1993 (3) TMI 391 - HC - Indian Laws

Summary

Issues Involved:
1. Compliance with Section 167(2) Cr.P.C.
2. Definition and implications of "taking cognizance" under Cr.P.C.
3. Requirements under Section 173(5) Cr.P.C.
4. Right to bail under Section 167(2) Cr.P.C.
5. Judicial versus administrative acts in the context of filing charge-sheets.

Detailed Analysis:

1. Compliance with Section 167(2) Cr.P.C.:

The petitioners sought bail on the ground that the proviso to Section 167(2) Cr.P.C. was violated, as more than 90 days had expired since their remand, making their detention illegal. The prosecution contended that the charge-sheet was submitted within the stipulated 90 days, although it was returned for compliance due to deficiencies. The court referenced a previous judgment which held that the mere submission of a report, even with defects, suffices to meet the requirements of Section 167(2).

2. Definition and Implications of "Taking Cognizance":

The court examined the meaning of "taking cognizance" in conjunction with various statutory provisions and the fundamental right to life under Article 21 of the Constitution. It was emphasized that "taking cognizance" is a judicial act, not administrative, and occurs only after a complete police report (charge-sheet) is filed and conforms to the provisions of Section 173(5) Cr.P.C.

3. Requirements under Section 173(5) Cr.P.C.:

Section 173(5) mandates that the charge-sheet must be accompanied by all relevant documents and statements. The court highlighted that this requirement is mandatory and stems from the fundamental right to life and liberty. A charge-sheet without these accompaniments is not considered a valid police report under the law.

4. Right to Bail under Section 167(2) Cr.P.C.:

The court reiterated that if the investigation is not completed within the stipulated 60 or 90 days, and a complete charge-sheet is not filed, the accused has an absolute right to be released on bail. This is in line with the legislative intent to ensure speedy justice and protect individual liberty.

5. Judicial versus Administrative Acts in the Context of Filing Charge-Sheets:

The court clarified that the perusal of a police report to check compliance with Section 173(5) is an administrative act. The judicial act begins when the complete charge-sheet is filed, taken on the court's file, and examined for taking cognizance under Section 190(1)(b) Cr.P.C. The court emphasized that the filing of a defective charge-sheet, knowing it will be returned, cannot be used to circumvent the statutory and constitutional mandates.

Conclusion:

1. A police report (charge-sheet) under Section 173(5) Cr.P.C. is incomplete without the accompanying material papers.
2. The perusal of the police report for compliance with Sections 173(2) and 173(5) Cr.P.C. is an administrative act.
3. Judicial action begins when a complete charge-sheet is filed and taken on the court's file for cognizance.
4. If the investigation is not completed within the stipulated time, and a complete charge-sheet is not filed, the accused has an absolute right to bail.
5. In the present cases, the petitioners were entitled to bail as the charge-sheet was not filed in complete form within the stipulated 90 days.

Order:
The criminal petitions were allowed, and the petitioners were ordered to be released on bail upon furnishing personal bonds and sureties.