Point of Law : Mere filing preliminary charge-sheet without completing the investigation will not defeat the indefeasible statutory right of the accused to claim for default bail

ORDER :

Cheekati Manavendranath Roy, J.

1. The petitioner, in this petition, assails the order dated 16.09.2020, of the IV Additional Chief Metropolitan Magistrate-cum-Addl. Mahila Magistrate, Vijayawada, whereby she has dismissed the petition filed under Section 167(2) Cr.P.C. seeking bail on account of the default committed by the investigating agency in completing the investigation within the stipulated time.

2. The petitioner is accused No. 3 in Crime No. 453 of 2020 of Patamata Police Station, Krishna District.

3. A case under Sections 143, 148, 188, 269, 324, 307, 302 r/w. 149 of IPC was registered in the above crime against the petitioner and the other accused in the said crime.

4. The petitioner was arrested in connection with the above crime on 04.06.2020 and he was remanded to judicial custody on 05.06.2020 and since then he has been in judicial custody. Police have filed preliminary charge-sheet in the above crime on 28.08.2020. The said charge-sheet was returned with certain objections by the learned Magistrate on the ground that the requisite copies to supply to the accused are not filed and on other technical grounds. The petitioner has filed a petition under Section 167(2) Cr.P.C. seeking default bail on the ground that police failed to complete the investigation within the stipulated period of 90 days and filed only preliminary charge-sheet within the prescribed time. The said petition came to be dismissed by the impugned order of the learned Magistrate on the ground that the charge-sheet was filed within the stipulated period of 90 days and it was only returned for compliance with certain technical and other objections viz., to produce all the list of documents, for filing copies of the charge-sheet to be supplied to the accused etc. and as such the petitioner is not entitled to default bail.

5. Aggrieved by the impugned order in dismissing the petition filed claiming default bail, the petitioner is before this Court questioning the legality and validity of the impugned order.

6. Heard learned counsel for the petitioner and learned Additional Public Prosecutor for the respondent-State.

7. Learned counsel for the petitioner would contend that a perusal of the charge-sheet itself would clearly show that the charge-sheet is only a preliminary charge-sheet and it is not a final charge-sheet as it is stated in the charge-sheet that some more material witnesses are to be examined and as such, it clearly indicates that the investigation is not completed. Therefore, the filing of the preliminary charge-sheet without completing the investigation within the stipulated time will not defeat the indefeasible right of the petitioner to claim bail under Section 167(2) Cr.P.C. for the default committed by the prosecuting agency to complete the investigation within the statutory period of 90 days. He would contend that on account of the said default committed by the police in completing the investigation within the stipulated period, an indefeasible right to claim bail is accrued to the petitioner and the same cannot be frustrated or defeated by filing a preliminary charge-sheet. Therefore, he would finally submit that the learned Magistrate grossly erred in holding that as the preliminary charge-sheet is filed within the prescribed time and even though investigation is still pending, which is not on account of the laches of the investigating officer that the petitioner is not entitled to default bail. Therefore, he prayed for grant of bail to the petitioner.

8. Per contra, learned Additional Public Prosecutor for the respondent-State would submit that in fact that the charge-sheet was filed by the investigation officer within the stipulated period of 90 days. He submits that major part of the investigation in this case is completed which is evident from the contents of the charge-sheet. However, he submits that some of the witnesses, who are accused in the counter-case registered against them, were arrested and remanded to judicial cu