The Hon’ble Supreme Court, on 5th September 2019, in the matter of P. Chidambaram v. Directorate Of Enforcement observed that the court can look into the documents/materials produced before the court even if the accused has not been earlier confronted with those documents/materials.
The question of law before the court was:
Whether the court can/cannot look into the documents/materials produced before the court unless the accused was earlier confronted with those documents/materials?
The Hon’ble Supreme Court observed that:
Sub-section (2) of Section 172 Cr.P.C. permits any court to send for case diary to use them in the trial. Section 172(3) Cr.P.C. specifically provides that neither the accused nor his agents shall be entitled to call for case diary 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 the such police officer, the provisions of Section 161 Crl.P.C. or the provision of Section 145 of the Evidence Act shall be complied with. (Para 49)
Court always received and perused the case diaries/materials collected by the prosecution during investigation to satisfy itself as to whether the investigation is proceeding in the right direction or for consideration of the question of grant of bail etc. (Para 51)
So far as the production of the case diary during trial and reference to the same by the court and the interdict against accused to call for case diary is governed by Section 172 Cr.P.C. As per sub-section (3) of Section 172, neither the accused nor his agent is entitled to call for such case diaries and also not entitled to see them during the course of enquiry or trial. The case diaries can be used for refreshing memory by the investigating officer and court can use it for the purpose of contradicting such police officer as per provisions of Section 161 or Section 145 of the Indian Evidence Act. (Para 52)
(Para 52) Unless the investigating officer or the court so uses the case diary either to refresh the memory or for contradicting the investigating officer as previous statement under Section 161, after drawing his attention under Section 145, the entries in case diary cannot be used by the accused as evidence (vide Section 172(3) Cr.P.C.).
(Para 53) The court can peruse the case diary/materials collected during investigation by the prosecution even before the commencement of the trial inter-alia in circumstances like:-
(i) to satisfy its conscience as to whether the investigation is proceeding in the right direction;
(ii) to satisfy itself that the investigation has been conducted in the right lines and that there is no misuse or abuse of process in the investigation;
(iii) whether regular or anticipatory bail is to be granted to the accused or not;
(iv) whether any further custody of the accused is required for the prosecution;
(v) to satisfy itself as to the correctness of the decision of the High Court/trial court which is under challenge. The above instances are only illustrative and not exhaustive.
Where the interest of justice requires, the court has the powers, to receive the case diary/materials collected during the investigation.(Para 53)
When the Court has received and perused the documents/materials, it is only for the purpose of satisfaction of court’s conscience. (Para 53)
The court can receive the materials/documents collected during the investigation and peruse the same to satisfy its conscience that the investigation is proceeding in the right lines and for the purpose of consideration of grant of bail/anticipatory bail etc. (Para 54)
Copy of judgement: Judgement_05-Sep-2019
-Adv. Tushar Kaushik