Research › Search › Judgment

Rajasthan High Court · body

2000 DIGILAW 1027 (RAJ)

Bheem Raj v. Rajasthan Patrika

2000-08-11

N.P.GUPTA

body2000
Honble GUPTA, J.–Heard learned counsel for the parties. (2). By the impugned order the learned court below has dismissed the petitioners application for taking on record the documents produced by him and for summoning a case diary of which he cannot get certified copy. (3). Perusal of the impugned order shows that the whole burden of the impugned order is that according to learned court below the petitioner has not explained satisfactorily the delay, as it has been observed that the plaintiff is an Advocate and is having services of a Senior Advocate, and still he has not filed documents at the relevant time. (4). Suffice it to say that a bare look at the list of documents filed by the plaintiff along withe plaint does show that the plaintiff did rely on various documents which were not filed at that time and it was expressly mentioned in that list that those documents will be subsequently filed. That apart the documents that have now been filed which are in question, also does show that many of the documents are the documents which have come into existence subsequently. In such circumstances, the reason given by the learned Court below, as a stock reason, cannot be said to be a proper exercise of jurisdiction by the trial court. Likewise the documents are the certified copies of the records of the courts or authorities, and even in the reply to the application under Order 13 Rule 2 the opposite party has not raised any suspicion about their genuineness. In such circumstances the relevancy of the documents for decision of the suit was also one of the material considerations for deciding the question as to whether the document should be taken on record or not. Then it has also been pleaded, by the petitioner in the application that he was seriously ailing, and therefore, also could not file the document in time. In such circumstances, instead of myself undertaking the exercise, with the consent of the parties the impugned order is set aside and the matter is sent back to the trial court for deciding the matter afresh keeping in mind the above circumstances. (5). In such circumstances, instead of myself undertaking the exercise, with the consent of the parties the impugned order is set aside and the matter is sent back to the trial court for deciding the matter afresh keeping in mind the above circumstances. (5). Regarding requisitioning the case diary, the learned trial court has held firstly that this document is not mentioned in the original list of documents, secondly that u/S. 172 of the Cr.P.C. such diary cannot be produced in evidence and thirdly that relevancy of the diary is not established. Suffice it to say that a look at the list of documents initially filed by the petitioner finding place at page no. 7/iC does show that this diary is mentioned at item no. 5 and it has been mentioned that it will be got produced from the police station. Thus, this part of the observations is clearly an out come of misreading of record. Coming to Sec. 172 Cr.P.C., a bare look at the section would show that it does not enact any such bar in such diary being requisitioned or seen in any civil suit. Sec. 172 Cr.P.C. only talks of certain prohibition by the Criminal Court and enacts disabilities against the accused or his agent. At this place a reference may be made to a judgment of Honble the Supreme Court in Khatri vs. State of Bihar & Ors. (1) wherein considering the scope of Sec. 172 so also 162 Cr.P.C. it was clearly held by Honble the Apex Court in para 5 at page 602 as under:- ``It will thus be seen that the bar against production and use of case diary enacted in Sec. 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 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 proceedings under Article 32 or 226 of the Constitution.... (6). 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 proceedings under Article 32 or 226 of the Constitution.... (6). Then in para 6 the contention was noticed to the effect that 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 proceedings, as that would jeopardise the secrecy of the investigation and defeat the object and purpose of Sec. 172 and therefore, applying the principle of that section, it should be held that the case diary is totally protected from disclosure and even the complainant or a third party cannot call for it or look at it in a civil proceedings. After noticing this contention Honble the Apex Court expressly repelled the contention as ``wholly unfounded, and it was held as under:- ``Either production and use of case diary in a proceeding is barred under the terms of Sec. 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. (7). In this view of the matter it cannot be said that there is an absolute bar even against user of the statements in the diary in Civil Court in appropriate case where such statements in the diary are relevant for the controversy or has a material bearing and is otherwise legally admissible in evidence. Since the learned court below has not gone into the question about the relevancy of the documents and has proceeded upon wrong assumption of provisions of Sec. 172 Cr.P.C., this part of the order is also required to be set aside. (8). Since the learned court below has not gone into the question about the relevancy of the documents and has proceeded upon wrong assumption of provisions of Sec. 172 Cr.P.C., this part of the order is also required to be set aside. (8). However, since the matter is being sent back to the trial court, it will be open to the learned trial court to reconsider this matter also as to whether it thinks proper to requisition the case diary or not. At that time it will also be open to the learned court below to consider as to whether such request can be considered by it under Sec. 151 C.P.C. or not. (9). Accordingly the revision petition is allowed. The impugned order is set aside. The matter is sent back to the trial court for deciding both the applications afresh in accordance with law. It is made clear that whatever observations have been made regarding relevancy of the documents above shall not prejudice the Court in deciding the applications. The record of the learned trial court be returned forthwith.