TMI Blog2012 (11) TMI 1224X X X X Extracts X X X X X X X X Extracts X X X X ..... , since the prayer for default bail was made in connection with F.I.R. No. 115 of 2006, in which charge-sheet had been filed within the stipulated period of 90 days, the argument with regard to the default bail was not available to the Petitioner and such argument has, therefore, to be rejected. The other submission of Mr. Sushil Kumar that since a fresh investigation was directed to be conducted by this Court, the earlier charge-sheet must be deemed to have been quashed, has to be rejected also on the same ground. Even on the question of delay in concluding the trial, such delay has not been caused by the prosecuting authorities, but by a co-accused and advantage thereof cannot be taken by the Petitioner. Since no argument had been advanced on behalf of the Petitioner on the merits of the case, we also refrain from looking into the same and on the basis of our aforesaid observations, we are not convinced that the Special Leave Petition, along with the Criminal Miscellaneous Petition No. 11364 of 2012, warrants any interference by this Court. The Special Leave Petition and the Criminal Miscellaneous Petition are, therefore, dismissed. Order - Jasti Chelameswar, J. - In my opinion, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded in order to decide this matter. 3. The Petitioner was at the relevant time posted as Superintendent of Police, Banaskantha, Gujarat. On 28th December, 2006, one Tulsiram Prajapati was killed in an encounter and a First Information Report (F.I.R.), being I.C.R. No. 115 of 2006, was registered with the Ambaji Police Station, Banaskantha, Gujarat, against unidentified persons Under Sections 307, 427 and 34 of the Indian Penal Code, 1860 (Indian Penal Code), Section 25(1)(A) of the Arms Act, 1959, and Section 135 of the Bombay Police Act, 1951. 4. In 2007, Nirmala Bai, the mother of the deceased, filed Writ Petition (Crl.) No. 115 of 2007, before this Court praying for an inquiry into the incident by the Central Bureau of Investigation (C.B.I.), and while the same was pending, the prosecution, upon completion of investigation, added Sections 302, 364, 307, 333, 334, 427, 365, 368, 193, 197, 201, 120-B, 471 read with Section 34 I.P.C., together with Section 25(1)(a) and 27 of the Arms Act, 1959, as also Section 135 of the Bombay Police Act, against 12 police officers, including the Petitioner. Consequent thereupon, the Petitioner was arrested by the C.I.D. crime, on 3rd May, 2010, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC No. 1439/10 dated 30.07.2010 and supplementary Charge Sheets in case FIR No. 115/2006 dated 28.12.2006 of PS Ambaji, District Banaskantha may be released and handed over to the CBI for the purpose of fresh investigation. It is further prayed that in the light of order of the Hon'ble Supreme Court of India, no further proceeding may be allowed in the case till the investigation of CBI is finalized. and for this the applicant shall ever pray. 9. The said application was allowed by the Sessions Judge on 9th June, 2011. 10. Since the investigation was not completed and the Petitioner had been in custody for a long time, an application for bail was moved on his behalf in the Court of learned Sessions Judge, Palanpur, on 16th August, 2011, who rejected the same on the ground that the application ought to have been moved before the Judicial Magistrate, First Class, Danta, and not before the Sessions Court. 11. Having regard to the order of the learned Sessions Judge, the Petitioner moved an application before the Judicial Magistrate, First Class, Danta, on 2nd September, 2011, for bail, which was rejected on 7th October, 2011. The Petitioner then moved the Gujarat High Court by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, the logical consequence would be that the first charge-sheet also stood quashed which would give the second charge-sheet due legitimacy. Accordingly, since the charge-sheet had not been filed in respect of the second F.I.R. within a period of 90 days, as stipulated under Section 167(2) Code of Criminal Procedure, the Petitioner was entitled to be released on default bail, as a matter of right. 14. Mr. Sushil Kumar made it clear that he was basing his submissions mainly on the ground available Under Section 167(2) Code of Criminal Procedure and the fact that the trial had been delayed for a long period during which the Petitioner has remained in custody. 15. Appearing for the C.B.I., Mr. Vivek Tankha, learned Senior Advocate, submitted that there was a basic fallacy in Mr. Sushil Kumar's submissions since the Petitioner was arrested in connection with the first F.I.R., being No. 115 of 2006, in which charge-sheet had been filed within the stipulated period of 90 days and that he had not been arrested in connection with the second F.I.R. filed by the C.B.I. Accordingly, the benefit of default bail Under Section 167(2) Code of Criminal Procedure was not available to the Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 115 of 2006, in which charge-sheet had been filed within the stipulated period of 90 days, the argument with regard to the default bail was not available to the Petitioner and such argument has, therefore, to be rejected. The other submission of Mr. Sushil Kumar that since a fresh investigation was directed to be conducted by this Court, the earlier charge-sheet must be deemed to have been quashed, has to be rejected also on the same ground. 19. Even on the question of delay in concluding the trial, such delay has not been caused by the prosecuting authorities, but by a co-accused and advantage thereof cannot be taken by the Petitioner. 20. Since no argument had been advanced on behalf of the Petitioner on the merits of the case, we also refrain from looking into the same and on the basis of our aforesaid observations, we are not convinced that the Special Leave Petition, along with the Criminal Miscellaneous Petition No. 11364 of 2012, warrants any interference by this Court. The Special Leave Petition and the Criminal Miscellaneous Petition are, therefore, dismissed. Jasti Chelameswar, J. 1. While I agree with the conclusion reached by Hon'ble the Chief Justice of India, I wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed and the provisions of' Sub-section (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2). recognizes the authority of the Investigating Officer/Agency to make any further investigation in respect of any offence notwithstanding the fact that the report contemplated under Sub-section (2) of Section 173 had already been submitted. It may be worthwhile noticing that under Sub-section (3), even a superior police officer appointed Under Section 158 of the Code of Criminal Procedure could direct the Investigating Officer to make a further investigation pending any orders by the concerned Magistrate on the report submitted. It is settled law that a Magistrate to whom report is submitted Under Section 173(2) can dir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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