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TMI Blog1988 (8) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... application. It was contended before the learned Addl. Sessions Judge and it is also contended before us by the learned advocate for the petitioner that as the report was submitted to the Court without the report from the Forensic Science Laboratory, it was not a report (charge-sheet) as contemplated by Sub-section (2) of Section 173 and, therefore, it cannot be said that report under Sub-section (2) of Section 173 of the Code was submitted to the Court of the Judicial Magistrate within 90 days from the date of arrest and, therefore, the petitioner is entitled to be released on bail as of right in view of Sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973. A request for releasing on bail was also made on merits before the learned Addl. Sessions Judge. The learned Addl. Sessions Judge, by a speaking order dated 13-6-1988 rejected the application for bail. The learned Addl. Sessions Judge, after referring to the submissions made before him, observed in his order that ordinarily an accused is entitled to get the benefit of Sub-section (2) of Section 167, Cr. P.C., but in the present case, there was an allegation that the petitioner was found in possession of 10 Kgs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Judicial Magistrate issuing process has not been challenged by filing any application for quashing the proceedings before this Court. In this application for bail, it is not permissible for us to go behind the action of the learned Judicial Magistrate in taking cognizance of the offences mentioned in the charge-sheet, then the Police Officer submitted the report as a charge-sheet as contemplated by Sub-section (2) of Section 173 and the learned Judicial Magistrate also accepted the same as such, if we go into this question in an application for bail, then we will be going behind the order of the learned Magistrate whereby he took cognizance and ordered summons to be issued. That is not permissible in an application for bail. If the learned Judicial Magistrate had not taken cognizance of the offences and had not treated the charge-sheet as a report under Sub-section (2) of Section 173 of the Code, then different considerations would arise because in that case it can be said that the learned Judicial Magistrate did not treat the same as a report under Sub-section (2) of Section 173. But here the position is quite different, as stated above. Apart from this, the record and proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer was not a report as contemplated by Sub-section (2) of Section 173 of the Code. Once we proceed on the assumption that such report was submitted to the learned Judicial Magistrate and the learned Judicial Magistrate took cognizance of the offences mentioned in the charge-sheet and directed process to be issued on 31-5-1988, further detention of the accused in judicial custody from time to time after 31-5-1988 will be governed by Section 309 and not Section 167 of the Cr. P.C. What Sub-section (2) of Section 167 of the Code prohibits is not to remand the accused to custody beyond the period of 90 days. Once the report is submitted under Sub-section (2) of Section 173 and the offence is registered and cognizance is taken by the learned Magistrate, the provisions of Sub-section (2) of Section 167 cannot be invoked. In view of this, the application for bail on the ground that the petitioner is entitled to e enlarged on bail in view of the provisions of Sub-section (2) of Section 167 of the Code is bound to fail. 4. There is a decision of this Court reported in Vihabhai Ramdas Patel v. Hemtuji Shivaji Dabhi 1984 (2) 25 Guj LR 883, wherein it is held that a charge-sheet sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench, it was an admitted position that no report under Sub-section (2) of Section 173 was submitted to the Magistrate before the expiry of the prescribed period. Mr. Patel drew our attention to para 11 of the aforesaid judgment of the Division Bench. We fail to understand how the proposition laid down in para 11 can be of any assistance in the present case when, according to the prosecution, report under Sub-section (2) of Section 173 was already submitted to the Court within 90 days from the date of arrest of the petitioner and when the learned Judicial Magistrate has accepted the same as such, as stated by us a little earlier. This was not a case in which application for bail was made and the application was directed to stand over so as to enable the Police Officer to submit charge-sheet during the pendency of the bail application. This decision of the Division Bench of this Court is also, therefore, of no assistance in the present case. 7. Mr. Patel also drew our attention to a decision of the Supreme Court reported in Satya Narain Musadi v. State of Bihar . The question before the Supreme Court was quite different. It appears that Section 11 of the Essential Commodities Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng with this judgment, we are very much surprised that the learned Addl. Sessions Judge has observed in his order that though ordinarily a person will be entitled to the benefit of Section 167(2) of the Code when the charge-sheet is not complete, the applicant was not entitled to the said benefit looking to the fact that he was alleged to have been found in possession of about 10 Kgs. of opium. Whether a person is entitled to be released on bail in view of the provisions of Section 167(2) of the Cr. P.C. does not depend upon the question whether there is a prima facie case against the accused and whether the offence is a serious nature. One has only to look to the question whether report under Section 173(2) is submitted to the Court within the prescribed period or not. If it is not submitted within the prescribed period, then the provisions of Section 167(2) of the Cr. P.C. come into play and we cannot look to the merits of the case for refusing bail to such an accused Such accused is entitled to the benefit of Section 167(2) as of right as soon as it is established that report under Section 173(2) of the Code is not submitted to the Court of the Magistrate within the prescribed p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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