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2024 DIGILAW 2422 (ALL)

Inam v. State of U. P.

2024-11-27

RAM MANOHAR NARAYAN MISHRA

body2024
JUDGMENT : RAM MANOHAR NARAYAN MISHRA, J. 1. This criminal revision has been filed against the judgement and order dated 3.7.2024 passed by learned Sessions Judge, Saharanpur whereby second bail application moved moved in default clause under section 167(2)(a)(i) Cr.P.C. has been dismissed in Case Crime no. 131 of 2023, under section 302 IPC and section 3/25/27 of ARMS ACT , P.S. Nanauta, District Saharanpur. 2. Heard learned counsel for the revisionist, learned counsel for respondent no. 2 and learned AGA for the State. 3. According to the prosecution version, FIR of the incident was lodged by the informant Smt. Hamida on 3.8.2023 at 5:09 AM stating therein that on 2.8.2023 at around 11:00 PM, her co-villager Inam son of Yameen came to her house and called her son Naushad for doing some conversation and took her son outside the village in the field of Jafari where he assaulted her son by butt of country made pistol and thereafter he opened fire due to which her son suffered injury on face and hand by the pallets of cartridge, after hearing noise of fire, informant and her another son Shoyeb reached at the spot then the accused Inam fled away from the place. The FIR was lodged under sections 323, 307 IPC against named accused Inam. The injured Naushad was got medically examined at CHC Nanauta, Saharanpur on 3.8.2023 at 5:15 am. As per medical report, the injured received four lacerated wound and x-ray was advised and done at SBD hospital, Saharanpur from where he was referred to Maulana Mahmood Hasan Medical College, Saharanpur and then he was referred to PGI Chandigarh where his treatment was done and thereafter his treatment was going on in the house on the advise of doctor. Suddenly, on 21.9.2023 the condition of injured Naushad was become serious and he was being brought to PGI Chandigarh, he died on the way on 21.9.2023. The investigating officer carried out the investigation and submitted charge-sheet against the named accused Inam for charge under sections 302 IPC and section 3/25/27 of ARMS ACT . 4. Learned counsel for the revisionist submitted that first bail application of the applicant filed under sections 307, 323 IPC and section 3/25/27 of ARMS ACT was allowed by the court vide order dated 20.9.2023. 4. Learned counsel for the revisionist submitted that first bail application of the applicant filed under sections 307, 323 IPC and section 3/25/27 of ARMS ACT was allowed by the court vide order dated 20.9.2023. However, section 302 IPC was added during investigation and for that reasons, second bail application filed with regard to altered charge under section 302 IPC which was dismissed on 1.12.2023 by the court of session. However, this Court also dismissed bail application filed under section 302 IPC, therefore, another bail application, which was marked as second bail application no. 2615 of 2023 was filed before the trial court mainly on the ground that charge- sheet was filed in the case and same was not accompanied with ballistic examination report of FSL, wherein, one country made pistol of 12 bore and one empty cartridge shell of 12 bore and bullet recovered from the person of the deceased during his treatment in PGI Chandigarh and were sent for ballistic examination and same was deposited in FSL Niwari for examination as per statement of head constable Naresh Kumar. The accused is entitled to default bail envisaged under section 167(2)(a)(i) Cr.P.C. in view of filing of incomplete charge-sheet, which cannot be treated as charge-sheet for the purposes of section 167(2) Cr.P.C. even after lapse of 90 days, the statutory period, for which accused was incarcerated, FSL report was not filed. He is held in jail custody since 4.8.2023 i.e. for more than one year. He lastly submitted that learned trial court has committed legal error while dismissing the application for bail under section 167(2)(a) Cr.P.C. without considering the grounds made therein in proper perspective, therefore, revision is liable to be allowed and the revisionist deserves to be released on default bail under section 167(2) Cr.P.C. 5. Learned counsel placed reliance on the judgement of Punjab and Haryana High Court in Tajudin @ Rohtash vs. State of Haryana , 2022 Crl.L.J. 1135 wherein accused was convicted on 17.7.2020 and after investigation of the case, report under section 173 Cr.P.C. was presented on 5.10.2020. Although the report was presented within a period of 180 days but it was not accompanied with the FSL report. The FSL report was filed ultimately beyond the period of 180 days. Nothing has been brought on record or to the notice of this Court with regard to the filing of any application of extension of time. Although the report was presented within a period of 180 days but it was not accompanied with the FSL report. The FSL report was filed ultimately beyond the period of 180 days. Nothing has been brought on record or to the notice of this Court with regard to the filing of any application of extension of time. The case pertains to section 20 of NDPS Act and the petitioner was charged for carrying 20 packets of Charas in a bag and its total weight was found to be 10 kg 200 grams. The Punjab and Haryana High Court set aside the impugned order passed by learned Additional Sessions Judge, Rohtak with observation that the petitioner is entitled to a statutory right of default bail under section 167(2) of Cr.P.C. The Court passed bail order for release of accused . 6. Per contra, learned counsel for respondent no. 2 submitted that learned trial court has already considered the judgement of Punjab and Haryana High Court in Tajudin @ Rohtash (supra) and observed that the present matter pertains to section 302 IPC and in view of the facts of the case, the accused cannot be extended benefit of said judgement of Punjab and Haryana High Court only on account of non filing of FSL report with regard to arms and ammunition recovered from the place of occurrence and person of deceased during post mortem examination and the charge-sheet cannot be termed as incomplete. This is not disputed that charge-sheet was filed within statutory period prescribed under section 167(2) Cr.P.C. The bail application of the revisionist has been dismissed by this Court on merits vide order dated 14.3.2024. He is the sole accused in the offence. 7. The Punjab and Haryana High Court in Tajudin @ Rohtash (supra) placed reliance on earlier Division Bench judgement in Ajit Singh @ Jeeta and another vs State of Punjab in Criminal Revision no. He is the sole accused in the offence. 7. The Punjab and Haryana High Court in Tajudin @ Rohtash (supra) placed reliance on earlier Division Bench judgement in Ajit Singh @ Jeeta and another vs State of Punjab in Criminal Revision no. 4659 of 2015 wherein it is observed that " "For this reason as well, it is essential that the report of the Chemical Examiner be included in the report under Section 173 Cr.P.C. and without which it can at best be termed to be an incomplete challan depriving the Magistrate of relevant material take cognizance and if it is not submitted within the requisite period of 180 days, it would essentially result in a default benefit to the accused unless an application is moved by the Investigating Agency apprising the Court of status of investigation with a prayer for extension of time to the satisfaction of the Court. We emphasize on the stringent aspect of the N.D.P.S. Act which would compellingly persuade us to take the aforesaid view. Without determining the nature and content of the contraband, it would be draconian to propel an accused into the throes of a trial. The liberty of an individual would constantly be imperiled at the hands of dubious officials of the police who may venture to falsely 5 of 8 implicate a person. It is for this reason that we would unhesitatingly conclude that the Chemical Examiner's report is an essential ; integral and inherent part of the investigation under the N.D.P.S. Act as it would lay the foundation of an accused's culpability without which a Magistrate would not be enabled to form an opinion and take cognizance of the accused's involvement in the commission of offence under the Act. We are conscious of the fact that these issues have arisen largely on account of the inability of the State to provide the Chemical Examiner's report in time ostensibly for the reason that it is not equipped with enough laboratories to examine the contraband but for that, it is the State which has to be faulted and it would do well to hone up its own infrastructure so that the accused who deserves punishment, does not get the benefit of law and go scot free and gain access to a undeserving liberty." 8. On the other hand, Delhi High Court in Baljeet Singh @ Aman vs. State in judgement dated 27.3.2024 dismissed the criminal revision preferred against the order dated 16.2.2024 passed by session court whereby application filed by the petitioner under section 167(2) Cr.P.C. seeking default bail in a case under the NDPS Act where default bail was sought on the ground that charge-sheet was not accompanied by FSL report and consideration before the High Court was that whether petitioner is entitled to the benefit of section 167(2) Cr.P.C. on account of non filing of FSL report alongwith, even though charge-sheet was filed within prescribed time limit of 180 days. Delhi High Court observed as under:- 22. In view of the above settled legal position, there remains no shadow of doubt that the statutory requirement of the report under Section 173 (2) would be complied with if the various details prescribed therein are included in the report. The report under Section 173 is an intimation to the court that upon investigation into the cognizable offence, the investigating officer has been able to procure sufficient evidence for the court to inquire into the offence and the necessary information is being sent to the court. The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 175 (5). As settled in the afore- stated case, it is not necessary that all the details of the offence must be stated. 23. The benefit of proviso appended to sub-section (2) of Section 167 of the Code would be available to the offender only when a chargesheet is not filed and the investigation is kept pending against him. Once however, a chargesheet is filed, the said right ceases. It may be noted that the right of the investigating officer to pray for further investigation in terms of sub- section (8) of Section 173 is not taken away only because a chargesheet is filed under sub-section (2) thereof against the accused. Though ordinarily all documents relied upon by the prosecution should accompany the chargesheet, nonetheless for some reasons, if all the documents are not filed along with the chargesheet, that reason by itself would not invalidate or vitiate the chargesheet. It is also well settled that the court takes cognizance of the offence and not the offender. Though ordinarily all documents relied upon by the prosecution should accompany the chargesheet, nonetheless for some reasons, if all the documents are not filed along with the chargesheet, that reason by itself would not invalidate or vitiate the chargesheet. It is also well settled that the court takes cognizance of the offence and not the offender. Once from the material produced along with the chargesheet, the court is satisfied about the commission of an offence and takes cognizance of the offence allegedly committed by the accused, it is immaterial whether the further investigation in terms of Section 173 (8) is pending or not. The pendency of the further investigation qua the other accused or for production of some documents not available at the time of filing of chargesheet would neither vitiate the chargesheet, nor would it entitle the accused to claim right to get default bail on the ground that the chargesheet was an incomplete chargesheet or that the chargesheet was not filed in terms of Section 173 (2) of Cr. P.C." 14. In Sanjay Kumar Pundeer v. State of NCT of Delhi, 2023 SCC OnLine Del 5696, a Co-ordinate Bench of this Court observed that there is a distinction between filing a Charge Sheet and obtaining an expert opinion. Charge Sheet is filed upon completion of investigation after Investigating Officer has found sufficient evidence to prosecute the accused for offences under which the FIR has been registered while any other scientific examination report is only corroborative in nature to the material collected by the IO and filed with the Charge Sheet. These observations were rendered by the Court in light of the judgment of the Supreme Court in Serious Fraud Investigation Office v. Rahul Modi and Others, 2022 SCC OnLine SC 153 and a judgment of this Court in Suraj v. State of Delhi NCT, 2022 SCC OnLine Del 3501. Relevant paragraphs of the judgment in Sanjay Kumar Pundeer (supra), are as follows:- "18. In the present case, the investigation qua the applicant was complete at the time the first chargesheet was filed, as regards the offences mentioned in the FIR, on 02.12.2021. At the time of filing of the first chargesheet, there was sufficient material on record qua the applicant such as statements of eyewitnesses and other material evidence collected and placed on record. At the time of filing of the first chargesheet, there was sufficient material on record qua the applicant such as statements of eyewitnesses and other material evidence collected and placed on record. Mere non-filing of the FSL Report is not sufficient to conclude that the chargesheet filed in the present case was incomplete. The said report can be filed by way of a supplementary chargesheet. In any case, the case of the prosecution is primarily based on the eye witness account of the complainant. The FSL report, if any, would be a corroborative piece of evidence. As pointed out hereinabove, even after the filing of the chargesheet, further investigation can continue under Section 173 (8) of the CrPC. The opinion of the expert can always be filed before the learned Trial Court by way of supplementary chargesheet. It is further pertinent to note that in the present case, the learned Trial Court had taken the cognizance after the chargesheet was filed and the said order was not challenged by the petitioner. 15. A Division Bench of this Court in Taj Singh v. State, 1987 SCC OnLine Del 244, dealing with the requisites of a Charge Sheet delineated under Section 173 Cr.P.C. observed as follows:- "6. Reading together sub-sections (1) and (2) of S. 173 of the Code the stage and the point of time at which the police report or the challan is to be filed before a Magistrate by the police officer is clearly made out in the sense that the police report or the challan is to be filed before a Magistrate as soon as the investigation of the offence is concluded. Sub- section 2(ii)(a) to (g) of S. 173 further details the requirements by way of particulars to be mentioned in police report. It would, thus, mean that then a police officer is able to complete his report by filling up therein the above mentioned particulars as required under sub-section (2)(i)(a) to (g), the investigation of the offence can be said to be complete because it the investigation is not complete he would not be able to make his report with the aforesaid requisite particulars, and so that supplies to us the acid test for determining whether the investigation of the offence is complete or not. The relevant requirements would be the ones contemplated in Clauses (c) and (d) of Sub-section 2(i) of Sec. 173 which pertain to the names of the persons who appear to be acquainted with the circumstances of the case and whether any offence appears to have been committed and, if so, by whom. When the Investigating Officer is ready with these requirements, the other requirements being not very difficult to know, the police report is complete as per its definition given in S. 2(r) as per sub-section (2) of S. 173 of the Code. The persons contemplated in Clause (c) of sub- section 2(i) of S. 173 appear to be the witnesses of the occurrence or who are otherwise in the know of the facts of the case but do not appear to include an expert of CFSL or any other Government Scientific Expert mentioned in sub- section (4) of Section 173 of the Code whose reports have been made admissible under Section 193 by tendering the same in evidence without any formal proof thereof. The following are the Government Scientific Experts mentioned in sub-section (4) of Section 293:-- "(a) any Chemical Examiner or Assistant Chemical Examiner to Government; (b) the Chief Inspector of Explosives; (c) the Director of the Finger Print Bureau; (d) the Director, Haffkeine Institute, Bombay; (e) the Director, (Deputy Director or Assistant Director) of a Central Forensic Science Laboratory or a State Forensic Science Laboratory; (f) the Serologist to the Government. 9. The Division Bench of the Bombay High Court in Manas Krishna T.K. v. State the Police Inspector/Officer In Charge and Another , 2021 SCC OnLine Bom 2955 answered by holding that even in an NDPS case a police report containing the details prescribed under Section 173 (2) Cr.P.C. is a complete police report or a charge sheet or a challan even if it is unaccompanied by a CA/FSL report. If such police report is filed within the period stipulated under Section 167(2) Cr. P.C. r/w. Section 36 -A(4) of the NDPS Act, the accused cannot insist upon a default bail. 10. Hon'ble Supreme Court has not issued general direction for grant of default bail in case of charge-sheet being filed without FSL report in NDPS cases. If such police report is filed within the period stipulated under Section 167(2) Cr. P.C. r/w. Section 36 -A(4) of the NDPS Act, the accused cannot insist upon a default bail. 10. Hon'ble Supreme Court has not issued general direction for grant of default bail in case of charge-sheet being filed without FSL report in NDPS cases. Delhi High Court in another case of Arif Khan v. State (NCT of Delhi), 2023 SCC OnLine Del 2374 observed that in Mohd Arbaz vs. State of NCT of Delhi, Hon'ble Apex Court has been pleased to observe as under: "In all these petitions the question that arises for consideration is relating to the completeness of the charge sheet in accordance with law if the same is filed without the CFSL Report.” 11. Thus, having a glance at the aforesaid judicial decision, I find a judicial approach that even in case of NDPS Act, charge-sheet accompanied by FSL report regarding nature of contraband has not always been treated incomplete charge-sheet and the accused were not found entitled for default bail under section 167(2) Cr.P.C. on that grounds only. 12. The present case is a case of murder which is based on oral testimony and other evidence collected during investigation, it is not mandatory that in a charge under section 302 IPC, wherein, accused has been alleged to have caused firearm injury to the victim, ocular testimony must be corroborated by report of ballistic expert or ballistic report. Hon’ble Supreme Court in Maqbool vs. State of U.P. , AIR 2011 SC 184 held that not sending of weapon, cartridge and pellets to ballistic expert for examination would not be fatal to the case of prosecution if the ocular testimony is found credible and cogent. 13. On the basis of foregoing discussions, I am of the considered opinion that learned court below has committed no legal error while dismissing the application under section 167(2)(a)(1) Cr.P.C. filed by the revisionist seeking default bail on account of fact that same was not accompanied by ballistic examination report of FSL wherein one country made pistol of 12 bore, one empty cartridge of 12 bore and bullets recovered from the person of the deceased during his treatment in PGI, Chandigarh. I find no irregularity, illegality or perversity in the impugned order. The impugned order is well reasoned and no interference is warranted. 14. I find no irregularity, illegality or perversity in the impugned order. The impugned order is well reasoned and no interference is warranted. 14. The revision is devoid of merit and is accordingly dismissed.