9911796707
TMI Blog2006 (7) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... in time, they were entitled to bail in terms of Section 167(2)(a)(ii) of the Code of Criminal Procedure, 1973 (in short the 'Cr.P.C.'). Learned Magistrate rejected the application stating that the challan was presented in court prior to the completion of 90 days and therefore, it was presented within the prescribed period. The order was challenged before learned Sessions Judge, Gurdaspur who granted bail relying on certain decisions of the Delhi High Court and Karnataka High Court (State v. B.B. Singh [2005 (1) Chandigarh Law Reporter 135], Amer v. State of Karnataka [2005 (1) Recent Criminal 107], and Nadeem Ahmed v. State [2004 Cr.L.J. 4798] holding that in relation to Section 304(B) of the Indian Penal Code, 1860 (in short the 'IPC') period of 60 days of remand would be applicable and not 90 days for the purpose of Section 167(2)(a)(ii). Questioning correctness of the said decision a revision petition was filed before the High Court by the complainant-respondent No.1. The High Court referring to the proviso to sub-section (2) of Section 167 Cr.P.C held that the period during which the challan has to be filed is 90 days and not 60 days as held by the learned Sess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 sub-section shall be deemed to be to released under the provisions of Chapter XXXIII for the purposes of that Chapter;] Two questions that essentially arise for consideration are as follows: (a) In a case involving offence punishable under Section 304 (B) is the period for filing challan 90 days or 60 days? (b) Does mere filing of challan without relevant documents satisfy the requirement of filing the challan within a stipulated period for the purpose of Section 167(2)(a)? So far as the factual position is concerned there is no dispute that all the relevant documents were before the Court before expiry of 90 days. In case it is held that the period is 90 days and not 60 days in relation to an offence punishable under Section 304 (B) IPC, the second question would become academic so far as the facts of the present case are concerned. But th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he period is 90 days, as has been held in the case at hand. But a different view (though in relation to some other offences) was taken in Abdul Hamid and Another (Crl. Misc. No. 40599 M of 2005 disposed of on 21st September, 2005). A bare reading of Rajiv Chaudhary's case (supra) shows that the same related to an offence punishable under Section 386 IPC and the sentence in respect of the said offence is not less than 10 years. This court held that the expression not less than means that the imprisonment should be 10 years or more to attract 90 days period. In that context it was said that for the purpose of clause (i) of proviso (a) of Section 167(2) Cr.PC the imprisonment should be for a clear period of 10 years or more. The position is different in respect of the offence punishable under Section 304(B) IPC. In case of Section 304(B) the range varies between 7 years and imprisonment for life. What should be the adequate punishment in a given case has to be decided by the Court on the basis of the facts and circumstances involved in the particular case. The stage of imposing a sentence comes only after recording the order of conviction of the accused person. The significant w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court inter-alia had examined the effect of supplementary report. The contents of the report as required to be given under Section 173(1)(a) of Criminal Procedure Code, 1898 (in short the 'old Code') were examined. In para 14 it was noted as follows :- When the police drew up their challan of the 2nd October, 1949, and submitted it to the court on the 3rd, they had in fact completed their investigation except for the report of the Imperial Serologist and the drawing of a sketch map of the occurrence. It is always permissible for the Magistrate to take additional evidence not set out in the challan. Therefore the mere fact that a second challan was put in on the 5th October would not necessarily vitiate the first. All that section 173(1)(a) requires is that as soon as the police investigation under Chapter XIV of the Code is complete, there should be forwarded to the Magistrate a report in the prescribed form : Setting forth the names of the parties, the nature of the information and the names of the person who appear to be acquainted with the circumstances of the case. All that appears to have been done in the report of the 2nd October which the police called ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to inquire into the offence and the necessary information is being sent to the Court. In fact, the report under Section 173(2) purports to be an opinion of the investigating officer that as far as he is concerned he has been able to procure sufficient evidence for the trial of the accused by the Court and when he states in the report not only the names of the accused, but names of the witnesses, the nature of the offence and a request that the case be tried, there is compliance with Section 173(2). The report as envisaged by Section 173(2) has to be accompanied as required by sub-Section (5) by all the documents and statements of the witnesses therein mentioned. One cannot divorce the details which the report must contain as required by sub-Section (2) from its accompaniments which are required to be submitted under sub-section 5. The whole of it is submitted as a report to the Court. But even if a narrow construction is adopted that the police report can only be what is prescribed in Section 173(2) there would be sufficient compliance if what is required to be mentioned by the statute has been set down in the report. To say that all the details of the offence must be set out in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Singh's and Satya Narain's cases (supra) in detail. Since all the relevant documents were before the Court before expiry of 90 days period, grievance of the appellant is sans merit. It would be appropriate if original photographs relied upon are filed along with the report under Section 173(2) of Cr.P.C., and can be taken back with permission of the Court to be produced as and when required. Alternatively, the zerox copies can be filed along with a certificate that they can be compared with the originals, as and when so directed by the Court. A residuary plea was taken by Mr. D.K. Garg, learned counsel for the appellant that the bail was granted on 11.2.2005 and was cancelled on 10.11.2005. It is stated that there is no allegation against that the appellant had misused the liberty of bail from the date of grant of bail upto the date of cancellation or thereafter as the order of cancellation has been stayed. At the stage of consideration of the bail application in terms of Section 167(2) there was no consideration on the merits of the case. Let the appellants surrender forthwith to custody. It is, however, open to them to move for bail which shall be considered in it ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
