Bombay High Court
Virendra @ Gijrya S/O Suresh Lonare And ... vs State Of Maharashtra, Through P.S.O. ... on 5 May, 2016
Author: Z.A. Haq
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL WRIT PETITION NO.182/2016
1. Virendra @ Gijrya s/o Suresh Lonare,
aged about 38 Yrs., Occu. Cycle Stores,
R/o Near Maitri Buddha Vihar,
New Babulkheda, Nagpur.
2. Vicky s/o Damodar Rokade,
R/o Quarter No.RB/2/270/B,
aged about 29 Yrs., Occu. Service,
Ajni Railway Quarter, Nagpur.
(presently both are lodged in
Central Jail, Nagpur) ..Petitioners.
..Versus..
1. State of Maharashtra,
through Police Station Officer,
Police Station Ajni, Nagpur.
2. Assistant Commissioner of Police,
Ajni Division, Nagpur. ..Respondents.
CRIMINAL WRIT PETITION NO.197/2016
1. Bhupendra @ Golu s/o Suryakant Borkar,
aged about 31 Yrs., Occu. Private Work,
R/o Plot No.104, Kashi Nagar,
Near Samrat Ashok Buddha Vihar,
Nagpur.
2. Dinesh s/o Bhondulal Baisware,
aged about 33 Yrs., Occu. Washerman,
R/o Galli No.1, New Babulkheda,
Dhobi Mohalla, Nagpur.
(presently both are lodged in
Central Jail, Nagpur) ..Petitioners.
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..Versus..
1. State of Maharashtra,
through Police Station Officer,
Police Station Ajni, Nagpur.
2. Assistant Commissioner of Police,
Ajni Division, Nagpur. ..Respondents.
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Shri D.V. Chauhan, Advocate for the petitioners. .....(in W.P. No.182/2016.)
Shri S.P. Gadling, Advocate for the petitioners. .....(in W.P. No.197/2016.)
Shri S.S. Doifode, A.P.P. for the respondents. .....(in both petitions)
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ig CORAM : Z.A. HAQ, J.
DATE : 05.05.2016
JUDGMENT
1. Heard Shri D.V. Chauhan, advocate for the petitioners in Writ Petition No.182/2016, Shri S.P. Gadling, advocate for the petitioners in Writ Petition No.197/2016 and Shri S.S. Doifode, A.P.P. for the respondents in both the writ petitions.
2. The petitioners, in both writ petitions, have challenged the order passed by the learned Special Judge designated under the Maharashtra Control of Organized Crime Act, 1999 (for short "MCOC Act") rejecting the applications filed by the petitioners under Section 167(2) of the Code of Criminal Procedure. The petitioners have also challenged the order passed by the learned Special Judge directing that the remand papers along with bail warrant of the accused be transmitted to the ::: Uploaded on - 18/05/2016 ::: Downloaded on - 10/06/2016 21:07:55 ::: 3 wp182.16 Court of Additional Chief Judicial Magistrate and directing the accused to attend the Court of Additional Chief Judicial Magistrate for further proceedings in the crime registered against them and directing the Jail Superintendent to produce the accused before the Court of Additional Chief Judicial Magistrate. The petitioners have also challenged the order passed by the learned Additional Chief Judicial Magistrate rejecting the applications filed by the petitioners under Section 167(2) of the Code of Criminal Procedure.
The challenges raised in both the writ petitions are common, therefore, both these writ petitions are disposed by common judgment. The petitioners in both the writ petitions are arrested in Crime No.172/2015 registered with the police station Ajni, Nagpur for offences punishable under Sections 307, 143, 144, 147, 148, 149, 294, 427 of the Indian Penal Code and Sections 3, 4, 25 and 27 of the Arms Act.
3. On receipt of F.I.R. in respect of incident dated 28 th May, 2015, crime is registered with police station Ajni, Nagpur for the above referred offences against the petitioners. The petitioners were arrested on 29 th May, 2015 and were produced before the Court of Additional Chief Judicial Magistrate, Nagpur on 30 th May, 2015.
Initially the petitioners were remanded to police custody till 3 rd June, 2015 and later on sent to magisterial custody remand till 18 th June, 2015 which was extended to 29th June, 2015. During this period, the respondents sought approval from the competent authority to register offence punishable under Section 3 of the MCOC Act ::: Uploaded on - 18/05/2016 ::: Downloaded on - 10/06/2016 21:07:55 ::: 4 wp182.16 and it was accorded and offence punishable under Sections 3 and 4 of the MCOC Act came to be added in the F.I.R./crime registered against the petitioners. As the offence under the provisions of MCOC Act is registered against the petitioners, the matter stood transmitted to the Court of Special Judge.
On 24th July, 2015, the Special Public Prosecutor filed an application stating that the statutory period for filing the charge-sheet against the petitioners was to expire on 28th July, 2015 and as the investigation was not complete extension up to 150 days i.e. till 26th October, 2015 was sought to file the charge-sheet. By an order dated 28th July, 2015, the learned Special Judge granted further 60 days time to file the charge-sheet. The Investigating Officer was required to file the charge-sheet before the Special Judge till 26 th September, 2015.
On 23rd September, 2015, the Investigating Officer filed an application before the Additional Chief Judicial Magistrate requesting that the charge-sheet against the petitioners for the offences punishable under Indian Penal Code be accepted. The learned Additional Chief Judicial Magistrate passed an order on 23 rd September, 2015, accepted the charge-sheet and directed that the Special Court be requested to send the remand papers of the petitioners. The learned Special Judge passed an order on 23rd September, 2015 directing the office to transmit the remand papers along with the bail warrant of the petitioners to the Court of Additional Chief Judicial Magistrate. The learned Special Judge directed the Jail Superintendent to produce the petitioners before the Additional Chief Judicial Magistrate.
::: Uploaded on - 18/05/2016 ::: Downloaded on - 10/06/2016 21:07:55 :::5 wp182.16 At this stage, on 23 rd September, 2015 itself, applications under Section 167(2) of the Code of Criminal Procedure were filed before the Additional Chief Judicial Magistrate stating that the charge-sheet for the offences under the MCOC Act was required to be filed till that date, however, it was not filed and, therefore, the petitioners were entitled to be released on bail. The learned Additional Chief Judicial Magistrate, by the order dated 29 th September, 2015, rejected the applications filed by the petitioners.
The petitioners simultaneously moved applications under Section 167(2) of the Code of Criminal Procedure before the Special Court contending that the charge-sheet against them should have been filed till 26 th September, 2015 before the Special Court, however, as the charge-sheet was not filed, they are entitled to be released on bail. The petitioners filed applications before the Additional Chief Judicial Magistrate on 13th October, 2015 requesting that the remand papers be transmitted to the Special Court. The learned Additional Chief Judicial Magistrate passed an order on these applications on 13 th October, 2015 and directed that the charge-sheet which was filed before him and the case papers be sent to the Special Court. The learned Special Judge by the order dated 22 nd January, 2016 rejected the applications filed by the petitioners under Section 167(2) of the Code of Criminal Procedure. The petitioners being aggrieved by the orders passed by the learned Special Judge and Additional Chief Judicial Magistrate rejecting the applications filed by the petitioners under Section 167(2) of the Code of Criminal Procedure, ::: Uploaded on - 18/05/2016 ::: Downloaded on - 10/06/2016 21:07:55 ::: 6 wp182.16 have filed these writ petitions.
4. The claim of the practitioners is that they are entitled to be released on bail as per the right conferred by Section 167(2) of the Code of Criminal Procedure. The genesis of the claim of the petitioners is that the Investigating Agency cannot file charge-sheet in piecemeal and as offence under MCOC Act is registered against the petitioners and the Special Court had granted extended period till 26 th September, 2015 to file the charge-sheet against the petitioners and as the charge-sheet for the offences under the MCOC Act is not filed against the petitioners till 26 th September, 2015 and as the petitioners filed applications invoking the right under Section 167(2) of the Code of Criminal Procedure, they are entitled to be released on bail.
5. The learned advocates for the petitioners have submitted that the right under Section 167(2) of the Code of Criminal Procedure is an indefeasible right and cannot be subverted by filing incomplete report/charge-sheet. It is submitted that the Investigating Officer sought permission of the competent authority to register offences under MCOC Act and after the permission is accorded, the offence under MCOC Act is registered against the petitioners. It is submitted that the Investigating Agency has taken advantage of the provisions of Section 21 of the MCOC Act and sought extension of period for filing the charge-sheet against the petitioners and the learned Special Judge granted extended period till 26 th September, 2015 to the ::: Uploaded on - 18/05/2016 ::: Downloaded on - 10/06/2016 21:07:55 ::: 7 wp182.16 Investigating Agency to file the charge-sheet, and in these circumstances, Investigating Agency was required to file the charge-sheet against the petitioners for all the offences including the offence under MCOC Act, till 26 th September, 2015 and it was not open for the Investigating Agency to file incomplete report/charge-sheet against the petitioners only for the offences under Indian Penal Code. To support this submission, reliance is placed on the following judgments:
(i) Judgment given by the Division Bench of Kerala High Court in the case of S.M. Purtado and etc. etc. V/s. Dy. S.P., C.B.I., Cochin and etc. etc. reported in 1996 Cri. L.J. 3042 and
(ii) Judgment given by the High Court of Delhi in the case of Tunde Gbaja V/s. Central Bureau of Investigation reported in 2007(95) DRJ 429.
It is submitted that the Additional Chief Judicial Magistrate had no jurisdiction to accept the charge-sheet against the petitioners as the case was in the Court of Special Judge and it was only the Special Judge who could exercise jurisdiction in the matter of remand of the petitioners. It is argued that if at all the Investigating Agency wanted to file incomplete report/charge-sheet on 23 rd September, 2015, it should have been filed before the Special Court and the Special Court could have transmitted the charge-sheet to the Court of Additional Chief Judicial Magistrate on refusal of the sanction as required by Section 23(2) of the MCOC Act. It is argued that the Special Court and the Additional Chief Judicial Magistrate could not have simultaneously exercised jurisdiction in the matter.
It is submitted that for the above reasons the impugned orders are ::: Uploaded on - 18/05/2016 ::: Downloaded on - 10/06/2016 21:07:55 ::: 8 wp182.16 unsustainable. It is prayed that the respondents be directed to release the petitioners on bail as per Section 167(2) of the Code of Criminal Procedure.
6. The learned A.P.P. has submitted that the claim made on behalf of the petitioners relying on the provisions of Section 167(2) of the Code of Criminal Procedure, is misdirected. It is argued that the Investigating Agency is well within its right to file the charge-sheet against the petitioners for the offences under Indian Penal Code and the charge-sheet for the crime registered against the petitioners for the offences under Indian Penal code is not required to be filed before the Special Court but is required to be filed before the Magistrate and accordingly it is filed before the Additional Chief Judicial Magistrate. It is submitted that the custody of the petitioners in crime registered against them for offences under Indian Penal Code immediately on filing of charge-sheet is authorized as cognizance is taken of the offence by the Additional Chief Judicial Magistrate and the applications under Section 167(2) of the Code of Criminal Procedure are filed by the petitioners subsequently and, therefore, the petitioners are not entitled to claim bail as per Section 167(2) of the Code of Criminal Procedure. It is submitted that the impugned orders are proper. It is prayed that the petitions be dismissed.
7. After considering the submissions made by the learned advocates for the petitioners and the learned A.P.P., in my view, the following point arises for ::: Uploaded on - 18/05/2016 ::: Downloaded on - 10/06/2016 21:07:55 ::: 9 wp182.16 consideration :
Whether the Investigating Agency is bound to file the charge-sheet against the accused for all the offences which are made out on the basis of the F.I.R. ?
The foundation of the claim of the petitioners regarding their alleged right under Section 167(2) of the Code of Criminal Procedure is based on the presumption that the Investigating Agency is bound to file a composite charge-sheet for all the offences which are made out on the basis of the averments made in the F.I.R. With this pre-supposition, the petitioners claim that the charge-sheet should have been filed before the Special Court designated under MCOC Act and for all the offences including the offence under the MCOC Act. However, the learned advocates for the petitioners have not been able to point out any provision which imposes such compulsion on the Investigating Agency.
8. To test the legality of submissions made on behalf of the petitioners that the filing of charge-sheet against the petitioners for offences under Indian Penal Code amounts to filing of incomplete report/charge-sheet and filing of charge-sheet in piecemeal, one aspect which is required to be considered is whether more than one charge-sheet can be filed on the basis of same F.I.R. On considering the provisions of Section 173 of the Code of Criminal Procedure it is clear that the report as contemplated by Section 173(2) of the Code of Criminal Code has to be forwarded to the Magistrate empowered to take cognizance of the offence and the provisions ::: Uploaded on - 18/05/2016 ::: Downloaded on - 10/06/2016 21:07:55 :::
10 wp182.16 of Section 173(8) of the Code of Criminal Procedure enables the Investigating Officer to submit/forward further report/reports to the Magistrate. The learned advocates for the petitioners have not been able to point out any restriction on the powers/authority of the Investigating Officer requiring him to file one charge-sheet for all the offences which are made out on the basis of the averments in the F.I.R.
In the order given by the Karnataka High Court in the case of Motisham Mohammed Ismail V/s. Central Bureau of Investigation, SCD Bank Securities and Frauds Cell reported in 2003 CRI. L.J. 4763, it is held that for filing distinct charge-
sheets for distinct offences, distinct F.I.R. is not required and separate charge-sheets can be filed for distinct offences made out on the basis of the same F.I.R.
In the order given by the Andhra Pradesh High Court in the case of M/s.
Jagati Publications Ltd. V/s. Central Bureau of Investigation, Hyderabad reported in 2013 CRI. L.J.118, the proposition which culls out is that the distinct reports under Section 173(2) of the Code of Criminal Procedure can be filed for distinct offences.
9. The most important consideration, to deal with the submissions made on behalf of the petitioners, is whether further investigation is permissible though report under Section 173(2) of the Code of Criminal Procedure is filed.
In the judgment given in the case of Ramachandran V/s. R. Udayakumar & Ors. reported in 2008 CRI. L.J. 4309 in paragraph no.6 it is laid down as follows:
::: Uploaded on - 18/05/2016 ::: Downloaded on - 10/06/2016 21:07:55 :::11 wp182.16 "6. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or re-investigation. This was highlighted by this Court in K. Chandrasekhar v. State of Kerala and Ors. (1998 (5) SCC
223). It was, inter alia, observed as follows:
"24. The dictionary meaning of "further" (when used as an adjective) is "additional; more; supplemental". "Further"
investigation therefore is the continuation of the earlier investigation and not a fresh investigation or re-investigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a "further" report or reports - and not fresh report or reports - regarding the "further" evidence obtained during such investigation."
In the order given in the case of Essar Oil Limited & Ors. V/s. Central Bureau of Investigation & Anr. reported in 2010 CRI. L.J. 224 Gujarat High Court has laid down that the further investigation under Section 173(8) of the Code of Criminal Procedure is permissible even after the final report is submitted under Section 173(2) of the Code of Criminal Procedure and accepted by the Magistrate.
Considering the above proposition, I find that the filing of the charge-sheet against the petitioners for the offences punishable under Indian Penal Code is not illegal. If the submission made on behalf of the petitioners is accepted, it will have the effect of putting restrictions on the Investigating Agency and it will be not possible except by reading something in the provisions which is not laid down and it ::: Uploaded on - 18/05/2016 ::: Downloaded on - 10/06/2016 21:07:55 ::: 12 wp182.16 will not be permissible.
10. There is another aspect which is required to be considered while dealing with the submissions made on behalf of the petitioners. Can it be said, at this stage, that the Investigating Agency has committed an illegality in filing the report/charge-sheet for the offences under Indian Penal Code and that the Investigating Agency should have filed a composite charge-sheet for all the offences which are prima facie made out on the basis of the averments of the F.I.R. If this point has to be answered in favour of the petitioners, then this Court will have to examine, at this stage, as to what offences are made out against the petitioners. Only because the Investigating Agency has sought approval from the competent authority to register an offence punishable under Section 3 of the MCOC Act, it does not necessarily follow that the Investigating Agency should file a report/charge-sheet for the offence under MCOC Act. In a given case, it may happen that the Investigating Agency may seek approval from the competent authority to register an offence under MCOC Act, the approval may be granted by the competent authority, the offence may be registered against the accused, however, after investigation, the Investigating Agency may come to the conclusion that the offence under MCOC Act is not made out.
Therefore, it cannot be said that the Investigating Officer has committed illegality by filing the charge-sheet for the offences under the Indian Penal Code.
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11. The learned Additional Chief Judicial Magistrate has not committed any error or illegality in accepting the report/charge-sheet for the offences under Indian Penal Code. I find that the learned Additional Chief Judicial Magistrate has also adhered to the procedural aspects and has called for the remand papers from the Special Court and the learned Special Judge designated under MCOC Act has sent the remand papers with directions to the Jail Superintendent to produce the petitioners before the Additional Chief Judicial Magistrate.
12. Considering the facts of the case and the proposition of law as discussed earlier, I find that the impugned orders are proper and do not require any interference by this Court under the extraordinary writ jurisdiction. The petitions are dismissed. In the circumstances, the parties to bear their own costs.
JUDGE Tambaskar.
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