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2009 DIGILAW 975 (AP)

Puligada Pitcheswara Rao v. State of A. P.

2009-12-31

B.CHANDRA KUMAR

body2009
JUDGMENT (1) This Criminal Petition has been filed by A-1 and A-5 in Crime No. 99 of 2009 of Avanigadda Police Station, Krishna District, registered for the offence punishable under Sections 147, 148, 302 and 307 read with 149 of IPC. (2) In view of the submission of the learned counsel for the petitioners that the investigation has not been completed as the report filed under Section 173of Cr.P.C. has been returned and that the petitioners have indefeasible right to be enlarged on bail under sub-section (2) of Section 167 of Cr.P.C. there is no need to refer to the contents of the charge sheet allegations. Sub-sections (1) and (2) of Section 167 of Cr.P.C. read as follows: "Section 167. Procedure when investigation cannot be completed in twenty-four hours:- (1) whenever any person is arrested and detailed in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well- founded, the officer-in-charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) 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, authorize 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 authorize 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 authorize the detention of the accused person in custody under this paragraph 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; (ii) sixty days, where the investigation relates to any other offences, 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 XXXIII for the purpose of that chapter." (3) The main object of the Section 167 of Cr.P.C. is to see that the investigation is completed as early as possible. When it appears that the investigation cannot be completed within the period of twenty four hours fixed by Section 57, the procedure prescribed under sub-section (1) of Section 167 has to be followed. The purpose of sub-section (2) of Section 167 is to see that the investigation is completed within fifteen days. Proviso (a) to sub-section (2) of Section 167 envisages that if the Magistrate is satisfied that adequate grounds exist, he may authorize the detention of the accused beyond the period of fifteen days. But two riders have been imposed on this power, namely; (1) that the total period of detention in custody of an accused together with extension period shall not exceed ninety days or sixty days as the case may be, (2) that this extended period of detention must be otherwise than in police custody. (4) IF the investigation is not completed within the period of ninety days or 60 days, as the case may be, the Magistrate shall be bound to release the accused on bail if he is prepared to furnish bail. Thus proviso (a) to Section 167(2) gives absolute right to bail if charge sheet is not filed within the prescribed period, but however, the detention nonetheless continues to be authorized. Thus proviso (a) to Section 167(2) gives absolute right to bail if charge sheet is not filed within the prescribed period, but however, the detention nonetheless continues to be authorized. (5) It is also settled law that if the specified period under Section 167(2) Cr.P.C. once expired and no charge sheet is filed the accused must be released on bail. (6) In the case Hitendera Vishnu Thakur v. State of Maharashtra (1) 1994 (2) ALT (Crl.) 6 (D.N.) = (1994) 4 SCC 602 ,the Hon'ble Apex Court construed the provisions of Section 167 of the Code and the object of the Parliament 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. In the case Mohammed Iqbal Madar Sheik v. State of Maharashtra (2) (1996) 1 SCC 722 , the Hon'ble Apex Court considered again the proviso (a) to sub-section (2) of Section 167 of the Cr.P.C. 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 Proviso (a) to Section 167 (2) of the Code read with Section 20(4)(b) or Section 20(4)(b) (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." (7) It is also settled law that once the charge sheet has been filed, the question of granting bail for non-compliance of sub- section (2) of Section 167 of the Cr.P.C. does not arise. If the accused filed a petition before filing of the charge sheet and offers to furnish bail, he is said to have availed his right. If the accused filed a petition before filing of the charge sheet and offers to furnish bail, he is said to have availed his right. Once the right is availed by the Accused, it will not get extinguished by subsequently filing of the charge sheet. (8) Now the question is whether filing of a preliminary charge sheet can be construed as compliance of sub-section (2) of Section 167 of Cr.P.C. and what is to be done if a charge sheet has been filed, but returned with some objections. Sub-sections (1), (2) and (5) of Section 173 of Cr.P.C. reads as follows: "Section 173. Report of police officer on completion of investigation:- (1) Every investigation under this Chapter shall be completed without unnecessary delay. (2)(i) As soon as it is completed, the 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 appears to be acquainted with the circumstances of 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) The validity of filing preliminary charge sheet came up for consideration in Julakanti Brahma Reddy and others v. State of A. P. (3) 2001 (2) ALT (Crl.) 329 (A.P.) = 2001 (2) ALD (Crl.) 660, and it was observed as follows: "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." (10) RECENTLY, similar question came up for consideration before a Division Bench of this Court in Venkatarayanakote Krishnappa Raghavendra v. State of A.P. (4) 2009 (2) ALT (Crl.) 191 (DB)(A.P.) = 2009 (1) ALD (Crl.) 818. The question of law referred to the Division Bench was as follows: "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." In the above referred case, the 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, Kurnool. The police also seized pellets and sent the same to Ballistic Expert. 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 as preliminary charge-sheet, the Hon'ble Division bench held that for all practical purposes it can be said that the preliminary charge sheet, dated 29-1-2009 is a full-fledge report, which comes within the meaning of Section 173(2) and (5) Cr.P.C. and is filed on 90th day. In the above circumstances, it was held as follows: "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. It was also held that the reports, which have not been filed, are not under the control of the Investigating Agency. It was also held that the reports, which have not been filed, are not under the control of the Investigating Agency. The Division bench further held that: "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." Thus from the above referred provisions of Cr.P.C. and in the light of the above referred decisions, it is clear that where in a case the investigating officer is unable to secure some documents such as Forensic Science Laboratory report, Ballistic Expert report etc. and if the investigating officer files the charge sheet enclosing all other documents as required to be filed by him under sub-sections (2) and (5) of Section 173 of Cr.P.C, then the same can be treated as filing of areport under Section 173(1) of Cr.P.C. It means the investigating officer shall file all the documents which are in his possession and control i.e., without filing the statements recorded under Section 161(3) Cr.P.C. i.e., observation mahazar of scene of offence, inquest report, arrest and seizure proceedings, confessional statements leading to the recovery, etc., it cannot be said that there is compliance of sub-sections (2) and (5)of Section 173 of Cr.P.C. Thus the Investigating Officer must file all the documents as required under sub- sections (2) and (5) of Section 173of Cr.P.C. As per the decision of the Hon'ble Division Bench, the only exception is wither regard to the documents which the Investigating Officer is unable to secure inspite of his best efforts. In such case also the Investigating Officer must make all reasonable and bona fide efforts to secure those documents. In case inspite of his best efforts if he is unable to secure those documents he can file a report under Section 173 of Cr.P.C. explaining the reasons for not filing certain documents and may file those documents subsequently, with the permission of the Court. In case inspite of his best efforts if he is unable to secure those documents he can file a report under Section 173 of Cr.P.C. explaining the reasons for not filing certain documents and may file those documents subsequently, with the permission of the Court. It is for the concerned Magistrate to ascertain which documents are within the control of the Investigating Officer. (11) Now coming to the facts of this case, admittedly A-1 was arrested on 14-9-2009 and A-5 was arrested on 15-7-2009. The report of the learned Magistrate reveals that the charge sheet was filed on 12-10-2009 with CF No. 7131 and it was returned on 10-11-2009 for the following objections: (1) All the documents mentioned in the charge sheet except document No. 10 and 11 not filed. (2) Case property not produced. (12) Therefore, along with the charge sheet filed on 12-10-2009, only the P.M. Report and the wound certificates of L.Ws. 1 and 2 were filed. Subsequently, the charge sheet was resubmitted on 14-12-2009 along with the required documents vide CF No. 9614. If the date of filing of the charge sheet is taken as 12-10-2009, the petitioners are not entitled to bail under Section 167(2) of Cr.P.C. If the date of filing of charge sheet is taken as 14-12-2009, then the petitioners are entitled to bail, because they approached this Court for bail prior to 14-12-2009. From the report of the Magistrate, it is clear that except the P.M. Report and wound certificates of L.Ws. 1 and 2, no other documents were filed along with the charge sheet on 12-10-2009. (13) Admittedly the following documents were only filed on 14-12-2009: 1. FIR and Altered FIR 2. 161 Statements of L.Ws. 1, 2 and 8 to 12. 3. 161 statements of L.W. 3 to L.W. 7, 13 to 16 and Re-examination of L.W. 1 and L.W. 2, 3. 4. Scene observation report. 5. Rough sketch. 6. Inquest report, 3 7. Arrest Mahazar dated 9-7-2009 at 11.00 hours 8. Arrest mahazar dated 14-7-2009 at 5.00 hours 9. Arrest Mahazar dated 4-9-2009 at 16.00 hours 10. Arrest Mahazar dated 10-9-2009 at 10.30 hours 13. Letter of advise. 14. CEs. report 15. Photos with negatives. 16. Copies of W.P. number 19362/2003 Enquiry report of Dist. Co-op Officer, Machilipatnam 17. Inquest report, 3 7. Arrest Mahazar dated 9-7-2009 at 11.00 hours 8. Arrest mahazar dated 14-7-2009 at 5.00 hours 9. Arrest Mahazar dated 4-9-2009 at 16.00 hours 10. Arrest Mahazar dated 10-9-2009 at 10.30 hours 13. Letter of advise. 14. CEs. report 15. Photos with negatives. 16. Copies of W.P. number 19362/2003 Enquiry report of Dist. Co-op Officer, Machilipatnam 17. Copy of petition of L.W. 1 addressed to S.P., Krishna in C.No. 416/CCC/ 2009 dated 29-6-2009." Thus it is clear that there is total non-compliance of sub-section (5) of Section 173 of Cr.P.C (14) The police report, which is the result of the investigation, should be on the basis of the material collected during the investigation and conclusions have to be drawn on the basis of such material and such conclusions can only form the basis for competent Court to take cognizance thereupon under Section 190(1)(b) of the Cr.P.C. to proceed with the case for trial. Therefore, the action of the investigating officer in filing only P.M. Report and wound certificates of L.Ws. 1 and 2 cannot be treated as filing of a report under Section 173 of Cr.P.C. and such act of the investigating officer is nothing but an act of subterfuge and clearly not in accordance with law and not in conformity with the mandatory provisions of sub-sections (2) and (5) of Section 173 of Cr.P.C. Therefore, it cannot be construed as a report contemplated under Section 173(1) of Cr.P.C. (15) In the result, the Criminal Petition is allowed. The petitioners/A-1 and A-5 shall be enlarged on bail on condition of each of them executing a bond for a sum of Rs. 10,000/- (Rupees Ten thousand Only) with two sureties each of the likesum to the satisfaction of the Additional Judicial First Class Magistrate, Avanigadda, Krishna District.