A two Judge Bench of the Supreme Court on Monday held that an accused is entitled to default bail under Section 167(2) of Code of Criminal Procedure even if the charge sheet filed by police was returned by the Magistrate for technical reasons.
The Court also held that 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.
The Bench of Justices AM Sapre and UU Lalit was examining the correctness of judgment and order dated 23.07.2018 passed by the High Court of Judicature for Rajasthan Bench at Jaipur in SBCRMB No.9035 of 2018.
The appellants were accused Nos.1 and 2 in a Case registered under Sections punishable under Sections 143, 341, 323, 452, 336, 302 read with Section 149 of the Indian 2 Penal Code against 18 persons.They were arrested on 08.04.2018 and remanded to police/magisterial custody from time to time.
Later, Complainant filed a petition before High Court for fair and impartial investigation in the matter, in which an order came to be passed by the High Court on 03.07.2018. Said order recorded the submission of the Public Prosecutor as under:
“The learned Public Prosecutor for the State, to allay the apprehension of the petitioner, at the outset, has submitted that not only fair investigation shall be conducted by a gazetted police officer, not below the rank of Additional Superintendent of Police but the report of the investigation along with the opinion of the Investigating Officer shall be submitted in the concerned Court within a period of two months from the date of receipt of certified copy of this order by the Investigating Officer.” The petition was disposed of in terms of the submissions so recorded.
Since the appellants had been in custody from 08.04.2018, the investigation, in terms of Section 167 of the Code of Criminal Procedure had to be completed by 07.07.2018. On 05.07.2018 a report under Section 173 of the Code was filed by the police before the concerned Judicial Magistrate. Since said report was filed by a police officer lower in rank than an ASP and was thus contrary to the order passed by the High Court an application was filed by the complainant. The Magistrate having noted the contents of said order, returned the charge sheet with certified copy of the order dated 03.07.2018 to the police for due compliance. Thus as on the expiry of 90th day i.e. on 07.07.2018 no report under Section 173 of the Code was on record with the Magistrate.
Immediately after the expiry of 90 days the appellants filed an application for bail under the provisions of Section 167(2) of the Code. The Judicial Magistrate, rejected the prayer for benefit under Section 167(2) of the Code. It was observed that since the charge-sheet filed on 05.07.2018 was not in compliance of the order passed by the High Court, the charge-sheet was returned due to technical fault. It was further observed that the effect of the order dated 03.07.2018 passed by the High Court was extension of period within which the investigation could be completed.
Issue Before the Supreme Court
Here investigation was completed and Challan under Section 173 was filed on 05.07.2018. However, just two days before that, an order had been passed by the High Court recording submission of the public prosecutor that investigation in the matter would be conducted by a Gazetted Police Officer. The investigation which led to the filing of the report on 05.07.2018, was not in conformity with the statement made before the High Court. It was for this reason that the papers were returned by the Magistrate. All this happened before the expiry of 90th day. Can it be said that the investigation was complete for the purposes of Section 167(2) of the Code so as to deny the benefit to the accused in terms of said provision. Additionally another issue which arises for consideration is whether the order passed by the High Court could be construed as one under which the period for completing the investigation was extended.
Accepting the arguments of Advocate Sidhartha Dave the bench observed that as on the 90th day, there were no papers or the charge-sheet in terms of Section 173 of the Code for the concerned Magistrate to assess the situation whether on merits the accused was required to be remanded to further custody.
“Though the charge-sheet in terms of Section 173 came to be filed on 05.07.2018, such filing not being in terms of the order passed by the High Court on 03.07.2018, the papers were returned to the Investigating Officer”. “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”.
Can High Court extend the period of remand?
The Bench held that 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.
“There are enactments such as the Terrorist and Disruptive Activities (Prevention) Act, 1985 and Maharashtra Control of Organised Crime Act, 1999 which clearly contemplate extension of period and to that extent those enactments have modified the provisions of the Code including Section 167. In the absence of any such similar provision empowering the Court to extend the period, no Court could either directly or indirectly extend such period”.
No Prohibition For Re-arrest The Bench also held that there would be no prohibition for arrest or re-arrest of the appellants on cogent grounds and in such eventuality, the appellants would be entitled to petition for grant of regular bail.