

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counsel further submits that the defence was aware about the original case diary
missing since long but no objection was ever raised by the defence either before the
trial or during the trial. Adverting to the second leg of argument advanced by the
learned senior counsel for the petitioner, Mr. Niazi submits that the application of the
prosecution was rejected with respect to production of two prosecution witnesses and
the prosecution has never challenged the impugned order dated 28.9.2016 and in
such circumstances therefore the petitioner cannot be permitted to step into the
shoes of the prosecution. Learned counsel furthering his argument has stated that the
defence can always produce those two witnesses as defence witnesses but the
defence is refraining from producing those witnesses as they do not want them to be
cross-examined by the prosecution. It has been stated that as per Section 172(3) of
the Code of Criminal Procedure, the prosecution is not bound to give the case diary
to the defence as it can only be used for the purpose of corroboration. Learned
counsel thus submits that having considered section 172(3) of Cr.P.C. as well as
Section 145 of the Evidence Act, learned trial court was justified in dismissing the
application preferred by the petitioner as well as that by the prosecution and since
the petitioner has made a deliberate attempt to delay the disposal of the trial, the
present application is liable to be dismissed with exemplary costs.
5 . Before adverting to the submissions advanced by the learned counsel for the
parties, it would be necessary to refer to the background facts leading to passing of
the impugned order dated 28.9.2016. It appears that an application was preferred by
the defence making reference to the deposition of the Investigating officer that the
original case diary along with the documents were found missing and therefore it was
prayed to search out the original case diary as well as the documents since it was
claimed that the defence case rests upon a letter issued by the Estate Officer,
Jamshedpur Notified Area Committee. Apart from the aforesaid application preferred
by the defence, the prosecution had also filed an application that in spite of best
efforts being made by the prosecution, the witnesses-Sanjay Kumar Singh and
Jagdish Yadav were not appearing and therefore necessary orders be passed. The
application preferred by the defence was negated by the learned trial court on the
ground that the same had been filed only to protract the trial. With respect to the
application preferred by the prosecution, the prosecution evidence was closed since
the same would allow protracting of the trial. Section 172 of the Code of Criminal
Procedure deals with the Diary of proceedings in Investigation and Sub Section (3) of
Section 172 reads as under:-
"(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".
6 . Bare perusal of Section 172(3) would thus reveal the limited circumstance, in
which the case diary can be called for or seen.
7 . Section 145 of the Evidence Act is with respect to the cross examination as to
previous statement in writing. The value of evidence in the case diary and the related
sections i.e. Section 172(3) of Cr.P.C. and Section 145 of the Evidence Act had came
up for consideration in the case of Chandra Shekhar Rai v. State of Bihar & Others,
wherein the Patna High Court by judgment dated 19.6.2013 held as follows:-
"22. The Hon'ble Supreme Court in the case of Malkiat Singh and others v.

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State of Punjab, reported in MANU/SC/0622/1991 : (1991) 4 SCC 341 has
considered the value of evidence recorded by the police during investigation
in the case diary and scope of cross-examination by the defence in context of
recorded statement therein. The Court has considered at what situation the
defence will have a liberty to put the question giving a situational fact in
paragraph 11 which is as follows:
"11. It is manifest from its bare reading without subjecting to
detailed and critical analysis that the case diary is only a record of
day to day investigation of the investigating officer to ascertain the
statement of circumstances ascertained through the investigation.
Under sub-section (2) the court is entitled at the trial or enquiry to
use the diary not as evidence in the case, but as aid to it in the
inquiry or trial. Neither the accused, nor his agent, by operation of
sub-section (3), shall be entitled to call for the diary, nor shall he be
entitled to use it as evidence merely because the court referred to it.
Only right given thereunder is that if the police officer who made the
entries in the diary uses it to refresh his memory or if the court uses
it for the purpose of contradiction such witness, by operation of
Section 161 of the Code and Section 145 of the Evidence Act, it shall
be used for the purpose of contradicting the witness, i.e.
Investigation Officer or to explain it in re-examination by the
prosecution, with permission of the court. It is, therefore, clear that
unless the investigating officer or the court uses it either to refresh
the memory or contradicting the investigating officer as previous
statement under Section 161 that too after drawing his attention
thereto as is enjoined under Section 145 of the Evidence Act, the
entries cannot be used by the accused as evidence. Neither P.W.5
nor P.W.6, nor the court used the case diary. Therefore, the free use
thereof for contradicting the prosecution evidence is obviously illegal
and it is inadmissible in evidence. Thereby the defence cannot place
reliance thereon. But even if we were to consider the same as
admissible that part of the evidence does not impinge upon the
prosecution evidence."
23. The Court has considered the similar question in the judgment of the
Hon'ble Supreme Court in the case of Mahabir Singh v. State of Haryana,
reported in MANU/SC/0395/2001 : (2001) 7 SCC 148 and has reiterated the
same view as above in paragraph 14 of the judgment which is as follows:
"A reading of the said sub-sections makes the position clear that the
discretion given to the court to use such diaries is only for aiding the
court to decide on a point. It is made abundantly clear in sub-section
(2) itself that the court is forbidden from using the entries of such
diaries as evidence. What cannot be used as evidence against the
accused cannot be used in any other manner against him. If the
Court uses the entries in a case diary for contradicting a police
officer it should be done only in the manner provided in section 145
of the Evidence Act i.e. by giving the author of the statement an
opportunity to explain the contradiction, after his attention is called
to that part of the statement which is indented to be so used for
contradiction. In other words, the power conferred on the Court for
perusal of the diary under Section 172 of the Code is not intended
for explaining a contradiction which -the defence has winched to the
fore through the channel permitted by law. The interdict contained in

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 section 162 of the Code, debars the court from using the power
under Section 172 of the Code for the purpose of explaining the
contradiction."
24. In the recent judgment the Hon'ble Supreme Court in the case of R. Shaji
v. State of Kerala, reported in MANU/SC/0087/2013 : 2013 (2) PL JR 145 SC
has held that evidence given in a court under oath has great sanctity, that is
why the same is called substantive evidence. The statements under Section
161 of the Code can be used for the purposes of contradiction whereas
statement recorded under section 164 of the Code can be used for both
corroboration and contradictory. It will be relevant to quote paragraph Nos.
14 and 16 of the aforesaid Judgment:
"14. Evidence given in a court under oath has great sanctity, which
is why the same is called substantive evidence. Statements under
Section 161 Cr.P.C. can be used only for the purpose of contradiction
and statements under Section 164 Cr.P.C. can be used for both
corroboration and contradiction. In a case where the Magistrate has
to perform the duty of recording a statement under Section 164
Cr.P.C., he is under an obligation to elicit all information which the
witness wishes to disclose, as a witness who may be an illiterate,
rustic villager may not be aware of the purpose for which he has
been brought, and what he must disclose in his statements under
Section 164 Cr.P.C.. Hence, the Magistrate should ask the witness
explanatory questions and obtain all possible information in relation
to the said case.
16. Section 157 of the Evidence Act makes it clear that a statement
recorded under Section 164 Cr.P.C., can be relied upon for the
purpose of corroborating statements made by witnesses in the
Committal Court or even to contradict the same. As the defence had
no opportunity to cross-examine the witnesses whose statements are
recorded under Section 164 Cr. P.C., such statements cannot be
treated as substantive evidence."
25. On analysis of the aforesaid judgments the following principle emerges
that the statement recorded by the police during the investigation can not be
used as a evidence either at the trial or enquiry neither by the accused nor
his agent or prosecution. If the Police Officer who made entries in the diary
uses to refresh his memory or if the court uses it for the purpose of
contradiction such witness, by operation of section 161 of the Code and
Section 145 of the evidence Act, it may be used from the side of accused for
the purpose of showing contradiction to the witness, including Investigating
Officer with a liberty to explain it in re-examination by the prosecution, with
permission of the court. So it is clear statement recorded by the police in
case diary cannot be used as an evidence except for showing contradiction
drawing attention to his earlier statement."
8. It was thus held that if the entries in the diary are used for refreshing the memory
of the concerned police officer or if the court uses it for the purpose of contradictions
of such witness, same may be used from the side of the accused. Therefore the
statements recorded under section 161 Cr.P.C. can be used only for the purpose of
contradictions. Judicial Pronouncement, referred to above, and seen in the context of
the provisions of Section 172(3) of Cr.P.C. and Section 145 of the Evidence Act
would make it clear that the defence had no absolute right to pray for production of

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the documents/communications of Jamshedpur Notified Area Committee. Moreover
the plea which had been taken by the defence was available to it through out and
such belated prayer casts suspicion about the deliberate and delaying tactics adopted
by the defence.
9. Having answered the first submission advanced by the learned senior counsel for
the petitioner in the negative, the second leg of argument is being taken up for
consideration in the subsequent paragraphs.
10. Learned senior counsel for the petitioner has vehemently stated about necessity
of examination of Sanjay Kumar Singh and Jagdish Yadav and that the learned trial
court had not given sufficient time for the prosecution to produce those witnesses.
Supporting his contention, learned senior counsel for the petitioner has referred to
certain judgements, which are noted hereinbelow:-
"(A) T. Nagappa v. Y.R. Muralidhar, reported in MANU/SC/7523/2008 :
2008(3) East Cr. C 60(SC).
(B) Ganesh Ram @ Ganesh Chamar v. State of Bihar reported in
MANU/BH/0225/1989 : 1989 East Cr C 542(Pat)
(C) K Chinnaswamy Reddy v. State of Andhra Pradesh reported in
MANU/SC/0133/1962 : AIR 1962 SC 1788."
11. In the case of T. Nagappa (Supra), it was held that the accused has a right to fair
trial and to adduce evidence in his defence and should be allowed to seek assistance
of the Court for summoning of the witnesses.
12. In the case of Ganesh Ram @ Ganesh Chamar(supra), it was held that the duty
of the court is to enforce attendance of the witnesses even by coercive steps
measures and merely because the prosecution could not produce the witnesses, that
by itself cannot be a ground to acquit the accused persons. Relevant paragraphs in
support of the contention of learned senior counsel for the petitioner are quoted
herein below:-
"24. It appears that in spite of efforts by the prosecution as well as the court
neither the doctors nor the investigating officers appear. At times the
prosecution as well as the court become a silent spectator of the drama
where the doctor and the investigating officer do not appear for reasons best
known to them. The courts go on giving dates after dates lingering the case
and later becoming helpless and disgusted due to their non-appearance, with
the result that the prosecution case is closed or accused is acquitted causing
prejudice to the accused as well as the prosecution accordingly. But the law
is not helpless.
25. In the old Criminal Procedure Code Sub-sec. (2) of Sec. 252 provided
that in cases started otherwise than on police report the witnesses could be
summoned by the court on report by the prosecution. There was no provision
for the cases instituted on police report. The amending Act No. 26 of 1955
introduced Sec. 251-A for the purposes of warrant cases. Its object was to
ensure speedy and expeditious trial either ending in acquittal or conviction.
In the case of Smt. Joytimoyee Bose v. Birendernath Prodhan -- it was said
that Sec. 251-A(6) does not enjoin upon the magistrate to compel the
attendance of any witness unless it was applied for and that in a case tried
under Sec. 251-A, the magistrate is not compelled he is (sic) the case is tried
as a warrant case instituted other than on the police report to proceed in

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terms of Secs. 256 and 257 of Cr.P.C. But the Allahabad High Court in the
case of State v. Ram Lal MANU/UP/0243/1960 : 1961(2) CrL J 331 observed
that under Sec. 251A, no power has been given to the court to ask for the
issue of summons and compel the attendance of prosecution witnesses and
so the section does not authorise the magistrate to issue summons. However
in the case of State of Orissa v. Sib Charan Singh -- it was observed that the
court was not absolutely powerless when the parties fail to produce evidence
relevant in a case, the court has a very wide powers and the court may, at
any stage of a proceeding, summon any witness in order to determine the
truth or otherwise of the facts of a case under trial before it. In fact, it is one
of the duties of the court to summon to enforce the attendance of the
witnesses even by coercive measures and merely because the prosecution
could not produce the witnesses before that court, that by itself cannot be a
ground to acquit the accused persons and the provisions of Sec. 251-A do
not mean that it is only the prosecution which is saddled with the
responsibility for producing the witnesses. Rather it is the duty of the court
also to enforce the attendance of the witnesses as provided under the Code.
In the case of State of Bihar v. Pali Mistry -- it was also observed that the
provisions of Sec. 251-A are taken to mean that it is the sole duty of the
prosecution to produce the witnesses in support of its case. The prosecutor
either produce the witnesses through its own agency or at times secure their
attendance in court through the agency of the court. If prosecution
undertakes to produce the witnesses then it becomes its entire responsibility,
But when the prosecutor takes recourse to the agency of the court then it
becomes the duty of the --magistrate to take steps for securing the
attendance of the witnesses in the court and so the magistrate can take step
to compel their attendance as provided under Sec. 90(b) of the Code.
In the case of State v. Narashima Godwa  MANU/KA/0066/1965 : (1965) 2
CrL J 48 the prosecution was given the last opportunity after several
adjournments to produce witnesses, yet witnesses were not produced and
there was nothing to show as to what happened to the summons issued
earlier, whereupon the magistrate acquitted the accused under Sec. 251-A
(ii) of the old Code holding that there was no evidence against the accused.
It was held that after the issue of the summons, the magistrate was required
to enquire about the non-return or non-service of the summons. He was also
then required to secure the attendance of witnesses, if there was no fault or
remissness by the prosecution, Just as law requires the State to prosecute
the offender similarly law requires the court to see that justice was done by a
fair and speedy trial.
In the case of State v. Nand Kishore --, it was observed:
Para 7. Ordinarily, the witnesses should be bound over by
recognisances to appeal and give evidence in the matter of the
charge against the accused at the trial by Police Officers (Sec.
170(2) CrPC). In case they fail to appear the court can issue a
warrant against them to secure their attendance (Sec. 92 CrPC). But
difficulty arises in cases where no such recognisances are taken by
the police officers from the witnesses and the prosecutor finds
himself unable to produce them and applies to the court to issue
summons to them. Can the Court refuse to do it in such a situation is
the real question?. There is no provision in the Code which
empowers the prosecutor to secure the attendance of witnesses
through his own agency after the case has gone to the court. The

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 only course therefore, left to him is to apply to the court to issue
summonses to the witnesses for their attendance. There is nothing in
Sec. 251-A(7) which precludes the court from issuing summonses to
the witnesses if so required by the prosecution. The word "produced"
in Sub-sec. (7) includes the bringing forward of the witnesses by the
prosecution at its own instance or through the process of the court
whom it desires to examine at the trial. Similar view was taken in --
and.... However, in my view, Sec. 251-A does not in any way limit
the general powers of a court to issue summons to witnesses if such
request is made on behalf of the prosecution.
Para 8. Looking to the Scheme of Sec. 251-A it is clear that the stage
of passing an order of acquittal under Sub-sec. (11) is reached only
when compliance with the other Sub-sections i.e. (8), (9) and (10)
has been made. Under Sec. 251-A the Magistrate can discharge the
accused if after perusing the documents referred to in Sec. 173 he
finds the charge to be groundless. But in case he finds that there is
ground for presuming that the accused has committed an offence he
has to frame a charge against the accused. It would be defeating
justice if in cases where a charge has been framed against the
accused by the Magistrate, he is to be acquitted merely on this
ground that the prosecution has failed to produce any evidence in
the case.
The Magistrate should not feel himself helpless in such situation and should
exercise his inherent powers under Sec. 540 of the Code to summon such
witnesses as he thinks necessary for the ends of justice. If the prosecution
by its responsibility in producing witnesses it is incumbent upon the courts
to examine such witnesses as it considers necessary in the ends of justice. I
am supported in this view by the following decisions in -- and 1961(2)
Cr.L.J. 92 (Ker). I am, therefore, of the view that Sec. 251-A does not limit
the powers of the Magistrate to issue process to the witnesses for their
attendance if such request is made on behalf of the prosecution and secondly
if the prosecution -does not produce any witnesses it is the duty of the court
to examine such witnesses as are necessary for the ends of justice before
proceeding to act under Sub-sec. (11). The order of acquittal passed without
examining any witnesses in the case in my opinion, is not warranted by Sub-
sec. (11) of Sec. 251A.
In the case of State of Mysore v. Ramu B. MANU/KA/0165/1972 : 1973
Cr.L.J. 1257 the Court held that having regard to the provisions of Sub-sec.
(7) to Sec. 251-A of the Code the entire responsibility of the production of
the witnesses cannot be saddled on the prosecution. A duty is cast on the
court also to take coercive steps.
In the case of State v. Mangilal MANU/BH/0195/1973 : 1974 CrL J 221 a
Division Bench of this Court observed:
The correct position of law in this regard is that in a warrant case
instituted on police report, the primary duty is of the prosecution to
produce witnesses; but since the prosecution which is the State or
the Public Prosecutor has no power on machinery to compel
attendance of the witnesses, it is fully justified in seeking the help of
the Court for their production. Help of the Court may be asked for by
praying to the Court to issue summonses to the prosecution

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 witnesses. If after service of summons a witness does not appear,
the prosecution may ask the Court to issue warrant of arrest. But
unless such a prayer is made, it is not the duty of the Court either to
issue any summons to the prosecution witnesses or to issue warrant
of arrest if a prosecution witness does not appear even after service
of summons. I must hasten to add that there is a difference between
"power of a Court and duty of a Court. Even if the prosecution does
not make a prayer for issue of summons or for issue of warrant of
arrest in a given case, the power is there as some of the cases have
said, under the general powers of the Court, meaning thereby the
inherent power of the Court, or such power to issue summonses may
be spelt out under Sec. 450 of the Code and the power to issue
warrants of arrest is surely thereunder Sec. 90 of the Code. It may
be exercised suo motu or may be exercised on being asked to do so.
But then to say that event if the prosecution is negligent or does not
make a prayer to issue warrants of arrest, it is imperative for the
Court to follow suo motu the prosecution witnesses like a
prosecutor, to say the least is not justified. It is also not correct to
say that it is not the duty of the Court to issue summons or warrant
of arrest when the prosecution asks the Court to do so. But
ordinarily and generally, unless there are special reasons to refuse
the prayer, it is the duty of the Court, meaning thereby, it is
imperative for the Court to allow the prayer of the prosecution to
issue summons or to issue warrant of arrest, as the case may be.
The Court may refuse to do so, if it finds that the prosecution is
guilty of remissness or laches. But then the Court cannot refuse this
prayer merely because Sub-sec. (7) Sec. 251-A does not provide for
this.
6 . If on the facts and the circumstances of a case the Court finds that the
prosecution has not been able to produce its witnesses even if the helping
hands of the Court were extended to it, then it is justified, rather it will be its
duty in a hard case where the accused has been harassed to attend the Court
on many dates, to close the prosecution with law as provided in various sub-
sections of Sec. 251-A after Sub-sec. (7)."
13. In the case of K. Chinnaswamy Reddy (Supra), it was held that the evidence
which the prosecution wanted to produce cannot be shut out by the learned trial
court. The common thread, which runs through the judgement in the case of T.
Nagappa (Supra) and Ganesh Ram @ Ganesh Chamar (supra) is that the accused
cannot be allowed to unnecessarily protract the trial and that law requires the Court
to see that justice was done by a fair and speedy trial. So far as the case of Chandra
Shekhar Rai (supra) is concerned, same deals with the production of the prosecution
witnesses, which the Court cannot shut out. In the case at hand, the application
preferred by the prosecution was to pass necessary orders in view of the fact that in
spite of taking all effective measures, the prosecution had failed to produce two of its
witnesses namely Sanjay Kumar Singh and Jagdish Yadav. The Court having found
sufficient efforts taken by the prosecution bearing no fruit had closed the prosecution
evidence and had fixed the case for examination of the accused under section 313
Cr.P.C. It would be relevant to note that the prosecution had refrained from
challenging the impugned order but the defence has very dexterously and assiduously
camouflaged the prayer of the prosecution to suit its own cause. Lifting of the veil
would clearly reveal such intention, which can best be described as tactics adopted
by the defence to protract the trial. The evidence in the cross case has been closed.
The trial in the present case is also on the verge of closure. A decade has passed in

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the meantime and the defence is taking efforts to prolong the trial. Learned trial court
has correctly uncovered the intention of the defence while rejecting the application of
the defence as well as closing the prosecution case. No error has been caused by the
learned trial court in passing the impugned order dated 28.9.2016 and such
circumstance, therefore, does not necessitate any interference by this Court in the
impugned order.
1 4 . Consequent to what has been discussed above, this application fails and the
same is accordingly dismissed.
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