Rajasthan High Court - Jodhpur
Gaurav vs State on 20 May, 2013
Author: Sandeep Mehta
Bench: Sandeep Mehta
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
ORDER
(1) S.B.CRIMINAL MISC. BAIL APPLICATION NO.3446/2013 Gaurav Vs. State of Rajasthan (2) S.B.CRIMINAL MISC. II BAIL APPLICATION NO.3657/2013 Mohd.Shaukin & Anr. Vs. State of Rajasthan (3) S.B.CRIMINAL MISC. BAIL APPLICATION NO.2914/2013 Kailash @ Kalia Vs. State of Rajasthan (4) S.B.CRIMINAL MISC. II BAIL APPLICATION NO.2955/2013 Thana Ram Vs. State of Rajasthan (5) S.B.CRIMINAL MISC. BAIL APPLICATION NO.3000/2013 Shambhu Lal Vs. State of Rajasthan (6) S.B.CRIMINAL MISC. BAIL APPLICATION NO.3311/2013 Sukha Ram Vs. State of Rajasthan Date of order : 20.5.2013 HON'BLE MR. JUSTICE SANDEEP MEHTA Mr. Mahesh Bora Sr.Advocate a/w Mr. Nishant Bora :
Mr. R.K.Charan :
Mr. H.R.Bishnoi :
Mr. R.S.Gill :
Mr. B.R.Bishnoi :
Mr. Manish Pitaliya : for the petitioners. Ms. Chandralekha :
Mr. Anil Joshi :
Mr. Mahipal Bishnoi :
Mr. Ashok Prajapat : Public Prosecutor for the State.
<><><> Reportable 2 The instant bail applications preferred by the petitioners before this Court involve the common question of law and are thus, being decided by the common order.
The brief controversy, which has been raised before this Court in these bail applications is as to whether, on account of non-filing of the FSL report of the seized contraband alongwith the charge-sheet, the accused gets right to default bail under Section 167(2) of the Cr.P.C.
It is not in dispute that in all these cases the Police has filed the charge-sheet against the accused persons within the period prescribed in Section 36(A)(4) of the NDPS Act and they are facing trial. The accused thereafter during the pendency of the trial, raised an issue before the trial Court that since the FSL report was not filed alongwith the original charge-sheet, it would have the effect that the complete charge-sheet was not filed by the Police and thereby, the accused gets the right to be released on compulsive bail or default bail as per Section 167(2) of the Cr.P.C. The applications seeking default bail on this ground have been rejected by the concerned trial court and hence, these bail applications.
Learned counsel appearing for the accused in these cases have raised the contention that unless the Police files the Chemical Examiner's report or the FSL report regarding the seized contraband alongwith the charge-sheet, such a 3 charge-sheet cannot be considered to be a complete charge- sheet and thereby, no sooner the period of 180 days or 90 days as the case may be, prescribed in Section 36(A)(4) of the NDPS Act is over and the FSL report is not filed on record, the accused would become entitled to be released on bail as of right on count of default of the prosecution to file the complete charge-sheet. In support of their contention, the learned counsel have placed reliance on the order dated 29.3.2013 passed by Hon'ble Single Bench of this Court in the case of Mahendra Nath Vs. State of Rajasthan passed in S.B.Cr.Misc. Bail Application No.1755/2013 and prayed that the petitioners in these cases are also entitled to be released on bail.
Per contra, learned Public Prosecutors appearing on behalf of the respondent State have vehemently opposed the arguments of the learned counsel for the petitioners. Learned Public Prosecutors urged that the charge-sheets have been filed in all these cases within the stipulated time and thus, the right to compulsive bail under Section 167(2) Cr.P.C. does not survive subsequent to the filing of the charge-sheet. Learned Public Prosecutors submit that the right of the prosecution to file subsequent documents is available under Section 173(8) of the Cr.P.C. and would not entitle the accused to contest that the charge-sheet, which was filed earlier, was not a complete charge-sheet so as to entitle them to be released on bail. It is 4 argued that the controversy regarding the status of the charge-sheet unaccompanied with the FSL report was considered and set to rest by Hon'ble Single Benches of this Court in the cases of Himmat Singh Vs. The State of Rajasthan reported in 1995 Cr.L.J. 2967 and Atma Ram Vs. State of Rajasthan reported in 1995 Cr.L.R. (Raj.) 825 as well as by Hon'ble Punjab and Haryana High Court in Full Bench decision rendered in the case of State of Haryana Vs. Mehal Singh & Anr. reported in 1978 Cr.L.J. 1810. They contend that it has been laid down in these cases that non-filing of the FSL report or the chemical examiner's report alongwith the charge-sheet does not have the effect of the charge-sheet being incomplete. Thus, the accused would not be entitled to be released on default bail under Section 167(2) of the Cr.P.C. Learned Public Prosecutors, therefore, prayed that the bail applications filed by the petitioners be dismissed.
Heard and considered the arguments advanced at the bar and perused the orders impugned as well as the order passed by Hon'ble Single Bench of this Court in the case of Mahendra Nath Vs. State of Rajasthan and the other judgments cited at the bar.
The Hon'ble Single Bench of this Court in the case of Mahendra Nath granted bail to the accused placing reliance on an order passed by Hon'ble Single Judge of the Punjab and Haryana High Court in Cr. Misc. No.M-17793 of 2010 (O & M) 5 (Manmohan Singh @ Goldi Vs. State of Punjab). The Hon'ble Single Judge of Punjab and Haryanan High Court in the case of Manmohan Singh @ Goldi in turn placed reliance on the decision of the Bombay High Court in the case of Sunil Vasantrao Phulbande & Anr. Vs. State of Maharashtra reported in 2003(2) RCR (Criminal) 171 and held that the charge-sheet filed in absence of the FSL report was an incomplete charge-sheet.
When the Hon'ble Single Judge of the Punjab and Haryana High Court was considering the case of Manmohan Singh @ Goldi he was not made aware of the earlier Full Bench Judgment of the Punjab and Haryana High Court rendered in Mehal Singh's case (supra), wherein the Hon'ble Full Bench of Punjab and Haryana High Court held as below:
"15. Since a report to qualify itself to be a 'police report' is required to contain only such facts as are mentioned in sub--section (2) of S. 173, so if once it is found that the police report contained all those facts, then so far as the investigation is concerned the name has to be considered to have been completed. For this view, we receive authoritative backing from the decision of the Supreme Court in Tara Singh v. The State, AIR 1951 SC 441. That was a case in which the accused was arrested on September 30, on the very day of occurrence, he was produced before a Magistrate. On October 1, the police was granted police remand till October 2. The accused was produced on October 3 before the Magistrate, on which date the police handed over to the Magistrate what they called in 'incomplete challan' dated October 2, 1949, and also produced certain prosecution witnesses. Amount the witnesses so produced were witness who were said to have witnessed the occurrence. The Magistrate examined those witnesses and recorded their statements, although the accused at that time was not represented by a counsel.6
On October 5 the police put in what they called a 'complete challan' and on the 19th they put in a supplementary challan. The Magistrate committed the accused for trial on November 12, 1949.
15--A. It was argued in the first instance on behalf of the accused that the Magistrate on October 3 had no power to take cognizance of the case. It was contended that cognizance of an offence could only be taken on a police report of the kind envisaged in Clause (b) of sub--section (1) of S. 190 of the old Code. It was urged, on the strength of the provisions of Section 173(1) of the old Code, which is in the following terms and which is also pari materia with the provisions of sub--section (2) of S. 173 of the new Code, that the police were not permitted to send in an incomplete report:
"173. (1) Every investigation under this Chapter shall be completed without unnecessary delay, and as soon as it is completed, the officer in charge of the police station shall--
(a) forward to a Magistrate empowered to take cognizance of the offence on a police report, a report, in the form prescribed by the State Government, setting forth the names of the, parties the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and
(b) communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given."
Vivian Bose, J., who delivered the opinion for the Bench, without going into the question as to whether the police were entitled to submit an incomplete report or not, held that the report dated October 2, 1949, which the police referred to an 'incomplete challan', was, in fact, a complete report within the meaning of S. 190(1)
(b) read with S. 173(1) of the old Code. The following observations of his Lordship are instructive on the point (at p. 442):
"When the police drew up their challan of 2-10- 1949 and submitted it to the Court on the 3rd, they had in fact completed their investigation except for the report of the Imperial Serologist 7 and drawing of the sketch map of the occurrence. It is always permissible for the Magistrate to take additional evidence not set out in the challan. Therefore, the mere fact that a second challan was put in on 5th October would not necessarily vitiate the first. All that S. 173(1)(a) requires is that as soon as the police investigation under Chap. 14 of the Code is complete, there should be forwarded to the Magistrate a report in the prescribed form:
"Setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case.' All that appears to have been done in the report of 2nd October which the police called their incomplete challan. The witnesses named in the second challan of 5th October were not witnesses who were 'acquainted with the circumstances of the case'. They were merely formal witnesses on other matters. So also in the supplementary challan of the 19th. The witnesses named are the 1st Class Magistrate, Amritsar, who recorded the dying declaration, and the Assistant Civil Surgeon. They are not witnesses who were 'acquainted with the circumstances of the case'. Accordingly, the challan which the police called an incomplete challan was in fact a completed report of the kind which S. 173(1) of the Code contemplates. There is no force in this argument, and we hold that the magistrate took proper cognizance of the matter."
The learned counsel for the accused petitioners, however, contended that in the old Code the provisions, like the one contained in sub-- section (5) of S. 173 of the new Code, were not there and, therefore the authority of the Supreme Court decision in Tara Singh's case (supra) would not be applicable in the context of the changed situation brought about by the incorporation in the new Code of sub--section (5) of S. 173 thereof. The learned counsel for the accused--petitioners laid emphasis on the fact that the investigation in terms of the definition thereof shall not be considered complete unless the police had collected all the evidence and formed their opinion thereon and since in cases, where the experts' report was awaited, obviously it could not be said that all evidence had been collected, nor in its absence the investigating officer would be in a position to form an opinion. In order to show that the aforesaid 8 steps are the necessary ingredients of the investigation, reliance has been placed on the following observations of Jagannadhadas, J., who delivered the judgment for the Bench in H. N. Rishbud v. State of Delhi, AIR 1955 SC 196 (at p.
201):
"If, upon the completion of the investigation it appears to the officer in charge of the police station that there is no sufficient evidence or reasonable ground, he may decide to release the suspected accused, if in custody, on his excluding a bond. If, however, it appears to him that there is sufficient evidence or reasonable ground, to place the accused on trial, he is to take the necessary steps therefor under S. 170 of the Code. In either case, on the completion of the investigation he has to submit a report to the Magistrate under S. 173 of the Code in the prescribed form furnishing various details. Thus, under the Code investigation consists generally of the following steps : (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of 9a) the examination of various persons (including the accused) and the reduction o their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge--sheet under S. 173."
It is no doubt true that the definition of 'investigation' in terms conceives within 'investigation' in terms conceives within its scope the collection of the evidence and formation of the opinion by the investigating officer, but the question arises as to what do we mean by the 'collection of evidence and formation of opinion thereon'. Does the collection of evidence necessarily envisage that the investigating officer must record the statements of the witnesses who are to be cited to prove the prosecution case or must that investigating officer receive the reports of the experts which reports are admissible in evidence by virtue of S. 293 of the old Code? It has been authoritatively held at the highest judicial level 9 in Noor Khan v. State of Rajasthan. AIR 1964 SC, 286, that sub--section (3) of S. 161 does not oblige the police officer to reduce in writing the statements of witnesses examined by him in the course of investigation. In this regard, the following observations can be noticed with advantage (at p. 291):
"The object of Ss. 162, 173(4) and 207A (3) is to enable the accused to obtain a clear picture of the case against him before the commencement of the inquiry. The sections impose an obligation upon the investigating officer to supply before the commencement of the inquiry copies of the statements of witnesses who are intended to be examined at the trial so that the accused may utilize those statements for cross- examining the witnesses to establish such defence as he desire to put up, and also to shake their testimony, Section 161(3) does not require a police officer to record in writing the statements of witnesses examined by him in the course of the investigation, but if he does record in writing any such statements, he is obliged to make copies of those statements available to the accused before the commencement of proceedings in the Court so that the accused may know the details and particulars of the case against him and how the case is intended to be proved.........".
From the above observations of their Lordships of the Supreme Court, it is clearly deducible that it is not incumbent on the investigating officer to reduce in writing the statements of the witnesses--he may merely include their names in the list of witnesses in support of the prosecution case when submitting the charge-- sheet. Surely, if the charge--sheet thus submitted would be complete as enabling the Magistrate to take cognizance of the offence, there is no rational basis for holding that similar charge--sheet would not be a police report of the requisite kind if the statements of the witnesses although had been recorded under S. 161(3), but either by design or by inadvertence are not appended with the report and that the investigation of the case for that reason alone would be considered to be incomplete thus entitling the accused to claim release on bail in view of the proviso to sub--section (2) of S. 167 of the Code if his detention had exceeded sixty days.
20. For the reasons stated, I hold that the 10 investigation of an offence cannot be considered to be inconclusive merely for the reason that the investigating officer, when he submitted his report in terms of sub-section (2) of S. 173 of the Code to the Magistrate, still awaited the reports of the experts or by some chance, either inadvertently or by design, he failed to append to the police report such documents or the statements under S. 161 of the Code, although these were available with him when he submitted the police report to the Magistrate.
21. In the result, Criminal Miscellaneous Petitions Nos. 5812--M and 6077--M of 1977 and 169--M and 293--M of 1978 are dismissed and the bail prayed for is declined, while Criminal Miscellaneous Petition No. 4766--M of 1977 filed by the State is allowed and the order of the Additional Sessions Judge is set aside and cancelling the bail bonds of the accused-- respondents therein, they are ordered to surrender to custody forthwith."
The Hon'ble Single Bench of this Court in the case of Atma Ram held as below:
"The accused shall not be entitled for release on bail simply on the ground that Forensic Science Laboratory report was not produced by the prosecution agencies, because Court has to be satisfied by the accused that there are reasonable grounds for believing that he is not guilty. Very long delay in production of Forensic Science Laboratory report by the prosecution agency may raise a rebutable presumption that on chemical examination, the material sent for examination does not contain narcotic drugs and psychotropic substance but that depends upon circumstances and facts of each case."
As per the principles of interpretation, the judgment of a Coordinate Bench of the same Court has a binding effect, whereas the decisions of another High Court only have a persuasive value. Two Hon'ble Single Benches of this Court had the occasion to consider the very same issue in 11 the cases of Himmat Singh and Atma Ram (supra) and the contention that a charge-sheet filed under Section 173(2) of the Cr.P.C. without including the FSL report would fall within the category of an incomplete charge-sheet was repelled by this Court. Thus, the issue is no longer res-integra so far as this Court is concerned. In this view of the matter, it is apparent that the order, which was relied upon by the Coordinate Bench in the case of Mahendra Nath was based on an earlier decision of the Punjab and Haryana High Court in the case of Manmohan Singh @ Goldi, which itself was per- incurium as having been passed in total contravention of the view taken by the Full Bench of the Punjab and Haryana High Court in Mehal Singh's case (supra). In Manmohan Singh's case, the Hon'ble Single Judge of the Punjab and Haryana High Court observed that the learned Public Prosecutor could not cite any judgment contrary to the view taken by the Bombay High Court in the case of Sunil Vasantrao Phulbande (supra). Thus, the order passed by Hon'ble Single Bench of Punjab and Haryana High Court in the case of Manmohan Singh @ Goldi (supra) was against the settled principle of law laid down by the Hon'ble Full Bench and cannot but be said to be per incurium.
On going through the order passed by this Court in Mahendra Nath's case, it is apparent that the judgments of this Court in the cases of Atma Ram and Himmat Singh as well 12 as the Full Bench Decision of the Punjab and Haryana High Court rendered in Mehal Singh's case were not brought to the notice of the Hon'ble Single Bench.
In view of the above discussion, as the Hon'ble Single Bench of this Court passed the order in the case of Mahendra Nath relying on another decision of Punjab and Haryana High Court, which by itself was per incurium, this Court is of the opinion that the view expressed by the Hon'ble Single Bench in the case of Mahendra Nath cannot be said to be laying down a correct proposition.
As has been observed above, two Coordinate Single Benches of this Court have already taken a view that mere non-filing of the chemical examiner's report would not make the charge-sheet incomplete. Thus, the accused would not be entitled to be released on bail under Section 167(2) of the Cr.P.C. on the ground of the charge-sheet being incomplete.
This Court is also of the opinion that Section 173 (8) of the Cr.P.C. permits the prosecution to file documents and evidence in addition to what has already been submitted alongwith the charge-sheet under Section 173(2) of the Cr.P.C. When a document in the nature of FSL report is filed by the learned Public Prosecutor under Section 173(8) Cr.P.C., it need not even be supplemented by an additional charge- sheet. The document in the nature of FSL report is otherwise also admissible in evidence under Section 293 of the Cr.P.C. 13 Thus, no additional charge-sheet is needed to file such a document in the Court. The Court itself is empowered to summon the expert's report at any stage of the trial.
In view of the aforesaid discussion, this Court is of the opinion that as charge-sheets have been filed in these cases within the permissible period as provided in Section 36A (4) of the Cr.P.C., therefore, the right of the accused to be released on bail under Section 167(2) Cr.P.C. on ground of charge-sheet not having been filed within the statutory period does not surive.
Accordingly, the bail applications being bereft of any force are hereby rejected.
(SANDEEP MEHTA), J.
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