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2007 (3) TMI 819 - HC - Indian LawsSeeking grant for Enlargement Of bail - Offences punishable u/s 120B r/w Section 489-A to 489-E of IPC - violations of the Section 14 of the Foreigners Act 1946 - Petitioner/accused is a Nigerian national - contented that he was produced before the magistrate beyond the mandatory period of 24 hours of his arrest - further contended that the Respondent has even after the expiry of 90 days failed to file charge sheet in respect of the alleged offence for which he was arrested - HELD THAT - It is well known that the court takes cognizance of the crime not the offender. The argument that the respondent filed a charge-sheet within time when it did is not correct. The charge-sheet pertains only to the offence under the Foreigners Act for which as per proviso to Section 167(2) had to be filed within 60 days. But for the other offences in respect of which the period prescribed for filing the charge sheet is 90 days no charges were indicated. Though the right of the investigating agency to file a supplementary charge sheet or a further report (u/s 173(8) pursuant to order of the court) cannot be disputed yet the fact remains that there cannot be part charge sheet as has been contended in the present case. Therefore following the decision in S.M.Purtado s case 1996 (5) TMI 442 - KERALA HIGH COURT as well as the Supreme Court ruling in Uday Mohanlal Acharya 2001 (3) TMI 1032 - SUPREME COURT it has to be concluded that the petitioner is entitled to be enlarged on bail. This is without prejudice to such other rights the respondents may have in law to place further materials in support of the case before the trial Court. The petition is allowed.
Issues Involved:
1. Validity of the detention of the petitioner beyond the prescribed period without filing a complete charge sheet. 2. Entitlement of the petitioner to bail under Section 167(2) of the Code of Criminal Procedure (Cr. PC). 3. The legal implications of filing a part charge sheet. 4. Compliance with Sections 173 and 309 of the Cr. PC. Detailed Analysis: 1. Validity of the Detention Beyond Prescribed Period: The petitioner, a Nigerian national, was apprehended by the Central Bureau of Investigation (CBI) on 25.9.2006 based on a complaint regarding counterfeit bank drafts and postal orders. He was produced before the magistrate after 24 hours of his arrest and was subsequently sent to judicial custody. The petitioner argued that even after the expiry of 90 days, the respondent failed to file a complete charge sheet for the alleged offences, and only a part charge sheet was filed for overstaying his visa. The respondent contended that a charge sheet was filed within the stipulated time for the offence under the Foreigners Act, 1946. 2. Entitlement to Bail Under Section 167(2) of Cr. PC: The petitioner applied for bail, which was rejected by both the ACMM and the Additional Sessions Judge. The petitioner relied on precedents that established the right to bail if the charge sheet is not filed within the statutory period. The court referred to the Supreme Court's decision in Uday Mohanlal Acharya v. State of Maharashtra, which held that an accused is entitled to bail if the investigation is not completed within the prescribed period, and the accused offers to furnish bail. 3. Legal Implications of Filing a Part Charge Sheet: The petitioner argued that filing a part charge sheet does not satisfy the requirement of filing a complete charge sheet within the prescribed period. The court referred to the Kerala High Court's decision in S.M. Purtado v. Dy. S.P. C.B.I. Cochin, which held that the investigation of a case cannot be split up, and a charge sheet must be filed after completing the entire investigation. The court concluded that the respondent's filing of a part charge sheet did not meet the legal requirements, and therefore, the petitioner was entitled to bail. 4. Compliance with Sections 173 and 309 of Cr. PC: The court examined the relevant provisions of Sections 173 and 309 of the Cr. PC. Section 173(2) requires the completion of the investigation and filing of a charge sheet, while Section 309 deals with the power to postpone or adjourn proceedings. The court noted that the respondent's failure to file a complete charge sheet within the prescribed period violated the petitioner's rights under Section 167(2). The court emphasized that the right to bail accrues if the investigation is not completed within the stipulated period, and the accused offers to furnish bail. Conclusion: The court concluded that the petitioner was entitled to be enlarged on bail due to the respondent's failure to file a complete charge sheet within the prescribed period. The court directed the petitioner to be released on bail, subject to conditions such as furnishing a personal bond, not leaving the country during the trial, and reporting to the court weekly. The petition was allowed in these terms.
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