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2005 Supreme(Bom) 1728
IN THE HIGH COURT OF BOMBAY
Anil Somdatta Nagpal
VERSUS
Lalit Somdatta Nagpal
Decided no: DECEMBER 13, 2005
Headnote:Criminal Procedure Code, 1973 - Sections 167(2), Proviso (a)(i) and (ii) and 173(2) Mandatory bail Once charge-sheet is filed right of accused to be released on bail is extinguished Surrender of accused at a later stage would not enable him to be enlarged on bail. The mandate to forward the person to the Magistrate flows not only upon his arrest but also because of his detention in custody. While it may be true that on surrender to the Magistrate the applicants herein have been taken in custody but that by itself does not mean that they are entitled to be released on bail after the outer limit prescribed in law. If the Magistrate has taken cognizance of the offence upon police report being filed, then merely because absconding accused surrenders at a later stage and is taken in custody does not mean that the period of 60 days prescribed in proviso to Section 167(2) of Criminal Procedure Code must be computed in such a manner so as to enable him to be enlarged on bail. An accused cannot contend that the Court must take cognizance of his custody and not the offence. Section 173(2) very clearly states that as soon as investigation is complete, the officer-in-charge shall forward to a Magistrate empowered to take cognizance of an offence a police report, in the form prescribed by the State Government. Hence, upon investigation being completed and the report contemplated by Section 173(2) being forwarded, cognizance of the offence is taken, and therefore, no question arises of applicability of proviso to Section 167(2) of the Code. Proviso contemplates release on bail when investigation is underway and not being completed within the period of 90/60 days. A person gets a right to be released on bail if he is prepared and chose to furnish the same. Merely because the applicants took their own sweet time to surrender before the Court, does not mean that they will be entitled to avail of the benefit of proviso to Section 167(2). That pursuant to their arrest and they being detained in custody, a further report was filed under Section 173(8) of the Code, is of no consequence. By its very nature it was a report of further investigation. That further investigation can be carried out even after forwarding a report under Section 173(2) is an aspect covered by Section 173(8). It cannot have any bearing on the so called right of the applicants herein under Section 167(2) proviso. Cri. Appln. No. 2657/ 2004, dated 28.2.2005 Distinguished.
Criminal Procedure Code, 1973 - Sections 167(2), Proviso and 173(8) Mandatory bail. Where Magistrate has taken cognizance of offence upon police report then merely because absconding accused surrenders at later stage and is taken in custody not means that period of 60 days prescribed in Section 167(2) must be computed to enable him to be enlarged in bail.
Criminal Procedure Code, 1973 - Section 173(2) and (8) Report of further investigation Need not be in the form prescribed by the State Government Report is not vitiated for non-compliance. The mandate flowing from Section 173(1) of Criminal Procedure Code is that every investigation under Chapter XII must be completed without unnecessary delay. As soon as it is completed, the officer in charge of the police station, shall forward to the Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government setting out the particulars in sub-section (2) of Section 173. The further report on such investigation has also to be forwarded, but the procedure prescribed in sub-sections (2) to (6) of Section 173 for forwarding it is applicable. In other words, the said further report shall not be necessarily in the form prescribed by the State Government. If it is possible to adhere to the form, it should be so adhered to. Merely because this requirement is not fulfilled, the report is not vitiated and can be tendered on record. Therefore, submission that Section 173(2) has to be strictly complied with even while forwarding further reports, does not appear to be sound on a plain reading of these provisions.
Criminal Procedure Code, 1973 - Sections 173(2) and 190(1)(b) The term police report in Section 190(1)(b) is traceable to the report of the police officer forwarded under Section 173(2) Once charge-sheet is filed, applicants cannot avail their indefeasible right, which stands extinguished. The police report is nothing but what is popularly called a "charge-sheet" and as envisaged by Section 173(2) of Criminal Procedure Code. In other words, the term "police report" referred to in Section 190(1)(b) is traceable to the report of police officer upon completion of investigation, forwarded vide Section 173(2).
( 2 ) THE facts necessary to consider the applicability of the relevant statutory provisions are these. In pursuance to the raid on the factory premises of one Deepak Mundada, original accused no. 3, wherein two iron tanks of 12,000 and 6,000 litres capacities, a motor tanker containing Benzin, Greenish lubricating in 200 litres barrel, 45 kilos of white powder in 5 gunny bags and a motor tanker containing Mineral turpentine Oil (MTO) were found and were seized under panchanama. On the basis of a statement of ranjit Pandurang Desai a case was registered as c. R. No. 39/2004 with Karveer Police Station, kolhapur, against eleven accused persons named in the F. I. R. for offences under sections 3 and 7 of Essential Commodities Act, 1955 and under section 3 of Petroleum Storage and Distribution act, 2000.
( 3 ) THE applicants state that on 20. 5. 2004 the investigation of the above C. R. No. 39/2004 came to be transferred to C. B. (Control), Crime Branch, worli Police Station, Mumbai, on the orders of director General of Police, Maharashtra State.
( 4 ) DURING the course of investigation some more persons came to be arrested taking the tally to 17 and after initial period of custody, all accused have been released on bail. On the completion of their investigation the police filed a charge sheet on 5. 5. 2005 against them also under sections 465, 467, 468, 471, 420 R/w 34 of IPC. . The case was then numbered as r. C. C. No. 288/2005.
( 5 ) IT is contended that after filing of the charge sheet, on 6th May 2005, Police sought permission for further investigation u/s 173 (8) of Code of Criminal Procedure (hereinafter referred to as "the Code"), which was granted by the learned Magistrate. Therefore, the applicants submit that the charge sheet filed on 5th May 2005, cannot be a report as contemplated u/s 173 (2) of the Code. Such report has to be filed after completion of investigation and not when the same is pending. On 1st July 2005 and 6th July 2005, applicant nos. 2 and 1 respectively surrendered before the learned JMFC, Kolhapur. He was pleased to remand them to Judicial custody. On 8th July 2005 an application was moved by the prosecution seeking their Police custody on the ground that their involvement is to be fairly investigated, which cannot be done unless and until they are remanded. The applicants state that the learned Magistrate was pleased to remand them to Police Custody. After the period of police custody, permissible by law, the applicants were remanded to judicial custody. They are detained in the same.
( 6 ) SPECIFIC case of the applicants is that during pendency of the investigation against them they moved this Court for bail on merits but their applications were rejected.
( 7 ) IT is their further case that requisite period of 90 days custody, as contemplated u/s 167 (2) of Code, expired on 28th September 2005 in the case of applicant no. 2 and on 5th October 2005 in respect of applicant no. 1. Till this date the Police did not file any supplementary charge sheet against them. Therefore, an indefeasible right to be released on bail accrued to the applicants. They were ready and willing to furnish bail. Accordingly, on 30th September 2005 applicant no. 2 filed an application for bail u/s 167 (2) of the Code. It is the applicants case that this application was directed to be listed for hearing by the learned Magistrate at 12. 35 hours on 30th September 2005. He directed the Assistant Superintendent of Court to file report regarding filing of any supplementary charge sheet against applicant no. 2. He also directed that the say of APP and the investigating Officer, if any, be filed within the time stipulated by him. The Assistant superintendent attached to the Court, gave his report on the bail application and pointed out that the only charge sheet in this
