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TMI Blog2023 (9) TMI 1442X X X X Extracts X X X X X X X X Extracts X X X X ..... r order/orders which this Hon'ble Court may deem fit and proper in the present case." Background 2. Briefly stated, the facts of the present case are as under: i. The present FIR was registered on 07.09.2021 at the instance of one Manoj Gupta who alleged while he and his friend Chaman ('the deceased) were sitting and talking, Rajeev Gupta @ Ramu and Sanjay Singh Pundeer @ Kaku ('the applicant') came. They were carrying a katta and a knife, respectively. ii. It was alleged that thereafter, the said persons, alongwith some other boys surrounded the complainant and the deceased. Ramu shot the deceased with a katta and thereafter, the applicant stabbed him with a knife multiple times. iii. The deceased was taken to the hospital. The MLC of the deceased reflected that he was 'declared brought dead'. iv. The present FIR was registered under Sections 302/34 of the Indian Penal Code, 1860 ('IPC') and Sections 25/27 of the Arms Act, 1959. v. During the course of investigation, all the relevant exhibits were seized and sent to the Forensics Science Laboratory ('FSL') for further examination. The knife which is alleged to have been used by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led alongwith the supplementary chargesheet. xv. On 18.04.2023, the second supplementary chargesheet in the present case was filed, by way of which the report of the FSL in relation to DNA analysis of blood samples was placed on record. xvi. On 17.05.2023, an application seeking default bail under Section 167 of the CrPC was filed on behalf of the applicant before the learned Trial Court. The said application was dismissed by the learned Additional Sessions Judge-04(SW), Dwarka vide order dated 07.06.2023, observing as under: "In the present case, investigation with respect to the offences mentioned in the FIR is complete in all respects and prosecution has given the opinion that accused persons are liable for the offences u/s. 302/120B IPC read with 25/27 Arms Act. Only investigation which was not within the control of the 10 and which depends upon the external factors like report from the external agencies was pending and only regarding those reports supplementary charge-sheets have been filed. As complete charge-sheet has already been filed, therefore, right to statutory bail of the accused stands defeated. Accordingly the application in hand is disposed of as dismissed." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; The said footage has been sought to be proved for establishing the presence of the petitioner near the scene of crime on the date of incident i.e. 07.09.2021 and can be relevant factor for the trial. 5. Sanction order, if any, u/s 39 of the Arms Act, 1959 qua the petitioner Though no cognizance of any of the offences punishable under Arms Act, 1959 was taken by the courts concerned and would be a factor to adjudicate the charge u/s 25 of the Arms Act, 1959, that has been wrongly framed against the petitioner. 4. Learned counsel for the applicant argued that at the time the main chargesheet was filed in the present case, the FSL report in relation to all the aforesaid material was awaited and therefore, the chargesheet was incomplete. It was further contended that in order to initiate prosecution under the Arms Act, sanction qua the present applicant in terms of Section 39 of the said Act was required, which admittedly had not been obtained at the time of filing of the main chargesheet. Similarly, it was submitted that both the supplementary chargesheets filed in the present case were also incomplete inasmuch as subsequent opinion in relation to injuries suffered by the decea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . xviii. FakhreyAlam v. State of Uttar Pradesh,. xix. Santosh Kumar and Ors. v. State of Chhattisgarh,. Submissions on behalf of the State 6. Per contra, learned APP for the State opposed the present application and submitted that the investigation qua the present applicant is complete in all respects. It was submitted that there is sufficient evidence against the applicant which was placed on record alongwith the main chargesheet, including the statements of eye-witnesses recorded under Section 161 of the CrPC. It was submitted that the weapon of offence, i.e., knife was recovered at the instance of the applicant herein. Statements of eye-witnesses clearly establish the applicant's involvement in the alleged offence. It was submitted that mere non-filing of FSL report does not render the chargesheet incomplete, especially when there is sufficient incriminating material on record to initiate prosecution against the present applicant. 7. As far as the contention of the applicant regarding non-filing of a sanction order in terms of Section 39 of the Arms Act is concerned, it was submitted that a bare reading of the said provision reflects that sanction in the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish bail. Explanation II.-If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be. Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution." (emphasis supplied) 10. The fundamental right to personal life and liberty under Article 21 of the Constitution of India and its co-relation with 167(2) of the CrPC has been, over the years, clearly established by way of judicial precedents of the Hon'ble Supreme Court of India as well as various High Courts. The right of an accused to default bail under Section 167(2) of the CrPC would arise in a case where the chargesheet is not filed within the stipulated period. The other circumstance giving rise to the right to default bail would be in case where the prosecution files a preliminary or incomplete chargeshee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aining the viral (CTV footage produced by Pradeep Sherawat has been internally forwarded to the Physics department for examination. The report of which is still pending. The remaining investigation of the present case will be filed before the Hon'ble court through supplementary charge sheet. The supplementary final report of DNA analysis is prepared and the same is being filed before the Hon'ble court of taking cognizance." 14. The Hon'ble Supreme Court, in Dinesh Dalmia v. CBI, (2007) 8 SCC 770, held as under: "19. A charge-sheet is a final report within the meaning of sub-section (2) of Section 173 of the Code. It is filed so as to enable the court concerned to apply its mind as to whether cognizance of the offence thereupon should be taken or not. The report is ordinarily filed in the form prescribed therefor. One of the requirements for submission of a police report is whether any offence appears to have been committed and, if so, by whom. In some cases, the accused having not been arrested, the investigation against him may not be complete. There may not be sufficient material for arriving at a decision that the absconding accused is also a person by whom the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s juncture, we may refer to certain dates which are relevant to the facts of this case, namely: (a) 11-3-2012 - The petitioner arrested and remanded to police custody; (b) 25-4-2012 - First charge-sheet filed against the four accused; (c) 1-6-2012 - Supplementary charge-sheet filed in which the petitioner is named; (d) 30-7-2012 - The trial court rejected the petitioner's prayer for grant of bail; (e) 13-9-2012 [Suresh v. State of Maharashtra, Criminal Application No. 3568 of 2012, order dated 13-9-2012 (Bom)] - The High Court confirmed the order of the trial court; (f) 2-10-2012 - Application filed under Section 167(2) CrPC before the trial court; (g) 5-10-2012 - The trial court rejected the application under Section 167(2) CrPC. From the above dates, it would be evident that both the charge-sheet as also the supplementary charge-sheet were filed within 90 days from the date of the petitioner's arrest and remand to police custody. It is true that cognizance was not taken by the Special Court on account of failure of the prosecution to obtain sanction to prosecute the accused under the provisions of the PC Act, but does such failure amount to non-compliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een filed with all the documents on which the prosecution proposes to rely, the investigation shall be deemed to have been completed. After completing investigation and submitting a final report to the Court, the investigating officer can send a copy of the final report along with the evidence collected and other materials to the sanctioning authority to enable the sanctioning authority to apply his mind to accord sanction. According sanction is the duty of the sanctioning authority who is not connected with the investigation at all. In case the sanctioning authority takes some time to accord sanction, that does not vitiate the final report filed by the investigating agency before the Court. Section 173 of the CrPC does not speak about the sanction order at all. Section 167 of the CrPC also speaks only about investigation and not about cognizance by the Magistrate. Therefore, once a final report has been filed, that is the proof of completion of investigation and if final report is filed within the period of 180 days or 90 days or 60 days from the initial date of remand of accused concerned, he cannot claim that a right has accrued to him to be released on bail for want of filing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und that cognizance has not been taken before the expiry of the statutory time period to file the chargesheet. We once again, reiterate what this Court said in Suresh Kumar Bhikamchand Jain (supra) that grant of sanction is nowhere contemplated under Section 167 of the CrPC." (emphasis supplied) 16. In the present case, the investigation qua the applicant was complete at the time the first chargesheet was filed, as regards the offences mentioned in the FIR, on 02.12.2021. At the time of filing of the first chargesheet, there was sufficient material on record qua the applicant such as statements of eye-witnesses and other material evidence collected and placed on record. Mere non-filing of the FSL Report is not sufficient to conclude that the chargesheet filed in the present case was incomplete. The said report can be filed by way of a supplementary chargesheet. In any case, the case of the prosecution is primarily based on the eye witness account of the complainant. The FSL report, if any, would be a corroborative piece of evidence. As pointed out hereinabove, even after the filing of the chargesheet, further investigation can continue under Section 173(8) of the CrPC. The opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation, (4) Whenever it appears from a report forwarded under this section 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 alongwith 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 proceedings 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 M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and would be of a kind of a previous investigation being continued. The further investigation would relate to discovery of some more evidence pertaining to the same offence. It has to be understood in contradiction to a re-investigation, a fresh investigation or a de novo investigation. The purpose of a further investigation is to bring the true facts before the Court even if they are discovered at a stage subsequent to the primary investigation. Thus, it cannot be said that if the prosecution prays to the Court that it be permitted to further investigate an offence, the challan filed has to be treated as incomplete. A further investigation is not antithetical to an investigation being completed. 37. As regards the contention that in the charge sheet filed a prayer was made to permit the Investigating Officer to continue with the further investigation and therefrom it has to be inferred that the investigation was not complete, the answer is to be found in the opinion of the Supreme Court in Vinay Tyagi's case where it was held that the power of the Investigating Officer under sub-Section 8 of Section 173 of the Code of Criminal Procedure is not restrictive and it is a pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on 14.10.2021, i.e. within the period prescribed by the statutory provision. The material on record indicates that cognizance had not been taken by the Ld. Trial Court on the ground that certain clarifications were required with respect to an FSL report which was pending as well as a video recording of the offences allegedly being committed that had been mentioned by the victim child in his Section 164 Cr.P.C. statement. On 16.12.2021, the Investigating Officer had informed the Ld. Trial Court that further investigation would be conducted and that a supplementary chargesheet would be filed in that regard. 14. At this juncture, it would be pertinent to note that the Petitioner can be convicted on the basis of the testimony of the victim, and the video recording can be collected and filed by way of a supplementary chargesheet and that filing of a chargesheet would entail completion of investigation and that the right to default bail under Section 167 (2) CrPC would not survive. Further, flowing from the judgments of the Supreme Court that have been discussed above, cognizance of the Ld. Trial Court is immaterial to the compliance of Section 167(2) Cr.P.C. This Court is of the op ..... X X X X Extracts X X X X X X X X Extracts X X X X
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