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2006 DIGILAW 2386 (PNJ)

Ravdeep Kaur v. State Of Punjab

2006-05-31

RAJIVE BHALLA

body2006
Judgment Rajive Bhalla, J. 1. The petitioner seeks grant of regular bail in case FIR No. 321, dated 14.10.2005, registered under Sections 302/34, 109, 115, 120-B of the IPC, at Police Station Civil Lines, Patiala, District Patiala. 2. A brief background, that has led to the filing of the present petition, would be appropriate. 3. The murder of Shri Vijay Singh, the then Additional Sessions Judge, Labour Court, Chandigarh, led to the lodging of the aforementioned FIR. The deceased was found lying in a pool of blood with injuries on his face, neck, chest, legs and head. He was taken to Amar Hospital by the first informant, where he was declared dead. Upon investigation, the petitioner, was cited as one of the accused and arrested on 18.10.2005. She was produced before the Magistrate on 19.10.2005 and was remanded to police custody and thereafter to judicial custody. The prosecution filed a report/challan, under Section 173(2) of the Cr.P.C. on 21.12.2005, a second report/challan on 21.2.2006 and thereafter, vide application dated 22.3.2006, prayed that the report of the Forensic Science Laboratory be appended along with the challan already submitted. 4. The petitioner filed an application on 22.3.2006, before the Additional Sessions Judge, Chandigarh, praying for grant of regular bail on the plea that as a complete challan had not been presented, within the period of 90 days, as envisaged under Section 167(2) of the Cr.P.C., an indefeasible right, to be released on bail, had accrued. Vide order dated 24.4.2006, the said application was dismissed. 5. The sole ground, upon which this prayer for bail is based, is the alleged inability of the prosecution to file a complete challan within 90 days, thus, conferring an indefeasible right upon the petitioner, to be released on bail. Counsel for the petitioner contends that though the challan was presented on 21.12.2005 i.e. within 90 days, it was incomplete and, therefore, no challan, in terms of Section 173(2) of the Cr.P.C. The period of 90 days expired on 16.1.2006, on which date an indefeasible right, to be released on bail, accrued to the petitioner. It is further argued that a perusal of the challan, dated 21.12.2005, reveals that it was incomplete, as the report of the Forensic Science Laboratory, with respect to the petitioners handwriting, had not been received. It is further argued that a perusal of the challan, dated 21.12.2005, reveals that it was incomplete, as the report of the Forensic Science Laboratory, with respect to the petitioners handwriting, had not been received. The second challan, dated 21.2.2006 states that as the report of the Forensic Science Laboratory has not been received, it would be filed later. It further states that if other evidence comes to light, it would also be filed, under Section 173(8) of the Cr.P.C. On the basis of the aforementioned facts, it is contended that as the report, under Section 173(2) of the Cr.P.C. was incomplete, a right to be released on bail, accrued to the petitioner, for failure of the prosecution to conclude investigation, within a period of 90 days, as required under Section 167(2) of the Cr.P.C. It is further argued that filing of an incomplete challan is not permissible, and cannot take away the right of an accused to be released on bail, for failure of the prosecution to conclude investigation, within a period of 90 days. 6. For the above propositions, reliance is placed upon Surinder Joshi v. State of Punjab, 2003(4) RCR(Crl.) 901 (P&H) : 2004(1) Criminal Court Cases 505 (P&H); Sunil Vasantrao Phulbande and another v. State of Maharashtra, 2003(2) RCR(Criminal) 171; Furtado v. C.B.I., 1996(3) Recent Criminal Reports 19 and Matchumari China Venkatareddy and others v. State of Andhra Pradesh, 1994 Criminal Law Journal 257. 7. Counsel for the State of Punjab, as also counsel for the complainant, on the other hand, vehemently contend that the petitioner conspired with her co- accused, to murder Shri Vijay Singh. The challan filed on 21.12.2005, was a complete challan. The second challan merely states that the report of the Forensic Science Laboratory had not been received and would, therefore, be filed as and when it becomes available. A request was also made in the supplementary challan that in case further evidence comes to the notice of the prosecution, it would be filed, under Section 173(8) of the Cr.P.C. It is further contended that the challan was complete in all respects i.e. in so far as the material, placed before a Court, and, therefore, the contention of counsel for the petitioner that an incomplete challan was filed is factually incorrect. The filing of a supplementary challan on 21.2.2006, would not lead to a conclusion that the first challan was incomplete. The filing of a supplementary challan on 21.2.2006, would not lead to a conclusion that the first challan was incomplete. The second challan merely informed the Court that the report of the Forensic Science Laboratory had not been received and disclosed the names of the witnesses to be examined in support thereof as also certain other evidence that was collected, after the filing of the first challan on 21.12.2005. It is, thus, contended that as a complete challan was filed on 21.12.2005, prior to the expiry of the period of 90 days, no right, much less an indefeasible right, to be released on bail, accrued to the petitioner, on 16.1.2006. It is further contended that the mere absence of the report of the Forensic Science Laboratory would not render the challan incomplete and, therefore, it is prayed that the present petition be dismissed. 8. Reliance for the above propositions, is placed upon Central Bureau of Investigation v. R.S. Pai and another, 2002(2) RCR(Criminal) 536 (SC); State of Haryana v. Mehal Singh and another, AIR 1978 Punjab & Haryana 341 (Full Bench) and State of West Bengal v. Anwar @ Answar @ Anwar Rehman, 2000(2) RCR(Criminal) 745. 9. Counsel for the State of Punjab vehemently contends that as the challan, filed on 21.12.2005, enabled the trial Court to take cognizance, it could not be stated to be incomplete. The challan having been filed, in accordance with the provisions of Section 173(2) of the Cr.P.C., and as the trial Court could take cognizance thereon, the challan cannot be stated to be incomplete and, therefore, no right, to be released on bail, accrued to the petitioner. 10. It is further argued that even if a charge-sheet is submitted, it does not preclude further investigation and, therefore, the filing of the challan, by stating therein, that the report of the Forensic Science Laboratory had not been received and that in case any further evidence was collected, it would be brought before the Court, does not render the challan incomplete. Reliance for the above proposition is placed upon Hasanbhai Valibhai Qureshi v. State of Gujarat and others, 2004(2) RCR(Criminal) 463 and Sridhar v. State of Karnataka, 2004(4) RCR(Criminal) 549. 11. I have heard learned counsel for the parties and perused the record. 12. There is no dispute as to the facts of the present controversy. Reliance for the above proposition is placed upon Hasanbhai Valibhai Qureshi v. State of Gujarat and others, 2004(2) RCR(Criminal) 463 and Sridhar v. State of Karnataka, 2004(4) RCR(Criminal) 549. 11. I have heard learned counsel for the parties and perused the record. 12. There is no dispute as to the facts of the present controversy. The petitioner was arrested on 18.10.2005 and produced before the Magistrate on 19.10.2005. The period of 90 days expired on 16.1.2006. During this period, the prosecution presented a challan on 21.12.2005, without appending the report of the Forensic Science Laboratory with respect to the petitioners handwriting. Thereafter, the prosecution filed another challan, dated 21.2.2006, relevant extract thereof reads as follows :- "In the above mentioned case, handwriting of Dr. Ravdeep Kaur, which was to be compared with her previous handwriting having been sent to Document Expert, o/o Director, FSL, Punjab, Chandigarh, the result is still awaited and after receiving the said result, will be attached with the report under Section 173(8) Cr.P.C. and would be presented before the concerned. If some other evidence comes to light, the same will also be filed under Section 173(8) Cr.P.C. before the concerned Court." 13. After the receipt of the report from the Forensic Science Laboratory, the prosecution filed an application, dated 22.3.2006, for appending the above report to the challans already submitted. 14. I have perused the judgments, cited by the parties, as also the provisions of Sections 167 and 173 of the Cr.P.C. and the facts of the present case. I am of the considered opinion that the arguments, raised by counsel for the petitioner, cannot be accepted. The challan, presented on 21.12.2005, was a challan, in terms of Section 173(2) of the Cr.P.C., and not a report, presented with the object of defeating any right that may accrue to the petitioner, under Section 167(2) of the Cr.P.C. A perusal of the challan, dated 21.12.2005, and the challan, dated 21.2.2006, reproduced above, reveals that the challans are in consonance with the provisions of Section 173(2) of the Cr.P.C., which prescribes the particulars, required to be disclosed in a challan. In addition to other matters, the prosecution also brought to the notice of the Court that the report from the Forensic Science Laboratory, had not been received and would be filed, upon a receipt thereof. In addition to other matters, the prosecution also brought to the notice of the Court that the report from the Forensic Science Laboratory, had not been received and would be filed, upon a receipt thereof. The challan also states that any other material, that may be collected, would also be filed. There appears to be no reason to hold that this challan was incomplete and, therefore, not a challan, in terms of Section 173(2) of the Cr.P.C. As the challan, dated 21.12.2005 was filed, in accordance with the provisions of Section 173(2) of the Cr.P.C., the mere absence of the Forensic Science Laboratorys report would not render it incomplete or no challan, in the eyes of law, as contended by counsel for the petitioner. The trial Court was empowered to take cognizance, whether on the basis of the first or the second challan and, therefore, the filing of the first challan, within a period of 90 days, in my considered opinion, was legal and valid and cannot be held to be incomplete. 15. The judgments, relied upon by counsel for the petitioner, do not advance her case. In Surinder Joshis case (supra), the challan contained a categoric averment that it was being filed, as the period of 60 days was about to expire. It was also stated that investigation was in progress with respect to the documents recovered and as regards other items. It is, thus, apparent that in the aforementioned case, the challan was, admittedly, incomplete and filed to prevent the accused, from being released under Section 167(2) of the Cr.P.C. The situation, in the present case, is entirely different. In Sunil Vasantrao Phulbande and anothers case (supra), where the challan was presented without the Chemical Examiners report, the Bombay High Court held the challan to be incomplete and ordered release of the accused, under Section 167(2) of the Cr.P.C. I express my inability to subscribe to the view, taken by the Bombay High Court, in view of a judgment of Honble Supreme Court, relied upon by counsel for the respondent, namely, Central Bureau of Investigation v. R.S. Pai and another (supra), wherein the question, whether a report, filed by the police, without certain relevant documents, would be valid, was considered. The Honble Supreme Court held as follows :- "7. The Honble Supreme Court held as follows :- "7. From the aforesaid sub-sections, it is apparent that normally, the Investigating Officer is required to produce all the relevant documents at the time of submitting the charge-sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or charge-sheet, it is always open to the Investigating Officer to produce the same with the permission of the Court. In our view, considering the preliminary stage of prosecution and the context in which Police Officer is required to forward to the Magistrate all the documents or the relevant extracts thereof on which prosecution proposes to rely, the word "shall" used in sub-section (5) cannot be interpreted as mandatory, but as directory. Normally, the documents gathered during the investigation upon which the prosecution wants to rely are required to be forwarded to the Magistrate, but if there is some omission, it would not mean that the remaining documents cannot be produced subsequently. Analogous provision under Section 173(4) of the Code of Criminal Procedure, 1898 was considered by this Court in Narayan Rao v. The State of Andhra Pradesh, 1958 SCR 283 at 293, and it was held that the word "shall" occurring in sub-section (4) of Section 173 and sub-section (3) of Section 207-A is not mandatory but only directory. Further, the scheme of sub-section (8) of Section 173 also makes it abundantly clear that even after the charge-sheet is submitted, further investigation, if called for, is not precluded. If further investigation is not precluded then there is no question of not permitting the prosecution to produce additional documents which were gathered prior to or subsequently to investigation. In such case, there cannot be any prejudice to the accused. Hence the impugned order passed by the Special Court cannot be sustained." 16. In Furtados case (supra), the controversy was entirely different, namely, filing of a challan, with respect to separate offences, arising from the same FIR, and, therefore, cannot enure to the benefit of the petitioner. Matchumari China Venkatareddy and others case (supra) also does not come to the aid of the petitioner. 17. In Furtados case (supra), the controversy was entirely different, namely, filing of a challan, with respect to separate offences, arising from the same FIR, and, therefore, cannot enure to the benefit of the petitioner. Matchumari China Venkatareddy and others case (supra) also does not come to the aid of the petitioner. 17. It would also be appropriate to refer to a Full Bench judgment of this Court in State of Haryana v. Mehal Singh and another (supra), wherein, while considering the nature of a police report, filed without the opinion of the expert, it was held as follows :- "18. The object of the proviso to sub-section (2) of Section 167 was merely to ensure that an accused is not kept under detention during the investigation for more than sixty days and that on the expiry of the said period if the investigation is not completed and the enquiry or the trial, as the case may be, against the accused is not initiated, then the accused is to be released on bail by the Magistrate, as after sixty days the Magistrate would have no jurisdiction to remand him to the judicial custody during investigation. In other words, it can be said that if the Magistrate cannot legally take cognizance of the offence after the expiry of the period of sixty days, he has no option but to order the release of the accused; but where the Magistrate can legally take cognizance of the offence and start with the enquiry or the trial, then he acquires jurisdiction to detain the accused as an under-trial to face the enquiry or the trial if it is considered necessary, and the accused can be remanded to judicial custody in accordance with the provisions of Section 309 of the Code. ".... 20. For the reasons stated, I hold that the investigation of an offence cannot be considered to be inconclusive merely for the reason that the investigating officer, when he submitted his report in terms of sub-section (2) of Section 173 of the Code to the Magistrate, still awaited the reports of the experts or by some chance, either inadvertently or by design, he failed to append to the police report such documents or the statements under Section 161 of the Code, although these were available with him when he submitted the police report to the Magistrate." 18. In view of what has been stated above, I am of the considered opinion that the mere fact that the prosecution did not append the report of the Forensic Science Laboratory, and informed the Court that it would produce any material, collected during further investigation, would not detract from the legality of the challan, filed on 21.12.2005. The filing of a supplementary challan on 21.2.2006, would not render the first challan incomplete. As a legal and valid challan stood presented much before the expiry of a period of 90 days, the right, to be released on bail, under Section 167(2) of the Cr.P.C., was not available to the petitioner. Consequently, the present petition is dismissed.