Delhi District Court
Sh. Shahid S/O Mohd. Saleem vs The State on 6 October, 2012
IN THE COURT OF MS. NISHA SAXENA:ADDL.SESSIONS
JUDGE03(NE): KARKARDOOMA COURTS: DELHI.
Cr. R. No.49/12
Sh. Shahid s/o Mohd. Saleem,
R/o O82, Lakri Market, Welcome,
Delhi.
Presently Confined to
Tihar Central Jail, New Delhi.
.... Revisionist.
Vs
The State, Govt. of NCT of Delhi.
.... Respondent.
O R D E R :
1. Vide this order I shall dispose of a revision petition filed by the revisionist Shahid against the order dated 8.8.2012, passed by the court of Sh. Ankur Jain, Ld.M.M., KKD Courts, dismissing the bail application of the applicant u/s 167(2) Cr.P.C.
2. I have heard Counsel for the revisionist Mr. U.M. Syed and Addl. PP for the State and gone through the record.
3. It has been submitted by Counsel for the revisionist that the Cr, R.No.49/12 1/10 revisionist is an accused in FIR No.113/2012, U/s 363/364A/34 IPC, PS Welcome, Delhi and has been languishing in jail since 1.4.2012. In the present case, the charge sheet was filed on 21.6.2012 and copy of the same was supplied to the accused on 11.7.2012 after a period of more than 100 days from the date of arrest of the accused. That counsel for the revisionist on 25.7.2012 brought it to the notice of Ld. M.M., Shri Ankur Jain that the charge sheet was incomplete and the police report was not making sense as to the sequence of events as alleged in the charge sheet pursuant to which Ld. M.M. issued direction to the IO to complete the charge sheet and submit it by 27.7.2012. IO submitted a second i.e. new charge sheet on 27.7.2012 which was again incomplete and as the charge sheet was incomplete it could not be deemed to have been filed within the stipulated period of 90 days and therefore, the accused / revisionist moved an application for grant of bail u/s 167(2)(ii)(a) Cr.P.C. on 27.7.2012 for release of the applicant on bail. It has further been submitted by Ld. Counsel for the revisionist that the arguments on the bail application were heard on 28.8.2012 but Ld. M.M. deferred passing of an order and asked the IO to again Cr, R.No.49/12 2/10 submit the fresh revised charge sheet and deferred the matter till 31.7.2012. On 31.7.2012, revised charge sheet (3rd in number) was filed by the IO but it was again incomplete. Ld. M.M. further heard arguments on bail application but deferred the passing of the order and directed the ACP PS Welcome to appear in person on the next date i.e. 3.8.2012. That on 3.8.2012 ACP and IO appeared and sought further time to file charge sheet. That on 4.8.2012 again a new revised and improvised charge sheet (4th in number) was filed by the IO and the order on the bail application was reserved for 8.8.2012. It is also stated that there was no mention in the original charge sheet that supplementary charge sheet or other documents would be filed in future which means the ossification report should have accompanied the original charge sheet. Nonfiling of the same itself is a ground for statutory bail u/s 167(2) Cr.P.C. That the ossification report has not yet been filed and therefore, the accused / revisionist is entitled to be released on bail u/s 167(2) Cr.P.C.
4. The application has been vehemently opposed by Ld. Prosecutor on the ground that the charge sheet had been Cr, R.No.49/12 3/10 complete from day one and there has been only change of fonts and therefore, it cannot be said that the charge sheet filed on 21.6.2012 was incomplete.
5. IO Inspector Man Mohan Kumar was called to the court as his assistance was required by Ld. Prosecutor and he submitted that basically there was some change made in the font size and due to cut and paste method certain lines got added, otherwise there has been no charge.
6. I have gone through the order passed by the Ld. M.M. wherein it was observed that: "Pursuant to this a report was called wherein it transpired that there are some mistakes in the charge sheet. As per the report of the IO there were certain changes in so much so the font of the charge sheet was changed and due to which the charge sheet filed was incomplete. Ld. defence counsel has relied upon Matchumari China Venkata Reddy Vs. State of Andra Pradesh, 1994 Criminal Law Journal (257) he has laid emphasis of para 7 and para 9 of the judgment. Ld. APP for the State has submitted that there are no changes. The story remains the same and due to some typographical error which was kept in as the font was changed.
Thus, he submits that charge sheet is complete. Cr, R.No.49/12 4/10 He has relied on State of West Bengal Vs. Anwar (Indian Kanoon. org/doc/1761844). I have heard the Ld. Counsel for the parties and perused the records. In my opinion the charge sheet is not vague or incomplete from the perusal of the charge sheet it is clear that the two pages are of different font. Hence, the defect has crept due to the cut and copy paste method adopted while drafting the charge sheet. The IO ought to have been more careful while filing the charge sheet. In so far as argument of defence counsel is concerned, the charge sheet was never returned for removing the defects. Hence, it cannot be said that no judicial act was performed. The charge sheet was filed on21.6.2012 and on that very day itself cognizance was taken. The essential facts were contained in the charge sheet filed earlier. The arrest memo of accused Shahid also bears the signatures of complainant Jahid @ Umar, thus, prima facie he had identified the accused. Accordingly, I do not find any ground to grant bail to the accused u/s 167 Cr.P.C. Hence, bail application is dismissed".
7. No doubt u/s 167(2) Cr.P.C. the accused is entitled to be released on bail on account of default on the part of the prosecution to file charge sheet within the prescribed period, if he is prepared to and does furnish bail. It is a legislative Cr, R.No.49/12 5/10 command and not court's discretion. In other words, if the investigating agency fails to file charge sheet before the expiry of 90 / 60 days as the case may be, the accused in custody should be released on bail; but at that stage merits of the case are not to be examined.
8. The record shows that the cognizance was taken by Ld.M.M. on 21.6.2012. Once a case is taken cognizance of by a competent court and the proceedings in the case are commenced, the antecedent illegality or irregularity in the investigation on the basis of which the final report has been filed will not invalidate or vitiate the proceedings, unless it is shown that prejudice has been caused thereby to the accused or any miscarriage of justice has resulted thereby. A report under Section 173 Cr.P.C. is an intimation to the Court about the completion of the investigation and mere fact that some document is not produced before the Court or the accused is not produced along with the charge sheet or the copies submitted are not legible or any other reason like this, would be hardly a justification for refusing the acceptance of the charge sheet. Every omission in the charge sheet is not fatal when the police Cr, R.No.49/12 6/10 report is filed within the time prescribed, but only such omissions due to which on a plain reading of the police report no offence is disclosed in clear terms so as to take cognizance of the offence and proceed further by the Magistrate. The question as to whether a defective or illegal or irregular investigation would vitiate the trial of a case arose in a number of cases coming under the various enactments, and the Supreme Court and the various High Courts have held that unless and until the accused shows that he was prejudiced by such investigation or that any miscarriage of justice has occasioned, the defect, illegality or irregularity in the investigation would not vitiate the trial of the case. If all the necessary details as contemplated under Section 173(2) Cr.P.C. are not disclosed in the police report in the first instance, but they are furnished at a later date, perhaps it is for the Court to consider the probative value of those details furnished later during the trial of the case, but to say that the police report filed with certain omissions or gaps is not a valid report contemplated under Section 173 (2) is reading something more into the section. Consequently nonfiling of all the enclosures under Section 173(5) along with the report filed Cr, R.No.49/12 7/10 under Section 173 (2) is not a ground to release the accused on the premise that full charge sheet is not filed within the stipulated time. If the police report is filed in time with certain omissions which are of trivial in nature, of minor particulars, of inadvertent omissions, it cannot be said that the police report is not filed in accordance with Section 173(2). What has to be looked into at this stage by the Magistrate is only to see whether any offence was disclosed in the police report and whether the names of the accused were disclosed.
9. Ld. Counsel for the revisionist has relied upon 1994 Criminal Law Journal (257), Matchumari China Vankata Reddy vs State of Andra Pradesh, wherein it was observed that: "Mere filing of charge sheet within the prescribed period time, unaccompanied by material papers as contemplated under S. 173 (5) renders it incomplete and such filing of charge sheet amounts to failure to file the same which in turn confers on the accused right to be released on bail under Section 167(2). The Court is not competent to take cognizance of offence on the basis of such incomplete sheet".
10. In the instant case it cannot be said that the material papers or documents were not filed with the charge sheet and it was difficult for the court to cull out the nature of offence alleged Cr, R.No.49/12 8/10 against the accused / revisionist. Therefore, I hold that the facts of the case referred to are not applicable to the present case.
11. In the case in hand it cannot be said that the charge sheet which was filed initially on 21.6.2012 on the basis of which cognizance was taken by the court was such that the nature of the offence or the name of the accused were not disclosed. The improvements made are minor in the nature and cannot be said to amount to filing of a new or revised charge sheet. The typographical or clerical errors in the charge sheet have not caused any prejudice to the accused / revisionist in any manner and as regards of fact of nonfiling of ossification report it cannot be said to be a ground on which the charge sheet could be held to be incomplete. I place reliance upon G. Radhakrishna Rao and P. Ramkrishnam Raju Vs State, 1994 Cri. L.J. 2579 wherein it was held that: "Every omission in the charge sheet is not fatal when the police report is filed within the time prescribed, but only such omissions due to which on a plain reading of the police report no offence is disclosed in clear terms so as to take cognizance of the offence and proceed further by the Magistrate".
12. I do not find any illegality or impropriety in the order passed Cr, R.No.49/12 9/10 by Ld. M.M. The revision petition, accordingly, stands dismissed. A copy of this order be sent to trial court alongwith TCR. File of revision be consigned to record room.
Announced in open court (Nisha Saxena)
Dated:6.10.2012 Addl. Sessions Judge03(NE)
Karkardooma Courts, Delhi.
Cr, R.No.49/12 10/10