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TMI Blog2020 (10) TMI 1340X X X X Extracts X X X X X X X X Extracts X X X X ..... custody on 05.06.2020 and since then he has been in judicial custody. Police have filed preliminary charge-sheet in the above crime on 28.08.2020. The said charge-sheet was returned with certain objections by the learned Magistrate on the ground that the requisite copies to supply to the accused are not filed and on other technical grounds. The petitioner has filed a petition under Section 167(2) Cr.P.C. seeking default bail 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. The said petition came to be dismissed by the impugned order of the learned Magistrate on the ground that the charge-sheet was filed within the stipulated period of 90 days and it was only returned for compliance with certain technical and other objections viz., to produce all the list of documents, for filing copies of the charge-sheet to be supplied to the accused etc. and as such the petitioner is not entitled to default bail. 5. Aggrieved by the impugned order in dismissing the petition filed claiming default bail, the petitioner is before this Court questioning the legality and validity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts. He then contends that although the said charge-sheet was returned with certain technical objections for filing copies of the accused and other documents etc., the same will not confer any right on the accused to claim default bail under Section 167(2) Cr.P.C. as the charge-sheet was already filed in this case within the stipulated period of 90 days. He would submit that when major part of the investigation is completed, the mere nomenclature mentioned in the charge-sheet that it is a preliminary charge-sheet as some more witnesses are yet to be examined, who are absconding and who are in judicial custody, will not by itself make it as a preliminary charge-sheet and it is to be construed as a final charge-sheet as the learned Magistrate can take cognizance of the case on the basis of the said charge-sheet. So, he would submit that the moment the charge-sheet is filed, the accused loses their right to claim default bail under Section 167(2) Cr.P.C. Therefore, he strongly supports the impugned order of the learned Magistrate and prayed for dismissal of the Criminal Petition. 9. As per prosecution version, during the intervening night of 29/30.05.2020 at about 1.00 Hour there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or supplying the same to the accused and for not filing the statements of witnesses recorded under Section 164 Cr.P.C. etc. Thereafter, the petitioner has filed a petition under Section 167(2) Cr.P.C. before the learned Magistrate on 04.09.2020 seeking default bail on the ground that the police have failed to complete the investigation within the stipulated period of 90 days and to file charge-sheet within the said period. It is the specific case of the petitioner that only a skeleton charge-sheet was filed and as such, it is not a final charge-sheet and it will not defeat the right of the accused to claim for default bail. It is also the case of the petitioner that the charge-sheet that was filed on 28.08.2020 is only a preliminary charge-sheet and it is not a final charge-sheet, which indicates that the investigation is not fully completed and as such, the accused is entitled to default bail under proviso (a) to Section 167(2) Cr.P.C.. 12. The learned Magistrate while dismissing the petition, held that when the charge-sheet is filed within the prescribed time and when the same was returned with some technical objections that the accused cannot claim for default bail. It is held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that entire investigation is completed and a final charge-sheet is filed within the stipulated period as contemplated under Section 167 Cr.P.C. Therefore, if the charge-sheet is only returned for complying with certain technical objections of producing copies of documents etc, the accused cannot claim the benefit of default bail in the said circumstances. 15. The Division Bench of this Court in the case of Venkatrayanakota Krishnappa Raghavendra Buvanahalli Muniyappa Nagesh Babu v. The State of A.P. 2009 (2) A.P.L.J. 268(HC), held as follows: Once the charge is filed within 90 days, but was returned for compliance of certain technical objections of not filing the scientific expert's opinion, is a proper compliance under Section 173(2) Cr.P.C. and the same will not confer any right on the accused to seek bail, as a matter of right. Even in a case where the charge sheet is filed after 90 days, but before accused seeks bail availing the benefit under proviso to sub-section (2) of Section 167, his indefeasible right will be extinguished on filing such charge sheet. 16. Therefore, in view of the clear law enunciated in the above judgment of the Division Bench of this High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge-sheet, it is now evident that the investigation is not fully completed and still 22 crucial witnesses, who are in judicial custody in connection with another crime, are yet to be examined and another 8 crucial witnesses, who are also accused in the said counter-case and are absconding, are also to be examined and the person, who has recorded the rioting in the video and flashed it to media has to be traced and the said video instrument has to be collected. Therefore, considering the above contents of the charge-sheet, which are clearly mentioned by the investigating officer, this Court has absolutely no hesitation to hold that it is not a final charge-sheet and that the investigation is not fully completed and it is pending and the charge-sheet that was filed by the investigation officer in the above crime is only a preliminary charge-sheet. It is brought to the notice of this Court at the time of hearing this petition that even till today also final charge-sheet is not filed after examining the aforesaid crucial witnesses. 19. Now the crucial question that arises for determination is whether filing a preliminary charge-sheet without completing the investigation would defeat th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght 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. 21. The 3-Judge Bench of the Supreme Court in the case of Rakesh Kumar Paul v. State of Assam (2017) 15 SCC 67 held that right to personal liberty under Article 21 of the Constitution of India includes right to speedy investigation and entitlement to "default bail" where statutory period of filing charge-sheet has expired and accused has applied and is willing to furnish bail. 22. 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested with the Magistrate/Court to deny bail to him. In the judgment of the aforesaid 3-Judge Bench of the Apex Court, it is clearly held that no discretion is vested with the Court while granting default bail where accused satisfies the prerequisite for grant thereof. The Apex Court in another case Rajnikant Jivanlal Patel v. Intelligence Officer, Narcotic Control Bureau, New Delhi (1989) 3 SCC 532 : AIR 1990 SC 71 held as follows: "The right to bail under Section 167(2) proviso (a) thereto is absolute. It is a legislative command and not Court's discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage, merits of the case are not to be examined. Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days." Therefore, the legal position is very clear that irrespective of the gravity of the offence and the nature and seriousness of the offence, the moment the accused claims bail under proviso (a) to Section 167(2) Cr.P.C. on account of the default committed by the Investigating Agency to complete ..... X X X X Extracts X X X X X X X X Extracts X X X X
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