Gujarat High Court
Mohamad Ansar Kutubuddin Ansari And ... vs State Of Gujarat on 30 October, 2004
JUDGMENT R.K. Abichandani, J.
1. In all these appeals, the appellants have challenged the orders made by the learned Special Judge (POTA), rejecting the respective applications of these appellants for grant of bail on the ground that investigation was not completed within the time contemplated under Section 167(2) of the Code of Criminal Procedure, 1973 read with Section 49 of the Prevention of Terrorism Act, 2002 (POTA). The original applications were clubbed at the request of the learned counsel appearing before the learned Special Judge (POTA) and argued together. Today, before us, the learned counsel for the appellants has argued all these appeals together, since they involve a common question as to whether the appellants should be released on "default bail".
2. The alleged incident occurred on 27.2.2002 near "A" cabin of the Godhra railway station, in which a mob attacked the Sabarmati Express train and set on fire coach No. S/6 that resulted in the death of 59 passengers and injuries to 48 passengers. One hundred and thirty-one persons were alleged to have been involved in conspiring and committing the said crime. All these appellants were arrested in connection with CR No. 9/2002 for the offences punishable under Sections 143, 147, 148, 149, 435, 153-A, 337, 338, 120B, 34, 302 & 307 of the I.P.C., Sections 141, 151 & 152 of the Indian Railways Act, Sections 3 and 4 of the Prevention of Damages to Public Property Act and Section 135(1) of the Bombay Police Act.
3. The applications for bail were filed by these accused persons on the ground that the chargesheet submitted on 22nd May, 2002 was a `dummy' and incomplete chargesheet, filed only with a view to take away their legal entitlement to be enlarged on bail. The learned Special Judge (POTA), after considering the provisions of the Code, noted that if the chargesheet was filed before expiry of the maximum period for which the accused can be detained in the custody under Section 167, further remand to custody can be ordered under Section 309 of the Code. It was found that in the instant case, there was no report made by the Public Prosecutor either to the Sessions Court or to any other court, requesting for extension of the period of investigation, nor had any court granted such permission and, therefore, the time period stipulated under the law to be computed from the date of arrest of the accused till the laying of chargesheet was 90 days in the case of each of these accused. The Court held that the first chargesheet was filed on 22nd May, 2002 and copies thereof were made available to each of the accused by the Court on 15th June, 2002 and they were remanded to the judicial custody under Section 309 of the Code. The accused persons were also informed about the adding of the offences under POTA, 2002. It was held that though there was subsequent invocation of the provisions of the POTA, 2002, prior to that, there was no legal hitch in taking cognizance of the offence in respect of which chargesheet was already submitted. It was held that since discovery of fresh facts were permitted to be brought on record by virtue of Section 173(8) of the Code, it could not be said that the initial chargesheet was `dummy', vague or piecemeal chargesheet, when the initial chargesheet was filed before the expiry of the period during which the appellants could have been detained in custody. The learned Special Judge, therefore, rejected all these applications for "default bail".
4. It was contended on behalf of the appellants that when the chargesheet was filed on 22nd May, 2002, investigation was already going on and had not completed as is clear from the footnote No. 9 to that chargesheet. It was also submitted that similar footnotes appeared even in the second chargesheet filed on 20th September, 2002 and third chargesheet filed on 19.12.2002. Such footnote again appeared at the end of the fourth chargesheet, which was filed on 16.4.2003. It was submitted that the question whether offences under the POTA should be included was already under investigation and, therefore, it cannot be said that the investigation had completed at the time when the first chargesheet was filed. The learned counsel argued that the provisions of Section 167 cannot be circumvented by merely filing a chargesheet and keeping incomplete even after filing of the chargesheet. He submitted that the provisions of Section 167(2) relating to "default bail" will be attracted if the investigation was in progress at the time when the chargesheet was filed. It was also submitted that the POTA investigation was over on 16th April, 2003 i.e. much after 90 days' period during which the appellants could have been lawfully detained in custody. The learned counsel then argued that the provisions of Section 173(8) cannot be resorted to circumvent the provisions of "default bail" and that regular investigation cannot be carried on under the guise of further investigation. It was submitted that if such a course was permitted, then the provisions of Section 167(2) would become redundant and it would tantamount to recognising a deviation to circumvent them. It was contended that an investigation cannot be split up for separate offences and compartmentalisation of chargesheet cannot be permitted, because, that would defeat the very object and purpose of providing for "default bail". It was also argued that where the investigation is complete in respect of some and not the other offences, it does not mean that investigation as envisaged under Section 167 is complete. The investigation as a whole for all offences should be completed to deprive the accused of the benefit of Section 167(2) of the Act, argued the learned counsel. It was submitted that Section 173(8) comes into play when investigation is over and starting point for further investigation should fall after submission of the chargesheet. If the starting point is prior to filing of the chargesheet, it cannot be styled as a further investigation.
5. In support of his contentions, the learned counsel relied upon the following decisions:-
[a] The decision of the Supreme Court in State Through CBI v. Dawood Ibrahim Kaskar and Ors., reported in (2000) 10 SCC 438, was cited to point out that the Supreme Court held that, the remand and the custody referred to in the first proviso to Section 309 of the Act are different from detention in custody under Section 167. While remand under the former relates to a stage after cognizance and can only be to judicial custody, detention under the latter relates to the stage of investigation and can initially be either in police custody or judicial custody. Since, however, even after cognizance is taken of an offence, the police has power to investigate in it further, which can be exercised only in accordance with Chapter XII, there is no reason whatsoever why provisions of Section 167 thereof would not apply to a person who comes to be later arrested by the police in course of such investigation.
[b] The decision of the Supreme Court in Uday Mohanlal Acharya v. State of Maharashtra, reported in (2001) 5 SCC 453, was cited for the proposition that, when maximum period of custody is provided under Section 167(2) proviso, any further detention of the accused beyond that period without filing a Challan would amount to violation of Article 21. It was held that accused had an indefeasible right to be released on bail when investigation was not completed within the specified period and in order to avail of such right, the accused is only required to file an application before the Magistrate seeking release on bail alleging that no Challan had been filed within the prescribed period and that he is prepared to offer bail on being directed by the Magistrate. It was held that where application of the accused was erroneously rejected by Magistrate and the accused moved higher forum, but during pendency of the matter before that forum chargesheet was filed, indefeasible right of the accused was not affected. The Supreme Court overruled its earlier decision in State of M.P. v. Rustam and Ors., reported in (1995) Supp (3) SCC 221, holding that it did not express correct position in law of the expression "if already not availed of" used by the Constitution Bench in Sanjay Dutt's case. [1994 AIR SCW 3857] [c] The decision of the Supreme Court in Aslam Babalal Desai v. State of Maharashtra, reported in (1992) 4 SCC 272, was cited for the proposition that the purpose and object of providing for the release of an accused under sub-section (2) of Section 167 on the failure of the investigating agency completing the investigation within the extended time allowed by the proviso was to instill a sense of urgency in the investigating agency to complete the investigation promptly and within the statutory time-frame.
[d] The decision of the Kerala High Court in S.M. Purtado v. Dy. S.P., C.B.I. Cochin, reported in 1996 Cri. L.J. 3042 was cited to point out that filing of a piece-meal charge report only in respect of the offence under one enactment and not a final report for the offences under all enactments was held to be not permissible. It was held that the investigation under Section 167 of the Code can be one involving one or more offences against the accused persons. The investigation of a case cannot be split up in such a way to file piece-meal reports before the Court. Section 173 of the Code, does not stipulate a piece-meal investigation and filing of incomplete charge sheet before the Court. It contemplated filing of a charge sheet after completion of the entire investigation of the case in respect of all offences and where several offences were involved in a case, a charge report could be laid before the Court only after the investigation is over and formation of an opinion regarding all the offences alleged against the accused.
[e] The decision of the Supreme Court in State of Maharashtra v. Bharati Chandmal Varma (Mrs) alias Ayesha Khan, reported in (2002) 2 SCC 121 was cited for the proposition that on the expiry of the period contemplated by the provisions of Section 167(2) proviso, further custody was unauthorised and the arrested person is required to be released on bail if he is prepared to furnish bail. It was held that if the investigation into the offence for which a person was arrested initially had revealed other ramifications associated therewith, any further investigation would continue to relate to the same arrest and hence the period envisaged in the proviso to Section 167(2) would remain unextendable.
6. The learned Public Prosecutor supported the reasoning adopted by the Special Judge (POTA) and submitted that since the chargesheet was filed within the time during which the accused persons could be kept under detention under Section 167(2), it cannot be said that further investigation, which was contemplated by Section 173(8), had the effect of creating any right in favour of the appellants. It was submitted that foot Note-9 in the chargesheet was as per the provisions of Section 173(8) of the Code and that each further report was in respect of different accused persons, who were from time to time arrested. It was submitted that the chargesheet, which was initially filed on 22nd May, 2002 for 54 accused was self-contained and the Magistrate had taken cognizance of the offences named therein. Since such chargesheet was filed within 90 days from the date on which these appellants were detained, there arose no question of releasing them on "default bail". The learned Public Prosecutor placed reliance on the decision of the Supreme Court in Central Bureau of Investigation v. R.S. Pai, reported in AIR 2002 SC 1644 for the proposition that Section 173(8) of the Code made it abundantly clear that even after the chargesheet was submitted, further investigation, if called for, was not precluded.
7. By virtue of Section 49(2) of the Prevention of Terrorism Act,2002, Section 167 of the Code of Criminal Procedure will apply in relation to a case involving an offence under the said Act, subject to the modification that in sub-section (2) a reference to "fifteen days", "ninety days" and "sixty days" wherever they occur shall be construed as reference to "thirty days", "ninety days" and "ninety days" respectively. A proviso was inserted, inter alia, to the effect that, if it was not possible to complete the investigation within the said period of ninety days, the Special Court shall extend the said period up to one hundred and eighty days, on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the period of ninety days. It was contended on behalf of the accused that, since Section 167(2) of the Code applies, the accused became entitled to "default bail" as a matter of right, since the investigation was continued as per the Note-9 in the first and subsequent chargesheets, as noted above. It was contended that no extension was sought from the Special Court under the proviso inserted by Section 49(2) in Section 167 on the ground that it was not possible to complete the investigation.
8. There is no dispute about the fact that chargesheet was filed against these appellants and others on 22nd May,2002, within the period contemplated by Section 167(2) of the Code. However, the Note-9 below the chargesheet, stating that the further investigation of the case was being done and if further evidence is obtained, a further report will be forwarded to the Magistrate in the prescribed form. By Section 173(1) it is provided that every investigation shall be completed without unnecessary delay. Under sub-section (2) of Section 173, as soon as the investigation is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government stating--
[a] the names of the parties;
[b] the nature of the information;
[c] the names of the persons who appear to be acquainted with the circumstances of case;
[d] whether any offence appears to have been committed and, if so, by whom;
[e] whether the accused has been arrested;
[f] whether he has been released on his bond and, if so, whether with or without sureties;
[g] whether he has been forwarded in custody under Section 170.
9. A report under Section 173(2) is to be sent after the investigation is completed. Section 173 itself contemplates in sub-section (8) that even after such completion of investigation and sending of the police report i.e. chargesheet under Section 173(2), such a course shall not be deemed to preclude further investigation. The police report is forwarded to the Magistrate under Section 173(2) as soon as the investigation is completed. This is why when chargesheet is forwarded, the investigation is taken to be completed. Ordinarily, this would mean that no further investigation remained to be done. However, by providing in sub-section (8) of Section 173 that "nothing in this section shall be deemed to preclude further investigation", while requiring the chargesheet has to be forwarded after completion of the investigation, the legislature has, in its wisdom, enabled the investigating agencies to forward any fresh evidence that may be found after forwarding the chargesheet. The expression "investigation cannot be completed" in Section 167(1) of the Code, therefore, obviously refers to the investigation before the forwarding of the final report i.e. chargesheet under Section 173(2) and not to any further investigation after the chargesheet is forwarded, which is deemed not to be precluding further investigation by virtue of sub-section (8) of Section 173. As held by the Supreme Court in K. Chandrasekhar v. State of Kerala, reported in AIR 1998 Supreme Court 2001 in para-25 of the judgment, from a plain reading of the provisions of Section 173(1)(2) and (8), it is evident that even after submission of police report (i.e. chargesheet), under sub-section (2) of Section 173 on completion of investigation, police has a right of "further" investigation under sub-section (8) but not "fresh investigation" or "re-investigation". It was held that further investigation is continuation of such investigation, culminating in a further report under sub-section (8) of Section 173. The Supreme Court noted that the dictionary meaning of "further" ( when used as an adjective) is, additional, more, supplemental. In the present case, Note-9 below chargesheet, which was filed within the period of 90 days from the date of detention of the accused was clearly for a further investigation and further report and not fresh investigation or re-investigation. The chargesheet, which was filed in time was self-contained and on the basis of that chargesheet, cognizance of the offences mentioned therein was taken by the Magistrate. There is, therefore, no substance in the contention that the chargesheet was `piece-meal' and `dummy' or that the investigation was not complete.
10. The word "investigation" is defined in Section 2(h) of the Code so as to include all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. It is the Investigating Officer, who ordinarily would decide when to make final report. When the Investigating Officer, on completion of the investigation, as contemplated by Section 2(h), under which he collects evidence, finds that the offences are made out and sends final report, his option to make further investigation would not alter the nature of such final report. On perusal of the chargesheet, in the context of the provisions of Section 173(2)(a) to (g), it is evident that the chargesheet filed on 22.5.2002 contained all the material particulars that it is required to contain under Section 173(2)(a) to (g). Note-9 below the chargesheet was inserted in consonance with the enabling provisions of Section 173(8) which refers to the further investigation after the police report is sent on completion of the investigation under Section 173(2). The stage of further investigation under Section 173(8) is obviously a stage after the completion of the investigation and sending of the final report i.e. chargesheet, under Section 173(2) and it cannot have any impact on the provisions of Section 167(2) which refer to the investigation prior to the sending of the final report under Section 173(2) of the Act.
11. There is, therefore, no substance in any of the contentions raised on behalf of the appellants. We find ourselves in complete agreement with the reasoning adopted by the Special Judge (POTA) for rejecting the applications of these appellants. All these appeals are, therefore, dismissed.