An incomplete charge sheet filed within the statutory period should not infringe upon the right of the accused to be released on bail under Section 167(2) of Cr. P.C.

P.S. TEJI, J.

Crl. M.A. No.17403/2015 (Condonation of delay) & Crl. M.A. No.17404/2015 (Delay in re-filing)

By these applications filed under Section 5 of Limitation Act read with Section 482 of Cr. P.C., the petitioner seeks condonation of delay of 12 days in preferring the present revision petition and 66 days in re-filing the petition.

For the reasons stated in the applications, the delay in filing as well as re-filing the petition is condoned. Applications allowed.

Crl.Rev.P. 770/2015

1. By this petition filed under Section 397 of Cr. P.C. the State has preferred to challenge the order dated 22.04.2015 passed by the learned Additional Sessions Judge (01), West, Tis Hazari, Delhi in FIR No. 651/2014 under Section 408 of IPC registered at Police Station Kirti Nagar, Delhi, whereby the respondent has been ordered to be released on bail under Section 167(2) of Cr. P.C..

2. As per prosecution, the FIR No. 651/2014 was registered consequent to the complaint of one Prince Walia on 29.09.2014 under Section 408 of IPC against the accused and others on the ground that on internal audit, it was discovered that there was a physical shortage of Rs.73,85,100/-in different ATMs of Corporation Bank on the Nangloi Route and accused was the custodian of these ATMs and route and thus the accused persons had misappropriated the aforesaid amount and committed an offence of breach of trust.

3. Investigation was commenced and the accused (respondent herein) was arrested on 29.10.2014 and after completion of investigation, the police filed the final report in the case before the competent Court on 26.12.2014. The Court while looking into the final report found that certain aspects required further investigation and accordingly directed for further investigation in the case vide order dated 08.01.2015. The accused applied for statutory bail under Section 167(2) of Cr. P.C. which the learned Metropolitan Magistrate had rejected vide order dated 23.03.2015, while observing that the police had indeed filed the final report in the prescribed time and merely because Court had asked for further investigation before taking cognizance would not deem to mean that charge sheet had not been filed within the prescribed time. The learned Metropolitan Magistrate relied on the judgment of Suresh Kumar Bhikam Chand Jain v. State of Maharashtra, (2013) 3 SCC 77.

4. The respondent had preferred revision before the Court of Sessions Judge and vide order dated 22.04.2015, the respondent was ordered to be released on bail under Section 167(2) of Cr. P.C., which is impugned in the present petition.

5. Learned Additional Public Prosecutor for the State contended that though the accused/respondent was arrested in this case on 29.10.2014, and there is sufficient compliance of Section 167 of Cr. P.C. by the police as the charge sheet in this case was filed on 26.12.2014, i.e. the charge sheet was filed within 60 days from the date of arrest therefore the application for statutory bail under Section 167(2) of Cr. P.C. was not maintainable. It is further contended that the ratio of the judgment relied upon by the learned Metropolitan Magistrate in the case of Suresh Kumar Bhikam Chand Jain (supra) squarely applies to the facts of the present case and there is no illegality or infirmity in the order passed by learned Metropolitan Magistrate.

6. Mr. Manjeet Singh, learned counsel for the respondent submits that even if it is presumed for the sake of argument that the charge sheet was filed within a period of 60 days, but on such charge sheet no cognizance could be taken by the learned Metropolitan Magistrate and the learned Metropolitan Magistrate has directed for further investigations vide order dated 08.01.2015. But the charge sheet could not even be filed after expiry of 60 days of the order dated 08.01.2015 and in such a situation the learned Additional Sessions Judge allowed the revision petition of the respondent thereby ordering the respondent to be released on bail. T