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 : 4^th September 2017.

P.C. :

1 Heard.

2 Rule.

3 Rule is made returnable forthwith. Heard finally by consent of parties.

4 Brief facts leading to the filing of the instant writ petition are thus :

(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 9^th 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.

(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 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

28^th 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.

5 I heard the learned Advocate appearing for the petitioner. He submitted that the learned trial Court wrongly proceeded on assumption that statements recorded under Sec