IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1003 OF 2008 The State of Maharashtra .. Petitioner Vs. Dharmil Anil Bodani .. Respondent Mr.J.P.Yagnik, A.P.P for the Petitioner. Mr.Mahesh Jethmalani, Sr.Counsel with Mr.Rahul Dhumal for Respondent No.1. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE : 15th July 2008. P.C.: . I have heard the submissions of the learned A.P.P for the applicant and the learned counsel appearing for the respondent. The applicant State has invoked the provisions of section 482 of the Code of Criminal Procedure, 1973 read with Article 226 of the Constitution of India for challenging an order dated 11th July 2007 passed by the learned Magistrate. 2. It will be necessary to refer to the facts of the case in brief. The respondent lodged a complaint with the Deputy Commissioner of Police, Economic Offences Wing, Bombay against one Govind Gupta, Ashwin Mehta and Rajesh Khandelwal and Vinod Horitwal for : 2 : offences punishable under sections 409, 465, 467, 468, 471, 474, 477, 477-A read with section 120-B of the Indian Penal Code. On the basis of the said complaint, on 21st May 2001 F.I.R was registered against the accused persons for offences punishable under section 409, 465, 467, 468, 471, 474, 477, 477-A read with section 120(B) of the Indian Penal Code. After carrying out investigation, a report was submitted by the Investigating Officer praying for classifying the case as "C" summary. A copy of the report under section 173 of the Code of Criminal Procedure, 1973 was made available to the respondent- original complainant. On 11th July 2007 when the report came up for consideration before the learned Additional Chief Metropolitan Magistrate, Bombay, a grievance was made by the advocate for the respondent that following documents were not supplied by the prosecution: "1. Investigating reports submitted by ACP Inamdar to the Jt.C.P. (Crime) 2. Minutes book of Board of Directors of M/s.Manju Meadows Pvt.Ltd. 3. Copy of the Balance Sheet and Profit and : 3 : Loss account of Sommerville Farms Pvt.Ltd. 4. Copy of account opening form of Govind Gupta with Oriental Bank of Commerce. 5. Form No.18 of Sommerville Farms Pvt. Ltd." On the same day, the learned Magistrate passed an order directing the senior Police Inspector of Economic Offences Wing to supply the documents as per the aforesaid list given by the advocate for the respondent. 3. The challenge in this petition is to that part of the order by which a direction has been issued to supply a copy of investigation report submitted by the Assistant Commissioner of Police Shri Inamdar to the Joint Commissioner of Police (Crime). The submission of learned A.P.P is that the applicant has no objection if the said document is shown to the learned Additional Chief Metropolitan Magistrate. He submitted that the applicant has a strong objection for making available a copy of the said document to the respondent/complainant as the said document is a natural extension of the diary : 4 : of proceedings in investigation maintained under sub-section 1 of section 172 of the said Code. He submitted that the said document forms part of the diary and therefore at the most the trial Court can peruse the same. He submitted that in view of express provisions of section 172 of the said Code, a copy of the document cannot be directed to be produced before the Court. He submitted that a clear illegality has been committed by the learned Judge by directing production of the said document. He has placed reliance on certain decisions, a reference to which is made in the later part of this order. 4. The learned senior counsel appearing for the respondent submitted that the respondent is the original complainant and therefore even assuming that the document in question is a part of a diary contemplated by sub-section 1 of section 172 of the said Code, there is no prohibition under the provisions of the said Code for making available a copy of the said document to the respondent/complainant. He submitted that the said document which is the report submitted by the Assistant Commissioner of Police will show that the Investigating Officer has not conducted free and fair investigation. By way of reply, the learned A.P.P reiterated that the : 5 : petitioner has no objection if the learned Magistrate peruses the copy of the said document. 5. I have carefully considered the submissions. Admittedly the respondent is the 1st informant at whose instance the F.I.R has been registered. By submitting a final report under section 173 of the said Code, the Investigating Officer has prayed for grant of "C" summary. It is also not in dispute that the respondent has filed a protest petition before the learned Magistrate. In the protest petition specific reliance has been placed on the said document (report submitted by Shri Inamdar). 6. The learned A.P.P invited my attention to a decision of the Apex Court in the case of Mukund Lal Vs. Union of India & Anr (AIR 1989 SC 144). He pointed out that the Apex Court has considered the entire scheme of the section 172 of the said Code and has quoted with approval a decision of Allahabad High Court which holds that the reports or observations of superior officers of the Investigating Officer form part of the case diary. He pointed out that the Allahabad High Court had held that the report of superior officers are of confidential nature and a privilege can be claimed by the : 6 : prosecution. 7. It must be noted here that what was challenged before the Apex Court was constitutional validity of a part of section 172 of the said Code. The decision of the Allahabad High Court quoted by the Apex Court is in the context of a right claimed by accused to have an access to the reports of the superior officers forming part of the diary. He also placed reliance on another decision of the Apex Court in the case of Naresh Kumar Yadav Vs. Ravindra Kumar & Ors. [(2008) 1 SCC 632]. It again deals with the right claimed by an accused of supply of copies of the relevant documents. 8. It will be necessary to refer to sub section 3 of section 172 which reads thus: "172. Diary of proceedings in investigation.- (1) ..... (2) ... (3) Neither the accused nor his agents shall : 7 : 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 161 or section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), shall apply." There is nothing in sub section 3 or in any other sub section of section 172 which incorporates a prohibition against a copy of the report being supplied to the original complainant. All that the law lays down is that neither the accused nor his agent shall be entitled to call for the diaries. 9. In the present case, the Investigating Officer is seeking "C" summary. The learned Magistrate has to pass appropriate order after considering the protest petition filed by the respondent. In the protest petition, a reliance has been placed on the said document which is ordered to be produced. Considering the stage of the proceedings and facts of the case, it : 8 : is obvious that the petitioner cannot claim privilege when production of the said document is sought by the respondent/complainant. As stated earlier, the bar created by sub section 3 of section 172 will not be applicable in the present case. 10. The petitioner has invoked extra-ordinary jurisdiction of this Court under Article 227 of the Constitution of India. The petitioner has also invoked section 482 of the said Code. It is well settled law that the power under section 482 of the said Code has to be exercised sparingly and in rarest of the rare cases. Surely, this is not one of those cases where this Court Court can exercise powers under section 482 of the said Code. 11. I find no merit in the petition and the same is accordingly rejected. (A.S.Oka,J)