Pratim Alias Peter Mukerjea v. Union Of India And ANR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.3203 OF 2017 Pratim alias Peter Mukerjea ...
Petitioner V/s.
Union of India & Anr.
...
Respondents .....
Mr.Shrikant Shivade with Mr.Amit Ghag i/b. Vishal Gupta, Advocate for the Petitioner.
Shri.Anil C.Singh, ASGI with Mr.Sandesh Patil with Ms.Indrayani Deshmukh and Ms.Geetika Gandhi, Advocate for the Respondent No.1/CBI.
Mrs.N.S.Jain, APP for the Respondent/State.
....
CORAM : A.M.BADAR J.
DATED : 4th September 2017.
P.C. :
Heard.
Rule.
Rule is made returnable forthwith. Heard finally by consent of parties.
Brief facts leading to the filing of the instant writ petition are thus :
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(a) Ganesh Dalvi, PSI along with PI Dinesh Kadam of the Khar Police Station were on patrolling duty. They found movement of one Shyamvar Rai (accused No.3/approver in Sessions Case No.117 of 2015) suspicious. Therefore, they apprehended Shyamvar Rai and took his personal search, which resulted in recovery of one pistol, three live cartridges along with other items. This resulted in registration of Crime No.LAC/34/2015 under Section 3 read with Section 25 of the Indian Arms Act with the Khar Police Station. Investigation of that crime resulted in filing of the charge sheet and accordingly, Criminal Case No.3054/PW/2015 came to be registered and is reportedly pending before the 9th Metropolitan Magistrate, Bandra, Mumbai.
(b) Interrogation of Shyamvar Rai has also resulted in lodging another FIR by PSI Ganesh Dalvi which resulted in registration of Crime No.406 of 2015 for offences punishable under Sections 120-B, 201, 203, 302, 307, 328, 364, 420, 468 and 471 of the Indian Penal Code. Initially, three accused were charge-sheeted in this crime and subsequently, supplementary charge-sheet came to be filed against the present petitioner, who is arrayed as accused No.4. Shyamvar Rai, who was arrayed as accused No.3, in the charge sheet ultimately turned approver.
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(c) The charge sheet of Crime No.406 of 2015 on committal of the case resulted in registration of CBI Special Case No.9 of 2016. The Order passed below Exh.149 on 28/07/2017 in the said case by the learned Special Judge for CBI cases, Greater Mumbai is subject matter of challenge in the instant writ petition.
(d) After framing of the charge and during the course of examination of Ganesh Dalvi as P.W.No.1 in said Sessions Case No.117 of 2015, on behalf of writ petitioner/accused No.4, an application (Exh.149) under Section 91 of the Criminal Procedure Code (hereinafter referred to as "the Code" for the sake of brevity) came to be moved with a prayer to summon personal diaries, weekly diaries and case diaries in respect of LAC No.34 of 2015 maintained by P.W.No.1 Ganesh Dalvi and another prosecution witness Dinesh Kadam, Police Inspector of Khar Police Station. (e) Said application (Exh.149) moved by the writ petitioner/accused No.4 came to be objected by the prosecution by filing reply. It is contended by the prosecuting agency that as per provisions of Section 172(3) of the Code such case diary can be summoned only when the police officer used the case diary for the purpose of refreshing his memory or when the Court uses it for the 3/9
purpose of contradicting the witnesses. As in the Sessions Case, such contingencies has not arisen, there is no necessity to summon the case diary. It is further averred by the prosecuting agency that both these witnesses have orally confirmed over telephone that they have not submitted weekly or monthly diaries as it is not mandatory to maintain such diaries.
(f) After hearing both parties, by the impugned Order dated 28th July 2017, the application (Exh.149) under Section 91 of the Code moved by the writ petitioner/accused No.4 for summoning case diaries and other diaries came to be rejected by the learned Special Judge.
I heard the learned Advocate appearing for the petitioner. He submitted that the learned trial Court wrongly proceeded on assumption that statements recorded under Section 161 of the Code of both these witnesses namely Ganesh Dalvi and Dinesh Kadam in LAC No.34 of 2015, which has resulted in registration of Criminal Case No.3054/PW/2015 are available with the defence in order to cross-examine these witnesses and to bring out contradictions from their previous statements. This, according to the learned Advocate for the writ petitioner, is totally incorrect. Similarly, the learned Advocate further argued that the statements of these two witnesses in the case diary and other diaries required to be maintained by them constitute previsions statements of those 4/9
witnesses and therefore, are necessary for cross-examining these witnesses by the defence, particularly considering the serious nature of charges levelled against the writ petitioner. On behalf of the petitioner, reliance is placed on the Judgment of the Apex Court in the matter of State of Kerala v. Babu & Ors., reported in (1999) 4 Supreme Court Cases 621. I also heard Shri.Anil Singh, the learned ASGI appearing for the prosecuting agency. By taking me through paragraph Nos.11 to 13 of the Judgment in the matter of State of Kerala v. Babu & Ors. referred by the petitioner, the learned ASGI submitted that the ratio of this ruling is to the effect that the trial Court may summons case diary of some other crime provided requirements of Section 91 of the Code are fulfilled.
According to the learned ASGI, the trial Court has exercised its discretion in rejecting the application by keeping in mind the requirements of Section 91 of the Code for calling of the case diary of some other crime. The learned trial Court found that it is neither necessary nor desirable to call the case diary of another crime and therefore, it cannot be said that the judicial discretion is exercised arbitrarily by the learned trial Court. Hence, in submissions of the learned ASGI, the discretionary Order should not be interfered in the writ jurisdiction by this Court.
case diary can be called only when the police officer refers the same to refresh his memory or when the Court use it for the purpose of contradicting the witnesses. The learned ASGI, therefore, argued that the petition is liable to be dismissed. I have carefully considered the rival submissions and perused the impugned Order as well as the reply filed by the prosecuting agency.
Arrest of approver Shyamvar Rai on the basis of suspicion by P.W.No.1 Ganesh Dalvi and prosecution witness Dinesh Kadam has resulted in registration of an offence vide LAC No.34 of 2015 under the Indian Arms Act. Therefore, he is being prosecuted vide Criminal Case No.3054/PW/2015. At the same time, investigation from Shyamvar Rai (accused No.3/approver) has resulted in filing of the FIR of Crime No.406 of 2015 by P.W.No.1 Ganesh Dalvi, which has resulted in prosecution of the writ petitioner as well as other accused persons vide Sessions Case No.117 of 2015 for offences punishable under Sections 120-B, 201, 203, 302, 307, 328, 364, 420, 468 and 471 of the IPC. What was sought to be summoned by the writ petitioner/accused No.4 was the case diary of LAC No.34 of 2015 along with other diaries. Thus, case diary and other diaries in respect of some other crime were sought to be summoned by the petitioner/accused No.4 by the application-Exhibit 149.
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Perusal of the impugned Order goes to show that the learned trial Court refused relief principally by observing that statements recorded under Section 161 of the Code of PI-Dinesh Kadam and PSI-Ganesh Dalvi during the course of investigation of LAC No.34 of 2015 of Khar Police Station of Mumbai are available for defence in the Sessions case. It is further held that the defence can use those statements of prosecution witnesses in Criminal Case No.3054/PW/2015 pending on the file of 9th Metropolitan Magistrate, Bandra, Mumbai while cross-examining the same witnesses in the case in hand i.e. Sessions Case No. 117 of 2015. With these reasonings, the application at Exh.149 filed by the writ petitioner/accused No.4 under Section 91 of the Code is rejected by the learned trial Judge.
In its reply, the prosecuting agency has candidly accepted the fact that statements of P.W.No.1 PSI-Ganesh Dalvi and that of PI-Dinesh Kadam are not recorded during investigation of LAC No.34 of 2015 meaning thereby that their statements under Section 161 of the Code are not available in the chargesheet of Criminal Case No.3054/PW/2015 pending on the file of 9th Metropolitan Magistrate, Bandra, Mumbai. Hence reasonings of the learned trial Court found in paragraph No.7 for rejecting the application at Exh.149 is wholly erroneous. The learned trial judge as such, proceeded on wrong premise that the previous 7/9
statements of witnesses Ganesh Dalvi and Dinesh Kadam are available with the defence.
The question whether a case diary of another case not pertaining to the trial in hand can be summoned to make use of the previous statements of the witnesses for the purpose of contradictions and for impeaching credit of prosecution witnesses is no more res integra. In the matter of State of Kerala v. Babu & Ors. (supra) the Honourable Apex Court has held that a case diary of another case not pertaining to the trial of the case in hand can be summoned by the Court trying the case provided such Court considers that production of such case diary is necessary or desirable for the purpose of trial under Section 91 of the Code. While deciding the application at Exh.
149, the learned trial Judge ought to have considered the provisions of Section 91 of the Code in arriving at a conclusion as to whether documents/diaries sought to be summoned by the writ petitioner are in fact necessary or desirable for the purpose of trial of the case in hand. This exercise is apparently not done by the learned trial Court. The application came to be rejected by the learned trial Court on factually incorrect reason. Hence, the impugned Order below Exh.149 passed on 28th July 2017 cannot be sustained.
(i) The Petition is allowed in terms of prayer clause (b). 8/9
The impugned Order dated 28th July 2017 rejecting the application Exh.149 in CBI Special Case No. 9 of 2016 between the parties is quashed and set aside. (ii) The learned trial Judge is directed to consider the application at Exh.149 afresh by permitting the parties to advance arguments and then to decide the same according to law within the period of one month from today, so as to enable it to proceed further for examining the prosecution witnesses viz. P.W.No.1 Ganesh Dalvi and P.W. Dinesh Kadam.
(iii) Rule is accordingly made absolute.
(A.M.BADAR J.) 9/9