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2020 DIGILAW 344 (RAJ)

Mangal Singh v. State of Rajasthan

2020-02-07

SANDEEP MEHTA

body2020
JUDGMENT Sandeep Mehta, J. - Heard learned counsel for the parties. Perused the material available on record. 2. The instant misc. petition has been preferred by the accused petitioners for assailing the order dated 14.01.2020 passed by the learned Sessions Judge No.5, Jodhpur Metropolitan in Revision No.12/2020 affirming the order dated 08.01.2020 passed by the learned Metropolitan Magistrate No.3, Jodhpur in connection with FIR No.336/2019 whereby, the application preferred by the petitioners under Section 167(2) Cr.P.C. was dismissed. 3. The FIR aforesaid came to be registered against the petitioners for the for the offences under Sections 353, 472, 307/34 of the IPC and Section 3/25 of the Arms Act at the Police Station Mandore, Jodhpur. The accused petitioners were arrested by the investigating agency and were produced before the learned Magistrate on 21.09.2019 and were remanded to custody. The investigating agency filed a report under Section 173 Cr.P.C. in the court concerned on 23.12.2019. However, it seems that the report was not registered and cognizance was not taken because the Presiding Officer was on leave. The matter was deferred to 04.01.2020 for considering the office report. The case came up before the learned Metropolitan Magistrate on 04.01.2020 with the office report as per which, the documents filed by the investigating agency alongwith the charge-sheet were stated to be complete but the bail bonds of two witnesses did not bear their photographs and the sanction to prosecute the accused for the offence under Section 3/25 of the Arms Act was lacking. The learned Magistrate, took note of this office report and on the very same day i.e. on 04.01.2020, the investigation file was returned to the I.O. through the Assistant Prosecuting Officer (hereinafter referred to as 'the APO") for being submitted back in the court on 06.01.2020. It may be mentioned here that by this date i.e. 04.01.2020, the custodial period of the accused had crossed 90 days. An application under Section 167(2) Cr.P.C. was filed by the accused on the very same day i.e. 04.01.2020 seeking release on default bail on the ground that charge-sheet was not available in the court and the mandatory custodial period suffered by them had crossed 90 days. The matter was postponed for 06.01.2020. The Presiding Officer was on leave and thus, the case was further postponed to 07.01.2020 and then on to 08.01.2020. The matter was postponed for 06.01.2020. The Presiding Officer was on leave and thus, the case was further postponed to 07.01.2020 and then on to 08.01.2020. The A.P.O. filed a complete charge-sheet with all defects cured in the court on 08.01.2020. The application filed by the accused under Section 167(2) Cr.P.C. was rejected by the learned Metropolitan Magistrate by the order dated 08.01.2020 assigning a reason that the charge-sheet had already been presented in the court on 13.12.2019 and thus, the contention of the accused that chargesheet was not filed in the court within 90 days of their arrest, was not tenable. The said order was assailed by the accused by filing a revision which has been rejected as above by order dated 14.01.2020. Hence, this miscellaneous petition. 4. Learned counsel Shri Gokalani representing the petitioners, vehemently and fervently urged that the view taken by the court's below that charge-sheet had been filed against the petitioners on 13.12.2019, is absolutely incorrect and contrary to the record. The charge-sheet was incomplete and thus, without taking cognizance, the same was returned by the court to the I.O. on 04.01.2020. Thus, on that day, the situation prevailing indicated that no charge-sheet was available against the petitioners (who had been in custody for nearly 100 days) when the application under Section 167(2) of the Cr.P.C. came to be filed. In support of his contentions, Shri Gokalani relied upon the Supreme Court decision in the case of Achpal @ Ramswaroop & Anr. vs. State of Rajasthan,2018 AIR SC 4547 and this Court's Judgment in the case of Paras Ram vs. State of Rajasthan, (S.B. Criminal Misc. Bail No.9538/2018) decided on 14.01.2019 and urged that the petitioners deserve default bail on the ground that charge-sheet was not available before the court on 04.01.2020 by which date, the outer limit of 90 days available to the investigating agency to file a charge-sheet against the accused had lapsed by a significant margin. 5. Shri Farzand Ali, learned AAG-cum-GA assisted by the learned Public Prosecutor Mahipal Bishnoi, vehemently and fervently opposed the submissions advanced by the petitioners' counsel. Nonetheless, they too are not in a position to dispute the fact that the charge-sheet, which was filed by the I.O. before the court on 13.12.2019, was technically incomplete because some of the documents were defective and the prosecution sanction was unavailable. Nonetheless, they too are not in a position to dispute the fact that the charge-sheet, which was filed by the I.O. before the court on 13.12.2019, was technically incomplete because some of the documents were defective and the prosecution sanction was unavailable. The court, returned the charge-sheet to the I.O. through the A.P.O. on 04.01.2020. On the very same day, the application under Section 167(2) Cr.P.C. came to be filed on behalf of the accused. Apparently, when this application was filed, the outer limit of 90 days for remand of the accused had lapsed and the report under Section 173 Cr.P.C. was not available with the court and thus, the accused gained the indefeasible right to be released on bail. The issue involved in the case at hand is squarely covered by the following observations made by Hon'ble the Supreme Court in the case of Achpal @ Ramswaroop (supra):- "...The fact of the matter is that as on completion of 90 days of prescribed period under Section 167 of the Code there were no papers of investigation before the concerned Magistrate. The accused were thus denied of protection established by law. The issue of their custody had to be considered on merits by the concerned Magistrate and they could not be simply remanded to custody dehors such consideration. In our considered view, the submission advanced by Mr. Dave, learned Advocate therefore has to be accepted. We now turn to the subsidiary issue, namely whether the High Court could have extended the period. The provisions of the Code do not empower anyone to extend the period within which the investigation must be completed nor does it admit of any such eventuality..." and thus, the accused petitioners deserve the relief claimed for. 6. However, before parting, I would like to observe that the court below, the I.O. as well as the Assistant Prosecuting Officer acted with sheer indifference while dealing with the matter. The accused are said to be habitual offenders and yet the matter was proceeded in an absolutely casual manner. The only deficiencies, which were noted in the charge-sheet filed on 13.12.2019, were regarding lack of photographs on the bonds of two witnesses and absence of the sanction (purportedly under Section 3/25 of the Arms Act). The accused are said to be habitual offenders and yet the matter was proceeded in an absolutely casual manner. The only deficiencies, which were noted in the charge-sheet filed on 13.12.2019, were regarding lack of photographs on the bonds of two witnesses and absence of the sanction (purportedly under Section 3/25 of the Arms Act). These deficiencies could have been cured without returning the entire charge-sheet to the I.O. In the worst case scenario, only the bonds should have been returned to the I.O. for removing the defects. The prosecution sanction could have been filed with a supplementary report. There was no requirement of returning the entire charge-sheet to the I.O. thereby creating a situation wherein, such hardened offenders gained the right of being released on default bail by virtue of Section 167(2) Cr.P.C. The Presiding Officer, the A.P.O. as well as the SHO are advised to remain careful in future. 7. In view of the discussion made herein above, the impugned order dated 14.01.2020 passed by the learned Sessions Judge No.5, Jodhpur Metropolitan in Revision No.12/2020 and the order dated 08.01.2020 passed by the learned Metropolitan Magistrate No.3, Jodhpur in connection with FIR No.336/2019 are set aside. The accused petitioners Mangal Singh and Bajrang Singh shall be released on bail provided each of them furnishes a personal bond under Section 167(2) Cr.P.C. to the satisfaction of the learned trial court. 8. The misc. petition is allowed in these terms.