Delhi District Court
State vs . Biplav & Ors. on 12 October, 2010
IN THE COURT OF MANOJ JAIN
ASJ/SPECIAL JUDGE (NDPS)
OUTER DISTRICT:ROHIIN COURTS:DELHI
STATE VS. BIPLAV & ORS.
FIR No.: 05/10
PS: South Rohini
ORDER
1 This order would decide bail application moved by accused Deepak s/o Rampal.
2 It would be advantageous to give certain germane facts.
3 There are five accused in all. They have been booked for murder of one Raju Roy. Charge-sheet is for commission of offences u/s 365/364A/302/392/212/201/120B/34 IPC. Raju Roy had been allegedly kidnapped on 04.01.10 and there was a ransom call demanding sum of Rs. 20 Lacs. Later on, his dead body was recovered on 07.10.10 from the area falling within the jurisdiction of District Karnal, Haryana. According to Ld. APP, its a case of criminal conspiracy. State is heavily relying upon CDR of mobile phones, last seen evidence and recovery of incriminating material at the instance of accused persons.
State Vs. Biplav & Ors. page 1
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4 As far as accused Deepak s/o Rampal is concerned, he
was arrested on 10.01.10.
5 On careful perusal of the application under disposal, it is
noticed that bail application is primarily u/s 167(2) proviso of Cr.P.C. Sh. Vohra, Ld. Counsel on behalf of accused Deepak s/o Ram Pal has contended that applicant Deepak is not connected with any conspiracy and he has been picked up merely due to some confusion. According to him, it is a case of mistaken identity as one more accused with the same name and parentage was allegedly involved.
6 He has contended that leaving aside the merits of the case, accused Deepak s/o Ram Pal is entitled to be released on statutory bail as per proviso of 167 Cr.P.C. for the following reasons:-
(i) Charge-sheet, which had been filed before Ld. MM on 09.04.10, was incomplete and, therefore, was not a charge-sheet as contemplated u/s 173 Cr.P.C.
(ii) Copies of the charge-sheet were not supplied to the accused immediately and, therefore, accused was entitled to be released on bail immediately.
7 It would not be out of place to mention here that a similar request had been made by the applicant twice before the Ld. Magisterial Court. First application in this regard was moved on 30.04.10 and it was fixed for 01.05.10. On 01.05.10, same State Vs. Biplav & Ors. page 2 of 8 was dismissed. Feeling aggrieved, applicant moved similar application all over again before the same court. Such application was fixed up for consideration on 14.05.10 and was dismissed again.
8 Thereafter, applicant moved application under disposal and it was taken up by the court of Sh. R.P. Pandey, Ld. ASJ, Outer District, Rohini Courts on 24.05.10 and as prayed by the counsel for applicant, the bail application was directed to be sent to the concerned court to which the matter was to be assigned by Ld. District Judge and application was to be taken by such court as and when prayed by the counsel for applicant.
9 Case was received on allocation by this court on 26.05.10.
10 It will also not be out of place to mention here that supplementary charge-sheet was also filed by the police before the Ld. MM on 30.07.10. It has also been received on allocation by this court on 26.08.10.
11 Heard arguments.
12 I need not remind myself that it's an application where the bail is being sought u/s 167 Cr.P.C. It implies that since the investigation was not completed within the stipulated State Vs. Biplav & Ors. page 3 of 8 period or the Challan was not filed within the fixed time, the applicant is entitled to bail-in-default in terms of proviso attached to Section 167 Cr.P.C.
13 I have seen order dated 01.05.10 and also order dated 14.05.10 passed by Sh. Ajay Singh Shekhawat, Ld. MM. Application was dismissed without considering any of the contentions raised by the counsel for the applicant. It was simply observed that if the accused was to be set at liberty, there was likelihood that he might tamper with the evidence and, therefore, the bail application was dismissed. Applicant Deepak moved another application as he felt that bail application had been dismissed in default. His second bail application also met with the same fate and it was observed by Ld. MM that no fresh ground was made out.
14 Bail order is not under challenge before me.
15 However, I feel that Ld. Magistrate fell in grave error by not considering the bail application in the desired manner. Merits of the case were not supposed to be even touched. It was only required to be seen whether charge-sheet has been filed within the stipulated period or not or whether the charge- sheet was complete in the legal sense or not. Since the manner of disposal was not proper and legal, it would be appropriate if copy of this order is sent to him for information so that no lapse of such nature occurs in future.
State Vs. Biplav & Ors. page 4
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16 Let me recapitulate certain dates:
Date of arrest of accused 10.01.2010
Date of filing of charge-sheet before Ld. MM 09.04.2010
Date on which copies were supplied to accused 12.04.2010
Date of taking cognizance by Ld. MM 16.04.2010
Date of moving I bail application before Ld. MM 30.04.2010
Date of moving II bail application before Ld. MM 06.05.2010
Date of filing of supplementary charge-sheet 30.07.2010
17 It becomes apparent that charge-sheet was filed before
Ld. MM well before the expiry of stipulated period of 90 days.
18 Defence contention is two-fold. Firstly, the charge-sheet was incomplete and, therefore, strictly legally speaking, was not the one as contemplated u/s 173 Cr.P.C. Secondly, the copy of the charge-sheet was not supplied to the accused immediately and, therefore, indefeasible right has accrued to the accused to be released on bail.
19 There cannot be denying the fact that right contemplated u/s 173 Cr.P.C. is a very valuable right. Police is required to investigate and submit report within the stipulated period else accused automatically gets the right to be released on bail. Police can't frustrate such right by filing half-baked or interim or temporary Challan. Legal position is loud and clear in this regard. I have seen the charge-sheet very carefully. It has State Vs. Biplav & Ors. page 5 of 8 been mentioned therein that CDR was awaited for analysis and FSL Result was also awaited. It was also mentioned that copy of scaled site plan prepared by Draftsman was awaited as well and, therefore, it was mentioned that supplementary charge- sheet would be filed.
20 In order to assess whether the Challan is complete or incomplete, a test has been laid down in the case of Nitin Nagpal Vs. State 2006 Vol. III AD (Crl.) (Delhi High Court) 303. It has been mentioned in Para 18 of the Judgment that the true test is that the report filed by the police much be such that the Magistrate can straightway proceed to take cognizance and thereafter, can take other steps as contemplated under the Code. Sh. Vohra has himself contended that there is nothing in the supplementary charge- sheet which might connect accused with anything much less any conspiracy. I have seen the main charge-sheet very carefully and seen the statements of the witnesses. As already noticed above, it is a case of criminal conspiracy. It is acknowledged fact that conspiracy is hatched in secrecy and most of the times, it has to be inferred from bunch of circumstances as there would rarely be a direct evidence to pin down conspiracy. Prosecution is heavily relying upon last seen evidence. Ld. Prosecutor has drawn my attention towards the statements of Bhandev, Ram Kishan and also of one Rajbeer. My attention has also been drawn towards the recovery of the incriminating articles at the instance of State Vs. Biplav & Ors. page 6 of 8 accused Deepak s/o Rampal and it becomes apparent to the naked eyes that investigating agency had collected prima facie sufficient material in order to enable the court to take cognizance. Cognizance was accordingly taken by the Ld. MM on 16.04.10. Merely because CDR and FSL Result was awaited, it cannot be said that there was no material on record whatsoever so as to infer the involvement of accused Deepak s/o Rampal. Viewed from that angle, it cannot be said that the charge-sheet before the court was incomplete so as to hand- out benefit of statutory bail to the applicant.
19 Importantly, in the case of Nitin Nagpal (supra), further question had also arisen whether such accused could be granted bail if he was kept in custody illegally during the intervening period. Hon'ble High Court though agreed with the contentions raised by the petitioner and observed that the petitioner's custody was illegal yet refused to grant any relief to him u/s 167(2) Cr.P.C. for the reason that cognizance had already been taken and the accused was in judicial custody under a valid order/remand. It would be also worthwhile to mention here that in that case, the application for bail was filed on 04.10.05 and was kept pending till 16.12.05 and cognizance had already been taken on 18.10.05 and the copies of the Challan were also handed over to the accused same day. In the present case also, accused was supplied with the copies on 12.04.10. He could not be supplied with the copies on the date of filing of charge-sheet because on that State Vs. Biplav & Ors. page 7 of 8 day i.e. 09.04.2010, Ld. MM had gone to Delhi Judicial Academy for training. Case was accordingly put up before the court on 12.04.10 when the copies were supplied to the accused. In such a peculiar situation and keeping in mind the observations appearing in aforesaid case of Nitin Nagpal, accused cannot be granted relief merely due to the fact that copies were supplied to him after the expiry of period of 90 days. Defence counsel can not be permitted to dig out any advantage from judgment of Dodha Vs. State of M.P. 1992 (2) Crimes 171 MP in view of judgment of Nitin Nagpal of our own High court touching same aspect.
20 I, therefore, do no not find any merit in the present application. Same is accordingly dismissed. However, I lay stress that the observations made by me herein above are only for the limited purpose of assessing infraction of sec 167(2) Cr.P.C. and would not be construed as observation on the merits of the case. Applicant would be at liberty to move separate application seeking bail on merits and if any such application is moved, same would be considered along with bail applications of accused Biplav and Manish after the charges are ascertained by the court.
Announced in the open court Today i.e. on 12th October, 2010 (MANOJ JAIN) ASJ/Special Judge (NDPS) Outer District: Rohini Courts: Delhi State Vs. Biplav & Ors. page 8 of 8