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TMI Blog2015 (1) TMI 1456X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as Special Criminal Case No. 1 of 2013 on 8.7.2013. 3. The Appellant/accused was arrested on 4.4.2013 for an offence which had taken place on 15.6.2004, which is popularly known as the fake encounter death of Ishrat Jahan. The offence alleged against the Appellant was punishable with life imprisonment or death and what is popularly called Default Bail becomes the indefeasible right on the expiry of 90 days in the event of non filing of police report by then. On 3.7.2013 the first Respondent viz. CBI filed what they called the charge sheet which is alleged by the Appellant as a misnomer because it does not comply with the statutory requirement of police report Under Sections 173(2) and 173(5) of Code of Criminal Procedure. 4. The Appellant by a written application dated 4.7.2013 claimed his right to be released on bail. According to the Appellant, the last extension of detention in custody was made on 21.6.2013 and the period of remand was extended upto 5.7.2013. There was no existing order of remand to custody between 5.7.2013 and 8.7.2013. Therefore, his custody during that period is illegal. It is further stated by Mr. Ram Jethmalani, the learned senior Counsel for the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir counter statement opposing the relief sought for by the Appellant/accused in this appeal. 8. The de-facto complainant's senior counsel Mr. Huzefa Ahmadi, has opposed the appeal seeking to justify the impugned order passed by the High Court, inter alia, contending that the police report was submitted on 3.7.2013 i.e. within 90 days as the stipulated 90 days were completed only on 4.7.2013. In support of this contention he has placed reliance upon the judgments of this Court in 1) Chaganti Satyanarayana and Ors. v. State of Andhra Pradesh (1986) 3 SCC 141 para 25 and 2) Central Bureau of Investigation, Special Investigation Cell-I, New Delhi) v. Anupam J. Kulkarni (1992) 3 SCC 141. Further reliance is placed upon the decision in State of M.P. v. Rustam and Ors. (1995) Supp 3 SCC 221, wherein this Court has held that clear 90 days have to expire before the right of indefeasible bail begins. 9. Further, it is contended that the right of the Appellant to seek default bail Under Section 167(2) would accrue only on the expiry of the period of 90 days, i.e. on 5.7.2013. In the present case, application Under Section 167(2) made by the Appellant on 4.7.2013 is premature. Further he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i and Anr. (2002) 5 SCC 82 wherein at para 7, regarding relevant documents to be submitted at the time of charge sheet, it is held as under: 7. From the aforesaid Sub-sections, it is apparent that normally, the investigating officer is required to produce all the relevant documents at the time of submitting the charge-sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or the charge-sheet, it is always open to the investigating officer to produce the same with the permission of the court. In our view, considering the preliminary stage of prosecution and the context in which the police officer is required to forward to the Magistrate all the documents or the relevant extracts thereof on which the prosecution proposes to rely, the word "shall" used in Sub-section (5) cannot be interpreted as mandatory, but as directory. Normally, the documents gathered during the investigation upon which the prosecution wants to rely are required to be forwarded to the Magistrate, but if there is some omi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are complied with in the instant case. Therefore, filing of the police report as required Under Section 173(2) is within 90 days in the instant case. 15. The High Court while dealing with this aspect has carefully considered the aforesaid relevant aspects of the case and stated its reasons at para 10.1 which reads thus: 10.1 From the above, it was seen that the contents of the charge-sheet set-out in its prefatory details, showed the revelations in the investigation. The Investigating Officer mentioned the role played by the accused persons. The Investigating Officer opined on the basis of the material collected by him during the investigation that the prima-facie commission of offence in his view was made out. It was evidently clear that the charge sheet as presented incorporated all the necessary details required Under Section 173(2) including that whether offence was committed and by whom, which was in terms of Clause (d) of Section 173(2) What is described as bare and empty format, in fact disclosed the contents necessary in law to be mentioned. It could not be viewed as a format hollow in its contents not to enable the Magistrate to take the cognizance. Therefore, the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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