Mere non-filing of chemical examiner's report would not make charge-sheet incomplete.

 Mere
non-filing of the chemical examiner's report would not make
the charge-sheet incomplete. Thus, the accused would not be
entitled to be released on bail under Section 167(2) of the
Cr.P.C. on the ground of the charge-sheet being incomplete.
This Court is also of the opinion that Section 173
(8) of the Cr.P.C. permits the prosecution to file documents
and evidence in addition to what has already been submitted
alongwith the charge-sheet under Section 173(2) of the
Cr.P.C. When a document in the nature of FSL report is filed by
the learned Public Prosecutor under Section 173(8) Cr.P.C., it
need not even be supplemented by an additional charge-
sheet. The document in the nature of FSL report is otherwise
also admissible in evidence under Section 293 of the Cr.P.C.

Thus, no additional charge-sheet is needed to file such a
document in the Court. The Court itself is empowered to
summon the expert's report at any stage of the trial.
In view of the aforesaid discussion, this Court is of
the opinion that as charge-sheets have been filed in these
cases within the permissible period as provided in Section 36A
(4) of the Cr.P.C., therefore, the right of the accused to be
released on bail under Section 167(2) Cr.P.C. on ground of
charge-sheet not having been filed within the statutory period
does not surive.

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
ORDER
(1) S.B.CRIMINAL MISC. BAIL APPLICATION NO.3446/2013
   Gaurav Vs. State of Rajasthan

Date of order
:
20.5.2013
HON'BLE MR. JUSTICE SANDEEP MEHTA

Reportable
Citation; 2013 (4) Crimes 306 Raj

The instant bail applications preferred by the
petitioners before this Court involve the common question of
law and are thus, being decided by the common order.
The brief controversy, which has been raised
before this Court in these bail applications is as to whether, on
account of non-filing of the FSL report of the seized
contraband alongwith the charge-sheet, the accused gets
right to default bail under Section 167(2) of the Cr.P.C.
It is not in dispute that in all these cases the Police
has filed the charge-sheet against the accused persons within
the period prescribed in Section 36(A)(4) of the NDPS Act and
they are facing trial. The accused thereafter during the
pendency of the trial, raised an issue before the trial Court
that since the FSL report was not filed alongwith the original
charge-sheet, it would have the effect that the complete
charge-sheet was not filed by the Police and thereby, the
accused gets the right to be released on compulsive bail or
default bail as per Section 167(2) of the Cr.P.C. The
applications seeking default bail on this ground have been
rejected by the concerned trial court and hence, these bail
applications.
Learned counsel appearing for the accused in these
cases have raised the contention that unless the Police files
the Chemical Examiner's report or the FSL report regarding the
seized contraband alongwith the charge-sheet,
such a

charge-sheet cannot be considered to be a complete charge-
sheet and thereby, no sooner the period of 180 days or 90
days as the case may be, prescribed in Section 36(A)(4) of the
NDPS Act is over and the FSL report is not filed on record, the
accused would become entitled to be released on bail as of
right on count of default of the prosecution to file the
complete charge-sheet. In support of their contention, the
learned counsel have placed reliance on the order dated
29.3.2013 passed by Hon'ble Single Bench of this Court in the
case of Mahendra Nath Vs. State of Rajasthan passed in
S.B.Cr.Misc. Bail Application No.1755/2013 and prayed that
the petitioners in these cases are also entitled to be released
on bail.
Per contra, learned Public Prosecutors appearing on
behalf of the respondent State have vehemently opposed the
arguments of the learned counsel for the petitioners. Learned
Public Prosecutors urged that the charge-sheets have been
filed in all these cases within the stipulated time and thus, the
right to compulsive bail under Section 167(2) Cr.P.C. does not
survive subsequent to the filing of the charge-sheet. Learned
Public Prosecutors submit that the right of the prosecution to
file subsequent documents is available under Section 173(8) of
the Cr.P.C. and would not entitle the accused to contest that
the charge-sheet, which was filed earlier, was not a complete
charge-sheet so as to entitle them to be released on bail. It is

argued that the controversy regarding the status of the
charge-sheet
unaccompanied
with
the
FSL
report
was
considered and set to rest by Hon'ble Single Benches of this
Court in the cases of Himmat Singh Vs. The State of
Rajasthan reported in 1995 Cr.L.J. 2967 and Atma Ram Vs.
State of Rajasthan reported in 1995 Cr.L.R. (Raj.) 825 as well
as by Hon'ble Punjab and Haryana High Court in Full Bench
decision rendered in the case of State of Haryana Vs. Mehal
Singh & Anr. reported in 1978 Cr.L.J. 1810. They contend that
it has been laid down in these cases that non-filing of the FSL
report or the chemical examiner's report alongwith the
charge-sheet does not have the effect of the charge-sheet
being incomplete. Thus, the accused would not be entitled to
be released on default bail under Section 167(2) of the Cr.P.C.
Learned Public Prosecutors, therefore, prayed that the bail
applications filed by the petitioners be dismissed.
Heard and considered the arguments advanced at
the bar and perused the orders impugned as well as the order
passed by Hon'ble Single Bench of this Court in the case of
Mahendra
Nath
Vs. State of Rajasthan
and the other
judgments cited at the bar.
The Hon'ble Single Bench of this Court in the case
of Mahendra Nath granted bail to the accused placing reliance
on an order passed by Hon'ble Single Judge of the Punjab and
Haryana High Court in Cr. Misc. No.M-17793 of 2010 (O & M)

(Manmohan Singh @ Goldi Vs. State of Punjab). The Hon'ble
Single Judge of Punjab and Haryanan High Court in the case of
Manmohan Singh @ Goldi in turn placed reliance on the
decision of the Bombay High Court in the case of Sunil
Vasantrao Phulbande & Anr. Vs. State of Maharashtra
reported in 2003(2) RCR (Criminal) 171 and held that the
charge-sheet filed in absence of the FSL report was an
incomplete charge-sheet.
When the Hon'ble Single Judge of the Punjab and
Haryana High Court was considering the case of Manmohan
Singh @ Goldi he was not made aware of the earlier Full Bench
Judgment of the Punjab and Haryana High Court rendered in
Mehal Singh's case (supra), wherein the Hon'ble Full Bench of
Punjab and Haryana High Court held as below:
“15. Since a report to qualify itself to be a 'police
report' is required to contain only such facts as
are mentioned in sub--section (2) of S. 173, so
if once it is found that the police report
contained all those facts, then so far as the
investigation is concerned the name has to be
considered to have been completed. For this
view, we receive authoritative backing from the
decision of the Supreme Court in Tara Singh v.
The State, AIR 1951 SC 441. That was a case in
which the accused was arrested on September
30, on the very day of occurrence, he was
produced before a Magistrate. On October 1, the
police was granted police remand till October 2.
The accused was produced on October 3 before
the Magistrate, on which date the police handed
over to the Magistrate what they called in
'incomplete challan' dated October 2, 1949, and
also produced certain prosecution witnesses.
Amount the witnesses so produced were witness
who were said to have witnessed the occurrence.
The Magistrate examined those witnesses and
recorded their statements, although the accused
at that time was not represented by a counsel.

On October 5 the police put in what they called a
'complete challan' and on the 19th they put in a
supplementary
challan.
The
Magistrate
committed the accused for trial on November
12, 1949.
15--A. It was argued in the first instance on
behalf of the accused that the Magistrate on
October 3 had no power to take cognizance of
the case. It was contended that cognizance of an
offence could only be taken on a police report of
the kind envisaged in Clause (b) of sub--section
(1) of S. 190 of the old Code. It was urged, on
the strength of the provisions of Section 173(1)
of the old Code, which is in the following terms
and which is also pari materia with the
provisions of sub--section (2) of S. 173 of the
new Code, that the police were not permitted to
send in an incomplete report:
"173. (1) Every investigation under this Chapter
shall be completed without unnecessary delay,
and as soon as it is completed, the officer in
charge of the police station shall--
(a) 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, setting forth the names of the,
parties the nature of the information and the
names of the persons who appear to be
acquainted with the circumstances of the case,
and stating whether the accused (if arrested) has
been forwarded in custody or has been released
on his bond, and, if so, whether with or without
sureties, and
(b) communicate, in such manner as may be
prescribed by the State Government, the action
taken by him to the person, if any, by whom the
information relating to the commission of the
offence was first given."
Vivian Bose, J., who delivered the opinion for the
Bench, without going into the question as to
whether the police were entitled to submit an
incomplete report or not, held that the report
dated October 2, 1949, which the police referred
to an 'incomplete challan', was, in fact, a
complete report within the meaning of S. 190(1)
(b) read with S. 173(1) of the old Code. The
following observations of his Lordship are
instructive on the point (at p. 442):
"When the police drew up their challan of 2-10-
1949 and submitted it to the Court on the 3rd,
they had in fact completed their investigation
except for the report of the Imperial Serologist
7
and drawing of the sketch map of the
occurrence. It is always permissible for the
Magistrate to take additional evidence not set
out in the challan. Therefore, the mere fact that
a second challan was put in on 5th October
would not necessarily vitiate the first. All that S.
173(1)(a) requires is that as soon as the police
investigation under Chap. 14 of the Code is
complete, there should be forwarded to the
Magistrate a report in the prescribed form:
"Setting forth the names of the parties, the
nature of the information and the names of the
persons who appear to be acquainted with the
circumstances of the case.'
All that appears to have been done in the report
of 2nd October which the police called their
incomplete challan. The witnesses named in the
second challan of 5th October were not
witnesses who were 'acquainted with the
circumstances of the case'. They were merely
formal witnesses on other matters. So also in the
supplementary challan of the 19th. The
witnesses named are the 1st Class Magistrate,
Amritsar, who recorded the dying declaration,
and the Assistant Civil Surgeon. They are not
witnesses who were 'acquainted with the
circumstances of the case'. Accordingly, the
challan which the police called an incomplete
challan was in fact a completed report of the
kind which S. 173(1) of the Code contemplates.
There is no force in this argument, and we hold
that the magistrate took proper cognizance of
the matter."
The learned counsel for the accused petitioners,
however, contended that in the old Code the
provisions, like the one contained in sub--
section (5) of S. 173 of the new Code, were not
there and, therefore the authority of the
Supreme Court decision in Tara Singh's case
(supra) would not be applicable in the context of
the changed situation brought about by the
incorporation in the new Code of sub--section
(5) of S. 173 thereof. The learned counsel for the
accused--petitioners laid emphasis on the fact
that the investigation in terms of the definition
thereof shall not be considered complete unless
the police had collected all the evidence and
formed their opinion thereon and since in cases,
where the experts' report was awaited, obviously
it could not be said that all evidence had been
collected, nor in its absence the investigating
officer would be in a position to form an
opinion. In order to show that the aforesaid
8
steps are the necessary ingredients of the
investigation, reliance has been placed on the
following observations of Jagannadhadas, J., who
delivered the judgment for the Bench in H. N.
Rishbud v. State of Delhi, AIR 1955 SC 196 (at p.
201):
"If, upon the completion of the investigation it
appears to the officer in charge of the police
station that there is no sufficient evidence or
reasonable ground, he may decide to release the
suspected accused, if in custody, on his
excluding a bond. If, however, it appears to him
that there is sufficient evidence or reasonable
ground, to place the accused on trial, he is to
take the necessary steps therefor under S. 170
of the Code. In either case, on the completion of
the investigation he has to submit a report to
the Magistrate under S. 173 of the Code in the
prescribed form furnishing various details.
Thus, under the Code investigation consists
generally of the following steps : (1) Proceeding
to the spot, (2) Ascertainment of the facts and
circumstances of the case, (3) Discovery and
arrest of the suspected offender, (4) Collection
of evidence relating to the commission of the
offence which may consist of 9a) the
examination of various persons (including the
accused) and the reduction o their statements
into writing, if the officer thinks fit, (b) the
search of places or seizure of things considered
necessary for the investigation and to be
produced at the trial and (5) Formation of the
opinion as to whether on the material collected
there is a case to place the accused before a
Magistrate for trial and if so taking the
necessary steps for the same by the filing of a
charge--sheet under S. 173."
It is no doubt true that the definition of
'investigation' in terms conceives within
'investigation' in terms conceives within its
scope the collection of the evidence and
formation of the opinion by the investigating
officer, but the question arises as to what do we
mean by the 'collection of evidence and
formation of opinion thereon'. Does the
collection of evidence necessarily envisage that
the investigating officer must record the
statements of the witnesses who are to be cited
to prove the prosecution case or must that
investigating officer receive the reports of the
experts which reports are admissible in evidence
by virtue of S. 293 of the old Code? It has been
authoritatively held at the highest judicial level
9
in Noor Khan v. State of Rajasthan. AIR 1964 SC,
286, that sub--section (3) of S. 161 does not
oblige the police officer to reduce in writing the
statements of witnesses examined by him in the
course of investigation. In this regard, the
following observations can be noticed with
advantage (at p. 291):
"The object of Ss. 162, 173(4) and 207A (3) is to
enable the accused to obtain a clear picture of
the case against him before the commencement
of the inquiry. The sections impose an
obligation upon the investigating officer to
supply before the commencement of the inquiry
copies of the statements of witnesses who are
intended to be examined at the trial so that the
accused may utilize those statements for cross-
examining the witnesses to establish such
defence as he desire to put up, and also to
shake their testimony, Section 161(3) does not
require a police officer to record in writing the
statements of witnesses examined by him in the
course of the investigation, but if he does record
in writing any such statements, he is obliged to
make copies of those statements available to the
accused
before
the
commencement
of
proceedings in the Court so that the accused
may know the details and particulars of the case
against him and how the case is intended to be
proved.........".
From the above observations of their Lordships
of the Supreme Court, it is clearly deducible that
it is not incumbent on the investigating officer
to reduce in writing the statements of the
witnesses--he may merely include their names
in the list of witnesses in support of the
prosecution case when submitting the charge--
sheet. Surely, if the charge--sheet thus
submitted would be complete as enabling the
Magistrate to take cognizance of the offence,
there is no rational basis for holding that similar
charge--sheet would not be a police report of
the requisite kind if the statements of the
witnesses although had been recorded under S.
161(3), but either by design or by inadvertence
are not appended with the report and that the
investigation of the case for that reason alone
would be considered to be incomplete thus
entitling the accused to claim release on bail in
view of the proviso to sub--section (2) of S. 167
of the Code if his detention had exceeded sixty
days.
20. For the reasons stated, I hold that the

investigation of an offence cannot be
considered to be inconclusive merely for the
reason that the investigating officer, when he
submitted his report in terms of sub-section (2)
of S. 173 of the Code to the Magistrate, still
awaited the reports of the experts or by some
chance, either inadvertently or by design, he
failed to append to the police report such
documents or the statements under S. 161 of
the Code, although these were available with
him when he submitted the police report to the
Magistrate.
21. In the result, Criminal Miscellaneous
Petitions Nos. 5812--M and 6077--M of 1977
and 169--M and 293--M of 1978 are dismissed
and the bail prayed for is declined, while
Criminal Miscellaneous Petition No. 4766--M of
1977 filed by the State is allowed and the order
of the Additional Sessions Judge is set aside and
cancelling the bail bonds of the accused--
respondents therein, they are ordered to
surrender to custody forthwith.”
The Hon'ble Single Bench of this Court in the case
of Atma Ram held as below:
"The accused shall not be entitled for release
on bail simply on the ground that Forensic
Science Laboratory report was not produced
by the prosecution agencies, because Court
has to be satisfied by the accused that there
are reasonable grounds for believing that he
is not guilty. Very long delay in production
of Forensic Science Laboratory report by the
prosecution agency may raise a rebutable
presumption that on chemical examination,
the material sent for examination does not
contain narcotic drugs and psychotropic
substance
but
that
depends
upon
circumstances and facts of each case."
As
per
the
principles
of
interpretation,
the
judgment of a Coordinate Bench of the same Court has a
binding effect, whereas the decisions of another High Court
only have a persuasive value. Two Hon'ble Single Benches of
this Court had the occasion to consider the very same issue in
11
the cases of Himmat Singh and Atma Ram (supra) and the
contention that a charge-sheet filed under Section 173(2) of
the Cr.P.C. without including the FSL report would fall within
the category of an incomplete charge-sheet was repelled by
this Court. Thus, the issue is no longer res-integra so far as
this Court is concerned. In this view of the matter, it is
apparent that the order, which was relied upon by the
Coordinate Bench in the case of Mahendra Nath was based on
an earlier decision of the Punjab and Haryana High Court in
the case of Manmohan Singh @ Goldi, which itself was per-
incurium as having been passed in total contravention of the
view taken by the Full Bench of the Punjab and Haryana High
Court in Mehal Singh's case (supra). In Manmohan Singh's
case, the Hon'ble Single Judge of the Punjab and Haryana High
Court observed that the learned Public Prosecutor could not
cite any judgment contrary to the view taken by the Bombay
High Court in the case of Sunil Vasantrao Phulbande (supra).
Thus, the order passed by Hon'ble Single Bench of Punjab and
Haryana High Court in the case of Manmohan Singh @ Goldi
(supra) was against the settled principle of law laid down by
the Hon'ble Full Bench and cannot but be said to be per
incurium.
On going through the order passed by this Court in
Mahendra Nath's case, it is apparent that the judgments of
this Court in the cases of Atma Ram and Himmat Singh as well
12
as the Full Bench Decision of the Punjab and Haryana High
Court rendered in Mehal Singh's case were not brought to the
notice of the Hon'ble Single Bench.
In view of the above discussion, as the Hon'ble
Single Bench of this Court passed the order in the case of
Mahendra Nath relying on another decision of Punjab and
Haryana High Court, which by itself was per incurium, this
Court is of the opinion that the view expressed by the Hon'ble
Single Bench in the case of Mahendra Nath cannot be said to
be laying down a correct proposition.
As has been observed above, two Coordinate Single
Benches of this Court have already taken a view that mere
non-filing of the chemical examiner's report would not make
the charge-sheet incomplete. Thus, the accused would not be
entitled to be released on bail under Section 167(2) of the
Cr.P.C. on the ground of the charge-sheet being incomplete.
This Court is also of the opinion that Section 173
(8) of the Cr.P.C. permits the prosecution to file documents
and evidence in addition to what has already been submitted
alongwith the charge-sheet under Section 173(2) of the
Cr.P.C. When a document in the nature of FSL report is filed by
the learned Public Prosecutor under Section 173(8) Cr.P.C., it
need not even be supplemented by an additional charge-
sheet. The document in the nature of FSL report is otherwise
also admissible in evidence under Section 293 of the Cr.P.C.
13
Thus, no additional charge-sheet is needed to file such a
document in the Court. The Court itself is empowered to
summon the expert's report at any stage of the trial.
In view of the aforesaid discussion, this Court is of
the opinion that as charge-sheets have been filed in these
cases within the permissible period as provided in Section 36A
(4) of the Cr.P.C., therefore, the right of the accused to be
released on bail under Section 167(2) Cr.P.C. on ground of
charge-sheet not having been filed within the statutory period
does not surive.
Accordingly, the bail applications being bereft of
any force are hereby rejected.
/tarun/
(SANDEEP MEHTA), J.