9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (10) TMI 1340 - HC - Indian LawsSeeking grant of Default Bail - default committed by the investigating agency in completing the investigation within the stipulated time - Section 167(2) Cr.P.C. - default bail sought on the ground that police failed to complete the investigation within the stipulated period of 90 days and filed only preliminary charge-sheet within the prescribed time - whether filing a preliminary charge-sheet without completing the investigation would defeat the right of the accused to claim default bail under proviso (a) to Section 167(2) Cr.P.C.? HELD THAT - It is relevant to note that the Parliament in its wisdom considering the right of the accused to speedy investigation stipulated period of time in proviso (a) to Section 167(2) Cr.P.C. stating that in all offences which are punishable with death or life imprisonment or with 10 years imprisonment the investigation is to be completed within 90 days and in other offences the investigation is to be completed within 60 days. The Code clearly envisaged that if the prosecuting agency fails to complete the investigation within the said stipulated period of time as contemplated under the Code the accused is entitled to claim default bail. The said right conferred by the statute on the accused is an indefeasible right and he is entitled to bail as a matter of right on account of the default committed by the prosecuting agency in completing the investigation within the time stipulated by the statute. It is significant to note that a plain reading of proviso (a) to Section 167(2) Cr.P.C. makes it manifest that what is required to claim for default bail under proviso (a) to Section 167(2) Cr.P.C. is failure on the part of the Investigating Agency to complete the investigation within the stipulated period of time - when the Investigating Agency files only preliminary charge-sheet within the said stipulated time keeping the investigation pending or without completing the investigation it will not under any circumstances defeat the right conferred on the accused to claim for default bail. By mere filing a preliminary charge-sheet without completing the entire investigation and filing a final and full-fledged charge-sheet the prosecuting agency cannot vanquish the indefeasible statutory right of the accused to claim for default bail. A plain reading of Section 167 Cr.P.C. makes it abundantly clear that it is not the intention of the legislation that charge-sheet is to be filed within the stipulated period. The intention of the legislation is that the investigation is to be completed within the stipulated time. Nowhere in Section 167 Cr.P.C. it is stated that the charge-sheet is to be filed within the prescribed period of time. All that it is stated in Section 167 Cr.P.C. is that the investigation is to be completed within the said stipulated period of 90 days or 60 days as the case may be - A preliminary charge-sheet filed without completing the entire investigation cannot be allowed to serve as an impediment to come in the way of exercising the statutory right of the accused for default bail. After analysing the law on the point it would be more in consonance with the legislative mandate to hold that mere filing preliminary charge-sheet without completing the investigation will not defeat the indefeasible statutory right of the accused to claim for default bail - when the law mandates that the Magistrate could authorise detention of the accused in custody up to a maximum period as indicated in the proviso to sub-section (2) of Section 167 Cr.P.C. any further detention beyond the period when the investigation is not completed and the final charge-sheet is not filed on completion of the entire investigation by the Investigating Agency would be a subterfuge and would not be in accordance with law and in conformity with the provisions of the Criminal Procedure Code. Therefore it could be violative of Article 21 of the Constitution of India. The petition filed by the petitioner under proviso (a) to Section 167(2) Cr.P.C. stands allowed. The petitioner is ordered to be enlarged on bail on execution of self bond for Rs. 50, 000/- with two sureties for like sum each to the satisfaction of the IV Additional Chief Metropolitan Magistrate Vijayawada Krishna District.
Issues Involved:
1. Legality of the order dismissing the petition for default bail under Section 167(2) Cr.P.C. 2. Whether the filing of a preliminary charge-sheet within the stipulated period satisfies the requirement under Section 167(2) Cr.P.C. 3. The impact of incomplete investigation on the right to default bail. Detailed Analysis: 1. Legality of the order dismissing the petition for default bail under Section 167(2) Cr.P.C.: The petitioner challenged the order dated 16.09.2020, by the IV Additional Chief Metropolitan Magistrate, which dismissed his petition for default bail under Section 167(2) Cr.P.C. The petitioner argued that the investigating agency failed to complete the investigation within the stipulated period of 90 days, thus entitling him to default bail. The Magistrate dismissed the petition on the grounds that the charge-sheet was filed within the stipulated period, albeit with certain technical objections, and hence the petitioner was not entitled to default bail. 2. Whether the filing of a preliminary charge-sheet within the stipulated period satisfies the requirement under Section 167(2) Cr.P.C.: The petitioner contended that the charge-sheet filed was only a preliminary charge-sheet, indicating that the investigation was incomplete. He argued that the filing of a preliminary charge-sheet does not fulfill the requirement of Section 167(2) Cr.P.C., which mandates the completion of the investigation within the stipulated period. The Magistrate, however, held that the filing of the charge-sheet within the stipulated period, even if returned for technical reasons, precludes the right to default bail. 3. The impact of incomplete investigation on the right to default bail: The court analyzed whether the filing of a preliminary charge-sheet without completing the investigation would defeat the right of the accused to claim default bail. It was noted that the investigation officer himself admitted in the charge-sheet that certain crucial witnesses were yet to be examined, and some evidence was still to be collected. The court emphasized that the statutory right to default bail is based on the failure to complete the investigation within the stipulated period, not merely on the filing of a charge-sheet. The court held that the filing of a preliminary charge-sheet, without completing the investigation, does not defeat the accused's right to default bail. Conclusion: The court concluded that the Magistrate's order dismissing the petition for default bail was legally unsustainable. It was held that the filing of a preliminary charge-sheet without completing the investigation does not fulfill the requirement under Section 167(2) Cr.P.C., and the accused is entitled to default bail. The court set aside the impugned order and granted bail to the petitioner, subject to certain conditions. The petitioner was ordered to be enlarged on bail on execution of a self bond for Rs. 50,000/- with two sureties for like sum each, and to report daily to the police station until the final charge-sheet is filed.
|
