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2001 DIGILAW 890 (AP)

JULAKANTI BRAHMA REDDY v. State Of A. P.

2001-08-16

T.CH.SURYA RAO

body2001
T. SURYA RAO, J. ( 1 ) PETITIONERS seek bail. The factual matrix necessary for an effective adjudication of the matter may be set forth at the outset. ( 2 ) THE petitioners who are Al to A20 in the crime are accused of the offences punishable under Sections 147, 148, 324, 307, 302, 120-B read with 149 of the Indian penal Code; Sections 3 and 5 of the explosive Substances Act; and Section 27 of the Indian Arms Act, in Crime No. 18 of 2001 of Durgi Police Station. As many as seven persons were murdered in the offence perpetrated in this crime. The investigation was commenced so soon after the registration of the crime. They were arrested separately on 12-3-2001; on 27-3-2001, and on 28-3-2001. Since then they have been in judicial custody. The investigating Officer filed the charge-sheet on 10-6-2001 mentioning, inter alia, that the final charge sheet would be filed after completion of investigation. The charge- sheet was returned for compliance on certain objections and it was represented on 28-6-2001. Again finding that it was not in order, a letter was addressed to the investigating Officer for compliance and remand was extended till 16-7-2001. On 16-7-2001, the Investigating Officer filed a memo into the Court requesting the court to return the charge-sheet and the same was allowed. Thereafter, remand was extended till 25-7-2001. Since the charge- sheet was not represented on 25-7-2001 the remand was further extended to 8-8-2001. Even on 8-8-2001 since no communication was received from the Central Jail and as the accused were not produced, remand was extended till 21-8-2001. In the meanwhile, the petitioners filed various bail petitions before the Sessions Court at Guntur seeking bail. The learned Sessions Judge vide his order dated 25-7-2001 dismissed all those bail petitions by means of a common order on the premise that as after completing investigation, charge-sheet was filed and since the situation in the village was tense and as the elections were scheduled by then, the request of the petitioners for bail could not be considered. The petitioners, therefore, approached this Court. The petitioners, therefore, approached this Court. ( 3 ) IT is the case of the petitioners that the Police after investigation filed a preliminary charge-sheet since ninety days period would be over by 10-6-2001 which is no charge-sheet in the eye of law and therefore, the petitioners are entitled to bail for the default of the Investigating Officer in completing the investigation. ( 4 ) IN order to appreciate the stand of the petitioners, it is necessary to have a look at the charge-sheet to know whether it is a preliminary or a final charge-sheet. Surprisingly, the Court gave PRC No,27 of 2001 even when the charge-sheet was ordered to be returned. As things stood even by the date of the filing of this petition the said charge-sheet was not re-submitted. One need not, therefore, be swayed away by the fact of giving PRC No. 27 of 2001 that it was a case where cognizance was taken by the Court. At the end of the charge-sheet, the Investigating Officer, namely, the Sub-Divisional Police Officer, sattenapalli, appended a note, which may profitably be excerpted herein below for brevity and better understanding of the matter:"the investigation in this case is not yet completed as the seized material objects from the scene of offence were sent to RFSL, Vijayawada and report is awaited. Further the remnants of country made bombs were sent to RFSL, vijayawada, for examination and opinion and after receipt of the opinion and prosecution orders from Collector and district Magistrate, Guntur and after completion of the investigation, final charge-sheet will be filed under section 173 (8) of the Cr. PC. As 90 days period prescribed under Section 167 (2) (a) (i) cr. PC will be over by 10-6-2001 and hence the charge-sheet is filed. " ( 5 ) IT is obvious from the said note that by the date of filing of the charge-sheet investigation was not completed. The charge-sheet as envisaged under Section 173 of the Code of Criminal Procedure ( the code for brevity) within the stipulated period of ninety days mandated under section 167 (2) (a) (i) of the Code was not filed. Even otherwise, the Court could not have taken cognizance of the same as the requisite sanction from the Collector and district Magistrate has not obviously been obtained by then. Even otherwise, the Court could not have taken cognizance of the same as the requisite sanction from the Collector and district Magistrate has not obviously been obtained by then. It is manifest thus so as to frustrate the right of the accused to get bail a preliminary charge-sheet was filed without completing the investigation. The inescapable conclusion that necessarily follows is that a preliminary charge- sheet was filed so as to circumvent the provisions of Section 167 (2) proviso (a) (i) of the Code. ( 6 ) TURNING to the law on the point in Hitendra Vishnu Thakur v. State of maharashtra, (1994) 4 SCC 602 = 1994 air SC 2623, the Apex Court construed the provisions of Section 167 of the Code and the object of the Parliament in introducing the proviso to sub-section (2) of Section 167 and held that the provision creates an indefeasible right to an accused person on account of the default of the investigating agency in completing the investigation within the maximum period prescribed, to seek an order for his release on bail. The Court further held that an obligation is cast upon the Court to inform the accused of his right of being released on bail and enable him to make an application in that behalf. ( 7 ) A Constitution Bench of the Apex Court in Sanjay Dutt v. State through CBL, bombay, (1994) 5 SCC 410 , explained the meaning of the expression indefeasible right enunicated in Hittendra Vishnu Takur s case. The Bench held in para 48 (of SCC) thus:"the indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to the grant of bail to an accused after the filing of the challan. Custody of the accused after the challan has been filed is not covered by Section 167 but different provisions of the Code of criminal Procedure. Custody of the accused after the challan has been filed is not covered by Section 167 but different provisions of the Code of criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment the challan is filed because Section 167, Cr. PC ceased to apply". ( 8 ) IN Mohammed Iqbal Madar Sheik v. State of Maharashtra, (1996) 1 SCC 722 , a three Judge Bench of the Apex Court considered again the proviso (a) to sub- section (2) of Section 167 of the Code and held thus:"it need not be pointed out or impressed that in view of a series of judgments of this Court, this right cannot be defeated by any Court, if the accused concerned is prepared and does furnish bail bonds to the satisfaction of the Court concerned. Any accused released on bail under provision (a) to Section 167 (2) of the code read with Section 20 (4) (b) or section 20 (4xb) (b), because of the default on the part of the investigating agency to conclude the investigation, within the period prescribed, in view of the proviso (a) to Section 167 (2) itself, shall be deemed to have been so released under the provisions of Chapter XXXIII of the Code". ( 9 ) IN Uday Mohanlal Acharya v. State of Maharashtra, 2001 Crl. LJ 1832, a three Judge Bench of the Apex Court by majority while reviewing the entire case law on the point has sought to explain the expression if already not availed of. At the end of its judgments, the Apex Court laid down certain conclusions. The relevant conclusion may be extracted hereunder thus:"the expression if not already availed of used by this Court in Sanjay Dutt s case must be understood to mean when the accused files an application and is prepared to offer bail on being directed. At the end of its judgments, the Apex Court laid down certain conclusions. The relevant conclusion may be extracted hereunder thus:"the expression if not already availed of used by this Court in Sanjay Dutt s case must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in paragraph (a) of proviso to sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail, on being directed, then it has to be held that the accused has availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same". ( 10 ) THAT was a case where on the expiry of the period of ninety days, the accused filed an application seeking bail on default. That application was not considered initially by the trial Court by dismissing the same, which was affirmed by the appellate Court. In the period interregnum, the charge-sheet was filed. It was held by the Apex Court that the right accrued to him which was an indefeasible right would not have got extinguished on account of the subsequent filing of the charge-sheet beyond the period of ninety days. ( 11 ) A conspectus of the aforesaid decisions unequivocally indicates that an indefeasible right accrues to the accused because of the default on the part of the investigating agency to conclude the investigation within the period prescribed under sub-section (2) of Section 167 of the Code and that right can be availed of by the accused if he is prepared to apply for bail and does furnish the bail bonds. It is further clear that that indefeasible right does not survive or remain enforceable on the challan being filed. If the accused files a bail petition before filing of the charge- sheet and offers to furnish bail he is said to have availed of his right. Once the right is availed of by the accused it will not get extinguished by subsequent filing of the charge-sheet. In other words if that petition ends in dismissal and before approaching the higher Court in the period interregnum a charge-sheet is filed the right accrued to the accused will not get extinguished. Once the right is availed of by the accused it will not get extinguished by subsequent filing of the charge-sheet. In other words if that petition ends in dismissal and before approaching the higher Court in the period interregnum a charge-sheet is filed the right accrued to the accused will not get extinguished. ( 12 ) OBVIOUSLY, as concluded supra a preliminary charge-sheet was filed so as to circumvent the mandatory provisions of section 167 of the Code. Could it be said that there was substantial compliance of the provisions of Section 173 of the Code is the moot question. A Division Bench of this Court in Bandi Kotayya v. State, air 1966 AP 377 , addressed itself to the said issue and held thus:"it would follow as necessary consequence that until the Magistrate has before him a police report as envisaged by Section 173, Criminal procedure Code, he cannot take cognizance of the offence in respect of which he is to hold an enquiry. This would be the true position notwithstanding that, as in the instant case, a preliminary charge-sheet had been presented to him earlier and he had taken the case on file and given it a number for statistical purposes; remanded the accused produced before him, and issued non-bailable warrants in respect of the absconding accused. All these steps should be regarded as having been taken not upon taking cognizance of the offence with a view to conduct a preliminary inquiry against the accused named in the preliminary charge-sheet, but only with a view to facilitate the completion of the investigation and the laying of the final charge-sheet which would be the report contemplated by Section 173, criminal Procedure Code". ( 13 ) PLACING reliance upon the said judgment, a learned single Judge of this court in T. V. Sarma v. Smt. Turgakamala devi, 1976 Crl. LJ 1247, held as excerpted herein below:"where the investigation is not completed and the accused has been in custody for sixty days he has to be released on bail tinder Section 167 (2) proviso (a) if he is prepared to and does furnish bail. In such a case the prosecution cannot invoke the provisions of Section 309, Cr. PC on the basis of a preliminary charge-sheet which itself states that the investigation is not completed. In such a case the prosecution cannot invoke the provisions of Section 309, Cr. PC on the basis of a preliminary charge-sheet which itself states that the investigation is not completed. Such a preliminary charge is not a police report within the meaning of Section 173 (2) and hence the question of Magistrate s taking cognizance of the offence and remanding the accused under Section 309 does not arise". ( 14 ) YET another Division Bench of this Court in Velinedi Purnam (Al) v. State represented by Public Prosecutor, 1993 (2) alt (Crl.) 654 (DB), held that the crucial test is completion of investigation preceding the filing of the police report. That was a case where the charge-sheet had been filed within the stipulated time but with certain omissions or gaps. The charge-sheet was, therefore, returned. It was represented after complying with the defects on 95th day. It was held that even if there were some omissions in some minor particulars like the age of the accused father s name etc. , it could not be said that there was a failure of compliance with Section 173 (2) of the code. It was further held that amendments or corrections relate back to the date of filing of the charge-sheet. It is obvious thus that the charge-sheet in that case was filed after completing the investigation and it was in full form except certain minor and trivial omissions like the particulars regarding the ages and the fathers names. It was, therefore, rightly held that such a charge- sheet should be considered as a report. The question that where the investigation is not completed and so as to circumvent the provisions of Section 167 (2) (a) (i) a preliminary charge-sheet is filed within ninety days, whether such a report would amount to a report as envisaged under section 173 of the Code and would it defeat the indefeasible right of the accused to claim bail on the ground of default, has not arisen squarely in the above case. Earlier Division Bench judgment of this Court in Bandi Kottayya s case and the later judgment of this Court in T. V. Sarma s case have considered this issue germane in the context for consideration. Earlier Division Bench judgment of this Court in Bandi Kottayya s case and the later judgment of this Court in T. V. Sarma s case have considered this issue germane in the context for consideration. Even in the later Division bench judgment of this Court in Velinedi purnam s case, it was specifically observed that the crucial test was completion of investigation preceding the filing of the police report. It is apt here to quote the relevant observation from Uday Mohanlal acharya s case thus:"personal liberty is one of the cherished object of the Indian Constitution and deprivation of the same can be only in accordance with law and in conformity with the provisions thereof, as stipulated under Article 21 of the Constitution. When the law provides that the Magistrate could authorise the detention of the accused in custody up to maximum period as indicated is the proviso to sub- section (2) of Section 167, any further detention beyond the period without filing of challan by the Investigating Agency would be a subterfuge and would not be in accordance with law and in conformity with the provisions of the Code and as such could be violative of Article 21 of the Constitution". ( 15 ) FROM the above discussion what emerges therefore is that the act on the part of the IO in having filed the preliminary charge-sheet is nothing short of a subterfuge and was not in accordance with law and in conformity with the mandatory provisions of the Code. The preliminary charge-sheet filed in this case cannot be construed as a report as contemplated under Section 173 of the Code. An indefeasible right has been accrued to the petitioners as they availed of the right by filing necessary bail petitions before the Sessions Court on 25-7-2001. Even the returned charge-sheet was not represented. Therefore, they are entitled, as a matter of right, to bail. ( 16 ) FOR the foregoing reasons, the petition is allowed and the petitioners shall be enlarged on bail on each one of them executing a bond for Rs. 5,000/- (Rupees five thousand only) with two sureties for a like sum each to the satisfaction of the judicial Magistrate of First Class, Macherla. On such release, the petitioners shall stay at Guntur and shall report before the station House Officer, Arundalpet Police station, once in a day between 8. 00 a. m. to 8. 5,000/- (Rupees five thousand only) with two sureties for a like sum each to the satisfaction of the judicial Magistrate of First Class, Macherla. On such release, the petitioners shall stay at Guntur and shall report before the station House Officer, Arundalpet Police station, once in a day between 8. 00 a. m. to 8. 00 p. m. and sign in the register to be maintained for that purpose until further orders, save and except the days on which they shall appear before the Court in connection with the present case.