ORDER (Per A. Gopal Reddy, J.) The following question of law referred to for an authoritative pronouncement by the Division Bench. "Whether the charge sheet, which was filed within 90 days, but was returned for compliance of certain technical objections of not filing the scientific expert's opinion, is a proper compliance under Section 173 Cr.P.C. and whether the same confer any right on the accused to seek bail as a matter of right, as required under Section 167 Cr.P.C." 2. The incontrovertible facts that led to reference are that on registering Cr.No.94 of 2008 on the file of PS T.Sundupalii on 28-09-2008 under Section 174 of the Code of Criminal Procedure (for short "Cr.P.C.") altered to Sections 302, 376, 379, 201 IPC and Sections 25(1)(b) and 27 of Arms Act petitioners/accused 1 and 2 were arrested on 30-10-2008 and remanded to judicial custody on 31-10-2008. Charge sheet was filed before the Additional Judicial Magistrate of First Class, Rayachoty on 29-01-2009 with a list of witnesses numbering 46 alleged to be enclosing 164 Cr.P.C. statement of P.Sujatha, postmortem certificate, wound certificate, potency certificates of V.K.Ragavendra-A1 and B.M. Nageshbabu-A2, 161 Cr.P.C. statements of Veera Raghavulu, Desuri Mallikarjuna and Man Maneri Sardamma @ Sarada-L.Ws.1 to 3. On filing the charge sheet petitioners filed CrL.M.P No.317 of 2009 before Additional Judicial Magistrate of First Class, Rayachoty under Section 167 (2) Cr.P.C. seeking them release on bail on the ground that on expiry of 90 days remand period they are entitled to enlarge on bail, as the police failed to file report before the expiry of 90 days. 3. The learned Magistrate through impugned order dated 12-02-2009 held that charge sheet was filed though it was named as preliminary charge sheet, nowhere it was mentioned in the charge sheet that "the investigation is not yet completed and after completion of full investigation another charge sheet will be filed'. The charge sheet was filed against the petitioners that they have committed an offence under Sections 302, 376, 397 and 201 IPC and Sections 25(1)(b) and 27 of Arms Act, the facts in Julakanti Brahma Reddy v. State of A.P.: 2001 (2) ALT (Crl.) 329 (A.P.) = 2001 (2) ALD (Cri) 660 differ with the present crime. Hence the petition filed after filing of the charge sheet, petitioners are not entitled for bail and dismissed the petition. 4. Hence the petition filed after filing of the charge sheet, petitioners are not entitled for bail and dismissed the petition. 4. In view of the dismissal of the petition the petitioners filed the present regular bail application contending that they were arrested on 30-10-2008 and remanded to judicial custody by the Magistrate on 31-10-2008, filing of the charge sheet on 29-01-2009 after expiry of 90 days of remand period, which was returned by the lower court on the same day and the same has not been represented before the lower court till date. The charge sheet filed on the 9151 day is not a charge sheet at all in the eye of law. The filing of preliminary charge sheet itself shows that investigation of the police is not completed so far and they filed the charge sheet hurriedly to deprive the rights of the petitioners to get bail. Hence, enlarge them on bail. 5. When the matter is taken up for hearing by one of use (Justice K. C.Bhanu), the learned counsel for the petitioners by placing strong reliance on the decisions of this Court In Machumari China Venkatareddy v. State of A.P.: 1994 Crl.L.J. 257 and Julakanti Brahma Reddy (1 supra) contended that once the requirements of Section 173 (2) & (5) Cr.P.C. have not been complied with the petitioners are entitled to be enlarged on bail, as a matter of right, as required under Section 167(2) Cr.P.C. 6. The learned single Judge was not in agreement with the view taken by this Court in the above two decisions and referred the matter to Division Bench for an authoritative pronouncement. That is how the matter is before us. 7. The learned counsel for the petitioners while reiterating the very same submissions, which were not accepted, apart from placing reliance on the following judgments, contended that the report filed by the police is not a valid report, incomplete and not accompanied the statements and depositions as required under sub-section (5) of Section 173 Cr.P.C. Satya Narain Musadi v. State of Bihar: AIR 1980 SC 506 = (1980) 3 SCC 152 Mantoo Majumdar v. State of Bihar: AIR 1980 SC 847 = (1980) 2 SCC 406 . K.veeraswami v. Union of India: (1991) 3 SCC 655 8. K.veeraswami v. Union of India: (1991) 3 SCC 655 8. Before we answering the reference, it is useful to extract Section 173(2) & (5) Cr.P.C "173 Report of police officer on completion of Investigation (2) (i) As soon as it is completed, 'he officer -in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under Section 170. (5) When such report is in respect of a case to which Section 170 applies the police officer shall forward to the Magistrate along with the report,- (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; (b) the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses. " 9. On a plain reading of Section 173Cr.P.C., it is obvious, as soon as on completion of investigation the officer in charge of the police station shall forward a report to a Magistrate empowered to take cognizance of offence on a 'police report' as defined under Section 2 (r) Cr.P.C. The report should be in the form prescribed by the State Government giving the particulars mentioned in clauses (a) to (g) of sub-section (2). The police report containing all the particulars mentioned in Section 173(2) Cr.P.C. is a valid police report irrespective of the fact that it does not contain some of the documents required to be filed under Section173(5) Cr.P.C. The charge sheet submitted without report of the Central Forensic is not an incomplete charge sheet in terms of Section 173(2) Cr.P.C., whereas Section 173(5) Cr.P.C. makes it obligatory upon the Investigating Officer to forward the Magistrate along with the police report the opinion of Central Forensic Science Laboratory is not correct. The convenience of the Investigating Officer referred to in Section 173 (7) Cr. P. C. pertaining to the furnishing of all or any of the documents to the accused whittle down the mandatory nature of sub-section (5). 10. Sub-Section (5) of Section 173 Cr.P.C. says that the police shall forward to the Magistrate along with the report documents specified in it. In cases instituted on police report it has been made obligatory on the Magistrate under Section 207to furnish to the accused all documents specified in that Section which includes document specified in sub-Section (5) and a duty has been cast on the Magistrate under Section 238 Cr.P.C. to see that they are so furnished. The words "and all other documents or relevant extracts thereof, on which the prosecution purposes to rely" as mentioned in clause (a) of sub-section (5) of Section 173 may include documents or papers too numerous to mention e.g. reports of postmortem examination, or chemical examiner, or handwriting or fingerprint expert, copy of sanction, correspondence, registers, account books, bills etc. The incorporation of sub-section(5)was necessitated because Section 207 Cr.P.C. casts a duty on the Magistrate to make available to the accused free of cost copies of 'police report' and documents and statements specified in subsection (5). If they are not appended to 'police report the result would be that at later stage if they are sought to be produced, then besides copies of them being made available to the accused it would be purely in the Magistrate's discretion to allow them to be produced and the prosecution cannot, as a matter of right, have them placed on the record. Subsection (5) (b) says only statements recorded under Section 161 of those persons whom the prosecution proposes to examine as witnesses are required to be sent. 11. Indisputably as seen from the charge sheet police cited as many as 46 witnesses. It is contended that statements of witnesses L.Ws.1 to 3 alone have been forwarded to the court and the statements of other witnesses have not been enclosed along with charge sheet. 11. Indisputably as seen from the charge sheet police cited as many as 46 witnesses. It is contended that statements of witnesses L.Ws.1 to 3 alone have been forwarded to the court and the statements of other witnesses have not been enclosed along with charge sheet. It is further contended that charge sheet is only a preliminary charge sheet, incomplete and not accompanied the statements of all the listed witnesses and the documents as contemplated under sub-section (5)of Section 173 and the same is pressed into service only to deny the valuable right under Section167(2)Cr.P.C. Since charge sheet is returned, we cannot come to a conclusion that there is no material at this stage to show that the statements of witnesses recorded by the police have not been forwarded to the Court along with the charge sheet to deny the valuable right of the accused. 12. 12. Section 167(2) of the Criminal Procedure Code contains the following mandate: "The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that- (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this para for a total period exceeding, - (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (iJ) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter 33 for the purposes of that Chapter; (b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police." 13. The Supreme Court in Satya Narain Musadi's case (3 supra) observed that the report of a police officer has to be in writing as required under Section 173(2) disclosing of an offence in which cognizance can be taken by the Magistrate. Sub-section (5) of Section 173 makes it obligatory upon the police officer to forward along with the report all documents or relevant extracts thereof on which the prosecution proposes to rely and the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as witnesses at the trial. Sub-section (5) of Section 173 makes it obligatory upon the police officer to forward along with the report all documents or relevant extracts thereof on which the prosecution proposes to rely and the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as witnesses at the trial. The Supreme Court further observed as under: "...The report as envisaged by Section 173(2) has to be accompanied as required by sub-section (5) by all the documents and statements of the witnesses herein mentioned. One cannot divorce the details which the report must contain as required by subsection (5) from its accompaniments which are required to be submitted under sub-section (5). The whole of it is submitted as a report to the Court. But even if a narrow construction is adopted that the police report can only be what is prescribed in Section 173(2) there would be sufficient compliance if what is required to be mentioned by the statute has been set down in the report. To say that all the details of the offence must be set out in the report under Section 173(2) submitted by the police officer would be expecting him to do something more than what Parliament has expected him to set out therein. If the report with sufficient particularity and clarity specifies the contravention of the law which is the alleged offence, it would be sufficient compliance with Section 11.The details which would be necessary to be proved to bring home the guilt to the accused would emerge at a later stage, when after notice to the accused a charge is framed against him and further in the course of the trial. 14. In Mantoo Majumdar's case (4 supra) the Supreme Court was dealing with illegal detention of two petitioners for more than seven years without there being any investigation of the case nor single charge sheet laid before the Court against them shown as accused in several cases were directed to be released forthwith on their own bond with sureties where after referring the mandate Section 167(2). 15. 15. In K. Veeraswam's case (5 supra) the Constitutional Bench of the Supreme Court after referring to the provisions of Section 173 Cr.P .C. observed as under: "...In fact, the report under Section 173(2) purports to be an opinion of the Investigating Officer that as far as he is concerned he has been able to procure sufficient material for the trial of the accused by the court. The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 175(5). Nothing more need be stated in the report of the Investigating Officer. It is also not necessary that all the details of the offence must be stated. The details of the offence are required to be proved to bring home the guilt to the accused at a later stage i.e. in the course of the trial of the case by adducing acceptable evidence. 16. Another Constitutional Bench of the Supreme Court in Sanjay Dutt v. State Through C.B.I., Bombay (1994) 5 SCC 410 . explained the meaning of the expression 'indefeasible right' enunciated in Hittendra Vishnu Takurv. State of Maharashtra ( AIR 1994 SC 2623 = (1994) 4 SCC 602 ) as under: "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. 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" 17. 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" 17. In Uday Mohanlal Acharya v. State of Maharashtra: 2001 Crl.L.J. 1832 = 2001 (3) ALT 20.1 (DN SC) a three Judge Bench of the Supreme Court while reviewing the entire case law on the point when can accused said to have availed indefeasible right for being released on bail under proviso to Section 167(2) of the Code of Criminal Procedure by majority recorded six conciusions. The Conclusion 6 reads as follows: "The expression if not already availed of used by this Court in Sanjay Dutt' scase 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" 18. This Court in J.Brahma Reddy's case (1 supra) after referring the judgments in Sanjay Dutt's case (6 supra) and Uday Mohanlal Achayar's 2001 Crl.L.J. 1832 = 2001 (3) ALT 20.1 concluded that 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 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. 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. But on the facts it was held that Investigating Officer 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. 19. In Tajsingh v. State of Delhi: 1988 Crl.L.J. 1634 it was held by the Delhi High Court that if the police report otherwise satisfies Section 173(2), the Magistrate can take cognizance even if it is labelled as incomplete. Whereas Bombay High Court in Sharad Chandra Vinayak Dongra v. State of Maharashtra: 1991 Crl.L.J. 3329 held that an incomplete charge sheet cannot be treated as a "police report under Section 173(2) so as to entitle the Magistrate to take cognizance of the offence. A police report as defined in Section 2(r) Cr.P.C. can only be filed "as soon as the investigation is completed. If it is not complete, no such report can be filed. The Magistrate cannot take cognizance on the admittedly "incomplete charge sheet" forwarded by the police. If the Magistrate is allowed to take cognizance on the basis of incomplete charge sheet, then the provisions of Section 167(2) or to say Section 468 Cr.P.C. can always be circumvented. 20. A three Judge Bench of the Supreme Court in Union of India v. Mohd. Sadiq Rather: (1993) 1 SCC 8 = AIR 1993 SC 379 . If the Magistrate is allowed to take cognizance on the basis of incomplete charge sheet, then the provisions of Section 167(2) or to say Section 468 Cr.P.C. can always be circumvented. 20. A three Judge Bench of the Supreme Court in Union of India v. Mohd. Sadiq Rather: (1993) 1 SCC 8 = AIR 1993 SC 379 . after referring the relevant part of Sections 173(2) and 190(1)(b) Cr.P.C. held it need not be impressed that the Police Report submitted after the investigation of an alleged offence is not just mere expression of the opinion of the Investigating Officer having no connection or nexus with the materials collected during the investigation. In view of subsection (5) of Sec. 173 Cr.P.C. when such report is in respect of a case to which Sec.170 of the Code is applicable i.e. where it appears to the Investigating Officer that there is sufficient evidence or reasonable ground the Investigating Officer shall forward to the Magistrate along with the report all documents and the statements recorded under Sec.161 of the Code. The framers of the Code have vested powers in the Magistrate under Section 190(1)(b) Cr.P.C. to take cognizance of any offence upon such a Police Report. If Magistrate can take cognizance of an offence on the basis of a Police Report submitted u/s.173(2) of the Code, how such Police Report can be held to be irrelevant while considering an application for bail under sub-section (8) of Sec.20 of the TADA Act, as to whether there are reasonable grounds for believing that the accused in question is not guilty of such offence and as such he should be directed to be released. 21. Coming to the facts of the present case, as seen from the charge sheet, two requirements under Section 173(2)(5)Cr.P.C. have been complied with. Though it is clearly mentioned in the preliminary charge sheet as to what remains to be done in the investigation, it cannot be said that the preliminary charge sheet is filed to defeat the rights of the accused. Admittedly, vaginal swabs preserved by the doctor were sent to the Regional Forensic Science Laboratory, Kurnool. Similarly the blood stained clothes of the deceased were forwarded to the Regional Forensic Laboratory, Kunool. The police also seized pellets and sent the same to Ballistic Expert, Andhra Pradesh Forensic Science Laboratory, Hyderabad. Admittedly, vaginal swabs preserved by the doctor were sent to the Regional Forensic Science Laboratory, Kurnool. Similarly the blood stained clothes of the deceased were forwarded to the Regional Forensic Laboratory, Kunool. The police also seized pellets and sent the same to Ballistic Expert, Andhra Pradesh Forensic Science Laboratory, Hyderabad. Except receiving these three reports, which are pending with the experts, the entire material on record collected by the Investigating Officer during the course of investigation has been filed. Though it is mentioned preliminary charge sheet, for all practical purposes it can be said that the preliminary charge sheet dated 29-01-2009 is a full-fledge report, which comes within the meaning of Section 173(2) & (5)Cr.P.C. and is filed on 90th day, with this report the investigation by the police comes to its material end. Hence, we are unable to conclude that filing of the charge sheet is an empty formality or to defeat the rights of the accused of compulsive bail under Section 167 Cr.P.C., a preliminary charge sheet has been filed. The reports, which have not been filed, are not under the control of the Investigating Agency. Where charge sheet has been submitted beyond the statutory period but the prayer for grant of bail is being considered after submission of such charge sheet then the stage of applicability of Section 167(2) proviso is over. With submission of charge sheet an inquiry shall be deemed to have commenced. As such there is no question of lack of power in the Magistrate to remand such an accused. He can grant remand in exercise of power under Section 309(2) Cr.P.C. Of course, if the prayer for bail is considered after the expiry of statutory period and before the submission of charge sheet, there is no option with the Magistrate but to grant bail, as he acquire indefeasible right to release under proviso to sub-section (2) of Section 173 Cr.P.C. 22. From the conspectus of discussion, referred to above, we are of the view that once a charge sheet is filed for a cognizable offence by the investigating officer contains all particulars mentioned in sub-section (2) of Section 173 is a valid police report irrespective of fact that it does not contain some of the documents required to be filed under Section 173(5) particularly, various reports as mentioned in our earlier paragraphs. If the said reports are not appended to police report that can be produced by supplying copies of the same to the accused at a later stage with the permission of the Court. It is the discretion of the prosecution to enclose the statements recorded under Section 161 Cr.P.C. of all the persons whom the prosecution proposes to examine as its witnesses. 23. We accordingly answer the question referred as under: Once the charge is filed within 90 days, but was returned for compliance of certain technical objections of not filing the scientific expert's opinion, is a proper compliance under Section 173 (2) Cr.P.C. and the same will not confer any right on the accused to seek bail, as a matter of right. Even in a case where the charge sheet is filed after 90 days, but before accused seeks bail availing the benefit under proviso to sub-section (2) of Section 167, his indefeasible right will be extinguished on filing such charge sheet. 24. In view of answering the reference as above, the criminal petition filed by the petitioner is dismissed directing the police to file report forthwith before the Magistrate. On filing such report, petitioner is at liberty to move a regular bail application, which has to be considered on its own merits.