Karnataka High Court Upholds Order Nixing Murder Accused's Plea For Trial Courts To Affix Initials On Each Page Of Case Diary

The Karnataka High Court has upheld an order which dismissed the plea of a murder accused seeking a direction to the trial courts to affix their signature or initials on every page of the case diary maintained by the investigation agencies when produced before it, to prevent any tampering and fabrication.

In doing so the court said it can only interpret the law and not enact it in the guise of interpretation, when no such provision for signing the case diary was provided in the relevant law. 

A division bench of Chief Justice N V Anjaria and Justice K V Aravind dismissed the appeal challenging an order of the single judge bench, moved by Mohammed Shiyab one of the various accused, booked and arrested in 2022 for the alleged murder of BJP Yuva Morcha member Praveen Nettaru. Shiyab had also been booked under the provisions of the Unlawful Activities Prevention Act. 

The division bench said, “Neither the statute nor the Rules anywhere provide that the diary should be signed at each page by the investigating officer. Therefore, it is not possible to add words or such providence or read such requirement by supplying to the language. It is well settled principle of statutory interpretation and legal application that the court would act on the basis of plain words in the statute without adding anything to the language. Adding was supplying to the language would amount to legislating, which is not permissible. The court cannot cross the boundary to trench upon by creating what is not provided in the law. The function of the court ends where the realm of legislature starts. The task of the court is to interpret the law as it is, and not to enact law in the guise of interpretation. Supplying something more than what is mentioned in black and white is not permissible”. 

Background

The trial court had passed orders of remand and in connection with it,  the case diary was summoned which was taken back by the Investigating Officer. The appellant-accused had submitted a memo with the trial court to summon the case diary. He had further requested to put initials to authenticate the entries on each page of the diary, which was rejected on November 16, 2022 on the ground that there was no such provision.

Against this he approached the single judge bench in a writ petition seeking a direction to the trial court–Additional City Civil and Sessions Judge and Special Court for Trial of NIA Cases, "to sign or put initials to each page of case diary registered by the respondent under Sections 120B, 302 read with Section 34 of the Indian Penal Code and Sections 16 and 18 of the Unlawful Activities (Prevention) Act, from page No.1 till the last page and continue this practice till filing of charge sheet". It was also prayed that the trial court observes the same practice in all the cases pending before it. 

Dismissing this plea the single judge had said that though the entries in the case diary maintained under Section 172(1) CrPC is to accompany the remand order, "it nowhere indicates that the Magistrate has to affix his signature at every point when a remand order is passed or at every time the case diary is summoned to the Court".  The appellant thereafter approached the division bench. 

The appellant (petitioner before single judge bench) relied on Section 172 of the Code of Criminal Procedure in support of his case. It was his case that an initial was necessary to be made on each page of the court diary when it was produced before the Court. This practice of putting initials on each page was not mentioned in the Karnataka Criminal Rules of Practice, 1968, however it had been provided in the Rules of other States, he said. 

Therefore, it was submitted that for preventing the tampering and fabrication, initials of the investigating officer on each page was desired and that the Court should make it mandatory, he contended. 

Meanwhile the counsel for National Investigation Agency (NIA) opposed the plea saying that the petitioner wants an order from the High Court in the nature of legislative exercise, when there is no such provision available in the "statute for the Rules to support the prayer made in the petition".

Findings

Referring to the single judge bench's order the high court said, “Learned Single Judge elaborately discussed the decisions of the Supreme Court laying down the principle that it is not the function of the Court to enlarge the jurisdiction by entering into legislative task. It was rightly observed that the Court cannot read anything further when the language of the provision is unambiguous and that the Court cannot redirect or add something or read additional words in the statute.”

Referring to Section 172 of CrPC the division bench noted that Sub-Section (2)  provides that the "police diaries may be called for by the Court, however the diary cannot be used as evidence in the case".

It can be used "only to aid" the inquiry or trial, the bench added. It further noted that Sub-Section (3) contemplates that the accused or his agents are not entitled to call for such diaries nor they are entitled to see that.

The high court then said, “It is therefore provided that the police diary is not to be treated as part of evidence, but the court takes the assistance and aid therefrom. The section does not contemplate anywhere that every page of such a diary should be signed by the investigating officer. The Rules of Practice of the Karnataka State regarding investigation also do not contain any such providence”.

The high court further emphasized that a writ of mandamus would not lie for doing something which is not contemplated in a statutory provision. It said that the applicable statutory provision "guides the course and path" of mandamus.

"There has to be a positive obligation cast, and available from or backed by a statutory provision to justify the issuance of writ of mandamus to do some act or to omit from the doing. Even otherwise, no factor circumstance could be demonstrated by the petitioner, or found to be existent to justify the grant of prayers made in the petition," the bench said. 

Finding no error in the single judge bench's order the high court dismissed the appeal.

Case Title: Mohammed Shiyab AND National Investigating Agency

Counsel for Appellant: Advocate Mohammed Tahir

Counsel for Respondent: SPP P Prasanna Kumar

Citation No: 2024 LiveLaw (Kar) 452

Case No: WRIT APPEAL NO. 102 OF 2024

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