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2017 (12) TMI 1818 - HC - Indian LawsSeeking release on Bail - investigation was not completed within the stipulated period of ninety days thus rendering his continued incarceration in judicial custody illegal - section 167(2) of Cr.P.C - HELD THAT - The role of the Petitioner appears to be limited to the extent of operating illegal gateways using SIM cards allegedly procured through fraudulent mean from the various telecom service providers and giving access to people to make and receive international calls routed partly over VoIP and partly though the cellular networks and thereby cause loss to the public exchequer. When the bail applications of the Petitioner and similarly placed co-accused persons were being heard it was submitted on behalf of the State that investigation was going on to ascertain if the role of the Petitioner and similarly placed co-accused persons were limited to operating illegal gateways to facilitate communication in a manner not approved by the Department of Telecommunications or were the Petitioner and the similarly placed co-accused persons involved in the larger conspiracy of assisting terror related activities in the State of J K and other parts of the country. This would show that as regards the Petitioner herein investigation was still continuing to unearth the extent of his role and to see if he had a role to play in the larger conspiracy. In that case the substratum of the offence suspected to have been committed by the Petitioner is still under investigation and therefore the investigation into the involvement of the Petitioner cannot be said to have been completed. On the date on which the police report was filed it was conceded to by the police itself that investigation against those under custody was still pending. This factor when seen in conjunction with the fact that the police report was filed at the fag end of the ninety-day period after which the Petitioner would have been eligible for default bail makes it apparent that the charge sheet against the Petitioner has been filed only with the intent of frustrating the right of the Petitioner to apply for default bail u/s. 167(2) Cr.P.C. The petition succeeds and the Petitioner shall be released on bail u/s.167(2) Cr.P.C upon such conditions set by the Ld. Trial Court - Petition allowed.
Issues Involved:
1. Legality of the charge sheet filed under section 173(2) Cr.P.C. 2. Completion of investigation under section 167(2) Cr.P.C. 3. Eligibility for bail under section 167(2) Cr.P.C. Issue-wise Detailed Analysis: 1. Legality of the charge sheet filed under section 173(2) Cr.P.C.: The petitioner argued that the investigation was not completed within the stipulated period of ninety days, rendering the charge sheet filed by the Respondent State invalid. The Ld. Counsel for the Petitioner contended that a charge sheet must fulfill the legislative requirement under section 173(2) Cr.P.C, and merely referring to it as a final report does not suffice. The charge sheet must disclose that the investigation has indeed concluded, allowing the Court of first instance to take cognizance and proceed with the trial. The petitioner relied on several judgments to support this argument, including: - T.V. Sarma Vs. Smt. Turgakamal Devi and Ors.: The Andhra Pradesh High Court held that any report sent to the Magistrate before the completion of the investigation does not constitute a "police report" within the meaning of section 173(2) Cr.P.C. - Hari Chand & Raj Pal Vs. State: The Delhi High Court observed that an incomplete challan does not satisfy the requirements of section 173(2) Cr.P.C. - Hargovind Bhargava & Anr. Vs. State of M.P. and Anr: The Madhya Pradesh High Court held that a charge sheet can only be filed after the completion of the investigation. - P.V. Vijayraghavan and Ors., Vs. C.B.I and another: The Kerala High Court concluded that a case constituted the entire set of allegations, and a police report must be filed after the conclusion of the investigation of the case. 2. Completion of investigation under section 167(2) Cr.P.C.: The petitioner argued that the investigation does not conclude until a police report under section 173(2) Cr.P.C is filed before the Court of first instance. The Ld. Counsel for the Petitioner emphasized that the word "completed" in section 173 Cr.P.C signifies the end of the investigation, and the police report must indicate that nothing further is required by way of investigation. The Respondent State, represented by Mrs. Manjeet P. Chuckkal, countered that the charge sheet was complete in all material aspects and fully complied with the essential requirements of a "police report" under section 173(2) Cr.P.C. The right of further investigation vested in the police under section 173(8) does not open a window of opportunity for the accused to sustain an application under section 167(2) Cr.P.C. The charge sheet was filed within ninety days, and further investigation does not imply that the investigation related to the Petitioner was pending. 3. Eligibility for bail under section 167(2) Cr.P.C.: The petitioner claimed eligibility for bail under section 167(2) Cr.P.C, as the investigation was not completed within the stipulated period. The Ld. Counsel for the Petitioner argued that a "police report" under section 173(2) Cr.P.C must be filed before the Court of the Magistrate empowered to take cognizance, marking the culmination of the investigation. If the report reveals that the investigation is still in progress, it is not a "police report" under section 173(2) Cr.P.C. The Respondent State cited several judgments to support their position, including: - K. Veeraswami Vs. Union of India: The Supreme Court held that a report under section 173(2) is an opinion of the investigating officer that the investigation is complete. - Dinesh Dalmia Vs. CBI: The Supreme Court held that the entitlement for default bail arises only when the investigation has not been completed within the stipulated time. - State of Maharashtra Vs. Sharadchandra Vinayak Dongre: The Supreme Court held that the Magistrate has the power to take cognizance upon a police report, even if further investigation is in progress. Conclusion: On a conjoint appreciation of the judgments and the provisions of section 173(2) Cr.P.C, the Court arrived at the following conclusions: - There is no indelible proposition of law regarding what constitutes a police report; it depends on the opinion of the Magistrate. - The Magistrate can take cognizance of the offences based on the material forwarded with the police report, even if further investigation is in progress. - An application by the police for further investigation under section 173(8) Cr.P.C does not presume that the police report under section 173(2) Cr.P.C is incomplete. - A police report under section 173(2) must be complete in all material particulars and ideally disclose that the investigation is complete. - Whether a police report is filed to curtail the right of the accused to secure default bail under section 167(2) Cr.P.C is a question of fact to be determined on the merits of each case. The Court found that the charge sheet against the Petitioner was filed with the intent of frustrating the right of the Petitioner to apply for default bail under section 167(2) Cr.P.C. Therefore, the petition succeeded, and the Petitioner was ordered to be released on bail under section 167(2) Cr.P.C upon such conditions set by the Ld. Trial Court.
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