Gujarat High Court
Narendra K Amin vs Central Bureau Of on 9 July, 2013
Author: N.V.Anjaria
Bench: N.V.Anjaria
NARENDRA K AMIN....Applicant(s)V/SCENTRAL BUREAU OF INVESTIGATION R/SCR.A/2167/2013 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2167 of 2013 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA =========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
Yes 2 To be referred to the Reporter or not ?
Yes 3 Whether their Lordships wish to see the fair copy of the judgment ?
No 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
No 5 Whether it is to be circulated to the civil judge ?
No ================================================================ NARENDRA K AMIN....Applicant(s) Versus CENTRAL BUREAU OF INVESTIGATION & 1....Respondent(s) ================================================================ Appearance:
MR ND NANAVATY, LD. SENIOR COUNSEL WITH MR. BB NAIK, LEARNED SENIOR COUNSEL ASSISTED BY MR RUTURAJ NANAVATI WITH MR KAIVAN K PATEL WITH , ADVOCATE for the Applicant(s) No. 1 MR YN RAVANI, ADVOCATE for the Respondent(s) No. 1 MS KRINA CALLA, LD. APP for the Respondent(s) No. 2 ================================================================ CORAM:
HONOURABLE MR.JUSTICE N.V.ANJARIA Date : 16/08/2013 CAV JUDGEMNT This petition was presented under Article 227 of the Constitution, as also invoking Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as the Code for sake of brevity). It was prayed to quash and set aside the order dated 09.07.2013 passed by learned Additional Chief Judicial Magistrate, Court No.2 in Criminal Miscellaneous Application No.13 of 2013. It was secondly prayed to release the applicant on default bail under Section 167(2) of the Code on the terms and conditions deemed just and proper.
2. Before proceeding to consider the controversy and contentions canvassed by both the sides, the events in the background may be taken note of and the facts giving rise to the present proceedings may be stated.
3. A First Information Report dated 16.12.2011 numbered as RC-BS1/2011/S/0005 came to be registered with CBI Police Station, Mumbai in connection with the alleged commission of offences punishable under Section 302, 364, 368, 346, 120B, 201, 203, 204, 217 and 218 of the Indian Penal Code, 1860 and under Section 25(1)(e) and 27 of the Arms Act. The said FIR was lodged by the Additional Director General of Police (ADGP), Central Industrial Security Force (CISF), CGO Complex, Lodhi Road, New Delhi, and Chairman, Special Investigation Team (SIT) for Ahmedabad City Detection of Crime Branch Police Station, pursuant to and in compliance with judgment and order dated 01.12.2011 of High Court of Gujarat in Criminal Miscellaneous Application No.15981 of 2010, No.9832 of 2010 with Special Criminal Application No.1850 of 2009. It was a fresh FIR lodged in view of Court s directives as above. The original FIR was registered on 15.06.2004 by the Police Inspector, Crime Branch, Ahmedabad City before the then Assistant Commissioner of Police, Crime Branch, Ahmedabad City. The First Information Report dated 16.12.2011 is on record which incorporates by reproduction the previous First Information Report. In the afore-mentioned FIR dated 16.12.2011 registered with the Mumbai Police Station, in all 20 persons were shown to be the accused, of whom present applicant was shown as accused No.6, who was serving as Assistant Commissioner of Police (ACP), Crime Branch, Ahmedabad City.
3.1 The FIR alleged commission of offences against the accused persons under the Sections of IPC mentioned therein, in connection with what is named as Ishrat Jahan Encounter Case. It was stated in the First Information Report in question that one Ishrat Jahan, a 19 years old student of V.S. having no criminal record, died in which the accused was found to be involved. Burdening this order by mentioning the details of contents of the allegations in the First Information Report is found not necessary.
3.2 The applicant was arrested in connection with the FIR on 04.04.2013. He was produced before the Court of Additional Chief Judicial Magistrate, CBI Court No.2, Ahmedabad (Rural) at Mirzapur on 05.04.2013. On that day, i.e. 05.04.2013, he was sent for medical examination. On 06.04.2013 the applicant was sent under police custody for six days upto 12.04.2013. In the meantime, however, he was produced before the said Court on 10.04.2013 and thereafter he was in judicial custody. The applicant filed an application on 04.07.2013 before the Court of Chief Judicial Magistrate, C.B.I. Court No.2 seeking his release on the ground that inspite of the period contemplated under Section 167(2) being over, the charge-sheet as was necessary to be filed in accordance with law was not filed, therefore, he was entitled to be released on bail as of right and that he was ready to furnish the necessary bond. The charge-sheet/Police Report was filed on 03.07.2013, according to the case of the prosecution. The said charge-sheet was under Section 173(2) of the Code. Documents and statements mentioned therein were forwarded in compliance of Section 173(5) on different dates after 03.07.2013 upto 08.07.2013. The Magistrate passed order on 03.07.2013, and further on 08.07.2013. Learned Chief Judicial Magistrate, CBI Court dismissed the application for default bail of the applicant, filed on 04.07.2013 taking view that it was before expiry of 90 days period.
4. Initially it was sought to be contended by learned senior counsel Mr.B.B. Naik assisted by Mr.Ruturaj Nanavati for the applicant that learned Magistrate committed palpable error in calculating the period of 90 days by placing reliance on the decision in State of Madhya Pradesh Vs Rustam [1985 suppl.(3) 221] and by excluding the first day of order of remand and rejecting the application on that premise as the Rustam (supra) was not good law in view of what is held in Uday Mohanlal Acharya Vs State of Maharashtra [(2001) 5 SCC 453] which held that the first day of remand was required to be counted for the purpose of reckoning 90 days. The said point no more survived as learned counsels for both the sides were ad idem not to dispute that the period of 90 days was completed on 03.07.2013. They opted and proceeded to argue on merits on applicant s right to be released on the default bail in the facts obtained in the case. The counsel for the applicant pressed the prayer made in the present petition to release the application on default bail.
4.1 On the other hand, learned standing counsel for Central Bureau of Investigation Mr.Yogesh Ravani raised preliminary contention with regard to the maintainability of the petition under Article 227 of the Constitution read with Section 482 of the Cr.P.C. He also in the alternative and without prejudice to his preliminary contention countered submissions on merits made on behalf of the applicant. On the point of maintainability of the petition as well as on merits, learned advocates for the parties were heard in extenso.
4.2 By way of preliminary contention, learned standing counsel Mr.Y.N. Ravani for CBI submitted that against the impugned order, a remedy of filing Revision Application under Section 397(1) of the Code was available. He submitted that the Court which passed the order is an inferior criminal court to the Sessions Court, therefore, when remedy was available, petition under Article 227 of the Constitution and under Section 482 of the Code was not maintainable. Learned standing counsel relied on decision in Shalini Shyam Shetty Vs Rajendra Shankar Patil [(2010)8 SCC 329] to highlight the nature of jurisdiction under Article 227 in contra-distinguished with the powers under Article 226 of the Constitution. He submitted that remedy of filing revision application was a concurrent remedy available before the Sessions Court also, therefore, this Court may not entertain the petition and may not grant the relief. As against that, learned senior counsel for the applicant submitted that the order which was of refusing bail to the applicant was in the nature of interlocutory order, against which Revision Application would not be maintainable in view of sub-section (2) of Section 397 of the Code providing that the revisional power shall not be exercised in relation to an interlocutory order passed in any appeal, inquiry, trial or other proceedings.
4.3 In order to substantiate the contention that the order in question was interlocutory, learned senior counsel relied on decision in Amarnath Vs State of Haryana [AIR 1977 SC 2185] wherein the Apex Court considered the connotation of the term interlocutory order . It was submitted by inviting attention of the Court to paragraph 6 of the decision, it was pointed out that while construing the meaning of the interlocutory order, the Hon'ble Supreme Court referred to instances of such orders by observing, Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceedings, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. It was submitted that Amarnath (supra) was referred to by the Supreme Court in Madhu Limaye Vs State of Maharashtra [1978 Cri.LJ. 165] and was also relied on by the different High Courts taking view that the orders regarding bail are interlocutory in nature. He relied on decision of a Division Bench of Allahabad High Court in Bhola Vs State of U.P. [1997 Cri.LJ. 718 (Allah)], and State of U.P. Vs Karnam Sinh [1988 Cri.LJ. 1434 (Allah)], observing that the words passing orders for bail used by the Supreme Court in Amarnath (supra) would include granting, rejecting or canceling the bail. An Orissa High Court decision in Nilu and others Vs State [1983 Cri.LJ. 1590 (Orissa)], another decision on Bombay High Court in Mohan alias Mannu Radhamal Vs The State of Maharashtra [1989 Cri.LJ. 243 (Maharashtra)] took the same view, it was submitted.
4.4 Learned standing counsel for CBI then submitted that whether a particular order is interlocutory or final is a question to be decided in each case. He relied on decision in State Vs N.M.T. Joy Emacule [AIR 2004 SC 2282]. He further relied on decision in [AIR 1978 52] to submit that there was third category of intermediate orders carved out by the Supreme Court. By placing reliance of decision of Jharkhand High Court in Ratan Mandal Vs State of Jharkhand [2006 Cri.LJ. 781] it was submitted by the learned standing counsel that in that decision the expression interlocutory order was interpreted and the order refusing to release the accused on bail under Section 167(2) was treated as interlocutory order.
5. Having given thoughtful consideration to the submissions of learned advocates on the above aspect, though the submission of the learned standing counsel for the respondent made on the basis of decision in Ratan Mandal (supra) of Jharkhand High Court was attractive, could not be accepted. There was a comity of view in the various judicial decisions referred above applying the Apex Court decision in Amarnath (supra). Over and above the observations in the said decision of the Supreme Court are binding to this Court in their total compass. When it is viewed by the Supreme Court in Amarnath (supra) in terms that passing order of bail is an instance of interlocutory order, and no revision would lie against such orders, this Court cannot take a different view. Also the contention of learned senior counsel that the question involved was one touching the personal liberty of the applicant-accused was also not discardable. In the ultimate analysis, therefore, the matter deserved to be viewed in its substance, rather than in its form. Accordingly, preliminary contention of learned standing counsel for the respondent-CBI could not be countenanced.
5.1 Having answered the preliminary point as above, proceeding to deal with contentions on merits, which both the learned counsel opted and permitted to canvass in their full breath. Learned senior counsel for the applicant raised following main contentions:
(i) The statutory period of 90 days under Section 167(2) of the Code was getting over on 03.07.2013. On 03.07.2013, a charge-sheet/police report was filed which was not as required in law;
(ii) The charge-sheet/police report was not properly filed, because along with it the relevant documents and extracts thereof or the statements of witnesses required under sub-section (5) Section 173 of the Code were not accompanying it. An incomplete charge-sheet was filed by the prosecution to defeat the right of the applicant-accused;
(iii) The documents mentioned in the police report filed under Section 173(2) were subsequently forwarded on different dates between 03.07.2013 and 08.07.2013. Therefore, cognizance could not have been said to have taken by the Magistrate on 03.07.2013 but it was taken only on 08.07.2013;
(iv) Once the statutory period of 90 days was over and the charge-sheet was not duly filed, the custody of the applicant could be only under Section 209 or 309, as the case may be;
(v) Once the charge-sheet was not filed in accordance with law, and the period of 90 days contemplated in proviso 2 to Section 167(2) of the Code was over, there was no power with the Magistrate to continue the detention of the accused;
(vi) In the facts of the case, when Challan filed on 03.07.2013 was not a complete charge-sheet, an indefeasible right had accrued to the applicant to be released on default bail under Section 167(2) of the Code. According to learned senior counsel, the accused had availed of that right by filing an application on 04.07.2013.
(vii) Provisions of Section 167(2) of the Code has to be construed in favour of the accused and to his benefit;
5.2 Learned senior counsel relied on decisions in Matabar Parida, Bishnu Parida and others Vs. State of Orissa [(1975) 2 SCC 220], in Chaganti Satyanarayan and others Vs. State of Andhra Pradesh [AIR 1986 SC 2130], in Uday Mohan Acharya Vs. State of Maharastra [2001 (2) GLH 493], in Sayed Mohd. Ahmed Kazmi Vs. State (Delhi) and others [(2012) 12 SCC 1], in Khimbahadur Palshiram Thapa Vs. State of Maharastra [1989 (3) Crimes (Bombay) 543], in Smt. Kalpana Ghosh Vs. State and others [1996 Criminal Law Journal 1406], in Aslam Babalal Desai Vs. State of Maharastra [(1992) 4 SCC 272], in Nagarjan Vs. State of Tamil Nadu [2004 Jx(mad)1571], in Sunil Vasantrao Phulbande Vs. State of Maharastra [2002 (3) MhLJ 689], in State of U.P. Vs. Lakhsmi Brahman [AIR 1983 SC 439], in Raghubirsaran Jain Vs. State of Bengal [1996 (2) Crimes 270], in Punjaram Vs. State of Maharastra [2005 Cri. L.J. 4658], in Sharadchandra Vinayak Dongre Vs. State of Maharastra [1991 Cri.L.J. 3329], in 1998(1) Crimes 409, in Criminal Misc. Application No.16130 of 2012, order dated 18.06.2013, order dated 26.07.2013, in support of his submissions made on various points and aspects.
5.3 Countering the applicant's contentions learned standing counsel for CBI, submitted that, the charge-sheet was filed not only within a period of 90 days, but it was a complete charge-sheet in law. Once the proper charge-sheet was filed, there was no right for the applicant to seek default bail;
when the requirement of Section 173(2) was complied with in the charge-sheet, which was filed, it was a police report within the meaning of Section 2(r) read with Section 190 of the Code.;
the Magistrate took cognizance of the charge-sheet filed on 03.07.2013. Cognizance was duly taken on the basis of charge-sheet in terms of Section 173(2) of the Code;
the law does not contemplate that non-forwarding of the documents or extracts thereof and statements of witnesses along with the charge-sheet under Section 173(2); they could be subsequently forwarded. It was submitted that they were forwarded immediately;
the accused suffered no prejudice for the reason that documents were not forming part of the charge-sheet filed on 03.07.2013. In absence of any prejudice, or even in absence of any plea in that regard, no right accrued. Non-availability of documents must result into prejudice to the accused;
the Magistrate took a valid cognizance of the offence on the basis of police report filed under Section 173(2) of the Code;
it was not mandatory in law that police report submitted under Section 173(2) has to accompany the documents/statements mentioned in Section 173(5).
5.4 Learned standing counsel for CBI relied on decisions in Central Bureau of investigation Vs. R.S.Pai [(2002) 5 SCC 82]; State of W.B. Vs. Anwar alias Answar alias Anwar Rehman [2000 Cri. L .J. 2189];
State of Haryana Vs. Mehal Singh [ 1978 Cri. L. J. 1810]; Taj Singh Vs. State (Delhi Admn.) [1988 Cri. L. J. 1634]; Narayan Rao Vs. State of A.P [AIR 1957 SC 737];
Vinod Rajabhai Makwana Vs. State of Gujarat [2009 (5) GLR 3765]; Surajmal Kanaiyalal Soni Vs. State of Gujarat [1989 (1) GLR 44]. He then relied on the decision in Vipul Shital Prasad Agrawal Vs State of Gujarat [(2013)1 SCC 197] to contend that applicant has no right to seek default bail.
5.5 In the conspectus of the case, two main aspects emerged for consideration. Firstly, whether the challan/ police report/charge-sheet filed on 03.07.2013 under Section 173(2) of the Code could be said to be incomplete for the reason that, along with it, documents and statements contemplated under Section 173(5) of the Code were not forwarded at the relevant time. Secondly, whether the cognizance could be said to have been taken by the learned Magistrate; whether the cognizance was taken on 03.07.2013 or on 08.07.2013. In the above light, the moot question cropped up is whether the applicant-accused acquired indefeasible right to be released on default bail.
6. The relevant statutory provisions may be referred to at the outset. Section 167 of the Code finding place in Chapter XII titled deals with the procedure when investigation cannot be completed in 24 hours. Sub-section (1) thereof provides that whenever any person is arrested and detained in custody, and investigation is not completed within period of 24 hours fixed by Section 57 and when there are grounds for believing that the acquisition or information against the person arrested is well-founded, the competent police officer making investigation shall transmit the copy of entries in the diary prescribed relating to case, and shall at the same time forward accused to such Magistrate. Section 167(1) therefore enjoins the police to produce the arrested person before the Magistrate when the investigation is not completed within 24 hours. Sub-section (2) of Section 167 provides for the subsequent actions which may be taken.
6.1 Section 167(2) and its proviso, which is relevant for the purpose, is extracted hereunder:
167. Procedure when investigation cannot be completed in twenty-four hours.-(1) & & & (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that,-
[(a) the Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person in custody under this paragraph for a total period exceeding,-
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;] [(b) no Magistrate shall authorize detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;]
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.
Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.
Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.
Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution.
6.2 Report of police officer on completion of investigation is contemplated under Section 173 of the Code which reads as under:
173. Report of police officer on completion of investigation.-(1) Every investigation under this Chapter shall be completed without unnecessary delay.
[(1A) The investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer in charge of the police station.] (2) (i) As soon as it is completed, the officer in charge of the police station shall 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, stating-
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody under section 170;
(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under section 376, 376A, 376B, 376C 2[section 376D or section 376E of the Indian Penal Code (45 of 1860).
(ii) The officer shall also 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.
(3) Where a superior officer of police has been appointed under section 158, the report, shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the order of the Magistrate, direct the officer in charge of the police station to make further investigation.
(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report-
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.
(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any the documents referred to in sub-section (5).
(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).
6.3 Before Section 173 above, occurs Section 169 and Section 170 in the Code. Section 169 provides about the release of accused when evidence is deficient. Section 170 provides that case to be sent to Magistrate when evidence is sufficient. Section 190 in Chapter XIV titled Conditions requisite for initiation of proceedings speaks of cognizance of offences by Magistrate. Section 190 is as under:
190.
Cognizance of offences by Magistrates.-
Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2) may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2)....
6.4 An avowed object of Section 167(2) is to set a time limit for completion of investigation. In Changati Satyanarayana (supra), the Supreme Court explaining the historical background of the legislative changes which took place in Section 167, stated that they reveal that Priviso (a) to S. 167(2) has been enacted to not only safeguard the liberty of the citizens but also to safeguard the interests of the State or in other words the public. The right of bail granted to remand prisoners at the end of 90 days or 60 days as the case may be does not have the effect of rendering the subsequent period of detention ipso facto illegal or unlawful. The Explanation 1 to the Proviso obligates the accused being detained in custody inspite of the expiry of the prescribed period of 90 days or 60 days as the case may be so long as he does not furnish bail. It will thus be seen that the anxiety of the Legislature to secure to the remand prisoners their release from custody is circumscribed by its concern in equal measure to safeguard the interests of the State as well.
6.5 In Uday Mohan Acharya (supra), it was explained as to when the accused could be said to have availed of the right to be released on compulsive bail. The Apex Court explained the working of scheme and working of Section 167 as under:
Section 167, therefore, is the provision which authorises the Magistrate permitting detention of an accused in custody and prescribing the maximum period for which such detention could be ordered. Having prescribed the maximum period, as stated above, what would be the consequences thereafter has been indicated in the proviso to sub-section (2) of Section 167. The proviso is unambiguous and clear and stipulates that the accused shall be released on bail if he is prepared to and does furnish the bail which has been termed by judicial pronouncement to be compulsive bail and such bail would be deemed to be a bail under Chapter 33..... The proviso to sub-section (2) of Section 167 is a beneficial provision for curing the mischief of indefinitely prolonging the investigation and thereby affecting the liberty of a citizen. Section 167 occurs in Chapter 12 dealing with the powers of the police to investigate in a criminal offence which starts with lodging of information in cognizable cases under Section 154, and ultimately culminating in submission of a report on completion of investigation under Section 173. Soon after completion of investigation the officer-in-charge of the police station has to forward to the Magistrate, empowered to take cognizance of the offence, a report in the prescribed form and once such report is filed before the Magistrate which is commonly termed as challan then the custody of the accused is no longer required to be dealt with under Section 167 of the Code, but under Section 209. (para 5) 6.6 In Sanjay Dutt Vs State through CBI, Bombay [(1994)5 SCC 410], 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 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.
(Para
48) 6.7 It was further held in Sanjay Dutt (supra) that right of the accused to be released on bail will enures to and is enforceable by the accused only from the time of default till filing of challan and it does not survive or remain enforceable on the challan being filed.
6.8 In the present case, it is not in dispute that when the challan was filed on 03.07.2013, it was within 90 days period. 03.07.2013 was 90th day. It was further not in dispute that the said challan/charge-sheet was in terms of Section 173(2) of the Code. The applicant filed his application for bail on 04.07.2013.
7. Proceeding now to consider the question whether the challan/charge-sheet filed in terms of Section 173(2) but unaccompanied with the documents and statements under Section 173(5) could be said to be an incomplete charge-sheet in the facts of the case.
7.1 At the end of the investigation, the investigator would be filing a police report called charge-sheet which would enable the Magistrate to take cognizance of the offence. As noted above, Section 190(1)(b) of the Code provides that one of the mode of taking cognizance by the Magistrate is upon a police report of the facts. The police report is defined in Section 2(r) to mean a report filed under Section 173(2) of the Code. Once the police report is filed, incidences and effects of Section 167(2) gets over.
7.2 In Satyanarayan Musadi Vs State of Bihar [AIR 1980 SC 506], the Supreme Court stated that legislative intention is that the Magistrate can take cognizance upon a police report submitted under Section 173(3) of the Code.
The expression 'police report' has been defined in sec. 2(r) of the code to mean a report forwarded by a police officer to a Magistrate under sub-sec.(2) of sec. 173. In view of the specific definition the controversy raging round the expression 'upon a police report of such facts' as found in sec. 190(1)(b) of the Code of 1898 prior to its amendment in 1923 by Act 18 of 1923 when, the words 'report in writing of such facts made by a police report' were substituted for the words 'police report of such facts' has lost its edge and significance. The section as it now stands demonstrably manifests the legislative intention that the Magistrate can take cognizance under sec. 190(1)(b) upon a police report meaning thereby the report submitted by a police officer under sec. 173(2) of the Code. (para
6) 7.3 The facts of Satyanarayan Musadi (supra) may be considered with some detail to comprehend as to what could be said to be a legally acceptable police report, which would be submitted upon investigation by the Investigating Officer. The Supreme Court examined the validity of police report under Section 173(2) of the Code and taking cognizance of the offence on the basis thereof by the Magistrate in the context of Section 11 of the Essential Commodities Act, 1955. The Section provided that no Court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by a person who is a public servant as defined in Section 21 of the Indian Penal Code.
7.4 what is observed and held by Hon'ble the Supreme Court may be usefully noted.
Section 173 (2) thus provides what the report in the prescribed form should contain. In this case the report did contain the name of the accused and the nature of the offence. In fact sec.170 provides that if upon an investigation under Chapter XII it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground to proceed against the accused such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report, etc. If the accused is on bail that fact will be notified in the final report submitted under sec. 173(2). Therefore, the statutory requirements of the report under sec.173(2) would be complied with if the various details therein prescribed are included in the report. This report is an intimation to the Magistrate that upon investigation into a cognizable offence the investigating officer has been able to procure sufficient evidence for the Court to inquire into the offence and the necessary information is being sent to the Court.
In fact, the report under sec.173(2) purports to be an 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 manes of the witnesses, the nature of the offence and a request that the case be tried, there is compliance with sec.173(2). The report as envisaged by S.173(2) has to be accompanied as required by sub-sec.(5) by all the documents and statements of the witnesses therein mentioned. One cannot divorce the details which the report must contain as required by sub-sec.(2) from its accompaniments which are required to be submitted under sec. (5). 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 sec.173(2) there would be sufficient compliance if what is required to be mentioned by the statute has been set down in the report. To say that all the details of the offence must be set out in the report under sec. 173(2) submitted by the police officer would be expecting him to do something more than what the Parliament has expected him to set out therein. 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 sec.11.
The details 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.
(para
10) (emphasise supplied) 7.5 Then these observations with reference to the charge-sheet submitted in that case, Turning now to the charge-sheet submitted in this case it sets all the details as required by sec.173(2) of the Code. The name of the accused is mentioned. The nature of the offence is mentioned. It is further stated that the information of the offence was given by Mahesh Kant Jha. It is also stated that there was sufficient evidence to proceed against Satya Narain Musadi appellant 1 herein under sec. 7 of the Act. May be that the charge-sheet could have been more informative or the information set out in the charge-sheet could be styled as scanty. Some more details may have been helpful. It however, could not be said that it did not disclose an offence of which the Magistrate could take cognizance under sec. 190(1)(b). Ultimately when a Magistrate looks at police report also styled as charge-sheet under section 190(1)(b) he takes cognizance of an offence upon a police report and prima facie he does so of the offence or offences set out in the report. And the report under discussion does disclose an offence under sec.7 of the Act. (para 12) 7.6 In K. Veeraswami Vs Union of India [(1991)3 SCC 655], the Apex Court observed by referring to Satyanarayan Musadi (supra) that the statutory requirement of the report under Section 173 would be complied with if the various details prescribed therein are included in the report. It was observed, This report is an intimation to the magistrate that upon investigation into a cognizable offence the Investigating Officer has been able to procure sufficient evidence for the court to inquire into the offence and the necessary information is being sent to the court. In fact, the report under Section 173(2) purports to be an opinion of the Investigating Officer that as far as he is concerned he has been able to procure sufficient material for the trial of the accused by the court. The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 175(5). Nothing more need be stated in the report of the Investigating Officer. It is also not necessary that all the details of the offence must be stated. The details of the offence are required to be proved to bring home the guilt to the accused at a later stage i.e. in the course of the trial of the case by adducing acceptable evidence.
(para
76) 7.7 In Dinesh Dalamiya Vs 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, 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. (para 22) (Emphasis supplied) 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 sub-section (2) of Section 173 and further investigation contemplated under sub-section (8) thereof. Whereas only when a charge-sheet is not filed and investigation is kept pending, benefit of proviso appended to sub-section (2) of Section 167 of the Code would be available to an offender; once, however, a charge-sheet 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.
(para
39) 7.8 In C.B.I. Vs R.S. Pai [(2002(5 SCC 82], the Apex Court viewed together sub-section (5) and sub-section (8) of Section 173, holding that additional evidence gathered during investigation can be produced by Police Officer even after submission of charge-sheet. It was held that word shall used in sub-section (5) for requiring Police Officer to forward upon Magistrate all documents is directive in nature, and is not mandatory.
8. From the above decisions, it could be culled out that though the documents mentioned in Section 173(5) are part of the charge-sheet, they may for some reason not accompany the report under Section 173(2) of the Code at the time of filing of police report/charge-sheet submitted under Section 173(2) upon investigation.
Of course, they are to be necessarily forwarded to be part of the charge-sheet. Hastening to add, the said documents/extracts and statements, if not filed along with the report under Section 173(2),their transmission has to follow in the immediate point of time. The accused would be entitled to copies thereof. They have to be therefore, be part of the charge-sheet without brooking any delay so that no prejudicial situation arises.
9. Thus, true it is that forwarding of relevant documents or extracts thereof and the statements recorded under Section 161 of the witnesses is a necessary requirement to be complied with, but merely because they were not forwarded simultaneously with the report sent under Section 173(2) of the Code, such police report shall not stand as an invalid report. The police report filed under Section 173(2) in the format specifying and stating details mentioned in the said section has its own value. The particulars contained in such report under Section 173(2) would help the Magistrate to apply its mind and decide whether prima-facie details about commission of the alleged offences were available with the investigator.
9.1 In the present case, the documents and the statements were forwarded within short span of time of five days and became part of the charge-sheet already filed within 90 days under Section 173(2). The submission of the learned standing counsel for CBI that sending of the documents/statements afterwards filing of the police report under Section 173(2) of the Code as above, did not result into in sufferance of prejudice to the accused, has a substance. It is also not the case of the applicant that he suffered any prejudice. Therefore, observations in Dinesh Dalmia (supra) in paragraph 22 thereof quoted hereinabove apply with force.
9.2 It was observed in Dinesh Dalmia (supra) that so long as a charge-sheet is not filed within the meaning of sub-section (2) of Section 173 of the Code, investigation remains pending. A necessary corollary is, therefore, that the filing of charge-sheet in terms of Section 173(2) marks an end of pending investigation. At that stage, the boundary of operation of Section 167(2), proviso of the Code also ends.
9.3 In the above scenario, filing of police report/challan under Section 173(2) amounted not only proper observance of statutory time period of 90 days, but also marked end of operation of Section 167(2) proviso. The Magistrate had already taken cognizance.
9.4 The view being taken herein by this Court finds support from different decisions of the Courts. In State of West Bengal Vs Anwar alias Answar alias Anwar Rehman [2000 CRI.L.J. 2189], Kolkatta High Court unequivocally held that terms police report means police report itself and it cannot include statements of witnesses, documents referred to in Section 173(5). It was further held that taking of cognizance will not be invalidated because of omission to cover the said documents along with the police report. The case before the Kolkatta High Court was under the NDPS Act, 1985. In Mehal Singh (supra), a Full Bench of Pnunab and Haryana High Court observed and held that investigation of offence cannot be considered to be inconclusive merely for the reason that Investigating Officer when submitted his report under Section 173(2) of the Code to the Magistrate awaited a report of experts or by some chance, either inadvertently or by design, he failed to append to the police report the documents or the statements under Section 161 of the Code although they were available with him at the time of submitting police report to the Magistrate. The accused was held not entitled to bail under Section 167(2). This Court in Vinod Rajabhai Makwana (supra), dealt with the issue of default bail in the context of situation where the Investigating Officer presented charge-sheet within the prescribed period, which charge-sheet came to be rejected by the Magistrate on the ground that it was effective as FSL report was not produced therewith. The Court held that once the charge-sheet was presented to the Magistrate within the prescribed period, obligation on part of the Investigating Officer was over. It could not be said that charge-sheet was not filed within the prescribed period. The charge-sheet was not defective for want of production of FSL report with it.
10. At this stage, the contents of the charge-sheet filed itself may be seen. An extract of the charge-sheet filed on 03.07.2013 along with its prefatory contents is produced on record by the respondent-CBI along with its affidavit-in-reply. The whole of it as was filed, was made available to the Court for perusal in course of the hearing. It was noticed that the charge-sheet contained a list of 179 witnesses, 162 documents and list of several muddamal/articles collected in course of the investigation. The prefacing contents of the challan filed may be usefully be extracted herein, more particularly the relevant in which role of the present applicant figured as viewed by the Investigating Officer.
8. Investigation revealed that the purported encounter was not genuine....
10. Investigation revealed that on 26.05.2004, a team of DCB, Ahmedabad City comprising of accused N.K.Amin, tarun Barot and I.K.Chauhan with the assistance of Shri M.K.Sinha and Rajeev Wankhede, ACIOs of SIB, Ahmedabad abducted the deceased Amjadali from Gota Crossing on the outskirts of Ahmedabad. Investigation revealed that the above team of accused officers after abducting the deceased Amjadali, confined him in illegal custody at Arham Farm House from 26.05.2004 to 15.06.2004 early morning... ... Investigation disclosed that S/Shri D.G. Vanzara, Rajinder Kumar, N.K. Amin and G.L. Singhal had met the deceased Amjadali during his confinement at Arham Farm.
18. The investigation further revealed that... ... Amhadali was handed over to N.K.Amin who made him to stand behind the road divider at the rear side of the parked Indica Car, where after B.A.Patel drove away and Motibhai Taljabahi stood with I.K.Chauhan, Mohan Nanji and Nizamuddin.
19. The investigation revealed that immediately after the arrival of all the four detainees as above N.K.Amin, Tarun.A.Barot, J.G.Parmar, Mohanbhai Lalabhai Kalaswa, Anaju Jiman Chaudhary opened fire on the detainees in the car and on the road divider from their official weapons resulting into the death of all four detainees. Shri Tarun Barot and Mohanbhai Lalabhai Kalaswa had snatched away the official weapons from I.K.chauhan and Mohan Nanji Menat and further fired from snatched weapons on the deceased persons.
20. The investigation revealed that the above firing had taken place in two successive stages... ... Further Commando Mohan Kalasawa was made to fire several rounds from AK 56 rifle (planted on the Amjadali Rana), on the official Gypsy vehicle of Dr.N.K.Amin. This AK 56 rifle was brought to the scene by Shri Tarun Barot.
22. That investigation conducted so far disclosed that the above said fake encounter was a result of Joint operation of Gujarat Police and SIB, Ahmedabad. In this operation the overt acts committed by the accused Gujarat Police officers have been established by the evidence on record. However, further investigation is in progress against the SIB officers namely Rajinder Kumar, M.K.Sinha, Rajeev Wankhede, T.Mittal and others.
23. Therefore in view of the above facts and circumstances, the Investigating Agency CBI seeks permission of the Hon'ble Court to continue investigation to look into the other aspects of the offence.
24. Thus from the above it is clearly revealed that Shri P.P.Pandey, Shri D.G.Vanzara, Shri N.K.Amin, Shri G.L.Singhal, Shri J.G.Parmar, Shri Tarun Barot, Shri Anaju Jhiman Choudhary has committed the offences punishable U/s 302, 364, 368, 346, 120-B, 201, 203, 204, 217, 218 of Indian Penal Code and 25(1)(e), 27 of Arms Act.
Hence, the charge sheet.
10.1 From the above, it was seen that the contents of the charge-sheet set-out in its prefatory details, showed the revalations in the investigation. The Investigating Officer mentioned the role played by the accused persons. The Investigating Officer opined on the basis of the material collected by him during the investigation that the prima-facie commission of offence in his view was made out. It was evidently clear that the charge-sheet as presented incorporated all the necessary details required under Section 173(2), including that whether offence was committed and by whom, which was in terms of clause (d) of Section 173(2). What is described as bare and empty format, in fact disclosed the contents necessary in law to be mentioned. It could not be viewed as a format hollow in its contents not to enable the Magistrate to take the cognizance.
10.2 Upon the charge-sheet in question filed on 03.07.2013, the brief outline of which highlighted above, the Magistrate passed order thereon on the very day. He accepted the charge-sheet. In the order, the Magistrate issued Yadi or the process to the accused as the case may be. On perusal of the said order, by no stretch of legal logic, it could be said that it did not amount to taking of cognizance. It was not possible to construe the said order dated 03.07.2013 in any other manner except that it tantamount to taking cognizance. The subsequent order dated 08.07.2013 was a step or an action post-cognizance. The contention that Magistrate took cognizance on 08.07.2013 only is entirely without substance. As discussed above, the charge-sheet filed was not one which could be characterized as incomplete charge-sheet in eye of law. It was on the basis of a charge-sheet valid and duly filed that the leaned Magistrate took cognizance which was a valid cognizance taken. It is trite that the Court always takes cognizance of the offence and not of the offenders.
11. Even as the word cognizance is not defined in the Code anywhere, what amounts to taking of cognizance is a connotation judicially determined. In Raghunath Anant Govilkar Vs State of Maharashtra [(2008)11 SCC 289], the word cognizance was explained as: In common parlance, it means taking notice of. In Ajit Kumar Vs State of West Bengal [AIR 1963 SC 765], the Supreme Court explained the word cognizance as under:
The "word cognizance" has no esoteric or mystic significance in criminal law or procedure. It merely means - become aware of and when used with reference to a Court of Judge, to take notice of judicially. It was stated in Gopal Marwari v. Emperor, AIR 1943 Pat 245 (SB) by the learned Judges of the Patna High Court in a passage quoted with approval by this Court in R. R. Chari v. State of Uttar Pradesh, 1951 SCR 312 at p. 320: (AIR 1951 SC 207 at p 210) that the word 'cognizance' was used in the Code to indicate the point when the Magistrate or Judge takes judicial notice of an offence and that it was a word of indefinite import, and is not perhaps always used in exactly the same sense. As observed in Emperor v. Sourindra Mohan, ILR 37 Cal 412 at p. 416, "taking cognizance does not involve any formal action; or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence."
11.1 In Army Headquarters Vs CBI [(2012)6 SCC 228], it was observed by the Supreme Court in paragraph 63 of the decision in broad and literal sense, cognizance means taking notice of an offence as required under Section 190, Cr.P.C. Cognizance indicates the point when the Court first take judicial notice of an offence.
The Court not only applies its mind to the contents of the complaint/police report, but also proceeds in the manner as indicated in the subsequent provisions of Chapter XIV Cr.P.C. In Subramanian Swamy Swami Vs Manmohan Singh and another [(2012)3 SCC 64], the concept of cognizance fell for consideration of the Supreme Court with reference to the aspect of sanction to prosecute a public servant under the Prevention of Corruption Act, 1988. What tantamount to taking cognizance was lucidly summarized by observing in paragraph 34 of the decision that in legal parlance, cognizance is taking judicial notice by the Court of law, possessing jurisdiction, on a cause of matter presented before it so as to decide whether there is any basis for initiating proceedings for determination of cause or matter judicially. The Court then proceeded to emphasise, Before proceeding further, we would like to add that at the time of taking cognizance of the offence, the court is required to consider the averments made in the complaint or the charge-sheet filed under Section 173.
It is not open for the court to analyse the evidence produced at that stage and come to the conclusion that no prima facie case is made out for proceeding further in the matter.
However, before issuing the process, it is open to the court to record the evidence and on consideration of the averments made in the complaint and the evidence thus adduced, find out whether an offence has been made out. On finding that such an offence has been made out the court may direct the issue of process to the respondent and take further steps in the matter. If it is a charge-sheet filed under Section 173 CrPC, the facts stated by the prosecution in the charge-sheet, on the basis of the evidence collected during investigation, would disclose the offence for which cognizance would be taken by the court. Thus, it is not the province of the court at that stage to embark upon and sift the evidence to come to the conclusion whether or not an offence has been made out. (Para 43) (emphasise supplied) 11.2 Considering the charge-sheet filed, extracts thereof mentioned in the above paragraphs, and considering them with reference to the parameters for taking cognizance emanating from the decisions as above, it could be safely said that there was enough prima-facie material available from the police report filed under Section 173(2) for the Magistrate to apply his mind and take cognizance. The details of investigation carried out by the investigating agency was mentioned. Each role was described and the Investigating Officer expressed opinion that the accused persons were found to be involved in the suspected offence. It could be hardly denied that the contents and details stated and incorporated in the charge-sheet was adequate and sufficient material for the cognizance of the offence in the manner judicially recognised. Learned Magistrate accepted the charge-sheet and recorded it in the order by taking cognizance thereon.
12. 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. Non-availability 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-sheet well filed in law as required for the purpose of Section 167(2) of the Code.
13. In view of foregoing discussion, no right to seek default bail survived for the applicant-accused. The right stood extinguished as soon as the charge-sheet was filed which was a valid charge-sheet within the statutory period.
14. Neither of the prayers in the petition could be granted. The applicant is not entitled to any relief. Hence, the petition stands dismissed. Notice discharged.
(N.V.ANJARIA, J.) Anup Page 38 of 38