Rajasthan High Court - Jodhpur
Nirmal @ Niriya & Ors vs State on 27 July, 2017
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 380 / 2017
1. Nirmal @ Niriya S/o Shri Devi Lal Meena, Resident of Village-
Dhesala, P.S. Ghantali, District-Pratapgarh (Rajasthan).
2. Vikash S/o Shri Nanji Meena, Resident of Mahuwal, P.S.
Ghantali, District-Pratapgarh (Rajasthan).
3. Prakash S/o Shri Fuliya Meena, Resident of Village Gada, P.S.
Ghantali, District-Pratapgarh (Rajasthan). (Presently Lodged in
District Jail, Pratapgarh)
----Petitioners
Versus
State of Rajasthan.
----Respondent
_____________________________________________________
For Petitioner(s) : Mr.Shambhoo Singh.
For Respondent(s) : Mr.LR Upadhyay, PP.
_____________________________________________________
HON'BLE MR. JUSTICE SANDEEP MEHTA
Judgment / Order 27/07/2017 Heard learned counsel for the parties. Perused the material available on record.
By was of this revision, the petitioners herein have approached this Court for challenging the order dated 12.1.2017 passed by learned Additional Sessions Judge cum Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Pratapgarh in Sessions Case No.6/2017 whereby, the application preferred by the petitioners under Section 167(2) Cr.P.C. was rejected.
Learned counsel for the petitioner submits that the application was moved on behalf of the petitioners herein before the trial Court with a plea that the Investigating Officer did not file (2 of 4) [CRLR-380/2017] the complete charge-sheet against the accused within 90 days from their arrest as even the statement of the prosecutrix victim recorded under Section 161 Cr.P.C. was not included in the charge-sheet. He contends that incomplete charge-sheet was filed on 12.1.2017 and the trial Court took cognizance against the accused on that very day in a mechanical cursory manner. He thus urges that while setting aside the impugned order, the revision may be allowed and the petitioners may be ordered to be released on compulsive bail under Section 167(2) Cr.P.C.
Per contra, learned P.P. vehemently opposes the submissions advanced by the petitioners' counsel and pointed out that the charge-sheet was filed against the petitioners on 12.1.2017 while keeping the investigation pending against the remaining accused persons. He urges that the procedure thus adopted by the I.O. is perfectly lawful because there is no requirement in law that all the accused must be arrested before filing challan in the case. As per him, if this view were to be adopted, it would give undue advantage to the accused persons. He thus urges that the revision petition should be dismissed.
I have given my thoughtful consideration to the arguments advanced at the Bar and have gone through the material available on record.
Suffice it to say that accused persons were arrested on 15.10.2016 and the I.O. filed charge-sheet in the Court on 12.1.2017. On the same day, the trial Court took cognizance against the charge-sheeted accused persons and posted the (3 of 4) [CRLR-380/2017] matter for 17.3.2017. The accused persons filed an application under Section 167(2) Cr.P.C. and contested that the charge-sheet was incomplete and was filed negligently in as much as even the statement of the victim recorded under Section 161 Cr.P.C. was not made a part thereof. Thus, the accused persons implored the trial Court to grant them compulsive bail on the ground that the challan was incomplete and cognizance should not be taken thereupon. The trial Court rejected the said application by order dated 30.1.2017 which is challenged in the instant revision petition.
This Court examined the concept of cognizance on an incomplete charge-sheet and right of the accused to claim compulsive bail under Section 167(2) Cr.P.C. in almost identical circumstances in the case of Gaurav and others. vs. State of Rajasthan (S.B. Crl. Misc. Bail Application No.3446/2013) and categorically laid down that Section 173(8) Cr.P.C. permits the prosecution to file documents and evidence in addition to what has been already submitted along with charge-sheet under Section 173(2) Cr.P.C. and that the trial Court is authorised to proceed even on an incomplete charge-sheet. No sooner a charge-sheet is filed be it incomplete or otherwise, the right of the accused to claim compulsive bail under Section 167(2) Cr.P.C. is extinguished.
Shri Shambhoo Singh conceded that the victim's statement under Section 164 Cr.P.C. was available on the record. AT the same time, it has to be asserted that the I.O. should not have omitted to file the statement of the prosecutrix recorded under Section 161 Cr.P.C. in the initial charge-sheet but this in the (4 of 4) [CRLR-380/2017] opinion of this Court was a mere irregularity which can be cured.
In this background, this Court is not persuaded by the argument that the charge-sheet was not filed against the accused persons within the mandatory period of 90 days from their arrest so as to entitle them to compulsive bail under Section 167(2) Cr.P.C. The trial Court rightly rejected the application preferred by the accused by the impugned order dated 12.1.2017 which does not suffer from any illegality or irregularity whatsoever.
As an upshot of the above discussion, the instant revision petition is hereby dismissed as being devoid of any merit.
(SANDEEP MEHTA)J. S.Phophaliya/-