# Mukesh and others v. State of U.P. and others

- **Citation:** (2005) 2 ILRA 495
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-06-03
- **Bench:** Dr. B.S. Chauhan, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mukesh-and-others-v-state-of-u-p-and-others-40481
- **Pages:** 15

## Headnote

Constitution of India, Article 226/227readwith Code of Criminal ProcedureSection
172/173-accused/
Petitionerdemand
of
the
copy
of
statement
recorded under Section 161 Cr.P.C.-prior
to
reaching
the
stage
of
filing
chargesheet-contents of case diary can
not be disclosed-otherwise the accused
might deter the informant-High Court
can not be permitted to weight the
evidence under Article 227.

Held: Para 11,30,32,45

The
Hon'ble
Supreme
Court
also
cautioned not to disclose the contents of
the case diary to the accused for the
reason that it may disclose the identity
of
the
informant
who
gave
some
information
which
resulted
in
investigation into a particular aspect.
The public interest demands that such an
entry is not made available to the
accused which might deter the informant
from giving any information to assist the
Investigating Agency.

Thus, in view of the above, the inference
can be drawn that the accused are not
entitled
to
seek
the
copy
of
the
statement of any witness recorded under
496 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Section 161 Cr.P.C. or any other part of
the
evidence
collected
by
the
Investigating Officer prior to reaching
the stage of filing the charge sheet. The
accused cannot ask for the copy of the
case diary at any stage. He is entitled
only for receiving the copy of the
documents which are being relied by the
prosecution against him.

Thus, in view of the above, the relief
sought by the petitioners that the
direction be issued to the Court below to
furnish them the copy of the case diary
cannot be allowed.

Thus, in view of the above, the legal
proposition can be summerised that the
High Court, in exercise of its powers
under
Article
226/227
of
the
Constitution or Section 482 Cr.P.C. is not
permitted either to weigh the evidence
or examine the adequacy of the evidence
for framing of the charges and if it comes
to the conclusion that there is some
prima facie evidence connecting the
accused with the crime, the proceedings
cannot
be
quashed
at
this
stage.
However, the Court has to examine that
in case the ingredients of the offence
alleged against the accused are absent in
the fact and circumstances of the case
and the trial was nothing but an abuse of
the process of the court, the court should
not
hesitate
in
quashing
the
charges/proceedings.

AIR 1969 SC-1014
AIR 1953 SC-107
1996 AWC-469
1988 AWC-1354
1996 G.L.J. 1536
AIR 2003 SC-3357
1993 U.P.Cr.R 260
1996 U.P.Cr.R. 653
AIR 1964 SC-221
AIR 1955 SC-196
AIR 1991 SC-1260
1991 (4) SCC-341
AIR 1989 SC-144
AIR 1954 SC-51
AIR 1933 P.C. 124
(1897) 11 All. 390(G.B.)
AIR 1955 SC-1748
AIR 2001 SC 2637
1988 G.L.J. 1077
AIR 1957 SC-737
AIR 1957 SC 263
AIR 1927 PC-44
AIR 1999 SC-2565
AIR 2002 SC-1644
1996 (4) SCC 453
AIR 1996 SC-2173
AIR 1977 SC-1489
AIR 1995 PC-18
AIR 1982 949
1985 SC-628
AIR 1988 SC-709
AIR 1993 SC-1082
1995 (6) SCC-194
1996 (7) SCC-705
AIR 1998 SC-128
AIR 1992 SC-604
1999 (8) SCC-686
AIR 1999 SC-1216
2005 (1) SCC-122
1999 (8) SCC-508
AIR 1955 SC-785
1994 (4) SCC-142
AIR 2000 SC-665
AIR 2001 SC-556
2002 (8) SCC-161
AIR 2004 SC-517

## Text

_Characters 0–39,948 of 47,361. This is a partial read: ask again with offset=39948 for what follows._

2 All] Mangal Dev and another V. The State Election Commission and others 495
natural justice. In view of the decision of
the Constitution Bench judgment of the
Hon'ble Apex Court in Udit Narain Singh
Malpaharia
Vs.
Member,
Board
of
Revenue, Bihar, AIR 1963 SC 786, the
petitioner no.2 and three children of
petitioners have a right to ignore the order
passed by the Sub Divisional Magistrate,
Meja, as it was passed behind their back.
To that extent, the order impugned dated
27.04.2005
is
declared
to
be
unenforceable and in-executable and we
direct that their names shall be treated to
be existing in the provisional as well as in
the final voter list.

22. So far as Shri Mangal Dev,
petitioner no.1 is concerned, as per the
election schedule, objections for inclusion
or exclusion in the voter list could have
been
filed
only
by
01.04.2005.
Admittedly, objections have been filed by
respondent no.5 on 13.05.2005. The
procedure required for the purpose has not
been followed, as mentioned above. The
order is based on manufactured/concocted
evidence. The finding is perverse being
based on no reliable evidence.

23. In such a fact situation, we have
no option but to allow the writ petition
and quash the impugned order dated
27.04.2005.

24. The writ petition succeeds and is
allowed with the cost of Rs.10,000/-
(Rupees Ten Thousand Only) which is to
be shared by the State as well as by
respondent no.5 equally. The order
impugned dated 27.04.2005 passed by
respondent
no.3
is
quashed.
The
petitioners shall be entitled for all
consequential reliefs.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.06.2005

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE ARUN TANDON, J.

Criminal Misc. Writ Petition No. 5840 Of 2005

Mukesh and others
 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Gaurav Sharma

Counsel for the Respondents:
C.S.C.

Constitution of India, Article 226/227readwith Code of Criminal ProcedureSection
172/173-accused/
Petitionerdemand
of
the
copy
of
statement
recorded under Section 161 Cr.P.C.-prior
to
reaching
the
stage
of
filing
chargesheet-contents of case diary can
not be disclosed-otherwise the accused
might deter the informant-High Court
can not be permitted to weight the
evidence under Article 227.

Held: Para 11,30,32,45

The
Hon'ble
Supreme
Court
also
cautioned not to disclose the contents of
the case diary to the accused for the
reason that it may disclose the identity
of
the
informant
who
gave
some
information
which
resulted
in
investigation into a particular aspect.
The public interest demands that such an
entry is not made available to the
accused which might deter the informant
from giving any information to assist the
Investigating Agency.

Thus, in view of the above, the inference
can be drawn that the accused are not
entitled
to
seek
the
copy
of
the
statement of any witness recorded under
496 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Section 161 Cr.P.C. or any other part of
the
evidence
collected
by
the
Investigating Officer prior to reaching
the stage of filing the charge sheet. The
accused cannot ask for the copy of the
case diary at any stage. He is entitled
only for receiving the copy of the
documents which are being relied by the
prosecution against him.

Thus, in view of the above, the relief
sought by the petitioners that the
direction be issued to the Court below to
furnish them the copy of the case diary
cannot be allowed.

Thus, in view of the above, the legal
proposition can be summerised that the
High Court, in exercise of its powers
under
Article
226/227
of
the
Constitution or Section 482 Cr.P.C. is not
permitted either to weigh the evidence
or examine the adequacy of the evidence
for framing of the charges and if it comes
to the conclusion that there is some
prima facie evidence connecting the
accused with the crime, the proceedings
cannot
be
quashed
at
this
stage.
However, the Court has to examine that
in case the ingredients of the offence
alleged against the accused are absent in
the fact and circumstances of the case
and the trial was nothing but an abuse of
the process of the court, the court should
not
hesitate
in
quashing
the
charges/proceedings.

AIR 1969 SC-1014
AIR 1953 SC-107
1996 AWC-469
1988 AWC-1354
1996 G.L.J. 1536
AIR 2003 SC-3357
1993 U.P.Cr.R 260
1996 U.P.Cr.R. 653
AIR 1964 SC-221
AIR 1955 SC-196
AIR 1991 SC-1260
1991 (4) SCC-341
AIR 1989 SC-144
AIR 1954 SC-51
AIR 1933 P.C. 124
(1897) 11 All. 390(G.B.)
AIR 1955 SC-1748
AIR 2001 SC 2637
1988 G.L.J. 1077
AIR 1957 SC-737
AIR 1957 SC 263
AIR 1927 PC-44
AIR 1999 SC-2565
AIR 2002 SC-1644
1996 (4) SCC 453
AIR 1996 SC-2173
AIR 1977 SC-1489
AIR 1995 PC-18
AIR 1982 949
1985 SC-628
AIR 1988 SC-709
AIR 1993 SC-1082
1995 (6) SCC-194
1996 (7) SCC-705
AIR 1998 SC-128
AIR 1992 SC-604
1999 (8) SCC-686
AIR 1999 SC-1216
2005 (1) SCC-122
1999 (8) SCC-508
AIR 1955 SC-785
1994 (4) SCC-142
AIR 2000 SC-665
AIR 2001 SC-556
2002 (8) SCC-161
AIR 2004 SC-517

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This writ petition has been filed
with prayer that a writ, order or direction
be issued in the nature of certiorari,
commanding the respondents to send the
entire record and the proceedings against
the petitioners, for quashing the same, as
well as for issuing a writ of mandamus
commanding the respondents to provide a
copy of the case diary and other
proceedings related to petitioners, in order
to enable them to defend their case.

2. The facts of the case are that a
First Information Report (hereinafter
called ''F.I.R.') in Case Crime No. 60 of
2005, under Section 392 of the Indian
2 All] Mukesh and others V. State of U.P. and others

 497
Penal Code (hereinafter called ''I.P.C.')
was lodged with the Police Station
Saidabad,
District
Hathras
(Mahamayanagar) on 13.3.2005. In the
F.I.R., two persons were named as
accused. The names of the petitioners do
not find mention in the said F.I.R. In
pursuance of the same, investigation
commenced, and it appears that during
investigation, the names of the petitioners
were also revealed. Accordingly, the
police
is
trying
to
apprehend
the
petitioners. In such an eventuality, the
Investigating Officer filed an application
in the Court of the Judicial Magistrate,
Saidabad
District
Hathras
(Mahamayanagar)
for
permission
to
proceed under Section 82 of the Criminal
Procedure Code, 1974 (hereinafter called
''Cr.P.C.'), and that application has been
allowed vide order dated 6th May, 2005.
Hence this petition for quashing all the
proceedings.

3. Shri Gaurav Sharma, learned
counsel for the petitioners has submitted
that it is a fit case where this Court should
issue a writ of certiorari quashing the
entire proceedings as petitioners have a
right to information as for what offence
and in what case they are wanted. The
reputation of the petitioners is at stake and
that itself is sufficient ground for
interference by the writ Court. Entire
proceedings against the petitioners are in
violation of the provisions of Articles 21
and 22 of the Constitution of India. Thus,
this Court should quash the entire
proceedings after calling the record.

In support of his contention, the
learned counsel for the petitioners has
referred to and relied upon a large number
of judgments, including, In re Madhu
Limaye & Ors, AIR 1969 SC 1014; Vimal
Kishore Mehrotra Vs. State of U.P. &
Anr., AIR 1956 All 56; The State of
Punjab Vs. Ajaib Singh & Anr. AIR 1953
SC 10; Uttarakhand Sangharsh Samiti Vs.
State of U.P. & Ors, 1996 AWC 469;
Rama Kant Vs. State, 1988 AWC 1354;
Vikram Vs. The State, 1996 Cr.LJ 1536;
Ashok Kumar Singh Vs. State of U.P.
1998 AWC 604; and State of Bihar Vs.
Lal Krishna Advani & Ors, AIR 2003 SC
3357.

4. The writ petition has been filed
submitting that petitioners have falsely
been enroped in the crime excluding the
names of the real accused by the
Investigating Officer after taking illegal
gratification from them; on 6.5.2005,
Judicial Magistrate, Saidabad, District
Hathras allowed the application of the
Investigating Officer under Section 82
Cr.P.C. On coming to know about the said
order,
petitioners
immediately
filed
applications to surrender before the said
Court. On 18.5.2005 petitioners moved an
application before the court concerned to
provide the copy of the case diary. The
said application has been dismissed. The
order of rejection of their prayer for
giving them the copy of the case diary is
violative of provisions of Sections 21 and
22 (1) of the Constitution of India.
Relevant part of the prayer clause reads as
under:-

i) issue a writ, order or direction in
the nature of certiorari commanding the
respondents to send the entire records and
all the entire proceedings against the
petitioners for quashing the same to the
extent it relates to the petitioners.
ii) issue a writ, order or direction in
the nature of mandamus directing the
respondents to provide copy of the case
diary and other proceedings which relate
498 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
to the petitioners so that they may be able
to defend their cases.

5. The record reveals that on the
application filed by the petitioners for
surrender, the Court below asked for the
report from the Investigating officer as to
whether they were wanted in any criminal
case. In pursuance therefore, a report has
been submitted on 16.05.2005 by the
Investigating Officer that petitioners were
wanted in Case Crime No. 60 of 2005,
under Section 392, I.P.C., Police Station
Sadabad, District Mahamayanagar. The
order dated 18.05.2005 passed by the
Court below reveals that petitioners did
not surrender before the Court as they
were not present there and the Court
refused to call for the case diary as it was
required only at the time of the hearing of
bail application and not before that.

6. It is not the case of the petitioners
that the proceedings under Section 82
Cr.P.C. had been taken in violation of the
mandatory requirement of the statutory
provisions. This Court has consistently
held that the provisions of Section 82/83,
Cr.P.C. can be resorted to only in
exceptional circumstances for the reason
that every person who is not immediately
available, may not necessarily be an
absconder. The Court has to record that it
is satisfied that the accused has absconded
or is avoiding execution of warrant. The
provisions can be resorted to only where
the warrant is not executed and that is also
not necessary in every such case. The
provisions of Section 82 are mandatory
and
require
strict
adherence.
(Vide
Devendra Singh Negi alias Debu Vs.
State of U.P. & Anr., 1993 U.P.Cr.R 260;
and Kapil Muni Karwaria Vs. State of
U.P., 1996 U.P.Cr.R 653). However, there
are no grounds of challenge to Section 82
proceedings. In Devendra Singh Negi
(Supra), this Court has held that in case an
accused wants to surrender and makes a
proper application before the Court, his
prayer should be accepted.

7. In the instant case, the Police has
submitted the report that the petitioners
are wanted in a criminal case. It is evident
from the perusal of the order dated
18.5.2005
that
petitioners
did
not
surrender, rather asked for furnishing the
information and calling for the case diary.

This petition has been filed in a most
casual manner without challenging any
specific order or even seeking quashing of
the
F.I.R.
The
petition
is
totally
misconceived and issue of right to
information etc. is not involved in this
fact-situation as the accused cannot claim
the right to know each and every thing in
respect of the investigation. Provisions of
Section 172 Cr.P.C. put an embargo
seeking the copy of the case diary by the
accused. In case the investigation is
complete and the police files the charge
sheet against him, he is bound to be
supplied the copies of the documents
which prosecution wants to rely upon
against him in the trial, as required under
Section 173 Cr.P.C., and this is not the
stage where petitioners can claim copy of
the case diary or any other information in
respect of the investigation.

8. Section 2 (h) Cr.P.C. defines
investigation and it includes all the
proceedings under the Code for the
collection of evidence conducted by a
Police Officer or by any person (other
than a Magistrate) who is authorised by a
Magistrate
in
this
behalf.
During
investigation, the police has to maintain
the
case
diary
keeping
the
entire
2 All] Mukesh and others V. State of U.P. and others

 499
information in respect of the investigation
as required under Section 172 Cr.P.C. The
investigation comes to an end with the
formation of the opinion as to whether on
the material collected, there is a case to
place the accused before a Magistrate for
trial and if so, taking the necessary steps
for the same by filing of a charge sheet
under Section 173 Cr.P.C. Therefore, it is
evident that the investigation comes to an
end only when the police report is
submitted before the Court concerned
under Section 173 Cr.P.C. and in case the
Magistrate
further
directs
the
Investigating Agency to investigate the
case further in exercise of power under
clause (8) of Section 173 Cr.P.C., the
collection of evidence in pursuance
thereof shall also be a part of the
investigation. (Vide H.N. Rishbud Vs.
State of Delhi, AIR 1955 SC 196; State of
U.P. Vs. Bhagwan Kishore Joshi, AIR
1964 SC 221; and Union of India Vs.
Prakash P. Hinduja, AIR 2003 SC 2612).

Section 172 Cr.P.C. deals with the
diary of proceedings in investigation and
the same reads as under:-
"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 inquiry or trial.
(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." (Emphasis added).

The provisions of Section 172
Cr.P.C. had been subject matter of
consideration before the Courts from time
to time.

9. The purpose of maintaining the
case diary is that the Court may examine
as to whether the investigation has been
made
promptly/efficiently
and
in
accordance with law. The entries in the
case diary are to be made with scrupulous
completeness
and
efficiency.
(Shri
Bhagwan Singh Vs. Commissioner of
Police, Delhi, AIR 1983 SC 826).

Case diary cannot be used as
evidence by either side. (Vide State of
Bihar Vs. P.P. Sharma, AIR 1991 SC
1260; and Malkiat Singh & Ors. Vs. State
of Punjab, (1991) 4 SCC 341).

10. The accused can peruse that
particular part of the case diary in the
context of Sections 145 or 161 of the
Evidence Act-(a) if it is used by the
police officer concerned to refresh his
memory or (b) if the Court uses it for
contradicting
the
official
concerned.
(Vide Mukund Lal Vs. Union of India &
Anr., AIR 1989 SC 144).
500 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
In Mukund Lal (supra), the Hon'ble
Supreme Court placed reliance upon the
judgment of this Court in Mahabirji
Birajman
Mandir
Vs.
Prem
Narain
Shukla, AIR 1965 Alld. 494, wherein this
Court while explaining the nature of case
diary has observed as under:-
"These reports are of confidential
nature and privilege can be claimed
thereof. Further the disclosure of contents
of such reports cannot help any of the
parties to the litigation, as the report
invariably contains the opinion of such
officers and their opinion is inadmissible
in evidence."

The Hon'ble Supreme Court observed as
under:-

"The public interest requirement
from the stand point of the need to ensure
a fair trial for an accused is more than
sufficiently met by the power conferred
on the Court, which is the ultimate
custodian to the interest of justice and can
always be trusted to be vigilant to ensure
that the interest of accused persons
standing the trial, is fully safeguarded.
There would be no prejudice or failure of
justice to the accused persons since the
Court can be trusted to look into the
police diary for the purposes of protecting
his interest."

11. The Hon'ble Supreme Court also
cautioned not to disclose the contents of
the case diary to the accused for the
reason that it may disclose the identity of
the informant who gave some information
which resulted in investigation into a
particular aspect. The public interest
demands that such an entry is not made
available to the accused which might
deter the informant from giving any
information to assist the Investigating
Agency.

12. The case diary cannot be used
either as substantive or as corroborative
evidence in the trial. (Vide Dawarkanath
Varma & Anr. Vs. Emperor, AIR 1933
PC 124; and Habeeb Mohammad Vs.
State of Hyderabad, AIR 1954 SC 51).

13. The case diary is primarily
meant as aid to the Court during the
trial.[(Vide Karan Singh & Ors. Vs.
Emperor, AIR 1928 All 25; State Vs.
Fateh Bahadur & Ors., AIR 1958 All. 1;
and K. Abdul Rahiman & Ors. Divisional
Forest Officer & Anr., AIR 1989 Ker. 1
(FB)].

The case diary may be used to
suggest means for further elucidating by
legal evidence points that need clearing
up. [(Vide Habeeb Mohammed (supra)].

14. It is the Court and not the
accused person or his agent that can use
the case diary for the purpose of
contradicting the police officer who
prepared it. [(Vide (1897) 11 All 390
(FB)].

15. The case diary can be used for
the purpose of refreshing the memory and
for the purpose of contradicting the Police
Officer who prepared it. (Vide Shamsul
Kanwar Vs. State of U.P., AIR 1995 SC
1748).

16. The another purpose is that
Court may satisfy itself as to whether the
investigation
has
been
made
in
accordance with the required procedure.
(Vide P.P. Sharma (supra).
2 All] Mukesh and others V. State of U.P. and others

 501
17. Case diary cannot be used by
defence to contradict the prosecution
evidence. Therefore, the defence cannot
place any reliance on it. Nor it is
admissible in evidence. [(Vide Malkiat
Singh (supra)].

18. In T.T. Antony Vs. State of
Kerala, AIR 2001 SC 2637, the Hon'ble
Supreme Court held that a "just balance
between the fundamental rights of the
citizens under Articles 19 and 21 of the
Constitution and the expensive power of
the Police to investigate a cognisable
offence has to be struck by the Court."

19. Article 21 of the Constitution
comes to the rescue of an accused to
challenge only that investigation has not
been done in accordance with the
procedure established by law. Thus, the
accused has to establish that investigation
has not been concluded with due
observance of the procedure established
by law. [(Vide State of Bihar Vs. P.P.
Sharma (supra)].

20. In Mukund Lal (supra), the Apex
Court held that in view of the safeguards
where the Court itself takes care of the
interest of the accused, it cannot be held
that the provisions of sub-section 3 of
Section 172 Cr.P.C. would fail to meet the
test of reasonableness.

21. The Rajasthan High Court has
examined the validity of the provisions of
sub-section (3) of Section 172 Cr.P.C. in
Subash Chandra Vs. Union of India, 1988
Cr.L.J. 1077 and held that 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 the crossexamination of 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, the provisions
under Section 172 (3), cannot be said to
be unconstitutional.

22. In Darya Singh Vs. State of
Punjab, AIR 1965 SC 328, the Court held
that in case the Court start scrutinising the
case diary and preparing the list of
witnesses whom the prosecutors must
examine, is virtually to suggest that the
Court should itself take the role of a
prosecutor. Therefore, the case diary
cannot be held to be a much relevant
document for trial unless the prejudice is
caused to the accused. The diary can be
used even by the Court for a very limited
purposes as explained hereinabove.

23. The provisions of Section 173
Cr.P.C. provide for filing the report of a
Police
Officer
on
completion
of
investigation and the relevant part for our
purpose reads as under:-

"173. Report of police officer on
completion of investigation.- (1) ...... ......
........... ............ .........

(5) When such report is in respect of a
case to which section 170 applies, the
police officer shall forward to the
Magistrate alongwith the report -

(a) all documents or relevant extracts
thereof on which the prosecution proposes
to rely other than those already sent to the
Magistrate during investigation;
(b) the statements recorded under section
161 of all the persons whom the
prosecution proposes to examine as its
witnesses.
502 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
(6) If the police officer is of opinion that
any part of any such statement is not
relevant to the subject-matter of the
proceedings or that its disclosure to the
accused is not essential in the interests of
justice and is inexpedient in the public
interest, he shall indicate that part of the
statement and append a note requesting
the Magistrate to exclude that part from
the copies to be granted to the accused
and stating his reasons for making such
request.
(7) Where the police officer investigating
the case finds it convenient so to do, he
may furnish to the accused copies of all or
any of the documents referred to in subsection (5)."

24. The statutory requirement is that
when the investigation stands concluded
and the police report is submitted only at
that stage the accused or the complainant
shall be entitled to have the copies of the
documents which are to be relied upon by
the prosecution during the trial.

25. In Gurbachan Singh Vs. State of
Punjab, AIR 1957 SC 623, the Hon'ble
Apex Court explained the scope of the
provisions
of
Section
173
Cr.P.C.
observing that the documents to be relied
upon by the prosecution, are bound to be
supplied to the accused and the object of
this provision is to put the accused on
notice of what he has to meet at the time
of enquiry or trial.

26. In Narayan Rao Vs. State of
Andhra Pradesh, AIR 1957 SC 737, the
Hon'ble Supreme Court again considered
the scope of provisions of Section 173
read with section 207 Cr.P.C. and held
that
the
provisions
are
not
even
mandatory and are directory. Noncompliance of the provisions would not
vitiate the proceedings rather it is merely
an irregularity which can be rectified and
once the documents to be relied upon by
the prosecution against the accused have
been supplied to him, the trial will
proceed further and the evidence etc. shall
be recorded. While deciding the said case,
the
Hon'ble
Supreme
Court
placed
reliance upon the judgment of the Privy
Council in Abdul Rehman Vs. Emperor,
AIR 1927 PC 44, wherein it had been
held that such an omission was merely an
irregularity which could be rectified under
the provisions of Section 537 Cr.P.C.

27. In Jogendra Nahak & Ors. Vs.
State of Orissa & Ors., AIR 1999 SC
2565, the Hon'ble Supreme Court again
explained the scope of the provisions of
Section 173 observing as under:-

"Section 173 says that on completion
of investigation, the officer-in-charge of
police station shall forward a report to the
Magistrate, stating, inter-alia, the names
of the persons who appear to be
acquainted with the circumstances of the
case. Sub-section (5) of Section 173
requires that the police officer shall
forward to the Magistrate alongwith the
said report (a) all documents or relevant
extract thereof on which the prosecution
proposes to rely, and (b) the statements
recorded under Section 161 of all the
persons whom the prosecution proposes
to examine as its witnesses. Even when a
further investigation, as required under
sub-section (8) is conducted by the police,
they have to comply with all the
requirements contained in the preceding
sub-sections."

28. A similar view has been
reiterated by the Apex Court in Central
Bureau of Investigation Vs. R.S. Pai, AIR
2 All] Mukesh and others V. State of U.P. and others

 503
2002 SC 1644, wherein explaining the
scope of sub-sections (5) and (8) of
Section 173 Cr.P.C., the Court held that
the word "shall" used in sub-section (5)
for requiring the Police Officer to forward
to the Magistrate all documents is
directory and not mandatory. If some
mistake is committed in not submitting all
the documents at the time of submitting
the charge sheet, it is always open to the
Investigating Officer to produce the same
with the permission of the Court at a later
stage. The Court held that there is no
statutory bar for the prosecution to file the
documents which could not be filed at the
earlier stage, later on.

29. A Constitution Bench of the
Hon'ble Supreme Court in Assistant
Collector of Customs, Bombay & Anr.
Vs. L.R. Melwani & Anr., AIR 1970 SC
962, elaborately examined the scope of
Chapter XIV of the Cr.P.C., which also
contains Section 173, and held that the
requirement of the provisions of Section
173 is to provide a fair trial to the accused
as by furnishing the documents which can
be relied upon against him, so that he may
defend himself effectively. Unless there
are compelling circumstances, the High
Court should not exercise its discretion in
such a case and the trial Court should be
permitted to proceed in accordance with
law otherwise it would unnecessarily
impede the progress of the trial. However,
the High Court must interfere in a case
where it comes to the conclusion that
omission on the part of the Investigating
Agency or the Court below has caused
prejudice to the accused.

30. Thus, in view of the above, the
inference can be drawn that the accused
are not entitled to seek the copy of the
statement of any witness recorded under
Section 161 Cr.P.C. or any other part of
the
evidence
collected
by
the
Investigating Officer prior to reaching the
stage of filing the charge sheet. The
accused cannot ask for the copy of the
case diary at any stage. He is entitled only
for receiving the copy of the documents
which are being relied by the prosecution
against him.

31. The relief sought herein cannot
be granted as it would be in contravention
of the statute itself. The Court has no
competence to issue a direction contrary
to law. (Vide Union of India & Anr. Vs.
Kirloskar Pneumatic Co. Ltd., (1996) 4
SCC 453; State of U.P. & Ors. Vs. Harish
Chandra & Ors., AIR 1996 SC 2173; and
Vice Chancellorl University of Allahabad
& Ors. Vs. Dr. Anand Prakash Mishra &
Ors., (1997) 10 SCC 264).

In State of Punjab & Ors. Vs.
Renuka Singla & Ors. AIR 1994 SC 595,
dealing with a similar situation, the
Hon'ble Apex Court observed as under:-

"We fail to appreciate as to how the
High Court or this Court can be generous
or liberal in issuing such directions which
in substance amount to directing the
authorities concerned to violate their own
statutory rules and regulations."

Similarly, in Karnataka State Road
Transport Corporation Vs. Ashrafulla
Khan & Ors., AIR 2002 SC 629, the
Hon'ble Apex Court has held as under:-

"The High Court under Article 226
of the Constitution is required to enforce
rule of law and not pass order or direction
which is contrary to what has been
injected by law."
504 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
32. Thus, in view of the above, the
relief sought by the petitioners that the
direction be issued to the Court below to
furnish them the copy of the case diary
cannot be allowed.

33. It is settled legal proposition that
whatever may be the law, if on factual
matrix, the petitioner is not entitled for
relief sought by him, no interference is
required in writ jurisdiction. (Vide Km.
Chitra Ghosh & Anr. Vs. Union of India
& Ors., AIR 1970 SC 35; Dr. N.C.
Singhal Vs. Union of India & Ors., AIR
1980 SC 1255; & Khalid Hussain Vs.
Commissioner & Secretary, Government
of Tamil Nadu, Health Department, AIR
1987 SC 2074).

34. Be that as it may, the case
requires to be considered as to whether
the instant case presents special feature
which may warrant quashing of the F.I.R.,
though not sought specifically by the
petitioners.

35. Legal maxim "Quando Aliquid
Mandatur, Mandatur Et Omne Per Quod
Per Venitur Ad Illud"- means if anything
is commanded, every thing by which it
can be accomplished is also commanded.
But the inherent power of quashing the
criminal proceedings has to be exercised
very sparingly and with circumspection
and that too in the rarest of rare cases and
the Court cannot be justified in embarking
upon an enquiry as to the reliability or
genuineness or otherwise of allegations
made in the F.I.R. or complaint and the
extraordinary and inherent powers of
Court
do
not
confer
an
arbitrary
jurisdiction on the Court to act according
to its whims or caprice. The same can be
resorted to for correcting some grave
errors that might be committed by the
subordinate
courts
or
where
the
complainant, at the instance of somebody
else wants to settle his score with other
party and uses deliberately the machinery
of the Court for oblique purpose and the
party is likely to be subjected to
unnecessary
harassment
for
facing
criminal proceedings or where the Court
is satisfied that in case the proceedings
are not quashed, there will be gross
miscarriage of justice. However, the
Court, under its inherent powers, can
neither intervene at an uncalled for stage
nor it can ''soft-pedal the course of
justice" at a crucial stage of investigation/
proceedings. The High Court should be
loath to interfere at the threshold to thwart
the prosecution exercising its inherent
power under Section 482 of the Code or
under
article
226
or
227
of
the
Constitution of India, as the case may be,
and allow the law to take its own course.
For the purpose of determining whether
there is sufficient ground for proceeding
against an accused the court possesses a
comparatively wider discretion in the
exercise of which it can determine the
question whether the material on record,
if unrebutted, is such on the basis of
which a conviction can be said reasonably
to be possible. (Vide Emperor Vs. Khwaja
Nazir Ahmed, AIR 1945 PC 18; State of
Karnataka Vs. L. Muniswami AIR 1977
SC 1489; State of West Bengal Vs.
Swapan Kumar Guha, AIR 1982 949;
Pratibha Rani Vs. Suraj Kumar & Anr.,
AIR 1985 SC 628; Madhavrao Jiwaji Rao
Scindia Vs. Sambhajirao Chandrojirao
Angre & Ors., AIR 1988 SC 709; Janta
Dal Vs. H.S. Chowdhary & ors., AIR
1993 SC 892; Union of India Vs. W.N.
Chadha, AIR 1993 SC 1082; Rupan Deol
Bajaj & Anr. Vs. Kanwar Pal Singh Gill
& Anr., (1995) 6 SCC 194; State of U.P.
Vs. O.P. Sharma, (1996) 7 SCC 705; M/s.
2 All] Mukesh and others V. State of U.P. and others

 505
Pepsi Foods Ltd. & Anr. Vs. Special
Judicial Magistrate & ors., AIR 1998 SC
128; G. Sagar Suri & Anr. Vs. State of
U.P. & ors., (2000) 2 SCC 636).

36. In Smt. Nagawwa Vs.Veeranna
Shivalingappa Konjalgi, AIR 1976 SC
1947, the Hon'ble Supreme Court held as
under:-

"(1) Where the allegations made in the
complaint or the statements of the
witnesses recorded in support of the
same taken at their face value make
out absolutely no case against the
accused or the complaint does not
disclose the essential ingredients of an
offence which is alleged against the
accused;
(2) Where the allegations made in the
complaint are patently absurd and
inherently improbable so that no
prudent person can ever reach a
conclusion that there is sufficient
ground for proceeding against the
accused;... ........."

37. The Court's power is limited only
to examine that the process of law should
not be misused to harass a citizen and for
that purpose, the high Court has no
authority or jurisdiction to go into the
matter or examine the correctness of
allegations unless the allegations are
patently absurd and inherently improbable
so that no prudent person can ever reach
to such a conclusion and that there is
sufficient ground for proceeding against
the accused but the Court, at that stage,
cannot go into the truth or falsity of the
allegations. The inherent power of the
High Court are limited to very extreme
exceptions. A criminal prosecution can be
short-circuited in rarest of rare cases, and
even in a case of breach of contract, not
only civil remedy is attracted but a person
can be held responsible for criminal
prosecution and under no circumstance
''civic profile' can out-way the ''criminal
out fit.' (Vide State of Haryana & ors. Vs.
Ch. Bhajan Lal & ors., AIR 1992 SC 604;
Rajesh Bajaj Vs. State N.C.T. of Delhi,
AIR 1999 SC 1216; Rajesh Agarwal &
ors., (1999) 8 SCC 686; The Nagpur
Steel and Alloys Pvt. Ltd. Vs. P.
Radhakrishna, (1997) SCC (Crl.) 1073;
Dr. Sharma's Nursing Home vs. Delhi
Administration, (1998) 8 SCC 745; and
M/s. Medchl Chemical & Pharma (P) Ltd.
Vs. M/s. Biological E. Ltd. & Ors., AIR
2000 SC 1869).

While considering the issue of mala
fides in such a case, the Apex Court in
Ch. Bhajan Lal (supra), held as under:-

"At this stage, when there are only
allegations and recriminations on no
evidence, this Court could not anticipate
the result of the investigation and
rendered a finding on the question of mala
fides on the materials at present available.
Therefore, we are unable to see any force
in the contentions that the complaint
should be thrown over board on the some
unsubstantiated plea of mala fides."

In Sheonandan Paswan Vs. state of
Bihar, AIR 1987 SC 877, the Hon'ble
Apex Court while dealing with the issue
of mala fides in criminal law observed as
under:-

"It is well established proposition of
law that a criminal prosecution, if
otherwise, justifiable and based upon
adequate evidence does not become
vitiated on account of mala fides or
political vendetta of the first informant or
the complainant."
506 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Similarly, in State of Bihar Vs. J.A.C.
Saldanna, AIR 1980 SC 329, the Apex
Court has held as under:-

"It must, however, be pointed out that
if an information is lodged at the police
station and an offence is registered, the
mala fide of the informant would be of
secondary importance if the investigation
produced
unimpeachable
evidence
disclosing he offence."

38. In Zandu Pharmaceutical Works
Ltd. & Ors. Vs. Mohd. Sharaful Haque &
Anr., (2005) 1 SCC 122, the Hon'ble
Supreme Court held that when an
information is lodged and the offence is
registered, the mala fides of the informant
would be of secondary importance as it is
a
material
collected
during
the
investigation and evidence led in Court
which decides the fate of the accused
persons. The allegations of mala fide
against informant are of no consequence
and cannot, by themselves, be the basis
for quashing the proceedings. While
deciding the said case, reliance had been
placed on the earlier judgment in State of
Bihar Vs. P.P. Sharma, AIR 1991 SC
1260.

39. In Sarjudas & anr. Vs. State of
Gujarat, (1999) 8 SCC 508 the Hon'ble
Supreme Court held that there must be
cogent
evidence
of
mala
fides
or
malicious intention of the informant or the
complainant for taking note of the
allegations of mala fide. The bald
statement in this respect is not sufficient.

Similar points have been formulated
by the Apex Court in State of West
Bengal Vs. Mohammed Khalid, AIR 1995
SC 785; State of Delhi Vs. Gyan Devi &
ors., AIR 2001 SC 40).
40. In Minakshi Bala Vs. Sudhir
Kumar, (1994) 4 SCC 142, the Hon'ble
Apex Court held that once the charge had
been framed Under Section 240 Cr.P.C.,
the high Court, in exercise of its
revisional jurisdiction, is not justified in
invoking its inherent power to quash the
same except in those rare cases where
forensic
exigencies
and
formidable
compulsions justify such a course. Similar
view has been reiterated by the Hon'ble
Supreme Court in State of Madhya
Pradesh Vs. S.B. Johri, AIR 2000 SC 665.

41. In Ram Kumar Laharia Vs. State
of Madhya Pradesh & Anr., AIR 2001 SC
556, the Supreme Court considered the
scope of exercise of revisional powers and
held that at this stage, the Court is not
permitted
to
weight
the
evidence.
Whatever is permissible in law is that the
court can assess the improbability or
absurdity of the statement of witnesses. In
case the evidence so collected prima facie
suggests direct contact with the accused,
the court cannot interfere with the order
of framing the charge.

42. In Smt. Om Wati & Anr. Vs.
State through Delhi Admn. & Anr., AIR
2001 SC 1507, the Apex Court held that
in exercise of the revisional jurisdiction,
the High Court is not permitted to
interfere at initial stage of framing the
charges
merely
on
hypothesis,
imagination and far-fetched reasons.

43. In Sanju alias Sanjay Singh
Sengar Vs. State of Madhya Pradesh &
ors. , AIR 2002 SC 1998, the Hon'ble
Apex Court quashed the charges for the
reason that the appellant therein had been
charged of the offence of abetment and
after considering the evidence, the Apex
Court recorded the finding that the
2 All] Mukesh and others V. State of U.P. and others

 507
ingredients of abetment were totally
absent in the facts and circumstances of
the case. Similarly, in Ram Ekbak Missir
Vs.Ram Niwash Pandey & ors., (2002) 8
SCC 161, the Hon'ble Supreme Court
quashed the criminal proceedings wherein
the cognizance of the offence was taken
after twenty-one years of lodging the first
information report and the case had been
dragged for more than two decades
without any fault on the part of the
accused. Moreso, the Apex Court also
came
to
the
conclusion
that
the
cognizance
had
been
taken
in
a
mechanical manner. It has further been
observed that neither the victim nor the
accused should suffer by the mischief of
the investigating agency or the staff of the
court and such a delay was found to be a
ground for quashing the charges.

44. In State of M.P. Vs. Awadh
Kishore Gupta & Ors., AIR 2004 SC 517,
the Hon'ble Supreme Court explained the
scope of inherent powers of the Court to
quash the proceedings observing as
under:-

"Exercise of power under Section 482
of the Code in a case of this nature is an
exception and not the rule. The section
does not confer any new powers on the
High Court. It only saves the inherent
power which the Court possessed before
the enactment of the Code. In envisages
three circumstances under which the
inherent jurisdiction may be exercised,
namely, (i) to give effect to an order
under the Code, (ii) to prevent abuse of
the process of court, and (iii) to otherwise
secure the ends of justice. It is neither
possible nor desirable to lay down any
inflexible rule which would govern the
exercise of inherent jurisdiction. No
legislative
enactment
dealing
with
procedure can provide for all cases that
may possibly arise.