TMI Blog2007 (3) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... gency to file a supplementary charge sheet, or a further report (u/s 173(8) pursuant to order of the court) cannot be disputed, yet the fact remains that there cannot be part charge sheet, as has been contended in the present case. Therefore, following the decision in S.M.Purtado's case [ 1996 (5) TMI 442 - KERALA HIGH COURT] , as well as the Supreme Court ruling in Uday Mohanlal Acharya [ 2001 (3) TMI 1032 - SUPREME COURT] , it has to be concluded that the petitioner is entitled to be enlarged on bail. This is without prejudice to such other rights the respondents may have in law, to place further materials in support of the case, before the trial Court. The petition is allowed. - S. Ravindra Bhat, J. For Appellant: R.A. Worso Zimik, Adv For Respondents: Harish Gulati and Rohit Sharma, Advs. JUDGMENT S. Ravindra Bhat, J. 1. The present petitioner/accused is a Nigerian national claiming to be in possession of a valid International passport issued by the Federal Republic of Nigeria. He claims bail, and asserts that he has to be released in terms of Sections 167(1) (2) of the Code of Criminal Procedure (Cr. PC.). 2. The brief facts necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons against the applicant are that the applicant has no authority to remain in India accordingly he was charge sheeted under Section 14 of arms act. Learned Counsel for the applicant has not shown any reasonable ground as to why the applicant who is a foreign national was present in India. Accordingly, I do not find any ground to grant bail to the applicant. Application is hereby dismissed 7. The Respondent in its reply has stated that a complaint by the Senior Security Specialist of Federal Express (Fed Ex) alleging that fake postal orders, drafts of foreign countries were being sent to various places through Federal Express, by Mr. Joshua and Mr. Eubouwman Nosa Victor was received by it. Thereafter a search was conducted on 25.9.2006 at 10.30 pm and it concluded on 26.9.2006 at 01.30 hrs. The raid was conducted at 120 D, Gokul Apartment, Krishna Nagar, Gali No. 5, Safdarjung Enclave, N.Delhi. At that time Mr. Josha was not present at the premises but Mr. Nosa Victor was present along with four other Nigerian Nationals. It is alleged by the Respondent that the Petitioner was one amongst them. The Respondent states that during the raid some incriminating materials were seized. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FIR, did not satisfy the requirement of having to file the challan within the period prescribed; the accused Therefore acquired an indefeasible right to be let out on bail. Reliance was also placed on the decision of the Gujarat High Court in Surajmal Kanaiyalal Soni v. State of Gujarat (1989)1GLR44 . Counsel submitted that in accordance with the provision under Section 167, the respondent was obliged to file a challan/ charge sheet, in respect of all the offences, within the period prescribed, i.e a maximum period of 90 days; not having complied with the command of law, the court should disregard the so-called charge-sheet, and direct the petitioner's release. 13. Shri Harish Gulati, learned Counsel for the respondent submits that there is no substance in the contentions that the applicant is entitled to be released on bail because of the failure of the prosecution to file charge sheet within the prescribed period. He submits that a charge sheet was filed in this case on 23-11-2006. That charge sheet shows that the applicant is arrayed as accused. The entire material disclosed till that date is forming part of the said charge sheet. He also submitted the distinction betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that - (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding, - (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment 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 90 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 so released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorise detention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls to furnish the bail, and at that point of time a challan is filed then possibly it can be said that the right of the accused stood extinguished. But so long as the accused files an application and indicates in the application to offer bail on being released by appropriate orders of the Court then the right of the accused on being released on bail cannot be frustrated on the oft chance of Magistrate not being available and the matter not being moved, or that the Magistrate erroneously refuses to pass an order and the matter is moved to the higher forum and a challan is filed in interregnum. This is the only way how a balance can be struck between the so-called indefeasible right of the accused on failure on the part of the prosecution to file challan within the specified period and the interest of the society, at large, in lawfully preventing an accused for being released on bail on account of inaction on the part of the prosecuting agency. On the aforesaid premises, we would record our conclusions as follows: 1. Under Sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorise detention of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to offer bail on being directed. In other words, on expiry of the period specified in paragraph (a) of proviso to Sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail, on being directed, then it has to be held that the accused has availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same. 18. It is Therefore, settled, that an accused must be held to have availed of his right flowing from the legislative mandate engrafted in the proviso to Sub-section (2) of Section 167 of the Code of if he has filed an application after the expiry of the stipulated period alleging that no challan has been filed and he is prepared to offer the bail, if ordered, and it is found as a fact that no challan has been filed within the period prescribed from the date of the arrest of the accused. The Supreme Court held that even if the application for bail is listed after some length of time, or even if the Magistrate refuses the application erroneously and the accused moves the higher forum for getting form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence or offences. An occurrence or transaction may involve commission of only one offence; or it may involve several offences. When a police officer receives information about the commission of a cognizable offence, and records the same, he is said to register a case, sometimes called a crime case. 'Case' understood in this general sense means that the case before the police officer arising from the information placed before him regarding an occurrence in which an offence or offences are committed. 'Case' relates to the transactions of which information is given and not merely one of the offences committed during the course of the transaction. This Court further held that when Section 173 speaks of completion of investigation, it must ordinarily be taken to refer to completion of investigation of all the facts and circumstances relating to the case, whether the transaction involves one offence or plurality of offences and a final report or charge sheet under Section 173 could be filed only after completion of the investigation in the case relating to all the offences arising in the case. We are in respectful agreement with the said finding arrived at by U. L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al report under Section 173(2) in respect of the offences alleged to have been committed by the petitioners under the Official Secrets Act could be legally filed by invoking the provisions of Section 173(8) of the Code. The finding of the Court below to the contra is, in our view, illegal. 15. Admittedly, no final report has been filed by the CBI against the petitioners in respect of the various offences. In its absence, the prosecution is not justified in resorting to Section 173(8) of the Code to submit a further report in respect of the alleged involvement of the petitioners under the Official Secrets Act, IPC, Act and the Order. Since the investigation of the case is not complete, we find no reason to deny the statutory bail to the petitioners under Section 167(2) of the Code. 16. The Supreme Court has held that in the scheme of the 1973 Code, remand to custody during investigation can be made only under Section 167 of the Code and remand to custody under Section 309 can be made only after taking cognizance of the offence by the Court. The result is that if the investigation is not over and the period mentioned in Section 167(2) to detain the accused is custody is over, b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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