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SUPREME COURT OF INDIA
Abhay Manohar Sapre, Uday Umesh Lalit, JJ.
Achpal @ Ramswaroop & Another – Appellants
Versus
State of Rajasthan – Respondent
CRIMINAL APPEAL NO. 1218 OF 2018 @ SPECIAL LEAVE PETITION (CRIMINAL) NO.6453 OF 2018
Decided On : 24-09-2018
(2017) 15 SCC 67 – Relied upon
(2001) 5 SCC 453; (1994) 4 SCC 602; (1994) 5 SCC 410; (1996) 1 SCC 718; (2007) 5 SCC 773; (2009) 17 SCC 631; (2014) 9 SCC 457; (2018) 4 SCC 405 – Referred
(b) Code of Criminal Procedure, 1973 – Section 167(2) – Bail consequent to failure of police to file charge sheet within 90 days – Does not prohibit or otherwise prevent the arrest or re-arrest of the accused on cogent grounds in respect of charge in question – Upon such arrest or re-arrest the accused would be entitled to petition for grant of regular bail which application would then be considered on its own merit. (Para 19)
(2017) 15 SCC 67 – Relied upon
Facts of the case:
Appellants with 16 others were charged for offences punishable u/s 143, 341, 323, 452, 336, 302 r/w 149 IPC
The investigation was not carried by an ASP therefore the charge sheet filed u/s 173 was returned. Thus on the expiry of 90th day i.e. on 07.07.2018 no report u/s 173 CrPC was on record with the Magistrate.
After expiry of 90 days appellants sought bail u/s 167(2) which was rejected.
Cr. Misc. application thereagainst was rejected by High Court.
Finding of the Court:
An accused is entitled to protection of section 167(2) CrPC on failure of police to file charge sheet within 90 days.
Nobody is empowered to extend the time limit u/s 167(2).
Result: Appeal allowed.
JUDGMENT
Uday Umesh Lalit, J.
1. Leave granted.
2. This appeal challenges the correctness of the judgment and order dated 23.07.2018 passed by the High Court of Judicature for Rajasthan Bench at Jaipur in SBCRMB No.9035 of 2018.
3. FIR No.16 of 2018 was registered on 24.03.2018 with Police Station Baharwanda Kalan, Distt. Sawai Madhopur for offences punishable under Sections 143, 341, 323, 452, 336, 302 read with Section 149 of the Indian Penal Code against 18 persons. The appellants were named as Accused Nos.1 and 2 in said crime and came to be arrested on 08.04.2018. They were subsequently remanded to police/magisterial custody from time to time.
4. Later, Criminal Misc. Petition No.3517 of 2018 was filed by the complainant praying for fair and impartial investigation in the matter, in which an order came to be passed by the High Court on 03.07.2018. Said order recorded the submission of the Public Prosecutor as under:
“The learned Public Prosecutor for the State, to allay the apprehension of the petitioner, at the outset, has submitted that not only fair investigation shall be conducted by a gazetted police officer, not below the rank of Additional Superintendent of Police but the report of the investigation along with the opinion of the Investigating Officer shall be submitted in the concerned Court within a period of two months from the date of receipt of certified copy of this order by the Investigating Officer.”
The petition was disposed of in terms of the submissions so recorded.
5. Since the appellants had been in custody from 08.04.2018, the investigation, in terms of Section 167 of the Code of Criminal Procedure (the Code for Short) had to be completed by 07.07.2018. On 05.07.2018 a report under Section 173 of the Code was filed by the police before the concerned Judicial Magistrate. Since said report was filed by a police officer lower in rank than an ASP and was thus contrary to the order passed by the High Court on 03.07.2018, an application was filed by the complainant placing certified copy of the aforesaid order dated 03.07.2018. The Magistrate having noted the contents of said order, returned the chargesheet with certified copy of the order dated 03.07.2018 to the police for due compliance. Thus as on the expiry of 90th day i.e. on 07.07.2018 no report under Section 173 of the Code was on record with the Magistrate.
6. Immediately after the expiry of 90 days the appellants filed an application for bail under the provisions of Section 167(2) of the Code.
7. The Judicial Magistrate, Khandar, Distt. Sawai Madhopur by his order dated 09.07.2018 rejected the prayer for benefit under Section 167(2) of the Code. It was observed that since the charge-sheet filed on 05.07.2018 was not in compliance of the order passed by the High Court, the charge-sheet was returned due to technical fault. It was further observed that the effect of the order dated 03.07.2018 passed by the High Court was extension of period within which the investigation could be completed.
8. The rejection as aforesaid came to be challenged by filing SB Crl. Misc. Bail No.9035 of 2018 and the High Court while rejecting said petition on 23.07.2018 stated as under:
“No case for grant of bail under Section 167(2) Cr.P.C. is made out, as the time was extended by the High Court in Criminal Miscellaneous (Petition) No.3517 of 2018 and Investigating Officer was afforded two months time to file charge-sheet. It is also important to note that the Investigating Officer had produced the charge-sheet before the concerned Court prior to 90 days but the same was returned in view of the order of the High Court.”
9. The order passed by the High Court is presently under appeal. We heard Mr. Siddhartha Dave, learned Advocate for the appellants, Mr. Milind Kumar, learned Advocate for the State and Mr. M.C. Dhingra, learned Advocate for the complainant. It was submitted by Mr. Dave, learned Advocate that the report filed under Section 173 of the Code on 05.07.2018 having been returne
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