Bombay High Court
Chhagan Bhima Gharbude vs The State Of Maharashtra And Another on 29 July, 2025
2025:BHC-AUG:19925
1 Cri.W.P. 651-2025.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 651 OF 2025
Chhagan s/o Bhima Gharbude
Age : 59 years, Occu. : Agri.
R/o. : Pandharwadi, Tq. Georai,
Dist. Beed. .. Petitioner
Versus
1. The State of Maharashtra
Through its Police Inspector
Talwada, Tq. Georai, Dist. Beed.
2. Kalyan Vasudeo Bhavale
Age : 29 years, Occu. : Agri.
R/o. : Pandharwadi, Tq. Georai,
Dist. Beed. .. Respondents
Mr. Rajendra G. Hange, Advocate for the Petitioner.
Smt. Chaitali Choudhari - Kutti, APP for Respondent No. 1.
Mr. Akshay D. Kulkarni, Advocate for Respondent No. 2.
CORAM : KISHORE C. SANT, J.
Date on which reserved for order : 08th July, 2025.
Date on which order pronounced : 29th July, 2025.
FINAL ORDER :-
. The present petition is by the informant on whose report the
Police registered Crime No. 287/2024 at Police Station Talwada,
District Beed for the offences punishable under Sections 103,
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61(2), 189(2), 191(2), 191(3), 190, 126(2) and 127(2) of the
Bhartiya Nyaya Sanhita (for short "B.N.S."). Respondent No. 1 is
the State. Respondent No. 2 is original accused in the case who
has filed a Criminal Bail Application No. 74/2025 pending in the
Court of learned Additional Sessions Judge, Beed.
2. By way of this petition the petitioner has challenged an
order passed below Exh. 20 in Criminal Bail Application No.
74/2025. The learned Additional Sessions Judge, Beed by way of
impugned order dated 03.05.2025 allowed the said application
and directed the Investigating Officer to produce entire record
pertaining to Crime No. 287/2024 registered with Talwada Police
Station including copy of General diary, station diary, case diary,
inward-outward register for the period 04.09.2024 till
07.03.2025. The said record is called in sealed envelope only for
the purpose of perusal by the Court. It is specifically ordered that
the accused and his advocate shall not inspect the same.
3. It is the argument of learned advocate Mr. Hange for the
petitioner that, there is no such provision for filing such
application by the accused person. He submits that, the present
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order is totally without jurisdiction and said amounts to improper
exercise of the power. He relies upon the following judgments :
(i) Balakram Vs. State of Uttarakhand and Ors.
reported in AIR 2017 SC 2375.
(ii) P. Chidambaram Vs. Directorate of
Enforcement reported in AIR 2019 SC 4198.
(iii) Prabir Purkayastha Vs. State (NCT of Delhi)
reported in AIR 2024 SC 2967.
4. The learned advocate Mr. Kulkarni for respondent No.
2/accused vehemently opposes the petition. He submits that, the
application was filed for producing the record only for the purpose
of the Court. There is no prayer to allow the accused to inspect
the said record. Section 192 (5) Bhartiya Nagarik Suraksha
Sanhita (for short "B.N.S.S.") permits the Court to call for such
record and to go through the same. The restriction is only that
the accused has no access to such record. He thus submits that
the learned Sessions Court has perfectly exercised the powers
vested with it. No interference is required in the said order.
5. Section 192 of the B.N.S.S. reads as under :
"192. Diary of proceedings in investigation.--(1) Every
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police officer making an investigation under this Chapter
shall day by day enter his proceedings in the investigation
in a diary, setting forth the time at which the information
reached him, the time at which he began and closed his
investigation, the place or places visited by him, and a
statement of the circumstances ascertained through his
investigation.
(2) The statements of witnesses recorded during the
course of investigation under section 180 shall be inserted
in the case diary.
(3) The diary referred to in sub-section (1) shall be a
volume and duly paginated.
(4) Any Criminal Court may send for the police diaries of
a case under inquiry or trial in such Court, and may use
such diaries, not as evidence in the case, but to aid it in
such inquiry or trial.
(5) Neither the accused nor his agents shall be entitled to
call for such diaries, nor shall he or they be entitled to see
them merely because they are referred to by the Court;
but, if they are used by the police officer who made them
to refresh his memory, or if the Court uses them for the
purpose of contradicting such police officer, the provisions
of section 148 or section 164, as the case may be, of the
Bharatiya Sakshya Adhiniyam, 2023, shall apply."
6. The learned advocate for respondent No. 2 further submits
that, by making this application the accused is not gaining
anything as he is in jail. The papers are necessary for deciding the
application filed seeking that the arrest is illegal. The record
would facilitate the Court to take proper decision on the
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application seeking such declaration. The petition is objected
stating that, the application was filed by the prosecution in the
Trial Court whereas, the petition is filed by the informant directly.
7. Thus looking to sub section (5), it specifically bars the
accused from calling for such diaries, nor they are permitted to see
the record merely because the record is referred to by the Court.
Only exception is when the Police Officer uses the same to refresh
his memory, or when the Court uses such record for the purpose of
contradicting such police officer, in that case the provisions of
section 148 or section 164 of the Bharatiya Sakshya Adhiniyam,
shall apply.
8. In the application, the accused has stated that, investigating
agency after inordinate delay filed say to application for bail. His
arrest dated 24.02.2025 itself is illegal. No notice was given to
the accused. No information of the grounds of arrest is also given.
The letters mentioned do not bear any outward number. In the
arrest, there is no mention of issuance of any letters. At last, a
request is made to call for all the record.
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9. In the present case, the application was filed by the accused
in the bail application. The accused filed application for bail. He
thereafter file an application for declaring his arrest in the case as
illegal. It is thereafter the application is filed calling for the record
from the Police Station. The said application was specifically
opposed by the petitioner by filing say to the application. It is
stated that, it was the duty of the accused and his advocate to
peruse the relevant documents filed in the charge-sheet by the
Investigating Officer. Having failed to do so, now the accused
cannot ask for the documents which are not part and parcel of the
charge-sheet.
10. This Court finds that, the application was filed without
mentioning as to exact for what purpose the documents are
required. From the order of learned Sessions Court also it is not
clear as to what made the learned Sessions Court to allow the
application of the accused. That too after filing of the charge-
sheet.
11. In the case of P. Chidambaram (supra), the Hon'ble Supreme
Court held that sub section (2) of Section 172 of the Code of
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Criminal Procedure (now to Section 192 of the B.N.S.S.) permits
any Court to send for case diary to use them in the trial. Section
172 (3) specifically provides that, neither the accused, nor his
agents are entitled to call for case diary, nor they are entitled to
see them merely because they are referred to by the Court. In the
said case, the Court also considered the case of Sidharth and Ors.
Vs. State of Bihar reported in (2005) 12 SCC 545.
12. By relying upon the case of Balakram (supra), the Court
observed that, confidentiality is always to be maintained in the
matter of investigation and it is not desirable to make the police
dairy available to the accused on his demand. In the said case, the
Hon'ble Apex Court observed that, the police diary is only a record
of day to day investigation by the investigation. The accused or
his agents are not entitled to call for such diary and see them
during the course of inquiry or trial. The unfettered right is only
given to the Court to examine the entries of the police diary. Such
right is not available to the accused. It is further held in the said
case that, denial of right to the accused to inspect the case diary
cannot be said to be unreasonable or arbitrary.
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13. In the case of Prabir Purkayastha (supra), though other
judgments are also relied upon, this Court finds that, the basic
principle to be kept in mind is as to whether the Court has power
to call such record from the Police Station. The answer is yes.
14. The next question as to whether in the present case the
Court is justified in calling the record on an application filed by
the accused person. This Court finds that, in the application
below Exh. 20-D there are no specific reasons given for calling the
record from Police Station. It is only stated that, it would be to
facilitate the Court while deciding the bail application and mainly
the application seeking declaration that arrest of the accused as
illegal. There is no quarrel about the propositions in the cases of
Balakram (supra), P. Chidambaram (supra) and Prabir
Purkayastha (supra).
15. Objection by the respondent is raised that the application in
the Trial Court was opposed by the State and this petition filed by
the informant is not maintainable. It is argued by the petitioner
that the prosecution is conducted by prosecution engaged by the
informant. The application was thus opposed on his behalf. This
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Court need not go into that as this is a writ petition filed under
Article 227 of the Constitution and not any proceeding provided
by any statute. This Court, therefore, in a fit case can exercise its
power.
16. In the present case, looking to the application and looking to
the order impugned in the petition this Court does not find that,
in the present case such application is justifiable and the order is
rightly passed. The learned Sessions Judge while allowing the
application has not given sufficient reason as to what made the
Court to think that the application need to be allowed. It is
merely observed that, no prejudice or harm would be caused to
the prosecution if the record is called. This reason can hardly be
said to be sufficient enough to allow the application of the
accused. Thus, in the present case, this Court finds that the
exercise was improper. The impugned order, therefore, deserves
to be quashed and set aside.
17. In view of the above, criminal writ petition is allowed in
terms of prayer clause (B).
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18. Criminal writ petition stands disposed of.
( KISHORE C. SANT, J. )
P.S.B.
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