Orissa High Court
Baikuntha Sutara vs State Of Orissa on 7 April, 1988
Equivalent citations: 1989CRILJ1592
ORDER K.P. Mohapatra, J.
1. These bail petitions have been filed by two of the accused persons who were unsuccessful earlier to obtain bail and as common questions of law and fact are involved, they are disposed of by this common order.
2. On 18-8-1987, the Officer-in-Charge of Madhupatna Police Station of Cuttack town himself lodged FIR against the petitioners on suspicion that they were engaged in manufacture, distribution and sale of adulterated and spurious drugs and life saving medicines. They were arrested and produced in the Court of the Sub-Divisional Judicial Magistrate, Cuttack on 21-8-1987 along with some other accused persons and on the same day the order of remand was passed. Investigation into the case was conducted and on 16-11-1987 charge-sheet against the petitioners and two other accused persons designated as "preliminary charge-sheet" was submitted in the Court. The same was dealt with on 18-11-1987 and the learned Sub-Divisional Judicial Magistrate took cognizance of several offences against the petitioners. It appears from the records of the case that the police case diary, several documents and statements were also produced in the Court.
3. Mrs. A.K. Padhi, learned Counsel appearing for one of the petitioners, urged that investigation into the case is not yet complete. The preliminary charge-sheet is not a charge-sheet according to Section 173 (2) and (5) of the Criminal P.C. (Code for short). Therefore, no charge-sheet according to law having been filed so far, the petitioners are entitled to be released on bail under the proviso to Section 167(2) of the Code. Mr. D. P. Sahu, learned Standing Counsel, on the other hand contended that investigation of the case is complete except that the Expert Opinion has not been received : although the charge-sheet in the case has been designated as "preliminary charge-sheet", it is, in fact, a charge-sheet under Section 173 (2) and (5) of the Code and all material particulars have been furnished therein. Added to that, the police case diary, statements and documents have been furnished in court, as and when the Expert opinion will be received, a further charge-sheet as contemplated in Sub-section (8) of Section 173 shall be submitted therefore, the charge-sheet having been submitted within 90 days of the date of remand, the petitioners are not entitled to bail as a matter of right.
4. Mrs. Padhi relied upon four decisions in support of her contention, such as Bandi Kotayya v. State 1976 Cri LJ 1247 (Andh Pra) T.V. Sarma v. Smt. Turgakamala Devi 1980 SCC (Cri) 660 : 1980 Cri LJ 227, Satya Narain Musadi v. State of Bihar and (1982) 54 Cut LT 509, Kamal Lochan Sen v. State of Orissa. In the case of Bandi Kotayya (supra) which was rendered by a Division Bench of the Andhra Pradesh High Court before coming into force of the new Criminal P.C. in 1973 it was held that the report under Section 173 is submitted by the police only after the investigation is completed and not before; where in a given case, before completion of the investigation, a report, which is styled us preliminary charge-sheet, is forwarded to a Magistrate that report cannot be regarded as report under Section 173 of the Code. In the case of T. V. Sarma (supra)a learned Judge of the Andhra Pradesh High Court relied upon the Division Bench decision of the same High Court (supra) and held that where investigation is not completed, a preliminary charge-sheet which itself slates that investigation is not completed is not a police report within the meaning of Section 173(2) of the Code and hence, the question of the Magistrate's taking cognisance of the offence does not arise. In the case of Satya Narain Musadi (1980 Cri LJ 227) (supra) the Supreme Court had occasion to interpret Section 173 of the Code and it was summarised as follows (para 10) : ---
The report under Section 173(2) purports to bean opinion of the investigating officer that as far as he is concerned he has been able to procure sufficient evidence for the trial of the accused by the Court and when he states in the report not only the names of the accused, but names of the witnesses, the nature of the offence and a request that the case be tried, there is compliance with Section 173(2). The report as envisaged by Section 173(2) has to be accompanied as required by Sub-section (5) by all the documents and statements of the witnesses therein mentioned. The whole of it is submitted as a report to the Court. But even if a narrow construction is adopted that the police report can only be what is prescribed in Section 173(2) there would be sufficient compliance if what is required to be mentioned by the statute has been set down in the report. If the report with sufficient particularity and clarity specifies the contravention of the law which is the alleged offence, it would be sufficient compliance with Section 11. The details which would be necessary to be proved to bring home the guilt to the accused would emerge at a later stage, when after notice to the accused a charge is framed against him and further in the course of the trial. They would all be matters of evidence and Section 11 does not require the report to be or to contain the evidence in support of the charge, its function being merely to afford a basis for enabling the Magistrate to take cognizance of the case.
In the case of Kamal Lochan Sen (1982-54 Cut LT 509) (supra) this Court relied upon the case of Satya Narain Musadi (1980 Cri LJ 227) (SC) (supra) and many other cases and held that it is not open to the officer-in-charge to submit an incomplete or preliminary charge-sheet with a view to deprive an accused of his valuable right to liberty when the investigation is not complete within the period prescribed by the proviso to Sub-section (2) of Section 167 of the Code. However, it is the substance that matters and the Court has to consider if any subterfuge had been adopted to negate the right granted by Section 167(2) proviso. If investigation has, in fact, been completed, mere description of the charge-sheet as incomplete or preliminary would not take the report out of the category of reports contemplated by Section 173(2).
5. If the principles laid down in the aforesaid decisions which were not disputed by Mr. Sahu are applied to the facts of the present case it would appear that all the requirements of Section 173 (2) and (5) have been complied with although the charge-sheet has been styled as "preliminary charge-sheet", presumably because, the investigation was not completed in the sense that the Expert opinion about the drugs and life saving medicines seized in the case had not been obtained. Otherwise, the entire police case diary, statements and documents have been furnished to the Court showing as if the entire investigation was complete by the time the charge-sheet was submitted on 16-11-1987. Therefore, although the charge-sheet has been designated as "preliminary charge-sheet", it is substantially a regular charge-sheet within the meaning of Section 173 (2) and (5) of the Code. This being the factual position, the contention of Mrs. Padhi is untenable and on this score the petitioners cannot be enlarged on bail.
6. Mrs. Padhi next urged that the petitioners are in jail for the last seven months and the material part of the investigation having been over, their further detention is no longer necessary. As the trial is likely to be prolonged, they may be enlarged on bail on suitable conditions. It is true that the petitioners are in jail for a long time and the investigation is almost over except for the opinion of the Expert. Other persons involved in the case have in the meantime been released on bail. In these circumstances, it is no longer necessary to detain the petitioners in jail as a penal measure. Therefore, the petitioners are released on bail on fulfilment of the following conditions : ---
(1) They shall furnish bail of Rs. 10,000/-(rupees ten thousand) with two local sureties of Cuttack town each for the like amount to the satisfaction of the learned Sub-Divisional Judicial Magistrate, Cuttack.
(2) The petitioners shall present themselves at Madhupatna Police Station on every Sunday of the week until further orders;
(3) They shall not leave the limits of Cuttack town without intimating the Investigating Officer of Madhupatna Police Station; and (4) They shall not abscond or tamper with the prosecution evidence.
If any of the conditions is violated, bail shall be liable to be cancelled. The Misc. Cases are allowed.