MUKUND LAL & ANR. versus UNION OF INDIA.& ANR.

Citation: [1988] SUPP. 3 S.C.R. 524 · Decided: 14-10-1988 · Supreme Court of India · Bench: M.P. THAKKAR · Disposal: Dismissed

Judgment (excerpt)

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MUKUND LAL & ANR. 
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UNION OF INDIA.& 'ANR. 
OCTOBER 14, 1988 
[M.P. THAKKAR AND B.C. RAY, JJ.] 
Criminal Procedure Cade, 1973: Section 172(3)-Constitutionat 
validity of-Case diary and entries therein-Only Court entitled to call 
for and examine-Accused not entitled to cal/for diary. 
Constitution of India, 1950: Article 32_.:..Constitutional validity of 
Section 172(3) Cr.P.C. 1973. 
Section 172(3) of the Criminal Procedure Code, 1973 provides 
that neither the accused nor his agents shall be entitled to call for the 
case diary, nor shall they be entitled to see them merely because they 
are referred to by the Court, but if they are used by the Police Officers 
to refresh his memory or ff the Court uses them for the 'purpose of 
contradicting such Police Officer, the provisions of section 161 or 145 as 
the case may be of the Indian Evidence Act, 1872 shall apply. 
The petitioners challenged the constitutional validity of the 
aforesaid provision in the High Court but the High Court repelled the 
same on the ;:round that the embargo placed by section 172(3) Cr.P.C. 
on the right of th-- accused or his representative in calling for the diary 
or seeing any part of it is only a partial one and not absolute, that a 
safeguard has alrea~y been provided in the Section itself to protect the 
right of the accused, that in the inquiry 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 examining the witnesses and the Court has power to call for 
the diary and use it. It accordingly held that Section 172(3) cannot, 
therefore, be said to be unconstitutional. 
The High Court having repulsed the challenge, the accused who 
were the petitioners in the High Court again approached this Court in 
writ petitions under Art. 32, reiterating the challenge on the premise 
that the High Court had erred in sustaining the validity of the said 
provision. 
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Dismissing the petitions, the Court, 
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MUKUND LAL v. U.O.J. 
525 
HELD:· 1. Section l72 embodies a composite scheme. The,j.uty 
cast under clauses (I) and ·the rider added by clause (3) thereoHorm 
integral part of the scheme. Clause (3) cannot be struck down in isola-
tion whilst retaining clause (1). The legislature in its wisdom has cast 
this qbligation only subject to the rider clause (3) cannot be viewed in 
isolation. [530D-E) 
2. The provision embodied in sub-section (3) of section 172 of the 
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Cr.P.C. cannot be characterised as unreasonable or arbitrary. [528E-F) 
3. Under sub-section (2) of section 172 Cr.P.C. the Court itself 
has the unfettered power to examine the entries in the diaries. This is a 
very important safeguard. The Legislature has reposed complete trust 
in the court which is conducting the inquiry of the trial. It has 
empowered the court to call for any such relevant case diary, if 
there is any inconsistency or contradiction arising in the context of 
the case diary the Court can use the entries for the purpose of 
contradicting the Police Officer as provided in sub-section (3) of 
section 172 of the Cr.P.C. [528F-G) 
4. 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 of 
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. [529H; 530A] 
5. 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. [530B) 
Mohinder Singh v. Emperor, AIR 1932 (Lahore) page 103(104); 
Mahabirji Birajman Mandir v. Prem Narain Shukla & Ors., AIR 1965 
(Allahabad) p. 494; Raj Narain's, case [1975] 3 SCR p. 333 and S.P. 
Gupta's) case [1982] 2 SCR p. 365 (at pp. 622, 624), referred to. 
CRIMINAL ORIGINAL JURISDICTION: Writ 
(Criminal) Nos. 49 and 129 of 1987. 
(Under Article 32 of the Constitution of India). 
Petition 
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SUPREME COURT lIBPORTS 
[ 1988] Supp. 3 S.C.R. 
Nund Lal, Mrs. Bagga and S.K. Bagga for the Petitioner. 
The Judgment of the Court w

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