G.P. Sharma vs State of M.P.

S.L. Kochar, J.

Order passed in this MCr.C. shall also govern the disposal of Cr.R. No. 361/97 and Cr.R. No. 631/98 the petition filed u/s 482, Cr.PC by applicant Shri G.P. Sharma, S.I., Police Station, Shahjahanabad, Bhopal against the order dated 3-7-95 passed by Addl. Sessions Judge, Narsinghgarh in Cr.R. No. 47/95 arising out of order dated 31-10-94 passed by J.M.F.C., Narsinghgarh in Criminal Case No. 417/91 and order dated 13-3-95 passed in Misc. Cr. Case No. 114/95 challenging the order of discharge dated 31-10-94 for the offence u/s 304A, IPC and issuance of show-cause notice to the petitioner as to why he should not be prosecuted for the offences punishable under Sections 218, 219, 220, 217, 466, 468, 469, 211, 193, IPC on the ground that the applicant had manipulated the FIR and record of investigation by writing number of vehicle ante-date and time for prosecution of the accused. Thereafter the J.M.F.C. registered Misc. Cr. Case No. 114/95 and issued show-cause notice. The applicant appeared and submitted his reply thereafter the Trial Court took cognizance u/s 190, Cr.PC for the aforesaid offences against the petitioner and ordered to register the case. Thereafter non-bailable warrant was issued against the petitioner vide order dated 13-3-95, against this order i.e., order dated 13-3-95 the revision was filed and the same has been dismissed by the Revisional Court, hence this petition u/s 482, Cr.PC.

On 27-8-97, this Court after hearing Counsel for the applicant Shri Khan and Shri Desai, Dy. Advocate General for State order for registration of revision by exercising suo motu power against the order dated 13-10-94 passed by J.M.F.C. in Criminal Case No. 417/91 whereby the Magistrate has discharged the accused of the charge u/s 304A, IPC. In pursuance thereof Office has registered Cr.R. No. 361/97 and State has also filed Cr.R. No. 631/98 assailing the order of discharge passed by Trial Court and order for prosecution of investigating officer Shri G.P. Sharma.

The Judicial Magistrate First Class, Narsinghgarh vide order dated 31-10-94 discharged the non-applicant No. 1 Sharif for whom the Counsel Shri Gajankush is appearing, from the charge punishable u/s 304A, IPC on the ground that in the FIR vehicle No. UAV 9315 was written, later on after lodging FIR because ink of this number is different than the ink of FIR, Trial Court was also of the opinion that crime No., section of offence, date of incident and time are written in Hindi figures whereas the vehicle No. is mentioned in International figures i.e., UAV 9315. The Trial Court has perused the case-diary at the stage of framing of charge and considered the material which was available in the case-diary. According to the Trial Court, the case-diary was revealing the fact that the number of vehicle was not known at the time of lodging of FIR and the same has been written afterwards just to make out case against any vehicle, at the time of writing FIR the place where vehicle No. was mentioned left blank and only because of this reason in the FIR vehicle No. was written and in the FIR attached with the case-diary at places A to A and B to B vehicle No. was not mentioned and this is the indicative of fact that upto that time vehicle No. was not known and later on after arresting the accused his vehicle No. was written but the investigating officer had forgotten to do this patch working in case-diary. Court was also of the opinion that for seizure of the vehicle forged documents were prepared in the case-diary page No. 40, the truck No. was previously mentioned DC, but thereafter overwriting has been done on it. On the basis of these manipulation and interpolation found by the Trial Court in the case-diary and FIR, the Trial Court has discharged the accused on 31-10-94. On this date the case was fixed for framing of charge. This Court is not able to understand as to why FIR was described as Ex. P-2 when the case was fixed on 31-10-94 for framing of charge. The original FIR is also showing the marking of Ex. P-2 (A) proved by the P.W. 5 on 7-2-94 but in the record this Court is not able to lay hand on such statement. Apart from this, the question of proving FIR would not arise upto framing of charge. By order dated 31-10-94, the case was fixed for framing of charge and on that date the Court has discharged the accused after perusal an consideration of contents of case-diary and charge-sheet. While discharging the accused the Trial Court has also ordered for issuance of show cause to Sub Inspector/Investigating Officer why he should not be prosecuted for the offences punishable under Sections 218, 219, 220, 217, 466, 468, 469, 211 and 193, IPC. Thereafter in Criminal Case No. 114/95 by order dated 13-3-95 learned J.M.F.C. took cognizance against the applicant Sharma Sub Inspector for the offences punishable under Sections 193, 211, 217, 220, 466, 468 and 469, IPC and issued warrant of arrest against him. Against this order Revision No. 47/95 was filed by G.P. Sharma but the same has been dismissed by order dated 3-7-95.

Counsel for the State and Counsel for the Sub Inspector Shri Sharma as well as Counsel for accused Sharif Khan have been heard.

In view of this Court, order passed by the Trial Court dated 31-10-94 is patently illegal and without jurisdiction. At the stage of charge after perusing case-diary the facts mentioned in the case-diary could not be considered either in favour of the accused or in favour of the prosecution. The Court is required to frame charge on the basis of the charge-sheet filed by the police u/s 173, Cr.PC. The method adopted by the Trial Court is completely foreign to the Criminal Procedure Code applicable for trial of criminal cases. The manipulation and interpolation, overwriting which have been marked by the Trial Court at the stage of charge were also not legal just and within the jurisdiction because the same could have been considered after examination of prosecution witnesses and after affording them opportunity of hearing and explanation the FIR is not substantive piece of evidence that can be used only for contradictions and corroboration of its author. The other statements recorded by police u/s 162, Cr.PC can be used for contradicting the witness with his Court statement, these statements are also not substantive piece of evidence and cannot be used for corroboration. But in the case in hand, the Trial Court has considered contents of the case-diary which is not part of charge-sheet filed u/s 173, Cr.PC and same cannot be perused at the time of framing of charge for use of case-diary in Cr.PC. There is a separate independent section i.e., Section 172 of Cr.PC which is reproduced herein below:--

"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.

(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 enquiry or trial.

(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall be 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 by 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."

Sub-section (2) speaks that, "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 is in such enquiry or trial".

Here in the present case at the stage of charge, the Trial Court has considered the contents of case-diary as evidence. Neither the accused nor his agent is entitled to call for such case-diary and also not entitled to see them during the course of enquiry or trial. The diaries can be used for refreshing memory by investigating officer and Court can use it for the purpose of contradicting such police officer as per provision u/s 161 or Section 145 of the Indian Evidence Act, 1872.

In the present case no witness was examined there was no order for calling the case-diary the date was fixed for hearing the Counsel for the parties on the question of framing of charge. The Trial Court used contents of the case-diary and the charge-sheet as substantive piece of evidence and passed the order dated 31-10-94. There is glaring and grave legal error committed by the Trial Court. Indeed, the Trial Court has acted without jurisdiction and transgressed its power which requires to be exercised at the stage of the framing of charges.

The order dated 31-10-94 is liable to be quashed by invoking the inherent power of this Court. There was clear abuse of process of Court of law.

Registry is directed to send the record of the Trial Court immediately for deciding the trial by Trial Court in accordance with law and as early as possible preferably within six months from the date of this order giving priority to this case over the other matters.