Madhya Pradesh High Court
Shubham Patel vs The State Of Madhya Pradesh on 28 May, 2024
Author: Dinesh Kumar Paliwal
Bench: Dinesh Kumar Paliwal
1 CRR-901-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
ON THE 28 th OF MAY, 2024
CRIMINAL REVISION No. 901 of 2024
BETWEEN:-
SHUBHAM PATEL S/O DAYARAM PATEL, AGED ABOUT
28 YEARS, OCCUPATION: MAJDOORI DONGAR SALAIYA
POLICE STATION DEVRI ZILA SAGAR (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI SANDEEP KUMAR JAIN - ADVOCATE )
AND
THE STATE OF MADHYA PRADESH DWARA POLICE
STATION TENDUKHEDA ZILA NARSINGHPUR (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI CHRISTOPHER ANTHONY - PANEL LAWYER )
This revision coming on for admission this day, th e court passed the
following:
ORDER
This criminal revision under Section 397/401 of the Code of Criminal Procedure (hereinafter referred to as "Cr.P.C.") has been filed assailing the order dated 26.12.2023 passed by learned Special Judge, NDPS Act, Narsinghpur in Special Case No.53/2023 whereby applicant's application under Section 167(2) of Cr.P.C. seeking default bail on two grounds : (1) charge sheet was not filed within stipulated period of 60 days (Sixty days) & (2) Incomplete charge sheet has been filed as it was filed without FSL report, has been dismissed by the learned trial Court.
Signature Not Verified Signed by: DEEPA MISHRA Signing time: 6/4/2024 11:58:10 AM2 CRR-901-2024
2. It is averred in the petition that the applicant was arrested on 11.10.2023 in connection with alleged recovery of 20 kg of ganja (Cannabis) from his possession and same was seized at 5.15 P.M. In this revision application, two questions have been raised by learned counsel for the applicant, (1) that while filing the charge sheet, the prosecution could not file a rep o rt of Forensic Science Laboratory (FSL) regarding the substance recovered from the applicant and (2) charge sheet was filed after 60 days of the arrest of the applicant. Therefore, the applicant became entitled to get the benefit of default bail under Section 167(2) of the Cr.P.C. but the learned Special Judge without abiding with the provisions of law, dismissed his application. Therefore, he has prayed to set aside the impugned order dated 26.12.2023 passed by learned Special Judge.
3. Shri Sandeep Kumar Jain, learned counsel for the applicant, submits that 20 kg Ganja (Cannabis) was seized from the possession of the present applicant. Thus, complete challan should have been filed within period of 60 days. The challan was not filed within 60 days and it was filed without FSL report. Therefore, learned counsel placing reliance on the order of Punjab & Haryana High Court dated 30.11.2018 passed in Ajit Singh @ Jeeta and another Vs. State of Punjab; order dated 8.11.2023 passed in M.Cr. C. No.28801 of 2023 - Santram Urf Lala Tandiya Vs. State of M.P. & order of Delhi High Court dated 28.4.2023 passed in Crl.Rev.P.471/2023 (Amanpreet Kaur @ Preeti Vs. State) and has submitted that in the light of aforesaid orders, applicant is entitled to get the benefit of default bail. It is submitted that FSL report regarding the nature of substance is integral part of charge sheet and it should have been filed with the charge sheet itself. It is Signature Not Verified further submitted that charge sheet was filed after period of 60 days. Since it Signed by: DEEPA MISHRA Signing time: 6/4/2024 11:58:10 AM 3 CRR-901-2024 was not filed within the statute time limit and was filed without FSL report. Therefore, applicant deserves the default bail under Section 167(2) of Cr.P.C..
4. On the other hand, learned counsel for the State has opposed grant of default bail and has submitted that learned trial Court has not committed any error in dismissing default bail application. It is submitted that contraband was seized from the possession of the present applicant on 11.10.2023. The seized quantity was not greater than required commercial quantity. Charge sheet was filed before the learned trial Court on 63 days of arrest of accused. After period of 60 days no application for default bail was filed before learned trial Court by the applicant. Application for default bail was filed after 07 days of filing of charge sheet. Therefore, learned trial Court has not committed any error in dismissing bail application of the applicant under Section 167(2) of the Cr.P.C.
5. I have heard learned counsel for the parties at length and perused the case diary and material on record.
6. On perusal of the impugned order passed by learned Special Judge, it is revealed that charge sheet was filed against the applicant on 15.12.2023 while application for default bail was filed by the applicant on 22.12.2023 almost after seven days of filing of charge sheet. This point has already been decided by the Hon'ble Supreme Court in number of cases and there cannot be any disagreement with the well settled legal position that right of default bail under Section 167(2) of Cr.P.C. is not only a statutory right but is a right that flows from Article 21 of the Constitution of India. It is an indefeasible right, nonetheless it is enforceable only prior to the filing of the challan or the charge sheet, and does not survive or remain enforceable on the challan being filed, if Signature Not Verified Signed by: DEEPA MISHRA Signing time: 6/4/2024 11:58:10 AM 4 CRR-901-2024 already not availed of. The Hon'ble Apex Court in the case of Central Bureau of Investigation Vs. Kapil Wadhawan and another - 2024 Cri.LJ 1082 in para 15, 16 & 18 has held as under :-
"15. There cannot be any disagreement with the well settled legal position that the right of default bail under Section 167(2) Cr.P.C. is not only a statutory right but is a right that flows from Article 21 of the Constitution of India. It is an indefeasible right, nonetheless it is enforceable only prior to the filing of the challan or the chargesheet, and does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to the accused after the filing of the challan. The Constitution Bench in Sanjay Dutt vs. State through CBI, Bombay (II)8, while considering the provisions of Section 20(4)(bb) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 read with Section 167 (2) Cr.P.C. had very pertinently held that:-
"48. We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4)(bb) is based on a correct reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The Signature Not Verified Signed by: DEEPA MISHRA Signing time: 6/4/2024 11:58:10 AM
5 CRR-901-2024 custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 CrPC ceases to apply. The Division Bench also indicated that if there be such an application of the accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in Section 20(4)(bb), both of them should be considered together. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. (See Naranjan Singh Nathawan v. State of Punjab [(1952) 1 SCC 118 :
1952 SCR 395 : AIR 1952 SC 106 : 1952 Cri LJ 656] ; Ram Narayan Singh v. State of Delhi [1953 SCR 652 : AIR 1953 SC 277 : 1953 Cri LJ 1113] and A.K. Gopalan v. Government of India [(1966) 2 SCR 427 : AIR 1966 SC 816 : 1966 Cri LJ 602] .) Signature Not Verified Signed by: DEEPA MISHRA Signing time: 6/4/2024 11:58:10 AM
6 CRR-901-2024
16. In Suresh Kumar Bhikamchand Jain Vs. State of Maharashtra & Anr. (supra), the appellant-accused had sought default bail under Section 167(2) on the ground that though the chargesheet was filed within the stipulated time, the cognizance was not taken by the court, for want of sanction to prosecute the accused. The court dispelling the claim of the accused held:-
18. None of the said cases detract from the position that once a charge-sheet is filed within the stipulated time, the question of grant of default bail or statutory bail does not arise. As indicated herein above, in our view, the filing of charge-
sheet is sufficient compliance with the provisions of Section 167(2)( a )( i i) in this case. Whether cognizance is taken or not is not material as far as Section 167 CrPC is concerned. The right which may have accrued to the petitioner, had charge-
sheet not been filed, is not attracted to the facts of this case. Merely because sanction had not been obtained to prosecute the accused and to proceed to the stage of Section 309 CrPC, it cannot be said that the accused is entitled to grant of statutory bail, as envisaged in Section 167 CrPC. The scheme of CrPC is such that once the investigation stage is completed, the court proceeds to the next stage, which is the taking of cognizance and trial. An accused has to remain in custody of some court. During the period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced. During that stage, under Section 167(2) CrPC, the Magistrate is vested with authority to remand the accused to custody, both police custody and/or judicial custody, for 15 days at a time, up to a maximum period of 60 days in cases of offences punishable for less than 10 years and 90 days where the offences are punishable for over 10 years or even death sentence. In the event, an investigating authority Signature Not Verified Signed by: DEEPA MISHRA Signing time: 6/4/2024 11:58:10 AM 7 CRR-901-2024 fails to file the charge-sheet within the stipulated period, the accused is entitled to be released on statutory bail. In such a situation, the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the court trying the offence, when the said court assumes custody of the accused for purposes of remand during the trial in terms of Section 309 CrPC. The two stages are different, but one follows the other so as to maintain a continuity of the custody of the accused with a court."
Therefore, in the light of above settled position of law, it is apparent that right of default bail under Section 167(2) of Cr.P.C. is enforceable only prior to filing of challan or charge sheet and does not survive or remain enforceable on the challan being filed, if already not availed of. In the case in hand, charge sheet was filed on 15.12.2023 while application for default bail was filed by the applicant/ accused on 22.12.2023 i.e. after seven days of filing of charge sheet. As application for default bail was filed after filing of charge sheet, the question of grant of default bail does not arise and in such circumstances, bail has to be considered and decided only with the reference to the merits of the case.
7. As far as the case of Ajeet Singh @ Jeeta & Anr (supra) is concerned, in that case Punjab and Haryana High Court has granted default bail on the ground that chemical examination report was not filed with the charge sheet and is incomplete challan was filed. In Amanpreet Kaur @ Preeti (supra), bail was granted as in some other case coordinate Bench of the Delhi High Court had granted interim bail to the accused. Hence, interim bail was granted but the aforesaid orders of Delhi High Court and Punjab and Haryana High Court does not give clear cut picture of the law.
Signature Not Verified Signed by: DEEPA MISHRA Signing time: 6/4/2024 11:58:10 AM8 CRR-901-2024
8. The argument by learned counsel for the applicant has to be examined in the light of relevant statutory provisions and judgments delivered by Hon'ble Supreme Court and High Courts. Hon'ble Apex Court in the case of Dinesh Dalamiya vs. CBI (2007) 8 SCC 770, while dealing with the question of right to bail under Section 167(2) proviso in a situation where the accused was absconding and was yet to be arrested, held that investigating agency was within his right to submit charge-sheet notwithstanding the pendency of further investigation under Section 173(8). The Apex Court held as under:-
"It is true that ordinarily all documents accompany the charge-sheet. But, in this case, some documents could not be filed which were not in the possession of CBI and the same were with GEQD. As indicated hereinbefore, the said documents are said to have been filed on 20-1-2006 whereas the appellant was arrested on 12-2-2006. The appellant does not contend that he has been prejudiced by not filing of such documents with the charge-sheet. No such plea in fact had been taken. Even if all the documents had not been filed, by reason thereof submission of charge-sheet itself does not become vitiated in law. The charge-sheet has been acted upon as an order of cognizance had been passed on the basis thereof. The appellant has not questioned the said order taking cognizance of the offence. Validity of the said charge-sheet is also not in question."
It was further observed that, "The statutory scheme does not lead to a conclusion in regard to an investigation leading to filing of final form under subsection (2) of Section 173 and further investigation contemplated under subsection (8) thereof. Whereas only when a charge-sheet is not filed and investigation is kept pending, benefit of proviso appended to subsection (2) of Section 167 of the Code would be available to an offender; once, however, a chargesheet is filed, the said right ceases. Such a right does not revive Signature Not Verified Signed by: DEEPA MISHRA Signing time: 6/4/2024 11:58:10 AM 9 CRR-901-2024 only because a further investigation remains pending within the meaning of sub-section (8) of Section 173 of the Code.
9. In the aforesaid Dinesh Dalamiya case (supra), Hon'ble Apex Court has made it clear that even if all the documents have not been filed, by reason thereof submission of charge-sheet itself does not become vitiated in law.
10. The same question crop up before the Single Bench of this Court in the case of Khilan Singh vs. State of Madhya Pradesh order dated 18.08.2022 passed in M.Cr.C.No.35379 of 2022 the Coordinate Bench considered various case laws and observed as under:-
"9 . The Rajasthan High Court considered the similar aspect and considered the order of Punjab & Haryana High Court in the case of Manmohan Singh @ Goldi. The Rajasthan High Court in Gaurav Vs. State of Rajasthan, 2013 SCC Online Rajasthan 3865 opined as under:
"8. 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 Signature Not Verified Signed by: DEEPA MISHRA Signing time: 6/4/2024 11:58:10 AM 10 CRR-901-2024 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. 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 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 appears 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, Signature Not Verified Signed by: DEEPA MISHRA Signing time: 6/4/2024 11:58:10 AM 11 CRR-901-2024 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 thee information relating to the commission of the offence was first given."
Vivian Bose, J., who delivered the opinion for the Bench, without going in to 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 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 appears 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 Signature Not Verified Signed by: DEEPA MISHRA Signing time: 6/4/2024 11:58:10 AM 12 CRR-901-2024 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."
T h e 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 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):
Signature Not Verified Signed by: DEEPA MISHRA Signing time: 6/4/2024 11:58:10 AM13 CRR-901-2024 "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 or their statements into writing, if the officer thinks fit, (b) the search of places or seizure of thinks 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."
I t 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 Signature Not Verified of the witnesses who are to be cited to prove the prosecution case or must that Signed by: DEEPA MISHRA Signing time: 6/4/2024 11:58:10 AM 14 CRR-901-2024 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 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 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 investigation of an offence cannot be considered to be inconclusive merely for the reason that the Signature Not Verified Signed by: DEEPA MISHRA Signing time: 6/4/2024 11:58:10 AM 15 CRR-901-2024 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."
[Emphasis supplied]
10. In para 10 of the judgment of Gaurav (Supra), the Rajasthan High Court opined that view taken in Manmohan Singh @ Goldi by Punjab & Haryana High Court is per incuriam and is in total contravention of view taken by the Full Bench of the same High Court in Mehal Singh's case. The Rajasthan High Court recorded its conclusion as under :-
" 1 4 . 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 . 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.
15. 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. (sic N.D.P.S. Act), therefore, the right of the accused to be released on bail under Section 167(2) Cr.P.C. on Signature Not Verified Signed by: DEEPA MISHRA Signing time: 6/4/2024 11:58:10 AM 16 CRR-901-2024 ground of charge-sheet not having been filed within the statutory period does not survive."
[Emphasis supplied]
11. Pausing here for a moment, it is noteworthy that in the instant case, the challan has been filed within statutory time limit of 60 days. But it does not contain the FSL report regarding the nature of substance. Interestingly, the same question came up for consideration before a Division Bench of Bombay High Court at Goa, reported in 2021 SCC Online Bombay 2955 ( Manas Krishna T.K. vs. State) decided on September, 17, 2021.
12. Pertinently, the Full Bench judgment of Punjab and Haryana High Court in Mehal Singh and others (AIR 1978 PLR 480) was also considered by the Bombay High Court in Manas Krishana T.K (supra). After considering the said judgment and other Supreme Court Judgments, the Bombay High Court poignantly held as under :-
25. The above precise contention has already been rejected by the Hon'ble Supreme Court in Narendra Kumar Amin (supra), CBI v. R.S. Pai (supra), and Narayan Rao (supra).
These decisions, in terms, hold that the provisions of Section 173(5) are only directory notwithstanding the use of the expression "shall" therein. This means that even if there is any omission or failure on the part of the police officer to forward the documents and statements as contemplated by Section 173(5) along with the police report under Section 173(2), there is no scope to hold that the police report under Section 173(2) is either incomplete or that the same was filed without the completion of investigations by the police officer.
27. The Hon'ble Supreme Court upon analyzing the provisions in Sections 173, 190, and 309 rejected the aforesaid contention of the accused. The Court enumerated the information that must be detailed in the police report forwarded to the magistrate by the Investigating Officer as Signature Not Verified Signed by: DEEPA MISHRA Signing time: 6/4/2024 11:58:10 AM 17 CRR-901-2024 provided under Section 173(2). The Court then noted that even Section 190(1) (b) Cr.PC refers only to a police report under 173(2) for taking cognizance. The Court then referred to the three judge bench judgment in CBI v. R.S. Pai (supra) wherein it was held that omission in not producing relevant documents at the time of submitting the police report can always be made good by the police officer after seeking leave t o produce the same. In R.S. Pai (supra), the three-judge bench had proceeded to observe that if further investigation is not precluded under Section 173(8), then, there is no question of not permitting the prosecution to produce additional documents which were gathered prior to or subsequent to the investigation and the word 'shall' used in Section 173(5) cannot be regarded as mandatory but is only directory.
[Emphasis supplied]
13. The conclusion drawn by the Bombay High Court is recorded in para-42 which reads thus :-
42. Therefore, on the analysis of the statutory provisions, as also the decisions that have analyzed various shades of such statutory provisions, we believe that a police report or a charge sheet containing the details specified in Section 173(2), if filed within the period prescribed under Section 167(2) is not vitiated or incomplete simply because the same was not accompanied by a CA/FSL report and, based thereon, there is no question of the accused insisting on default bail.
[Emphasis supplied]
14. The Delhi High Court in Sandeep v. State (NCT of Delhi), 2022 SCC OnLine Del 2317 on the same issue recently opined as under:-
9 . The present case, the petitioner has been arrested on 07.09.2021. The issue whether a person is entitled to default bail on account of the charge sheet having been filed without FSL report is still yet to be determined by the Hon'ble Supreme Court.
10. This Court in Mehabub Rehman (supra) has taken a view Signature Not Verified Signed by: DEEPA MISHRA Signing time: 6/4/2024 11:58:10 AM 18 CRR-901-2024 which reads as under:
" 19. Applying the ratio of decision in Kishan Lal (Supra) to the present case, I find that the learned trial court has rightly dismissed petitioner's bail application while holding that though the FSL report has been filed after filing of bail application and after completion of 180 days of investigation, but the charge-sheet cannot be held to be incomplete because of the pendency of FSL report over voice sample, as preparation of report on voice sample is not in the hands of IO...."
11. For the above reasons, I am of the view that the petitioner does not automatically gets a right of default bail in the absence of FSL report accompanying charge sheet. The same has also been made clear by the judgments of Mehabub Rehman(supra).
[Emphasis supplied]
15. The Gujrat High Court in Narendra K. Amin v. Central Bureau of Investigation, 2013 SCC OnLine Guj 8611 also considered an aspect relating to release of applicant on default bail under Section 167 (2) of the Cr.P.C. The High Court recorded its finding as under :-
7. 7 In Dinesh Dalamiya v. CBI [(2007) 8 SCC 770], the Supreme Court while dealing with question of right to bail under Section 167(2) proviso in a situation where the accused was absconding and was yet to be arrested, held that investigating agency was within his right to submit charge-
sheet notwithstanding the pendency of further investigation under Section 173(8). The Apex Court stated, " I t is true that ordinarily all documents accompany the charge-sheet. But, in this case, some documents could not be filed which were not in the possession of CBI and the same were with GEQD. As indicated hereinbefore, the said documents are said to have been filed on 20-1- 2006 whereas the appellant was arrested on 12-2-2006. The appellant does not contend that he has been prejudiced by not filing of such documents with the charge-sheet. No such plea in fact had been taken. E v e n if all the documents had not been filed, by reason thereof submission of charge-sheet itself does not become vitiated in law. The charge-sheet has been acted upon as Signature Not Verified Signed by: DEEPA MISHRA Signing time: 6/4/2024 11:58:10 AM 19 CRR-901-2024 an order of cognizance had been passed on the basis thereof. The appellant has not questioned the said order taking cognizance of the offence. Validity of the said charge-sheet is also not in question."
It was further observed that, "The statutory scheme does not lead to a conclusion in regard to an investigation leading to filing of final form under subsection (2) of Section 173 and further investigation contemplated under subsection (8) thereof. Whereas only when a charge-sheet is not filed and investigation is kept pending, benefit of proviso appended to subsection (2) of Section 167 of the Code would be available to an offender; once, however, a chargesheet is filed, the said right ceases. Such a right does not revive only because a further investigation remains pending within the meaning of sub-section (8) of Section 173 of the Code.
1 2 . The presentation of challan on 03.07.2013, took care of the observed of statutory time limit contemplated for investigation. While right to investigate further is not closed as observed in Dinesh Dalamiya(supra), the juncture marked end of investigation phase, hence, operation of Section 167(2) and taking of cognizance of offence by the Magistrate. Resultantly, right of the applicant-accused to seek default bail under the said provision no more remained alive. The challan was filed within 90 days which was a due compliance as discussed above. After 90 days, Section 167(2) proviso ceased to govern the rights of the accused and the matter went out of the province of said Section. The challan filed was "a police report acted upon" in terms of Section 173 of the Cr.P.C. Nonavailability of accompaniments being the documents or extracts thereof mentioned in the police report on 03.07.2013 did not in any way invalidated the filing of the charge-sheet. It was a charge-
Signature Not Verified Signed by: DEEPA MISHRA Signing time: 6/4/2024 11:58:10 AM20 CRR-901-2024 sheet well filed in law as required for the purpose of Section 167(2) of the Code.
16. This judgment of Gujarat High Court was affirmed by the Supreme Court in Narendra K. Amin v. Central Bureau of Investigation (2015) 3 SCC
417."
11. In Khilan Singh (supra) Coordinate Bench held as under:-
18. In the considered opinion of this Court, the word 'shall' employed in Section 173 (5) of the Cr.P.C. is only directory in nature in view of the judgment of Supreme Court in Narendra K. Amin (supra). A conjoint reading of the provisions aforesaid does not lead this Court to the conclusion that non-filing of FSL report with the challan either vitiates the challan or makes the applicant entitled for the default bail. Thus, I am in agreement with the view taken by Rajasthan, Gujarat and Bombay High Court in above mentioned cases and unable to pursuade myself with the view taken by the Panjab and Haryana High Court.
12. In the case in hand, 20 kg Ganja (contraband) has been seized from the possession of applicant, charge sheet was filed on 63 days but it does not contain the FSL report regarding the nature of substance. The non-filing of FSL report with the challan does not give statutory right of default bail to the accused. The document and the nature of FSL report is admissible in evidence under Section 293 of Cr.P.C. as charge sheet has already been filed .
13. It is noteworthy that the question of granting default bail on failure on the part of police/ prosecution to include FSL report pertaining to seized contraband along with charge sheet entitling the accused to default bail are still pending before the Larger Bench of Supreme Court. Therefore, the accused has no right to be released on bail under Section 167(2) of Cr.P.C. on the Signature Not Verified Signed by: DEEPA MISHRA Signing time: 6/4/2024 11:58:10 AM 21 CRR-901-2024 ground of non-filing of FSL report with the charge sheet as it neither vitiate the charge sheet nor makes the applicant entitled for default bail. Therefore, in view of the above, I find myself in full agreement with the view taken by coordinate bench of this Court in Khilan Singh (supra) wherein relevant provisions of Cr.P.C. and case laws have been discussed in detail.
14. Therefore, as a result of aforesaid discussion, no substance is found in the argument advanced by learned counsel for the applicant for grant of default or mandatory bail to the applicant. Consequently, this revision being devoid of merit is dismissed.
(DINESH KUMAR PALIWAL) JUDGE mrs. mishra Signature Not Verified Signed by: DEEPA MISHRA Signing time: 6/4/2024 11:58:10 AM