TMI Blog1988 (10) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... his provision namely Clause (3) which is the target of the challenge made by one of the two accused in a Criminal case. The High Court having repulsed the challenge, the accused have approached this Court by way of the present petition in order to reiterate the challenge on the premise that the High Court had erred in sustaining the validity of the impugned provision. 2. The analysis of Section 172 (Section 172(3)- Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) if it is used by the police officer concerned to refresh his memory; or (b) if the Court uses it for contradicting the police official concerned. 3. The High Court has repelled the plea by recourse to the reasoning reflected in the relevant passage extracted hereinbelow: So far as Section 172(3) is concerned, the embargo on the right of the accused or his representative in calling for the diary or seeing any part of it is only a partial one and not absolute because if a part of the diary has been used by the police officer to refresh his memory or the court uses it for the purpose of contradicting such police officer, the provisions of Section 161 and 145 of the Indian Ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the petitioner pertaining to Section 123 of the Evidence Act, it is the right of the court to decide whether the privileged document contains any material affecting the public interest or a particular affair of the State, which need not be disclosed. When in the enquiry or trial, everything which may appear against the accused has to be established and brought before the Court by evidence other than the diary and the accused can have the benefit of cross-examining the witnesses and the court has power to call for the diary and use it, of course not as evidence but in aid of the enquiry or trial, I am clearly of the opinion, that the provisions under Section 172(3) Cr.P.C. cannot be said to be unconstitutional. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing such police officer. It cannot be said that unless such unfettered right is conferred and recognised, the embargo engrafted in Sub-section (3) of Section 172 of the Cr.P.C. would fail to meet the test of reasonableness. For instance in the case diary there might be a note as regards the identity of the informant who gave some information which resulted in investigation into a particular aspect. Public Interest demands that such an entry is not made available to the accused for it might endanger the safety of the informants and it might deter the informants from giving any information to assist the investigating agency, as observed in Mohinder Singh v. Emperor AIR 1932 Lah 103: The accused has no right to insist upon a polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial, is fully safeguarded. This is a factor which must be accorded its due weight. There would be no prejudice or failure of justice to the accused person since the court can be trusted to look into the police diary for the purpose of protecting his interest. Therefore, the public interest requirement from the perspective of safeguarding the interest of all persons standing trial, is not compromised. On the other hand the public interest requirement from the perspective of enabling the investigation agency to investigate the crime against the society in order that the interest of the community to ensure that a culprit is traced and brought to book is also safeguarded. The argument inspired by the observations in Raj Narain's case [1975] ..... X X X X Extracts X X X X X X X X Extracts X X X X
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