'Pseudo Police Report' Filed U/S 173 CrPC Cannot Defeat Right Of Accused To Default Bail: JKL High Court

A bench of Justice Rahul Bharti observed,

"This right, upon getting accrued, is given straight away on asking of the entitled accused notwithstanding the purported gravity of the accusation of offence/s against the accused under pre-trial custody".

The observations were made while hearing a plea seeking a default bail under the aegis of Section 167(2) CrPC as the very same relief had been denied to the petitioner by the Sessions Judge Udhampur.

The petitioners were praying for a statutory/default bail riding on the premise that the failure on the part of the Investigation Authority of the Police Station Udhampur to submit a cognizable final police report/ challan under section 173 CrPC within the given period of 90 days had afforded the right to ask for bail in the matter.

The petitioners, four in number, were arrested in an FIR and on the 79th day after their arrest, a purported Police Report/ Challan alleging offences under sections 302/202/34 IPC was presented against the petitioners before the court of Sessions Judge Udhampur.

When the Sessions Judge came to take the opening of the matter under Sec 226 CrPC, he had found out the charge sheet was an empty formality and being unable to frame the charge against the accused had accordingly granted 15 days’ time to conclude the investigation supervised and monitored by SSP Udhampur.

Missing the 15 day deadline also the SHO Police Station Udhampur came to submit a final police report styled as supplementary charge sheet. It is with respect to this charge sheet that the court of Sessions Judge Udhampur came to put up the case for arguments on charge.

Meanwhile, after passing of the order dated 21.02.2022 of return of the so called final Police Report/challan by the court of Sessions Judge Udhampur, the petitioners had come to file an application for grant of default bail which was dismissed after more than eight months.

Commenting on the contents of the bail rejection order, Justice Bharti observed that Sessions Judge, Udhampur had literally dealt with the case as if situation concerning the petitioners was of post conviction and the petitioners were asking for suspension of sentence and bail. Justice Bharti added that the Court of Sessions Judge, Udhampur "evaded" to refer to its own observation on record that the first police report so filed against the petitioners was an empty formality.

"If that was the state of the purported police report/challan then that would have meant only one thing in the eyes of law which is that the presentation of said police report was a pseudo police report/challan aimed with sole objective to cover up the default on the part of the Police Station, Udhampur to complete the investigation within the time given so as to checkmate the petitioners becoming entitled to default bail", the bench reasoned.

Deliberating further on the matter the court said that after having held the purported Police Report/Challan so filed under section 173 CrPC as an empty formality and returning it, the Sessions Judge Udhampur cannot be said to have taken cognizance of the offences.

The Court observed that a criminal court, be it of a magistrate or a sessions judge, are not meant to be seen as if "assisting" police investigation or prosecution against an accused. It frowned by saying that a clear cut case of grant of default bail in favour of the petitioners was "aborted" by the said approach of the Sessions Court, Udhampur.

Keeping in view the errors which the Sessions Judge Udhampur had fallen for both on the counts of law and fact, the court held the petitioners to be entitled to grant of the statutory/default bail and directed the Court of Sessions Judge, to grant statutory/default bail in favour of the petitioners subject to terms and conditions as may be deemed fit.

Case Title: Gopal Krishan & Ors Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 25

Coram: Justice Rahul Bharti

Counsel For Petitioner: Mr. Ateet Spolia.

Counsel For Respondent: Mr. Sumeet Bhatia, GA

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