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2021 SCC OnLine Bom 250

In the High Court of Bombay†

(BEFORE ROHIT B. DEO, J.)

Wasudeo … Applicant;
Versus
State of Maharashtra, Through P.S.O. Economic Crime Branch …
Non-Applicant.
Criminal Application (Apl) 820 of 2020
Decided on February 23, 2021
Advocates who appeared in this case:
Mr. Mahesh Rai, counsel for applicant.
Mr. V.A. Thakre, APP for non-applicant.
The Judgment of the Court was delivered by
ROHIT B. DEO, J.:— Heard Mr. Mahesh Rai, the learned counsel for the applicant
and Mr. V.A. Thakre, the learned APP for non-applicant/State.
2. The applicant, who is arraigned as accused 1 in Crime 427/2020, registered with
Police Station, Ballarshah, Dist Chandrapur, for offences punishable under sections
406, 409, 420, 465, 468, 471, 201, 109 read with section 34 of India Penal Code
(“IPC”) and sections 3 and 4 of Maharashtra Protection of Interest of Depositors (in
Financial Establishments) Act, 1999 (“MPID Act”), is assailing the order dated
14.10.2020, rendered by the Additional Sessions Judge, Chandrapur, in Special Case
(MPID) 138/2020, whereby the application preferred by the applicant, seeking bail
under the provisions of section 167(2) of Criminal Procedure Code, 1973 (“Code”) is
rejected.
3. Before adverting to the submissions canvassed by the learned counsel for the
applicant Mr. Mahesh Rai and the learned APP Mr. V.A. Thakre, it would be apposite to
note the relevant facts, which are either admitted or are irrefutable.
3.1 The applicant was arrested on 13.7.2020 and was produced before the
jurisdictional Court on 14.7.2020 and was remanded to police custody, and at a
later stage to judicial custody.
3.2 Excluding the day on which the applicant was remanded to custody, the 90
days period to complete the investigation expired on 12.10.2020.
3.3 The applicant, assuming that the 90 days period expired on 11.10.2020,
preferred application dated 12.10.2020 at 11.10 p.m. seeking default or compulsive
bail under section 167(2) of the Code.
3.4 The prosecution submitted its response on 13.10.2020, opposing the
application seeking default or compulsive bail, on the premise that the chargesheet
is filed on 7.10.2020.
3.5 The Additional Sessions Judge, Chandrapur rejected the application seeking
default or compulsive bail noting that the chargesheet was as a fact submitted on
7.10.2020 and was verified and registered on 12.10.2020 and 13.10.2020,
respectively, in view of the directions issued, as a measure to control and counter
the COVID-19 pandemic, that the chargesheets are required to be kept insulated
for three days. The learned Sessions Judge also wrongly assumed that the 90th day
to complete the investigation expired on 11.10.2020.
3.6 It is not even the case of the applicant, that the chargesheet was not
submitted or filed before the concerned court clerk or that the chargesheet filed was
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not complete.
4. The short submission canvased by the learned counsel Mr. Mahesh Rai, relying on
the view taken by the Punjab and Haryana High Court in Master Bholu through his
father and natural guardian Vinod Kumar v. Central Bureau of Investigation (Cri.
Appeal S-646-SB of 2018) (“Master Bholu”), is that the filing of the chargesheet with
the concerned court clerk is of no avail to the prosecution, and that since the
chargesheet was actually placed before the learned Judge on 13.10.2020, which was
the 91st day, the applicant was entitled to default or compulsive bail under section 167
(2) of the Code. Mr. Mahesh Rai would invite my attention to the decision of the
Supreme Court in S. Kasi v. State thrrough The Inspector of Police Samaynallur Police
Station, Madurai District (Cri. Appeal 452/2020) which articulates that the order dated
23.3.2020 passed by the Supreme Court in suo moto Writ Petition 3/2020 cannot be
understood to mean that the period of filing chargesheet as contemplated under
section 167(2) of the Code is extended.
5. In rebuttal, the learned APP Mr. V.A. Thakre would submit that the statutory
scheme focuses on the completion of the investigation within the mandated period and
the right of the accused to default or compulsive bail if the investigation is not
completed. The learned APP would submit that the concept of taking cognizance is
unknown to the statutory scheme, and therefore, if the investigation is complete and
the chargesheet is filed with the concerned court official, the fact that the chargesheet
is not placed before the learned Judge within the 90 days period contemplated under
section 167(2) of the Code, is ordinarily immaterial.
6. It would be apposite to consider the statutory scheme of the Code, to the extent
relevant, to facilitate the appreciation of the issue involved and the rival submissions.
7. Section 2 of the Code incorporates the definitions, and certain definitions are
relevant.
7.1 Sub-section (c) defines a “cognizable offence” to mean an offence for which,
and “cognizable case” means a case in which a police officer may, in accordance
with the 1st Schedule or under any other law for the time being in force, arrest
without warrant.
7.2 Sub-section (d) defines complaint to mean any allegation made orally or in
writing to a Magistrate, with a view to his taking action under the Code, that some
person, whether known or unknown, has committed an offence, but does not
include a police report and the explanation provides that a report made by a police
officer in a case which discloses, after investigation, the commission of a non-
cognizable offence shall be deemed to be a complaint; and the police officer by
whom such report is made shall be deemed to be the complainant.
7.3 Sub-section (g) defines “enquiry” to mean every enquiry, other than a trial,
conducted under this Code by a Magistrate or Court.
7.4 Sub-section (h) provides that “investigation” includes all the proceedings
under this Code for the collection of evidence conducted by a police officer or by any
person (other than a Magistrate) who is authorized by a Magistrate in his behalf.
7.5 Sub-section (r) defines police report to mean a report forwarded by a police
officer to a Magistrate under sub section (2) of section 173.
8. Chapter V deals with arrest of persons.
8.1 Section 41 reads thus:
41. When police may arrest without warrant - (1) Any police officer may without
an order from a Magistrate and without a warrant, arrest any person—
(a) who commits in the presence of a police officer, a cognizable offence.
(b) against whom a reasonable complaint has been made, or credible information
has been received, or a reasonable suspicion exists that he has committed a
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cognizable offence publishable with imprisonment for a term which may be
less than seven years or which may extend to seven years whether with or
without fine, if the following conditions are satisfied, namely -
(i) the police officer has reason to believe on the basis of such complaint,
information or suspicion that such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary -
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to
disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to
any person acquainted with the facts of the case so as to dissuade him
from disclosing such facts to the Court or to police officer; or
(e) as unless such person is arrested, his presence in the Court whenever
required cannot be ensured;
and the police officer shall record while making such arrest his reasons in
writing:
Provided that a police officer shall in all cases where the arrest of a person is not
required under the provisions of this sub-section, record the reasons in writing for
not making the arrest.
(ba) against whom credible information has been received that he has
committed a cognizable offence punishable with imprisonment for a term which
may extend to more than seven years whether with or without fine or with death
sentence and the police officer has reason to believe on the basis of that
information that such person has committed the said offence.
(c) who has been proclaimed as an offender either under this Code or by order of
the State Government; or
(d) in whose possession anything is found which may reasonably be suspected to
be stolen property and who may reasonably be suspected of having committed an
offence with reference to such thing; or
(e) who obstructs a police officer while in execution of his duty, or who has
escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces
of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint has
been made, or credible information has been received, or a reasonable suspicion
exists, of his having been concerned in, any act committed at any place out of India
which if, committed in India, would have been punishable as an offence, and for
which he is, under any law relating to extradition, or otherwise, liable to be
apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under sub
-section 5 of section 356; or
(i) for whose arrest any requisition, whether written or oral, has been received
from another police officer, provided that the requisition specifies the person to be
arrested and the offence or other cause for which the arrest is to be made and it
appears therefrom that the person might lawfully be arrested without a warrant by
the officer who received the requisition.
(2) subject to the provisions of section 42, no person concerned in a non-
cognizable offence or against whom a complaint has been made or credible
information has been received or reasonable suspicion exist of his having so
concerned, shall be arrested except under a warrant or order of a Magistrate.
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8.2 Section 56 provides that a police officer making an arrest without warrant
shall, without unnecessary delay and subject to the provisions herein contained as
to bail, take or send the person arrested before a Magistrate having jurisdiction in
the case, or before the officer in charge of a police station.
8.3 Section 57 mandates that the person arrested shall not be detained more
than 24 hours. The said provision reads thus:
57. Person arrested not to be detained more than twenty-four hours - No police
officer shall detain in custody a person arrested without warrant for a longer period
than under all the circumstances of the case is reasonable, and such period shall
not, in the absence of a special order of a Magistrate under section 167, exceed
twenty-four hours exclusive of the time necessary for the journey from the place of
arrest to the Magistrate's Court.
9. Chapter XII of the Code deals with information to the police and power to
investigate.
9.1 Section 154 mandates that every information relating to the commission of a
cognizable offence, if given orally to an officer in charge of a police station, shall be
reduced to writing by him or under his direction and be read over to the informant
and such information, whether given in writing or reduced to writing shall be signed
by the informant and the substance thereof shall be recorded in a book to be kept
by such officer in such form as may be prescribed by the State Government.
9.2 Sub-section (3) provides that any person aggrieved by the refusal on the
part of an officer in charge of a police station to record the information referred to in
sub-section (1) may approach the Superintendent of Police concerned, who shall, if
the information discloses a cognizable offence, either investigate the case himself or
direct any subordinate police officer to investigate the case.
9.3 Sub-section 155 deals with information as to noncognizable cases and
investigation thereof and section 156 deals with the power of the police officer to
investigate cognizable case.
9.4 Sub-sections 157 to 166-B of Chapter XII deal with various facets of
investigation and the provision on which the controversy involved revolves is
section 167.
Section 167 of the Code reads thus:
167. Procedure when investigation cannot be completed in twenty-four hours -
(1) Whenever any person is arrested and detained in custody, and it appears
that the investigation cannot be completed within the period of twenty-four
hours fixed by section 57, and there are grounds for believing that the accusation
or information is well-founded, the officer in charge of the police station or the
police officer making the investigation, if he is not below the rank of sub-
inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the
entries in the diary hereinafter prescribed relating to the case, and shall at the
same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section
may, whether he has or has not jurisdiction to try the case, from time to time,
authorize the detention of the accused in such custody as such Magistrate thinks
fit, for a term not exceeding fifteen days in the whole; and if he has no
jurisdiction to try the case or commit it for trial, and considers further detention
unnecessary, he may order the accused to be forwarded to a Magistrate having
such jurisdiction.
Provided that—
(a) the Magistrate may authorise the detention of the accused person, otherwise
than in the custody of the police, beyond the period of fifteen days, if he is
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satisfied that adequate grounds exist for doing so, but no Magistrate shall
authorise the detention of the accused person in custody under this paragraph
for a total period exceeding—
(i) ninety days, where the investigation relates to an offence punishable with
death, imprisonment for life or imprisonment for a term of not less than ten
years;
(ii) sixty days, where the investigation relates to any other offence, and, on
the expiry of the said period of ninety days, or sixty days, as the case may
be, the accused person shall be released on bail if he is prepared to and
does furnish bail, and every person released on bail under this subsection
shall be deemed to be so released under the provisions of Chapter XXXIII
for the purposes of that Chapter;
(b) no Magistrate shall authorise detention of the accused in custody of the
police under this section unless the accused is produced before him in person
for the first time and subsequently every time till the accused remains in the
custody of the police, but the Magistrate may extend further detention in
judicial custody on production of the accused either in person or through the
medium of electronic video linkage.
(c) no Magistrate of the second class, not specially empowered in this behalf by
the High Court, shall authorise detention in the custody of the police.
Explanation I—For the avoidance of doubts, it is hereby declared that,
notwithstanding the expiry of the period specified in paragraph (a), the accused
shall be detained in custody so long as he does not furnish bail Explanation II—If
any question arises whether an accused person was produced before the Magistrate
as required under clause (b), the production of the accused person may be proved
by his signature on the order authorising detention or by the order certified by the
Magistrate as to production of the accused person through the medium of electronic
video linkage, as the case may be.
Provided further that in case of woman under 18 years of age, the detention shall
be authorized to be in custody of a remand home or recognized social institution.
(2-A) Notwithstanding anything contained in sub-section (1) or sub-section (2),
the officer in charge of the police station or the police officer making the
investigation, if he is not below the rank of a sub-inspector, may, where a Judicial
Magistrate is not available, transmit to the nearest Executive Magistrate, on whom
the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred,
a copy of the entry in the diary hereinafter prescribed relating to the case, and
shall, at the same time, forward the accused to such Executive Magistrate, and
thereupon such Executive Magistrate, may, for reasons to be recorded in writing,
authorise the detention of the accused person in such custody as he may think fit
for a term not exceeding seven days in the aggregate; and on the expiry of the
period of detention so authorised, the accused person shall be released on bail
except where an order for further detention of the accused person has been made
by a Magistrate competent to make such order; and, where an order for such
further detention is made, the period during which the accused person was
detained in custody under the orders made by an Executive Magistrate under this
sub-section, shall be taken into account in computing the period specified in
paragraph (a) of the proviso to sub-section (2)
Provided that before the expiry of the period aforesaid, the Executive Magistrate
shall transmit to the nearest Judicial Magistrate the records of the case together
with a copy of the entries in the diary relating to the case which was transmitted to
him by the officer in charge of the police station or the police officer making the
investigation, as the case may be.
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(3) A Magistrate authorising under this section detention in the custody of the
police shall record his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial Magistrate making such order
shall forward a copy of his order, with his reasons for making it, to the Chief Judicial
Magistrate.
(5) If in any case triable by a Magistrate as a summons-case, the investigation is
not concluded within a period of six months from the date on which the accused
was arrested, the Magistrate shall make an order stopping further investigation into
the offence unless the officer making the investigation satisfies the Magistrate that
for special reasons and in the interests of justice the continuation of the
investigation beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence has been
made under sub-section (5), the Sessions Judge may, if he is satisfied, on an
application made to him or otherwise, that further investigation into the offence
ought to be made, vacate the order made under sub-section (5) and direct further
investigation to be made into the offence subject to such directions with regard to
bail and other matters as he may specify.
9.5 It would further be relevant to notice the provisions of section 173 of the
Code which read thus:
173. Report of police officer on completion of investigation - (1) Every
investigation under this Chapter shall be completed without unnecessary delay.
[(1-A) The investigation in relation to [an offence under sections 376, 376-A,
376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB or section 376-E of he Penal
Code, 1860 shall be completed within two months] from the date on which the
information was recorded by the officer-in-charge of the police station.]
(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 the 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;
(h) Whether the report of medical examination of the woman has been attached
where investigation relates to an offence under sections 376, 376-A, 376-AB,
376-B, 376-C, 376-D, 376-DA, 376-DB or section 376-E.
[(h) whether the report of medical examination of the woman has been attached
whether investigation relates to an offence under [sections 376, 376-A, 376-AB,
376-B, 376-C, 376-D, 376-DA, 376-DB) or section 376-E of he Penal Code, 1860].
(ii) The officer shall also 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.
(3) Where a superior officer of police has been appointed under section 158, the
report, shall, in any case in which the State Government by general or special order
so directs, be submitted through that officer, and he may, pending the orders of the
Magistrate, direct the officer in charge of the police station to make further
investigation.
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(4) Whenever it appears from a report forwarded under this section that the
accused has been released on his bond, the Magistrate shall make such order for
the discharge of such bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which section 170 applies, the
police officer shall forward to the Magistrate along with 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.
(6) If the police officer is of opinion that any part of any such statement is not
relevant to the subject-matter of the proceeding or that its disclosure to the
accused is not essential in the interests of justice and is inexpedient in the public
interest, he shall indicate that part of the statement and append a note requesting
the Magistrate to exclude that part from the copies to be granted to the accused
and stating his reasons for making such request.
(7) Where the police officer investigating the case finds it convenient so to do, he
may furnish to the accused copies of all or any of the documents referred to in
subsection (5).
(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).
10. The right of the accused to default bail or compulsive bail flows from the
proviso to sub-section (2) of section 167 of the Code which restricts the power of the
Magistrate to authorize the detention of the accused persons for a total period
exceeding 90 days, where the investigation relates to an offence punishable with
death, imprisonment for life or imprisonment for a term of not less than ten years and
60 days, where the investigation relates to any other offence.
11. Anxiety of the legislature was to ensure that the investigation is not open
ended and due consideration is bestowed on the liberty of the accused. The provision
aims to strike a golden balance between the needs of complete and effective
investigation and the cherished principle enshrined in Article 21 of the Constitution of
India, to the right of the accused not to be deprived of liberty save and except by
procedure established by law. In Smt. Maneka Gandhi v. Union of India, (1978) 1 SCC
248 : AIR 1978 SC 597, the Supreme Court held that the procedure established by
law cannot be arbitrary, unfair or unreasonable.
12. In Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453 (“Uday
Acharya”), the Supreme Court observes that personal liberty is one of the cherished
objects of the Indian Constitution and its deprivation can only be in accordance with
law and in conformity with the provisions thereof, as stipulated under Article 21 of the
Constitution and when the law provides that the Magistrate could authorize the
detention of the accused in custody upto a maximum period, any further detention
beyond the maximum period without filing of a challan would be a subterfuge and
would militate against the constitutional guarantee under Article 21 of the
Constitution.
13. Notably, section 167 of the Code of Criminal Procedure, 1898 (“1898 Code”)
provided 15 days as the maximum period for which an accused could be remanded to
custody, either police or judicial. The said period of 15 days was unworkable and the
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ground reality was that it would be rarely possible, if at all, to take complicated
investigation to the logical end within 15 days. The solution deviced by investigating
officers, to the practical problem posed, was to file preliminary chargesheets after the
expiry of the remand period and then to request the Magistrate to postpone the
commencement of the trial and authorize further remand of the accused under section
344 of the 1898 Code till the completion of the investigation and submission of the
final chargesheet.
14. The 14th report of the Law Commission of India on Reforms of the Judicial
Administration noted that in many cases, the accused were languishing in custody for
several months without the investigating officer filing the final report or chargesheet.
The Law Commission, therefore, recommended that an appropriate provision be
incorporated in the Code providing for continued remand after the expiry of 15 days, in
a manner that while the needs of a full and proper investigation in cases of serious
crime are met, the liberty of the accused is safeguarded. The Law Commission further
recommended that a maximum time period be prescribed beyond which no accused
could be detained without filing of the police report before the Magistrate.
15. The suggestion of the Law Commission of India in the 14th report was endorsed
and reiterated in the 41st report on The Code of Criminal Procedure, 1898. The Law
Commission articulated the need to ensure that section 344 of the 1898 Code is not
misused by submitting preliminary report. The Law Commission of India
recommended a maximum time limit of 60 days for remand.
16. The draftsmen of the Code of Criminal Procedure Bill noted and incorporated the
suggestions of the Law Commission of India. The 1898 Code was replaced by the 1973
Code and section 167 was, inter alia, enacted with the intent to balance the interest of
the investigating agency and the constitutional guarantee enshrined in Article 21
available to the accused. The statutory scheme mandates that the investigating
agency must complete the investigation by collecting the necessary evidence within
the prescribed period, failing which the accused shall be entitled to default or
compulsive bail which envisages that there shall be no adjudication on merits and
failure to complete the investigation ipso facto shall entitle the accused to seek bail,
and if such right to seek default or compulsive bail is availed, the same shall not be
defeated by the subsequent filing of the chargesheet. It is from this perspective that
default or compulsive bail is declared to be an indefeasible right.
17. The Supreme Court has held, in a catena of decisions, that section 167(2) of
the Code subserves the constitutional imperative under Article 21 and must be
interpreted purposively. A rigid or formalistic approach must be shunned and in case
of any ambiguity in the construction, the Court must lean in favour of such
interpretation as would be in consonance with the legislative intent of protecting the
rights of the accused.
18. Adverting to the factual matrix, as is noted supra, the maximum period of 90
days to complete the investigation expired on 12.10.2020 since the day on which the
applicant was remanded to judicial custody is to be excluded. [see Ravi Prakash Singh
v. State of Bihar, (2015) 8 SCC 340]. It is indubitable that the investigating officer
presented or submitted the chargesheet to the concerned clerk on 7.10.2020. The
Standard Operating Procedure (“SOP”) formulated in view of the pandemic mandated
that chargesheets were to be kept isolated and insulated for three days. Presumably,
since the 10th and 11th October were holidays, the chargesheet was verified on 12th
October, which was that 90th day, and was registered and put up before the learned
Judge on 13th October. The seminal question is whether there was due compliance
with the provisions of section 167(2) read with section 173(2) of the Code.
19. The legislative intent is to ensure that the investigation is complete within the
prescribed period, failing which the accused shall be entitled to default or compulsive
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bail, if such right is availed. In Uday Acharya, explaining the decision of the
constitution Bench in Sanjay Dutt v. State through C.B.I., Bombay (II), (1994) 5 SCC
410, the Supreme Court enunciates that the accused shall be deemed to have availed
the right, the moment he applies for bail and it is immaterial that the accused is not
as a fact ordered to be released on bail and in the interregnum, the investigating
agency submits the final report. Uday Acharya is followed inter alia in M. Ravindran v.
Intelligence Officer, Directorate of Revenue Intelligence Officer DRI (2020 SCC OnLine
SC 867). A right to default or compulsive bail, which is availed, is held to be
indefeasible in the sense that subsequent filing of the final report or chargesheet is of
no avail to the investigating agency.
20. While the right to default or compulsive bail flows from the proviso to sub-
section(2) of section 167 of the Code, which prescribes the maximum period to
complete the investigation, the legislative mandate is not that the Magistrate shall
take cognizance within the said period. The submission of the police report under
section 173(2), which envisages that as soon as the investigation is complete, a police
report, in consonance with the said provision, shall be forwarded to a Magistrate
empowered to take a cognizance of offence, is deemed to be completion of the
investigation. I am not called upon to dilate on the effect of submission of an
incomplete police report or a police report which is not in conformity with the
provisions of section 173 of the Code, since it is not even the case of the applicant that
the police report which was submitted or filed with the concerned court clerk on
7.10.2020 was not complete.
21. Irrefutably, a complete police report was submitted or filed before the
concerned court clerk on 7.10.2020, which was isolated and insulated for the period of
three days as prescribed in the SOP, and was verified and registered and put up before
the learned Judge on 12th and 13th October, 2020 respectively. The investigation was
undoubtedly complete on 7.10.2020, much prior to the expiry of the maximum period
of 90 days. The police report or chargesheet was duly verified on 12.10.2020 and put
up before the learned Judge on 13.10.2020. In my considered view, notwithstanding
that the chargesheet was put up before the learned Judge on the 91st day in the
extraordinary circumstances prevailing, since the investigation was complete within
the maximum period prescribed, the applicant is not entitled to default or compulsive
bail and while the reasons recorded by the learned Judge while rejecting the bail
application may not be entirely satisfactory, no fault can be found with the ultimate
conclusion.
22. In Dorai v. State of Karnataka, 1994 Cri LJ 2987, the Karnataka High Court held
that the fact that the Magistrate had not passed an order taking cognizance of the
chargesheet within the maximum period of 90 days, did not entitle the accused to
default or compulsive bail since the chargesheet was filed within the said period. In
Utchala Jayarami Reddy v. State of A.P., (1993 Cri LJ 3827), the Andhra Pradesh High
Court took a similar view. In a relatively recent decision in Suresh Kumar
Bhikamchand Jain v. State of Maharashtra [(2013) 3 SCC 77)], the Supreme Court
held that whether a cognizance is taken or not, is not material as far as section 167 of
the Code is concerned. The Supreme Court articulates that once a chargesheet is filed
within the stipulated time, the question of grant of default or compulsive bail does not
arise.
23. With due respect to the decision of the Punjab and Haryana High Court in
Master Bholu, I am not persuaded to fall in line. The legislative intent is that the
investigation shall be completed within the maximum time prescribed and in default,
the accused shall be entitled to compulsive or statutory bail, if such right is availed.
The emphasize is on completion of investigation and not on the learned Judge taking
cognizance of the final report or chargesheet. The submission of the final report or
chargesheet within the maximum time prescribed is relevant and significant only to
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the extent that the stage of investigation as defined in sub-section (h) of section 2 is
deemed to be over with such forwarding or submission of the chargesheet. In my
considered view, the submission of the final report or chargesheet, with or before the
concerned court officer is sufficient compliance with the provisions of subsection (2) of
section 173. The date on which the chargesheet is put up before the learned Judge
may assume some relevance, if there is a dispute or controversy touching the
submission of the final report or chargesheet with or before the concerned court
officer. Pertinently, in the factual matrix, there is no dispute that a complete final
report or chargesheet was as a fact submitted and/or filed with the concerned court
officer and that the same was dully verified on 12.10.2020. The expression, the
“officer in charge of the police station shall forward to a Magistrate empowered to take
cognizance of the offence”, in my considered view cannot be understood to mandate
that the police report must be as a fact put up before the learned Judge within the
maximum period prescribed. Considering the legislative intent, and particularly in the
context of the salutary purpose of providing for default or compulsive bail, which is the
expeditious completion of the investigation, it would suffice if the investigation is
completed and a complete police report in conformity with the provisions of sub-
section (2) of section 173 is submitted or filed before the concerned court clerk. Any
other view may perhaps cause serious prejudice to the investigating agency since an
accused involved in serious crime/s may be bestowed with the indulgence of default or
compulsive bail due to reasons beyond the control of the investigating agency and
which may be attributable to the concerned court clerk not discharging duty diligently
or to any extraneous consideration coming into play.
24. In the light of the consideration supra, the application is dismissed.
———
† Nagpur Bench

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