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IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

8 CRIMINAL WRIT PETITION NO.1220 OF 2021

WITH

APPLN/2647/2021 IN WP/1220/2021

SAHEBRAO SHANKAR BHALKAR AND OTHERS

VERSUS

THE STATE OF MAHARASHTRA

...

Advocate for Petitioners : Mr. A.P. Lohade h/f Mr.Ladda Somnath G.

APP for Respondent-State : Mrs.R.P.Gaur

...

CORAM : N.R. BORKAR , J.

DATE : 29^th NOVEMBER, 2021.

P. C. :

1.

The petitioners are accused in Sessions Case No. 153 of

2015 and are facing trial for the offences punishable under Sections.

302, 143, 147, 148, 149 of the Indian Penal Code (for short “I.P.C.”)

and under Section 135 of the Maharashtra Police Act.

2.

During the cross-examination of PW 19 Mr.

Laxminarayan Abarao Shingare, the Investigating Officer certain

questions were put to him. Paragraph No. 26 of the cross-

examination which is relevant for the purpose of deciding the

controversy in the present matter reads thus :

“On 14.03.2015, I had gone to the spot of

incident. I could not meet P.W.1 Mangalchand or

Shivpal, when I had gone to the spot on 14.03.2015

during day or night time, I had gone there with a view

to investigate. I returned back without going to the

actual spot of the incident or meeting anybody. I was

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accompanied with my colleagues. I was knowing that

the investigating officer has to visit the spot of

incident immediately on registering F.I.R. I do not

remember whether entries were taken in station diary

relating to this matter regarding registration of F.I.R.

It is true to say that I have replied that, “I do not

remember,” after verifying the case diary which is

with me.”

3.

As the Investigating Officer has stated that he does not

remember whether entries were taken in a station diary relating to

registration of F.I.R. in this matter even after verifying the case diary,

the accused sought permission to see the case diary. The learned trial

Court after hearing the parties has passed the following order :

“Therefore, the permission as aforesaid limited to

the question put to the Investigating Officer about

the entry regarding registration of the F.I.R. is given

and the learned defence Advocate can see the case

diary of the related date 14.2.2015 and only to that

extent put related question if he desires so in cross-

examination of PW 19 the Investigating officer.”

4.

The learned counsel for the petitioner submits that from

the para No. 26 of the cross-examination it would appear that the

questions were put to witness to know if he had visited the alleged

spot of incident on the date F.I.R. was lodged. It is submitted that

initially witness had stated that he had gone to the spot of incident,

and then he took somersault and had stated that he returned back

without going to the actual spot of incident. It is submitted that the

witness then admitted that the Investigating Officer has to visit the

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spot of incident immediately on registering F.I.R. It is submitted that,

then the witness was asked, if he had taken any entry in the case

diary. It is submitted then the witness thought it fit to refer to case

diary and stated that he does not remember if any entry was taken in

the station diary. It is submitted that the trial Court therefore, ought

to have permitted accused to see and use the case diary to cross-

examine PW 19 to that extent.

5.

The learned counsel for the petitioner, in support of his

submissions has relied upon various judgments of Hon’ble the

Supreme Court and the High Courts.

6.

On the other hand, the learned A.P.P. for respondent-

State submits that the right of the accused to see and use the case

diary for cross-examining the police officer under Section 172 of the

Cr.P.C. is very much limited to the extent only when the Court uses

such entries to contradict the Police Officer and when such Police

Officer see it