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2008 Supreme(J&K) 426
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
J.P. Singh, J.
Chatnaya SB (Captain) - Appellant
Versus
State Of J&K & Anr. - Respondent
B.A. No. 90/2008
Decided On : 04 December, 2008
Advocate For Appellant: Sunil Sethi
Advocate For Respondent: P.C. Sharma
Headnote:(i) Criminal Procedure Code, 1973—Section 167(2)—Bail application on plea that charge-sheet for offence under section 498A and 306 RPC though filed within 60 days of applicant’s arrest was incomplete police challan—Finding was recorded in challan that on basis of evidence collected a case for offences under section 306 and 498A RPC was made out—Mere recital in report that statement of some more witnesses who were posted at far off places were yet to be recorded and that report of FSL was to be obtained, challan could not be said to be incomplete—Filing of subsequent supplementary challan to form part of original challan would not affect status of earlier filed challan—Trial Court having already taken cognizance of offence, bail application was not maintainable under the provision. (Paras 3 and 6 to 8)
(ii) Criminal Procedure Code, 1973—Section 439—Bail applicant was arrested in a case under section 498A and 306 RPC—Discretion is to be exercised by Court in judicious manner—Court has to keep in mind nature of accusation, severity of punishment in case of conviction, nature of evidence, reasonable apprehension of accused tampering with evidence or evading trial—Marriage between parties had gone into rough weather within about a month of their marriage as deceased suspected applicant of extra-marital affairs—Incident was of July 2007—Applicant being captain in Indian Army was not likely to flee from justice or tamper with evidence—Applicant deserved to be admitted to bail. (Paras 10 to 17)
2. I have considered the submissions of Shri Sethi appearing for the applicant and Shri Sharma, learned Additional Advocate General, appearing for the State in the light of judgments they had referred to at the time of consideration of this application.
3. Applicants counsels submission that applicant is entitled to his release on bail in view of the provisions of Section 167(2) of Code of Criminal Procedure, arises out of a misconception, in that, he treats the Final Police Report, the Police Challan, as it is commonly so known, which had been filed within the prescribed period of 60 days of applicants arrest, as an incomplete police challan because the investigation had not been completed by that time as the Investigating Police Officer would require some more time to record the statements of some of the witnesses under Section 161 of the Code of Criminal Procedure, who are stated to have been posted at far off places and the Forensic Science Laboratorys Report too was awaited. This is so because the Police Challan, which had been filed within the period prescribed under Section 167(2) of the Code of Criminal Procedure, does not indicate it to be an incomplete Police Challan. It, on the other hand, is in the requisite form prescribed by the State Government for production of Final Police Report under Section 173 (2) of the Code of Criminal Procedure. Not only this, the Final Police Report contains, besides a list of 53 witnesses which the Investigating Police Officer had relied upon to substantiate the charge against the applicant, the statements of witnesses recorded under Section 164-A and Section 161 of the Code of Criminal Procedure. A categoric finding too stands recorded in the Final Police Report that, on the basis of the evidence collected by the Investigation Police Officer, a case for commission of offences punishable under Sections 306 and 498-A RPC had been made out against the applicant. The documents relied upon in the case too form part of the challan. Mere recital in the report that statements of some more witnesses, who were posted at far off places, were yet to be recorded and the Report of the Forensic Science Laboratory had to be obtained, would not, in my opinion, make the Police Challan filed in the present case, an incomplete Final Police Report. Filing of subsequent supplementary challan to form part of the original challan too would not affect the status of earlier filed Final Police Report.
4. Applicants counsels submission that applicant had acquired an indefeasible right to bail in view of the provisions of Section 167(2) of the Code of Criminal Procedure too is found unsustainable, in that, on production of the Final Police Report, which had been filed within the prescribed period of 60 days, on May 30, 2008, learned Chief Judicial Magistrate, Jammu had taken cognizance of the offence, and after delivering the copies of the challan and documents to the applicant-accused, committed the case to the Court of Sessions for his trial.
5. In this view of the matter, cognizance having been taken by the learned Chief Judicial Magistrate on the Final Police Report, the applicants custody would be governed by the provisions of Section 344 of the Code of Criminal Procedure and not by the provisions of Section 167 of the Code of Criminal Procedure, as urged by Shri Sethi, and in that view of the matter, provisions of Section 167 (2) of the Code of Criminal Procedure cannot be pressed into service by the applicant for his release on bail thereunder.
6. Another factor which needs to be noticed is that applicant does not appear to be either prejudiced or aggrieved by the order of learned Chief Judicial Magistrate, Jammu, ta
