Coming to the order of grant of bail to the accused, as stated earlier, the bail was granted purely on the ground that the charge-sheet was not filed within 90 days. That finding was based on the illegal order of the learned Magistrate of refusing to take the charge-sheet relying on the circular of the District Judge which we have already held to be illegal. In the facts and circumstances of the case, we are of the clear opinion that the police had validly filed the charge-sheet on 21-12-1995 and the learned Magistrate has illegally refused to accept the same. Once we hold that the police had filed a valid charge-sheet on 21-12-1995, the accused cannot get the advantage of the provisions of section 167(2) inasmuch as under those provisions, the accused would be entitled to bail only if the charge-sheet was not filed within 90 days from the date of the arrest of the accused. In the facts and circumstances of the case, no fault lay with the police and they had filed the charge-sheet which was illegally rejected by the Magistrate. In fact, and in law, the charge-sheet, in the facts and circumstances of the case was filed on 21-12-1995 and, consequently, the order of the learned Magistrate releasing the accused on bail on the erroneous footing that the charge-sheet was not filed within 90 days is clearly illegal and must be quashed and set aside.
IN THE HIGH COURT OF BOMBAY
Criminal Writ Petition No. 219 of 1996
Decided On: 04.06.1996
Rohini Mahavir Godse Vs. The State of Maharashtra
Hon'ble Judges/Coram:
V.P. Tipnis and J.N. Patel, JJ.
Citation: 1996(2) Mh.L.J. 492
1. The petitioner, who is a minor girl, 9 years old, represented by her father has challenged the legality and validity of a circular dated 16th August, 1995 issued by the then District & Sessions Judge, Solapur. She has also challenged the order of the learned Judicial Magistrate, First Class, Pandharpur, passed on 21st December, 1995 refusing to accept the charge-sheet filed by the police on the basis of the aforesaid circular and on the ground that the muddemal property is not submitted alongwith the charge-sheet. She has further prayed for quashing and setting aside the order passed by the learned Judicial Magistrate, First Class, Pandharpur, on 28th December, 1995 directing that the accused (respondent No. 3) be released on bail in Criminal Misc. Application No. 464 of 1995.
2. By order dated 11th March, 1996, rule was granted and was made peremptorily returnable on 27th March, 1996. The State was directed to file affidavit explaining the circumstances under which the Chemical Analyser's report and muddemal could not be sent to the Court alongwith the charge-sheet. In pursuance of the aforesaid order, affidavits by the concerned police officer as also by the Deputy Director, Forensic Science Laboratories, Mumbai, have been filed. The State of Maharashtra is represented by the learned Additional Public Prosecutor Mr. Nalawade and respondent No. 3 original accused is represented by his learned Advocate Mr. Mane. We have heard all the learned Counsel appearing for the petitioner and the respondents. We have perused all the annexures. We have also gone through several authorities cited at the Bar.
3. The petitioner, a minor girl of about 9 years of age, was raped by one Vithal Vasant Nagtilak, a young boy of about 20 years of age on 23-9-1995 at about 5.30 p.m. She was forcibly taken to a lonely place in the field by respondent No. 3 and thereafter raped. After reaching home, she narrated the incident to her father and promptly first information report was lodged at Pandharpur taluka police station on the very day at about 9.45 p.m. Case was registered under C.R. No. 170/95. On 24th September, 1995 the accused was arrested. The investigation commenced and police filed charge-sheet on 21-12-1995 before the learned Magistrate alongwith an application which is Exhibit. 'A' to this petition. In the application the Assistant Police Inspector, Pandharpur Taluka Police Station, has stated that C.R. No. 170 of 1995 has been registered for offences under sections 376, 323 and 506 on 23-9-1995. The seized muddemal has been sent to Pune for examination. However, the same has not been received back alongwith the Chemical Analyser's certificate. The accused was arrested on 24-9-1995 and he is in judicial custody. As 90 days will be getting over soon and as the investigation is completed, it is requested to accept the charge-sheet in accordance with the provisions of the Code of Criminal Procedure. The application specifically mentions that the muddemal and C.A. certificate will be obtained by sending a special constable and will be submitted alongwith the report. The endorsement of the Police Prosecutor, Pandharpur, on this application mentions that it is very important to accept the charge-sheet and if the charge-sheet is not accepted, the accused is likely to be released on bail.
4. On the aforesaid application, the learned Judicial Magistrate, First Class, passed the following order on 21-12-1995:---
"Perused the application. Heard the learned A.P.P. The property is alleged to be sent to C.A. The property is not with the charge-sheet.
There is a circular from the Hon'ble District Court/Sessions Judge which is dated 16-9-1995, not to accept the charge-sheet in sessions cases unless property is there. As such the charge-sheet cannot be accepted at the present moment. Police are aware of this circular. With above observations application disposed of."
As such, the learned Magistrate refused to accept the charge-sheet.
5. Ninety days were completed on 23rd December, 1995 and the accused made an application for bail on 27th December, 1995 before the learned Magistrate. The only ground on which the accused prayed for bail was that the charge-sheet has not been filed within 90 days from the date of the arrest of the accused and, as such, he is entitled for bail under the provisions of section 167(2) of the Cr.P.C. The learned Judicial Magistrate, First Class, by his order dated 27th December, 1995 held that as the charge-sheet is not presented within 90 days, the accused has a right to be released on bail. The learned Judge again referred to the circular issued by the District Judge, Solapur, that unless the property is produced alongwith the charge-sheet, the charge-sheet should not be accepted. The learned Magistrate held that the charge-sheet filed without the property cannot be equated with filing of the charge-sheet. The learned Magistrate held that in the peculiar facts and circumstances, the accused has got to be released on bail under the provisions of section 167(2) of the Cr.P.C. Accordingly, the learned Magistrate directed the accused to be released on his executing P.R. in the sum of Rs. 10,000/- with two sureties of Rs. 5,000/- each and on condition not to tamper with the prosecution witnesses and not to abscond and the accused should attend Pandharpur Taluka Police Station between 11 a.m. and 2.00 p.m. on each Monday until further orders.
6. Mr. Patwardhan, learned Counsel appearing for the petitioner, submitted that the circular issued by the learned District Judge is contrary to the provisions of section 173 as also section 190 of the Cr.P.C. He submitted that it is directly contrary to the decision of this Court reported in Balaji Vasantrao Surwankar v. State of Maharashtra 1992 M.L.J. 159 : 1991(4) Bom.C.R. 444. Mr. Patwardhan relied upon the decision of the Apex Court reported in Sub-Divisional Magistrate, Delhi v. Ram Kali, MANU/SC/0079/1967 : 1968CriLJ82 and submitted that it was wrong for the learned Magistrate to refuse to accept the charge-sheet as once there was disclosure of commission of cognizable offence, the learned Magistrate was duty bound to accept the charge-sheet under section 190 of the Cr.P.C. Mr. Patwardhan, therefore, submitted that not only the aforesaid circular by the District Judge is without any authority of law, but the said circular is contrary to the express provisions of the Code of Criminal Procedure and, therefore, is required to be quashed and set aside. Mr. Patwardhan next submitted that as the learned Magistrate has wrongfully rejected the charge-sheet which was filed within 90 days and as the learned Magistrate has granted bail to the accused exclusively on the ground that the charge-sheet was not filed within 90 days, once it is held that the learned Magistrate was in error in refusing to accept the charge-sheet, it cannot be said that the police had not filed the charge-sheet within 90 days and, consequently, the order granting bail to the accused on such erroneous assumption must fail and the said order of granting of bail under the provisions of section 167(2) of the Cr.P.C. also must be set aside.
7. Mr. Nalawade, learned Additional Public Prosecutor appearing for the State, fully supported the submissions of Mr. Patwardhan, learned Counsel appearing for the petitioner. In addition, Mr. Nalawade brought to our notice the decision of the Full Bench of the High Court of Punjab & Haryana reported in State v. Mehal Singh A.I.R. 1978 P&H 341, the decision of the Apex Court reported in Tara Singh v. The State, MANU/SC/0030/1951 : [1951]2SCR729 and the decision of the Division Bench of the Delhi High Court reported in Taj Singh v. The State MANU/DE/0060/1987 : 33(1987)DLT3A .
8. Mr. Mane, learned Counsel appearing for the original accused (respondent No. 3 herein) submitted that the circular issued by the District Judge is valid. Referring to section 173(5) of the Cr.P.C., Mr. Mane contended that the prosecution must produce all the evidence on which it wants to rely including the C.A. report alongwith the charge-sheet. Mr. Mane submitted that the police officer ought to have given details regarding the steps the police machinery had taken to collect the C.A. report. Mr. Mane submitted that, in any event, the accused has not misused his liberty and, therefore, his bail should not be cancelled as there is no ground made out for cancellation of the bail. He submitted that now the charge-sheet has been filed and, as such, the prosecution can move the competent Court for cancellation of the bail, if there is any ground, in accordance with the law. Mr. Mane also submitted that the father of the petitioner had preferred Criminal Revision Application No. 12 of 1996 before the Sessions Court at Pandharpur and the learned Additional Sessions Judge, Pandharpur, by his judgement and order dated 8-2-1996 rejected the said revision against the order of grant of bail by the learned Magistrate. Mr. Mane submitted, therefore, no second revision in the form of this petition is maintainable. Mr. Patwardhan and Mr. Nalawade submitted that under section 482 of the Cr.P.C. this Court has ample jurisdiction to pass orders which are required to be passed in the interests of justice.
9. Affidavit was filed initially by one Rashid Shaikh, Senior Police Sub-Inspector, Pandharpur taluka police station. The said Shaikh took charge of the investigation on 16-2-1996 and on receiving the C.A. report and muddemal property on 16th March, 1996 submitted the charge-sheet to the Court of the Judicial Magistrate, First Class, Pandharpur. Mr. R.M. Bhamare, Assistant Police Inspector attached to Pandharpur Taluka Police Station and who was the Investigating Officer at all relevant stages has also filed affidavit. He has stated that in the present case C.R. No. 170/1995 was registered at 21.45 hrs. on 23-9-1995. The medical examination of the prosecutrix was carried out on 23-9-1995 and that of the accused was carried out on 24-9-1995 at Cottage Hospital, Pandharpur. Blood samples of the accused and the prosecutrix, semen sample and pubic hair of the accused and the vaginal swab of the prosecutrix was received from the Medical Officer, Pandharpur Cottage Hospital, on 28-9-1995. He has stated that, in the meantime, on 26-9-1995, a murder was committed at village Ranjani. The dead body in the aforesaid murder case was undetected and the said murder had the potential of creating law and order problem at village Ranjani as there was tension amongst the two rival factions due to the said murder. He has further stated that during the very period. Navaratri festival was also going on and there was heavy pressure of work on the police force of Pandharpur police station. The police staff was thoroughly inadequate. Under the circumstances, the exhibits received from the Medical Officer, Cottage Hospital, in the present case were submitted to the Forensic Science Laboratory at Pune for analysis on 4-10-1995 and reached the Laboratory on 5-10-1995. On 9-11-1995 a letter was received from the Forensic Science Laboratory asking for fresh blood samples of the victim as well as the sample of the control earth found at the scene of offence. As the prosecutrix had left village Kauthale alongwith her parents, the police found it difficult to contact the prosecutrix and as the control earth sample from the scene of offence was not seized at the time of the panchanama of the scene of offence, the aforesaid letter could not be complied with immediately. Subsequently, the blood sample of the accused as well as of the prosecutrix was sent to the Forensic Science Laboratory, Pune, on 23-1-1996 after tracing the whereabouts of the prosecutrix. As the accused was arrested on 24-9-1995 and as the charge-sheet ought to have been filed on or before 24-12-1995, he filed the charge-sheet before the learned Judicial Magistrate, First Class, Pandharpur, on 21-12-1995. He also made an application alongwith the charge-sheet to which we have already made a reference. The learned Magistrate refused to accept the charge-sheet as the same was without muddemal. A special constable was, in fact, sent to the Forensic Science Laboratory on 21-12-1995 to collect the Chemical Analyser's certificate of muddemal exhibits but as the chemical analysis of the exhibits was not carried out till then, the said constable could not obtain either the muddemal or the C.A. report. Thereafter, on 4-1-1996 a reminder was sent to the office of the Forensic Science Laboratory, Pune, demanding the muddemal as well as the certificate. C.A. certificate was received by the police on 9-2-1996. This officer was on medical leave from 16-2-1996 till 27-3-1996. The investigation was handed over to P.S.I. Shaikh thereafter and P.S.I. Shaikh submitted the charge-sheet on 16-3-1996 alongwith the C.A. report and muddemal. However, in the meantime, the accused was released on bail on 27-12-1995 under the provisions of section 167(2) of the Cr.P.C.
10. Affidavit is also filed by one Vijay S. Panday, Dy. Director, Forensic Science Laboratories, Vidyanagari, Kalina, Mumbai. He has stated that the Director of Forensic Science Laboratory had deputed him to carry out an investigation to find out whether there was any delay in submission of the Chemical Analyser's report in C.R. No. 170/95 of Pandharpur Taluka Police Station. He has stated that though the crime took place on 23-9-1995 the exhibits were submitted for analysis to the Regional Forensic Science Laboratory, Pune, on 5-10-1995 i.e. 12 days after the crime was registered in the police station. The exhibits submitted were (i) the clothes of the victim and the accused; (ii) the blood samples of the accused and the victims; (iii) semen sample and pubic hair of the accused; and (iv) the vaginal swab of the victim. He has further stated that it is evident that blood samples of the victim and the accused were collected on 24th September, 1995. On 3-11-1995 a letter was sent from the Forensic Science Laboratory, Pune, to the Assistant Police Inspector, Pandharpur Taluka Police Station, asking him to send control crime earth of the scene of offence. Fresh blood samples of the victim as well as of the accused were also asked for as earlier blood samples were found to be unfit for analysis probably due to the delay of 12 days. There was no response from the police station to this letter. Instead letter was received on 22-12-1995 asking the analytical report as well as the exhibit. The analytical report regarding the blood and semen samples and pubic hair of the accused was already despatched on 21-12-1995 to the Medical Officer, Cottage Hospital, Pandharpur, with a copy to the police station whereas the analytical report regarding other exhibits was held up for want of blood samples of the victim as well as the control earth from the scene of offence. As there was no immediate response from the investigating authorities to the letter dated 3-11-1995 and as no fresh blood sample as well as control earth was sent till 30-12-1995, the case was finalised on the same day and analytical report regarding the cloth exhibits as well as earlier blood samples and vaginal swab of the victim were despatched on 23-1-1996. He has further stated that though this was received by the police station on 1-2-1996, and in spite of express instructions to remove the exhibits within 15 days, in fact, the exhibits were removed by the concerned police station after nearly one-and-a-half months i.e. on 15-3-1996. He has stated that the responsibility for removing the exhibits in crime cases from Forensic Science Laboratories is of the concerned police station, but in many cases exhibits are not removed by the police station and they continue to lie in the Laboratory for many years. He has stated that Forensic Science Laboratory is facing big problem for storage of crime exhibits as many of these exhibits are not removed by the police station despite repeated requests.
11. One R.B. Gadge, Section Officer, Government of Maharashtra, Home Department, Mantralaya, has also filed affidavit. He has stated that instructions were issued by the Government of Maharashtra, Home Department, to the Director General of Police, Maharashtra State, and the Director General of Police has issued circular dated 26-7-1995 to all concerned officers as regards precaution to be taken by the officers while submitting viscera's and exhibits for analysis to the Forensic Science Laboratory. He has further stated that instructions have again been issued by the Home Department to the Assistant Inspector General of Police (Law & Order) and to the Director, Forensic Science Laboratory, wherein the respective officers were asked to give requisite directions to the Investigating Officers and the officers of the Forensic Science Laboratory to deal with the viscera and exhibits most diligently keeping in view that they should be filed alongwith the charge-sheet in Court.
12. So far as the steps taken by the concerned police station and the Forensic Science Laboratory at Pune is concerned, the situation is not very satisfactory. We would like to impress upon the State that the police must take utmost care to send exhibits to the Laboratory at the earliest after they have been collected by the police and the Laboratory also must take utmost care to analyse the same at the earliest and send the report to the concerned police station at the earliest. The concerned police station also must take utmost care to collect the Chemical Analyser's report and the muddemal at the earliest and as far as possible the police should submit the Chemical Analyser's report and the exhibits or muddemal alongwith the charge-sheet. There appear to be several problems due to inadequate personnel at the police station as well as at the Laboratory. We do not want to say anything further. However, we would urge upon the State Government and all superior authorities in the police department and the Director of Forensic Science Laboratory to consider the problems, evolve a method to solve them and not only issue requisite instructions but also to ensure and supervise that those instructions are meticulously observed by all concerned.
13. Coming to the question of legality and the correctness of the order of the learned Magistrate passed on 21-12-1995 refusing to accept the charge-sheet submitted by the police, undoubtedly, the learned Magistrate felt bound by the circular issued by the District & Sessions Judge, Solapur, on 16th August, 1995. The first part of the said circular mentions the fact that while filing charge-sheet in committal cases, senior clerk or bench clerk does not insist on submitting the muddemal. Even after committal, the muddemal is not obtained. No care is taken to submit the muddemal to the Sessions Court after committal of the case to the Sessions Court. Consequently, even when the hearing of the sessions case begins and even though witnesses are present, due to non-availability of muddemal, the trial is required to be postponed which creates obstruction in the trial. This also results into avoidable waste of payment of bhatta to the witnesses. No doubt, this requires to be corrected. The second para of the circular directs the judicial officers and all concerned staff that in cases which are required to be committed to the Court of Sessions, the charge-sheet should not be accepted without muddemal. It further directs that care should be taken to forward the muddemal to the Sessions Court without fail while committing the case to the Court of Sessions. The circular gives warning that everyone should take notice that the charge-sheet shall not be accepted without muddemal after the case is committed and sent to the Sessions Court. The last para of the circular warns everyone to abide by these instructions meticulously if not appropriate action will be taken against the concerned staff.
14. While appreciating the good intention, we are of the clear view that the direction of the learned Sessions Judge that charge-sheet should not be accepted without muddemal appears to us to be clearly contrary to the provisions of the Code of Criminal Procedure and also several judicial pronouncements on the subject.
15. Under section 190 of the Cr.P.C., subject to the provisions of Chapter XIV, any Magistrate of the First Class, and any Magistrate of the Second Class specially empowered in this behalf under sub-section (2), may take cognizance of any offence:---
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts.
In the decision of the Apex Court in Sub-Divisional Magistrate, Delhi v. Ram Kali, MANU/SC/0079/1967 : 1968CriLJ82 in Para 12, it is observed as under:---
"Under section 190(1)(b) of the Code of Criminal Procedure, the Magistrate is bound to take cognizance of any cognizable offence brought to his notice. The words "may take cognizance" in the context means "must take cognizance". He has no discretion in the matter, otherwise that section will be violative of Article 14."
Thus, it is clear that once the Magistrate receives a police report of facts which constitute a cognizable offence, the Magistrate is under an obligation to take cognizance and he has no discretion to refuse to take cognizance of such a case.
16. The provisions of section 173(1) of the Cr.P.C. provide that every investigation under Chapter XII shall be completed without unnecessary delay. Sub-section (2) of section 173 is as under:---
"(2)(i) As soon as it is completed, the officer-in-charge of the police station shall 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 stating:-
(a) the names of the parties:
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody under section 170."
Sub-sections (5) and (8) of section 173 are as follows:---
"5) when such report is in respect of a case to which section 170 applies the police officer shall forward to the Magistrate alongwith the report:---
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses."
"(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)."
Thus, once the charge-sheet complies with the requirement of section 173(2) and cognizable offence is disclosed, the Magistrate is duty bound to accept the charge sheet. Sub-section (5) merely enjoins upon the police officer to forward to the Magistrate alongwith the report (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during the course of investigation; and (b) the statements recorded under section 161 of all persons whom the prosecution proposes to examine as its witnesses. However, the provisions of this sub-section, in our opinion, do not make report under sub-section (2) incomplete or unacceptable if certain documents on which the prosecution proposes to rely are not forwarded to the Magistrate. In fact, in our opinion, the provisions of sub-section (8) of section 173 contemplate further report or reports under sub-section (2) to be filed even after filing of the first report under the provisions of section 173(2) and such further report or reports shall be dealt in accordance with the provisions of section 173(8) of the Cr.P.C.
17. This position appears to be well-settled in the decision of the Apex Court in Tara Singh v. The State, MANU/SC/0030/1951 : [1951]2SCR729 . In Para 14, the Apex Court has observed as under:---
"(14) 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 and the drawing of a 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 section 173(1)(a) requires is that as soon as the police investigation under Chapter 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 is section 173(1)(a) of the Code contemplates. There is no force in this argument, and we hold that the Magistrate took proper cognizance of the matter."
18. The issue is squarely dealt with in the Full Bench decision of the High Court of Punjab & Haryana in State v. Mehal Singh A.I.R. 1978 P&H 341. In an elaborate and extremely well-considered judgement, the learned Judges have held 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 section 173 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 section 161 of the Code, although these were available with him when he submitted the police report to the Magistrate. Therefore, when a charge-sheet is submitted without the reports of experts well within the period of 60 days from the date of arrest, the accused is not entitled to be released on bail under section 167(2). It is further held in the said decision that 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 section 173, so if once it is found that the police report contained all those facts, then so far as the investigation is concerned the same has to be considered to have been completed. It is further held that so far as the investigation part of the job of the Investigating Officer is concerned, it is complete the moment he collected all evidence and facts that are detailed in sub-section (2) of section 173 and from the evidence thus collected he is satisfied that the case deserves to be initiated against the accused, further, even if the Investigating Officer had not received the report of the expert, so far as his job of collecting of the evidence is concerned, that is over the moment he despatches the material for the opinion of the expert and incidentally cites him as a witness if he relies on his testimony. In the new Code the incorporation of sub-section (5) in section 173 has in no manner changed or affected the content or concept of the 'police report' envisaged in the unamended Code in sub-section (1) of section 173. The incorporation of sub-section (5) of section 173 of the amended Code was necessitated by the fact that under section 207 of the amended Code a duty was cast additionally on the Magistrate to make available to the accused free of cost copies of the 'police report' and, inter alia, the documents and statements referred to in sub-section (5) of 173. In the unamended Code sub-section (4) of section 173 cast that duty on the police.
19. The Division Bench of the Delhi High Court has also taken a similar view in a decision reported in MANU/DE/0060/1987 : 33(1987)DLT3A and the learned Judges of the Delhi High Court have relied upon and followed the decision of the Full Bench of the Punjab & Haryana High Court referred to above.
20. The learned Single Judge of this Court has also taken a similar view in a decision reported in 1992 Mh.L.J. 159.
21. In view of the aforesaid decisions, the circular issued by the District & Sessions Judge, Solapur, which is impugned herein is clearly against the express provisions of the law and the settled position of law in that behalf. Under the circumstances, the aforesaid circular dated 16th August, 1995 issued by the District & Sessions Judge, Solapur is illegal and is required to be quashed and set aside.
22. As stated earlier, the police had filed the charge-sheet with requisite particulars on 20th December, 1995 and the learned Judicial Magistrate, First Class, has erroneously and against the express provisions of law in that behalf refused to accept the charge-sheet. As such, the order of the learned Magistrate dated 21-12-1995 has also to be quashed and set aside.
23. Coming to the order of grant of bail to the accused, as stated earlier, the bail was granted purely on the ground that the charge-sheet was not filed within 90 days. That finding was based on the illegal order of the learned Magistrate of refusing to take the charge-sheet relying on the circular of the District Judge which we have already held to be illegal. In the facts and circumstances of the case, we are of the clear opinion that the police had validly filed the charge-sheet on 21-12-1995 and the learned Magistrate has illegally refused to accept the same. Once we hold that the police had filed a valid charge-sheet on 21-12-1995, the accused cannot get the advantage of the provisions of section 167(2) inasmuch as under those provisions, the accused would be entitled to bail only if the charge-sheet was not filed within 90 days from the date of the arrest of the accused. In the facts and circumstances of the case, no fault lay with the police and they had filed the charge-sheet which was illegally rejected by the Magistrate. In fact, and in law, the charge-sheet, in the facts and circumstances of the case was filed on 21-12-1995 and, consequently, the order of the learned Magistrate releasing the accused on bail on the erroneous footing that the charge-sheet was not filed within 90 days is clearly illegal and must be quashed and set aside.
24. We are not impressed by the submissions of Mr. Mane that unless other grounds are found, the said order of grant of bail should not be cancelled. As a matter of fact, we are merely setting aside the illegal order of grant of bail based on erroneous hypothesis that the police have not filed charge-sheet within 90 days. Once we hold that the police have filed charge-sheet within 90 days, the order releasing the accused on bail on the erroneous hypothesis that the police have not filed the charge-sheet within 90 days must fall to the ground and must be set aside.
25. It also appears that the father of the unfortunate girl had preferred a revision petition to the Sessions Court on 15-1-1996 challenging the order passed by the learned Judicial Magistrate, First Class, Pandharpur, on 27-12-1995 releasing the accused on bail. Copies of the revision application, the say of the prosecution and a copy of the judgement passed by the Additional. Sessions Judge, Pandharpur, in the aforesaid revision are made available to us and we are taking these documents on record of this case. The judgement dated 8-2-1996 passed by the learned Sessions Judge, Pandharpur, shows that the submissions on behalf of the applicant therein was that, in fact, police had submitted the charge-sheet within time but the learned Magistrate refused to accept it and such refusal on the part of the Magistrate should not be treated as a default on the part of the police to file the charge-sheet within the stipulated period of 90 days. The learned Sessions Judge relying upon the decision of the Apex Court reported in Bashir and ors. v. State of Haryana, MANU/SC/0077/1977 : 1978CriLJ173 rejected the revision. In that behalf, it is relevant to notice that the decision is based on the phraseology used in section 167(2)(a)(ii) to the effect "every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter." In our opinion, in order to attract this provision, the person must be validly and lawfully released under those provisions. When the police had, in fact, filed charge-sheet within 90 days and the Magistrate wrongly and illegally refused to accept the charge-sheet and, thereafter, proceeded to grant bail to the accused, it cannot be said that the accused was validly or lawfully released under the provisions of section 167(2) of the Code of Criminal Procedure and as such, the principles of cancellation of bail will not be attracted to the facts and circumstances of the present case. In fact, the learned Sessions Judge has not applied his mind to the obvious illegality attached to the order of the learned Magistrate in refusing to accept the charge-sheet, even though it was filed well within 90 days. In the facts and circumstances of the case, the interests of justice require that we set aside the illegal orders passed by the learned Judicial Magistrate, First Class, Pandharpur.
26. In the result, the petition succeeds. We hereby quash and set aside the circular issued on 16th August, 1995 by the learned District & Sessions Judge, Solapur (Exhibit 'B' to this petition) and direct the registry to take appropriate steps to forthwith inform all concerned to ignore the same and also to cancel the same. We also quash and set aside the order dated 21-12-1995 issued by the learned Judicial Magistrate, First Class, Pandharpur, refusing to accept the charge-sheet. We also set aside the order passed by the learned Judicial Magistrate, First Class, Pandharpur, releasing respondent No. 3 accused on bail. Respondent No. 3 accused shall surrender to his bail forthwith and shall be taken into custody forthwith. However, he shall be at liberty to prefer an application for bail to the appropriate Court and the same shall be decided on merits, in accordance with law. The rule is made absolute in the aforesaid terms. There shall be no order as to costs.
Print Page
IN THE HIGH COURT OF BOMBAY
Criminal Writ Petition No. 219 of 1996
Decided On: 04.06.1996
Rohini Mahavir Godse Vs. The State of Maharashtra
Hon'ble Judges/Coram:
V.P. Tipnis and J.N. Patel, JJ.
Citation: 1996(2) Mh.L.J. 492
1. The petitioner, who is a minor girl, 9 years old, represented by her father has challenged the legality and validity of a circular dated 16th August, 1995 issued by the then District & Sessions Judge, Solapur. She has also challenged the order of the learned Judicial Magistrate, First Class, Pandharpur, passed on 21st December, 1995 refusing to accept the charge-sheet filed by the police on the basis of the aforesaid circular and on the ground that the muddemal property is not submitted alongwith the charge-sheet. She has further prayed for quashing and setting aside the order passed by the learned Judicial Magistrate, First Class, Pandharpur, on 28th December, 1995 directing that the accused (respondent No. 3) be released on bail in Criminal Misc. Application No. 464 of 1995.
2. By order dated 11th March, 1996, rule was granted and was made peremptorily returnable on 27th March, 1996. The State was directed to file affidavit explaining the circumstances under which the Chemical Analyser's report and muddemal could not be sent to the Court alongwith the charge-sheet. In pursuance of the aforesaid order, affidavits by the concerned police officer as also by the Deputy Director, Forensic Science Laboratories, Mumbai, have been filed. The State of Maharashtra is represented by the learned Additional Public Prosecutor Mr. Nalawade and respondent No. 3 original accused is represented by his learned Advocate Mr. Mane. We have heard all the learned Counsel appearing for the petitioner and the respondents. We have perused all the annexures. We have also gone through several authorities cited at the Bar.
3. The petitioner, a minor girl of about 9 years of age, was raped by one Vithal Vasant Nagtilak, a young boy of about 20 years of age on 23-9-1995 at about 5.30 p.m. She was forcibly taken to a lonely place in the field by respondent No. 3 and thereafter raped. After reaching home, she narrated the incident to her father and promptly first information report was lodged at Pandharpur taluka police station on the very day at about 9.45 p.m. Case was registered under C.R. No. 170/95. On 24th September, 1995 the accused was arrested. The investigation commenced and police filed charge-sheet on 21-12-1995 before the learned Magistrate alongwith an application which is Exhibit. 'A' to this petition. In the application the Assistant Police Inspector, Pandharpur Taluka Police Station, has stated that C.R. No. 170 of 1995 has been registered for offences under sections 376, 323 and 506 on 23-9-1995. The seized muddemal has been sent to Pune for examination. However, the same has not been received back alongwith the Chemical Analyser's certificate. The accused was arrested on 24-9-1995 and he is in judicial custody. As 90 days will be getting over soon and as the investigation is completed, it is requested to accept the charge-sheet in accordance with the provisions of the Code of Criminal Procedure. The application specifically mentions that the muddemal and C.A. certificate will be obtained by sending a special constable and will be submitted alongwith the report. The endorsement of the Police Prosecutor, Pandharpur, on this application mentions that it is very important to accept the charge-sheet and if the charge-sheet is not accepted, the accused is likely to be released on bail.
4. On the aforesaid application, the learned Judicial Magistrate, First Class, passed the following order on 21-12-1995:---
"Perused the application. Heard the learned A.P.P. The property is alleged to be sent to C.A. The property is not with the charge-sheet.
There is a circular from the Hon'ble District Court/Sessions Judge which is dated 16-9-1995, not to accept the charge-sheet in sessions cases unless property is there. As such the charge-sheet cannot be accepted at the present moment. Police are aware of this circular. With above observations application disposed of."
As such, the learned Magistrate refused to accept the charge-sheet.
5. Ninety days were completed on 23rd December, 1995 and the accused made an application for bail on 27th December, 1995 before the learned Magistrate. The only ground on which the accused prayed for bail was that the charge-sheet has not been filed within 90 days from the date of the arrest of the accused and, as such, he is entitled for bail under the provisions of section 167(2) of the Cr.P.C. The learned Judicial Magistrate, First Class, by his order dated 27th December, 1995 held that as the charge-sheet is not presented within 90 days, the accused has a right to be released on bail. The learned Judge again referred to the circular issued by the District Judge, Solapur, that unless the property is produced alongwith the charge-sheet, the charge-sheet should not be accepted. The learned Magistrate held that the charge-sheet filed without the property cannot be equated with filing of the charge-sheet. The learned Magistrate held that in the peculiar facts and circumstances, the accused has got to be released on bail under the provisions of section 167(2) of the Cr.P.C. Accordingly, the learned Magistrate directed the accused to be released on his executing P.R. in the sum of Rs. 10,000/- with two sureties of Rs. 5,000/- each and on condition not to tamper with the prosecution witnesses and not to abscond and the accused should attend Pandharpur Taluka Police Station between 11 a.m. and 2.00 p.m. on each Monday until further orders.
6. Mr. Patwardhan, learned Counsel appearing for the petitioner, submitted that the circular issued by the learned District Judge is contrary to the provisions of section 173 as also section 190 of the Cr.P.C. He submitted that it is directly contrary to the decision of this Court reported in Balaji Vasantrao Surwankar v. State of Maharashtra 1992 M.L.J. 159 : 1991(4) Bom.C.R. 444. Mr. Patwardhan relied upon the decision of the Apex Court reported in Sub-Divisional Magistrate, Delhi v. Ram Kali, MANU/SC/0079/1967 : 1968CriLJ82 and submitted that it was wrong for the learned Magistrate to refuse to accept the charge-sheet as once there was disclosure of commission of cognizable offence, the learned Magistrate was duty bound to accept the charge-sheet under section 190 of the Cr.P.C. Mr. Patwardhan, therefore, submitted that not only the aforesaid circular by the District Judge is without any authority of law, but the said circular is contrary to the express provisions of the Code of Criminal Procedure and, therefore, is required to be quashed and set aside. Mr. Patwardhan next submitted that as the learned Magistrate has wrongfully rejected the charge-sheet which was filed within 90 days and as the learned Magistrate has granted bail to the accused exclusively on the ground that the charge-sheet was not filed within 90 days, once it is held that the learned Magistrate was in error in refusing to accept the charge-sheet, it cannot be said that the police had not filed the charge-sheet within 90 days and, consequently, the order granting bail to the accused on such erroneous assumption must fail and the said order of granting of bail under the provisions of section 167(2) of the Cr.P.C. also must be set aside.
7. Mr. Nalawade, learned Additional Public Prosecutor appearing for the State, fully supported the submissions of Mr. Patwardhan, learned Counsel appearing for the petitioner. In addition, Mr. Nalawade brought to our notice the decision of the Full Bench of the High Court of Punjab & Haryana reported in State v. Mehal Singh A.I.R. 1978 P&H 341, the decision of the Apex Court reported in Tara Singh v. The State, MANU/SC/0030/1951 : [1951]2SCR729 and the decision of the Division Bench of the Delhi High Court reported in Taj Singh v. The State MANU/DE/0060/1987 : 33(1987)DLT3A .
8. Mr. Mane, learned Counsel appearing for the original accused (respondent No. 3 herein) submitted that the circular issued by the District Judge is valid. Referring to section 173(5) of the Cr.P.C., Mr. Mane contended that the prosecution must produce all the evidence on which it wants to rely including the C.A. report alongwith the charge-sheet. Mr. Mane submitted that the police officer ought to have given details regarding the steps the police machinery had taken to collect the C.A. report. Mr. Mane submitted that, in any event, the accused has not misused his liberty and, therefore, his bail should not be cancelled as there is no ground made out for cancellation of the bail. He submitted that now the charge-sheet has been filed and, as such, the prosecution can move the competent Court for cancellation of the bail, if there is any ground, in accordance with the law. Mr. Mane also submitted that the father of the petitioner had preferred Criminal Revision Application No. 12 of 1996 before the Sessions Court at Pandharpur and the learned Additional Sessions Judge, Pandharpur, by his judgement and order dated 8-2-1996 rejected the said revision against the order of grant of bail by the learned Magistrate. Mr. Mane submitted, therefore, no second revision in the form of this petition is maintainable. Mr. Patwardhan and Mr. Nalawade submitted that under section 482 of the Cr.P.C. this Court has ample jurisdiction to pass orders which are required to be passed in the interests of justice.
9. Affidavit was filed initially by one Rashid Shaikh, Senior Police Sub-Inspector, Pandharpur taluka police station. The said Shaikh took charge of the investigation on 16-2-1996 and on receiving the C.A. report and muddemal property on 16th March, 1996 submitted the charge-sheet to the Court of the Judicial Magistrate, First Class, Pandharpur. Mr. R.M. Bhamare, Assistant Police Inspector attached to Pandharpur Taluka Police Station and who was the Investigating Officer at all relevant stages has also filed affidavit. He has stated that in the present case C.R. No. 170/1995 was registered at 21.45 hrs. on 23-9-1995. The medical examination of the prosecutrix was carried out on 23-9-1995 and that of the accused was carried out on 24-9-1995 at Cottage Hospital, Pandharpur. Blood samples of the accused and the prosecutrix, semen sample and pubic hair of the accused and the vaginal swab of the prosecutrix was received from the Medical Officer, Pandharpur Cottage Hospital, on 28-9-1995. He has stated that, in the meantime, on 26-9-1995, a murder was committed at village Ranjani. The dead body in the aforesaid murder case was undetected and the said murder had the potential of creating law and order problem at village Ranjani as there was tension amongst the two rival factions due to the said murder. He has further stated that during the very period. Navaratri festival was also going on and there was heavy pressure of work on the police force of Pandharpur police station. The police staff was thoroughly inadequate. Under the circumstances, the exhibits received from the Medical Officer, Cottage Hospital, in the present case were submitted to the Forensic Science Laboratory at Pune for analysis on 4-10-1995 and reached the Laboratory on 5-10-1995. On 9-11-1995 a letter was received from the Forensic Science Laboratory asking for fresh blood samples of the victim as well as the sample of the control earth found at the scene of offence. As the prosecutrix had left village Kauthale alongwith her parents, the police found it difficult to contact the prosecutrix and as the control earth sample from the scene of offence was not seized at the time of the panchanama of the scene of offence, the aforesaid letter could not be complied with immediately. Subsequently, the blood sample of the accused as well as of the prosecutrix was sent to the Forensic Science Laboratory, Pune, on 23-1-1996 after tracing the whereabouts of the prosecutrix. As the accused was arrested on 24-9-1995 and as the charge-sheet ought to have been filed on or before 24-12-1995, he filed the charge-sheet before the learned Judicial Magistrate, First Class, Pandharpur, on 21-12-1995. He also made an application alongwith the charge-sheet to which we have already made a reference. The learned Magistrate refused to accept the charge-sheet as the same was without muddemal. A special constable was, in fact, sent to the Forensic Science Laboratory on 21-12-1995 to collect the Chemical Analyser's certificate of muddemal exhibits but as the chemical analysis of the exhibits was not carried out till then, the said constable could not obtain either the muddemal or the C.A. report. Thereafter, on 4-1-1996 a reminder was sent to the office of the Forensic Science Laboratory, Pune, demanding the muddemal as well as the certificate. C.A. certificate was received by the police on 9-2-1996. This officer was on medical leave from 16-2-1996 till 27-3-1996. The investigation was handed over to P.S.I. Shaikh thereafter and P.S.I. Shaikh submitted the charge-sheet on 16-3-1996 alongwith the C.A. report and muddemal. However, in the meantime, the accused was released on bail on 27-12-1995 under the provisions of section 167(2) of the Cr.P.C.
10. Affidavit is also filed by one Vijay S. Panday, Dy. Director, Forensic Science Laboratories, Vidyanagari, Kalina, Mumbai. He has stated that the Director of Forensic Science Laboratory had deputed him to carry out an investigation to find out whether there was any delay in submission of the Chemical Analyser's report in C.R. No. 170/95 of Pandharpur Taluka Police Station. He has stated that though the crime took place on 23-9-1995 the exhibits were submitted for analysis to the Regional Forensic Science Laboratory, Pune, on 5-10-1995 i.e. 12 days after the crime was registered in the police station. The exhibits submitted were (i) the clothes of the victim and the accused; (ii) the blood samples of the accused and the victims; (iii) semen sample and pubic hair of the accused; and (iv) the vaginal swab of the victim. He has further stated that it is evident that blood samples of the victim and the accused were collected on 24th September, 1995. On 3-11-1995 a letter was sent from the Forensic Science Laboratory, Pune, to the Assistant Police Inspector, Pandharpur Taluka Police Station, asking him to send control crime earth of the scene of offence. Fresh blood samples of the victim as well as of the accused were also asked for as earlier blood samples were found to be unfit for analysis probably due to the delay of 12 days. There was no response from the police station to this letter. Instead letter was received on 22-12-1995 asking the analytical report as well as the exhibit. The analytical report regarding the blood and semen samples and pubic hair of the accused was already despatched on 21-12-1995 to the Medical Officer, Cottage Hospital, Pandharpur, with a copy to the police station whereas the analytical report regarding other exhibits was held up for want of blood samples of the victim as well as the control earth from the scene of offence. As there was no immediate response from the investigating authorities to the letter dated 3-11-1995 and as no fresh blood sample as well as control earth was sent till 30-12-1995, the case was finalised on the same day and analytical report regarding the cloth exhibits as well as earlier blood samples and vaginal swab of the victim were despatched on 23-1-1996. He has further stated that though this was received by the police station on 1-2-1996, and in spite of express instructions to remove the exhibits within 15 days, in fact, the exhibits were removed by the concerned police station after nearly one-and-a-half months i.e. on 15-3-1996. He has stated that the responsibility for removing the exhibits in crime cases from Forensic Science Laboratories is of the concerned police station, but in many cases exhibits are not removed by the police station and they continue to lie in the Laboratory for many years. He has stated that Forensic Science Laboratory is facing big problem for storage of crime exhibits as many of these exhibits are not removed by the police station despite repeated requests.
11. One R.B. Gadge, Section Officer, Government of Maharashtra, Home Department, Mantralaya, has also filed affidavit. He has stated that instructions were issued by the Government of Maharashtra, Home Department, to the Director General of Police, Maharashtra State, and the Director General of Police has issued circular dated 26-7-1995 to all concerned officers as regards precaution to be taken by the officers while submitting viscera's and exhibits for analysis to the Forensic Science Laboratory. He has further stated that instructions have again been issued by the Home Department to the Assistant Inspector General of Police (Law & Order) and to the Director, Forensic Science Laboratory, wherein the respective officers were asked to give requisite directions to the Investigating Officers and the officers of the Forensic Science Laboratory to deal with the viscera and exhibits most diligently keeping in view that they should be filed alongwith the charge-sheet in Court.
12. So far as the steps taken by the concerned police station and the Forensic Science Laboratory at Pune is concerned, the situation is not very satisfactory. We would like to impress upon the State that the police must take utmost care to send exhibits to the Laboratory at the earliest after they have been collected by the police and the Laboratory also must take utmost care to analyse the same at the earliest and send the report to the concerned police station at the earliest. The concerned police station also must take utmost care to collect the Chemical Analyser's report and the muddemal at the earliest and as far as possible the police should submit the Chemical Analyser's report and the exhibits or muddemal alongwith the charge-sheet. There appear to be several problems due to inadequate personnel at the police station as well as at the Laboratory. We do not want to say anything further. However, we would urge upon the State Government and all superior authorities in the police department and the Director of Forensic Science Laboratory to consider the problems, evolve a method to solve them and not only issue requisite instructions but also to ensure and supervise that those instructions are meticulously observed by all concerned.
13. Coming to the question of legality and the correctness of the order of the learned Magistrate passed on 21-12-1995 refusing to accept the charge-sheet submitted by the police, undoubtedly, the learned Magistrate felt bound by the circular issued by the District & Sessions Judge, Solapur, on 16th August, 1995. The first part of the said circular mentions the fact that while filing charge-sheet in committal cases, senior clerk or bench clerk does not insist on submitting the muddemal. Even after committal, the muddemal is not obtained. No care is taken to submit the muddemal to the Sessions Court after committal of the case to the Sessions Court. Consequently, even when the hearing of the sessions case begins and even though witnesses are present, due to non-availability of muddemal, the trial is required to be postponed which creates obstruction in the trial. This also results into avoidable waste of payment of bhatta to the witnesses. No doubt, this requires to be corrected. The second para of the circular directs the judicial officers and all concerned staff that in cases which are required to be committed to the Court of Sessions, the charge-sheet should not be accepted without muddemal. It further directs that care should be taken to forward the muddemal to the Sessions Court without fail while committing the case to the Court of Sessions. The circular gives warning that everyone should take notice that the charge-sheet shall not be accepted without muddemal after the case is committed and sent to the Sessions Court. The last para of the circular warns everyone to abide by these instructions meticulously if not appropriate action will be taken against the concerned staff.
14. While appreciating the good intention, we are of the clear view that the direction of the learned Sessions Judge that charge-sheet should not be accepted without muddemal appears to us to be clearly contrary to the provisions of the Code of Criminal Procedure and also several judicial pronouncements on the subject.
15. Under section 190 of the Cr.P.C., subject to the provisions of Chapter XIV, any Magistrate of the First Class, and any Magistrate of the Second Class specially empowered in this behalf under sub-section (2), may take cognizance of any offence:---
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts.
In the decision of the Apex Court in Sub-Divisional Magistrate, Delhi v. Ram Kali, MANU/SC/0079/1967 : 1968CriLJ82 in Para 12, it is observed as under:---
"Under section 190(1)(b) of the Code of Criminal Procedure, the Magistrate is bound to take cognizance of any cognizable offence brought to his notice. The words "may take cognizance" in the context means "must take cognizance". He has no discretion in the matter, otherwise that section will be violative of Article 14."
Thus, it is clear that once the Magistrate receives a police report of facts which constitute a cognizable offence, the Magistrate is under an obligation to take cognizance and he has no discretion to refuse to take cognizance of such a case.
16. The provisions of section 173(1) of the Cr.P.C. provide that every investigation under Chapter XII shall be completed without unnecessary delay. Sub-section (2) of section 173 is as under:---
"(2)(i) As soon as it is completed, the officer-in-charge of the police station shall 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 stating:-
(a) the names of the parties:
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody under section 170."
Sub-sections (5) and (8) of section 173 are as follows:---
"5) when such report is in respect of a case to which section 170 applies the police officer shall forward to the Magistrate alongwith the report:---
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses."
"(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)."
Thus, once the charge-sheet complies with the requirement of section 173(2) and cognizable offence is disclosed, the Magistrate is duty bound to accept the charge sheet. Sub-section (5) merely enjoins upon the police officer to forward to the Magistrate alongwith the report (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during the course of investigation; and (b) the statements recorded under section 161 of all persons whom the prosecution proposes to examine as its witnesses. However, the provisions of this sub-section, in our opinion, do not make report under sub-section (2) incomplete or unacceptable if certain documents on which the prosecution proposes to rely are not forwarded to the Magistrate. In fact, in our opinion, the provisions of sub-section (8) of section 173 contemplate further report or reports under sub-section (2) to be filed even after filing of the first report under the provisions of section 173(2) and such further report or reports shall be dealt in accordance with the provisions of section 173(8) of the Cr.P.C.
17. This position appears to be well-settled in the decision of the Apex Court in Tara Singh v. The State, MANU/SC/0030/1951 : [1951]2SCR729 . In Para 14, the Apex Court has observed as under:---
"(14) 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 and the drawing of a 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 section 173(1)(a) requires is that as soon as the police investigation under Chapter 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 is section 173(1)(a) of the Code contemplates. There is no force in this argument, and we hold that the Magistrate took proper cognizance of the matter."
18. The issue is squarely dealt with in the Full Bench decision of the High Court of Punjab & Haryana in State v. Mehal Singh A.I.R. 1978 P&H 341. In an elaborate and extremely well-considered judgement, the learned Judges have held 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 section 173 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 section 161 of the Code, although these were available with him when he submitted the police report to the Magistrate. Therefore, when a charge-sheet is submitted without the reports of experts well within the period of 60 days from the date of arrest, the accused is not entitled to be released on bail under section 167(2). It is further held in the said decision that 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 section 173, so if once it is found that the police report contained all those facts, then so far as the investigation is concerned the same has to be considered to have been completed. It is further held that so far as the investigation part of the job of the Investigating Officer is concerned, it is complete the moment he collected all evidence and facts that are detailed in sub-section (2) of section 173 and from the evidence thus collected he is satisfied that the case deserves to be initiated against the accused, further, even if the Investigating Officer had not received the report of the expert, so far as his job of collecting of the evidence is concerned, that is over the moment he despatches the material for the opinion of the expert and incidentally cites him as a witness if he relies on his testimony. In the new Code the incorporation of sub-section (5) in section 173 has in no manner changed or affected the content or concept of the 'police report' envisaged in the unamended Code in sub-section (1) of section 173. The incorporation of sub-section (5) of section 173 of the amended Code was necessitated by the fact that under section 207 of the amended Code a duty was cast additionally on the Magistrate to make available to the accused free of cost copies of the 'police report' and, inter alia, the documents and statements referred to in sub-section (5) of 173. In the unamended Code sub-section (4) of section 173 cast that duty on the police.
19. The Division Bench of the Delhi High Court has also taken a similar view in a decision reported in MANU/DE/0060/1987 : 33(1987)DLT3A and the learned Judges of the Delhi High Court have relied upon and followed the decision of the Full Bench of the Punjab & Haryana High Court referred to above.
20. The learned Single Judge of this Court has also taken a similar view in a decision reported in 1992 Mh.L.J. 159.
21. In view of the aforesaid decisions, the circular issued by the District & Sessions Judge, Solapur, which is impugned herein is clearly against the express provisions of the law and the settled position of law in that behalf. Under the circumstances, the aforesaid circular dated 16th August, 1995 issued by the District & Sessions Judge, Solapur is illegal and is required to be quashed and set aside.
22. As stated earlier, the police had filed the charge-sheet with requisite particulars on 20th December, 1995 and the learned Judicial Magistrate, First Class, has erroneously and against the express provisions of law in that behalf refused to accept the charge-sheet. As such, the order of the learned Magistrate dated 21-12-1995 has also to be quashed and set aside.
23. Coming to the order of grant of bail to the accused, as stated earlier, the bail was granted purely on the ground that the charge-sheet was not filed within 90 days. That finding was based on the illegal order of the learned Magistrate of refusing to take the charge-sheet relying on the circular of the District Judge which we have already held to be illegal. In the facts and circumstances of the case, we are of the clear opinion that the police had validly filed the charge-sheet on 21-12-1995 and the learned Magistrate has illegally refused to accept the same. Once we hold that the police had filed a valid charge-sheet on 21-12-1995, the accused cannot get the advantage of the provisions of section 167(2) inasmuch as under those provisions, the accused would be entitled to bail only if the charge-sheet was not filed within 90 days from the date of the arrest of the accused. In the facts and circumstances of the case, no fault lay with the police and they had filed the charge-sheet which was illegally rejected by the Magistrate. In fact, and in law, the charge-sheet, in the facts and circumstances of the case was filed on 21-12-1995 and, consequently, the order of the learned Magistrate releasing the accused on bail on the erroneous footing that the charge-sheet was not filed within 90 days is clearly illegal and must be quashed and set aside.
24. We are not impressed by the submissions of Mr. Mane that unless other grounds are found, the said order of grant of bail should not be cancelled. As a matter of fact, we are merely setting aside the illegal order of grant of bail based on erroneous hypothesis that the police have not filed charge-sheet within 90 days. Once we hold that the police have filed charge-sheet within 90 days, the order releasing the accused on bail on the erroneous hypothesis that the police have not filed the charge-sheet within 90 days must fall to the ground and must be set aside.
25. It also appears that the father of the unfortunate girl had preferred a revision petition to the Sessions Court on 15-1-1996 challenging the order passed by the learned Judicial Magistrate, First Class, Pandharpur, on 27-12-1995 releasing the accused on bail. Copies of the revision application, the say of the prosecution and a copy of the judgement passed by the Additional. Sessions Judge, Pandharpur, in the aforesaid revision are made available to us and we are taking these documents on record of this case. The judgement dated 8-2-1996 passed by the learned Sessions Judge, Pandharpur, shows that the submissions on behalf of the applicant therein was that, in fact, police had submitted the charge-sheet within time but the learned Magistrate refused to accept it and such refusal on the part of the Magistrate should not be treated as a default on the part of the police to file the charge-sheet within the stipulated period of 90 days. The learned Sessions Judge relying upon the decision of the Apex Court reported in Bashir and ors. v. State of Haryana, MANU/SC/0077/1977 : 1978CriLJ173 rejected the revision. In that behalf, it is relevant to notice that the decision is based on the phraseology used in section 167(2)(a)(ii) to the effect "every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter." In our opinion, in order to attract this provision, the person must be validly and lawfully released under those provisions. When the police had, in fact, filed charge-sheet within 90 days and the Magistrate wrongly and illegally refused to accept the charge-sheet and, thereafter, proceeded to grant bail to the accused, it cannot be said that the accused was validly or lawfully released under the provisions of section 167(2) of the Code of Criminal Procedure and as such, the principles of cancellation of bail will not be attracted to the facts and circumstances of the present case. In fact, the learned Sessions Judge has not applied his mind to the obvious illegality attached to the order of the learned Magistrate in refusing to accept the charge-sheet, even though it was filed well within 90 days. In the facts and circumstances of the case, the interests of justice require that we set aside the illegal orders passed by the learned Judicial Magistrate, First Class, Pandharpur.
26. In the result, the petition succeeds. We hereby quash and set aside the circular issued on 16th August, 1995 by the learned District & Sessions Judge, Solapur (Exhibit 'B' to this petition) and direct the registry to take appropriate steps to forthwith inform all concerned to ignore the same and also to cancel the same. We also quash and set aside the order dated 21-12-1995 issued by the learned Judicial Magistrate, First Class, Pandharpur, refusing to accept the charge-sheet. We also set aside the order passed by the learned Judicial Magistrate, First Class, Pandharpur, releasing respondent No. 3 accused on bail. Respondent No. 3 accused shall surrender to his bail forthwith and shall be taken into custody forthwith. However, he shall be at liberty to prefer an application for bail to the appropriate Court and the same shall be decided on merits, in accordance with law. The rule is made absolute in the aforesaid terms. There shall be no order as to costs.
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