TMI Blog2017 (12) TMI 1818X X X X Extracts X X X X X X X X Extracts X X X X ..... he larger conspiracy of assisting terror related activities in the State of J K and other parts of the country. This would show that, as regards the Petitioner herein, investigation was still continuing to unearth the extent of his role and to see if he had a role to play in the larger conspiracy. In that case, the substratum of the offence suspected to have been committed by the Petitioner is still under investigation and therefore the investigation into the involvement of the Petitioner cannot be said to have been completed. On the date on which the police report was filed, it was conceded to by the police itself that investigation against those under custody was still pending. This factor when seen in conjunction with the fact that the police report was filed at the fag end of the ninety-day period after which the Petitioner would have been eligible for default bail makes it apparent that the charge sheet against the Petitioner has been filed only with the intent of frustrating the right of the Petitioner to apply for default bail u/s. 167(2) Cr.P.C. The petition succeeds and the Petitioner shall be released on bail u/s.167(2) Cr.P.C upon such conditions set by the Ld. Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on being passed on to the Respondent ATS, the abovementioned FIR being Crime No. 02/17 was registered at Bhopal. 4. On 09/02/17, the Petitioner herein along with one Mohit Agarwal, was arrested by the Respondent. They were suspected of having assisted the suspect Balram, in communicating with his Pakistani handlers by providing telecommunication access to Balram through sim boxes, which would connect to mobile service providers in India which would receive the incoming call to Balram from the Pakistani handlers who would connect to the Indian mobile service providers through the internet, using Voice Over Internet Protocol (hereinafter referred to as VoIP), thus making it difficult for the investigation agencies to trace the incoming call to suspect Balram from his Pakistani handlers. 5. On 10/02/17, the Petitioner was produced before the Magistrate for the first time and police remand was sought which was granted till 14/02/17. The Ld. Counsel for the Petitioner has submitted that the clock started ticking for the Respondent State from 10/02/17, from which date the State had to file the charge sheet against the Petitioner within ninety days failing which, the Petitioner wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- (a)the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d)whether any offence appears to have been committed and, if so, by whom; (e)whether the accused has been arrested; (f)whether he has been released on his bond and, if so, weather with or without sureties; (g)whether he has been forwarded in custody under section 170. (ii)The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. The Ld. Counsel for the Petitioner has emphasised on the word completed as used in sub section 1 and 2 of section 173 Cr.P.C to support his contention that the police report as defined u/s. 2(r) of the Cr.P.C and used in section 173 Cr.P.C can only mean a police report after the completion of the investigation. It is the basis on which the Magistrate takes co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had clearly stated that the investigation is still continuing against the accused persons. In that case also it was contended that the filing of an incomplete challan satisfies the requirements of section 173(2) Cr.P.C and so it was argued that the Petitioners in that case, could not get the benefit of section 167(2) Cr.P.C. Rejecting the contention of the Prosecution, the Hon'ble Delhi High Court held at paragraph 10 of the judgement that accepting the contention of the Prosecution would be contravening an absolute condition engrafted in the statute. The High Court was alive to the fact that certain cases may be so intricate that the investigation into them could take more time. However, the Court held that even such a difficulty, could not enlarge the period of detention . 11. Thereafter on behalf of the Petitioner, the judgement of this Court in Hargovind Bhargava Anr. Vs. State of M.P. and Anr 2016 (II) MPJR 118 , was referred and relied upon where a co-ordinate bench of this Court, presided over by Hon'ble Mr. Justice N.K. Gupta, mildly castigated the police in paragraph 11 of the judgement by observing that .It is misconception in the mind of some police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;ble Allahabad High Court held in that case that the stage of further investigation u/s. 173(8) Cr.P.C is only after the completion of investigation and the filing of a police report under sub section 2 of section 173 Cr.P.C. Terming the action on the part of the police of filing an incomplete charge sheet as hasty , the High Court quashed the order of the Magistrate taking cognizance of offences against the Petitioners therein. On the same point of the Magistrate being incompetent to take cognizance of an offence on the basis of an incomplete charge sheet is the judgement of the Bombay High Court in Sharadchandra Vinayak Dongre Vs. State of Maharashtra 1991 Mh.L.J 656 , the Supreme Court however, on appeal by the State of Maharashtra, had disagreed with the High Court of Bombay that the power of the Magistrate to take cognizance was restricted where the police report was incomplete. This aspect is discussed in paragraph 19 of this judgement. In State Vs. Hargyan 2016 SCC OnLine Del 3730 ,the Delhi High Court upheld an order of the Addl. Sessions Judge granting default bail to the accused u/s. 167(2) Cr.P.C where the charge sheet was returned by the Magistrate to the police w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution bench of the Supreme Court in K. Veeraswami Vs. Union of India (1991) 3 SCC 655, the said case examined if judges of the High Court and the Supreme Court would come within the purview of a public servant for the purposes of the Prevention of Corruption Act, 1947. The attention of this Court has been drawn to paragraph 76 of the said judgement wherein it was held by the Hon'ble Supreme Court that a report u/s. 173(2) is an opinion of the investigating officer that the investigation is complete and the same is accompanied by all the documents and statements of the witnesses. In Dinesh Dalmia Vs. CBI (2007) 8 SCC 770 , the Supreme Court held that the statute demands that investigation be completed in the shortest possible time but no longer than the period prescribed in the code else the accused becomes entitled for default bail. In paragraph 25 of the judgement, the Hon'ble Supreme Court held that the entitlement for default bail is conditional. It arises only when the investigation has not been completed within the stipulated time mandated in the Cr.P.C. In the same paragraph, the Hon'ble Supreme Court observed Whether an investigation in fact has remai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused be given to the Police beyond a period of fifteen days. The judgement refers to section 57 Cr.P.C highlighting the importance of completing investigation within twenty-four hours and thereafter it lays down that after fifteen days, the accused must be sent only to judicial remand. It further reiterates the right of the accused to apply for default bail upon failure of the investigating agency to complete investigation within the period stipulated in section 167 (2) Cr.P.C. The Court also observed that the intention to limit the period of police custody was in order to ensure that custodial violence is not resorted to by overzealous and unscrupulous police officers. It held that the period of ninety days or sixty days as provided under section 167(2) Cr.P.C. is to be computed from the date of detention as per the orders of the Magistrate and not from the date of arrest by the Police. The Court also observed that the procedural law is meant to further the ends of justice and not frustrate the same. Likewise, the Supreme court in (1995) Supp. (3) SCC 221- State of M.P. Vs. Rustom, held that while computing the period provided in proviso to section 167(2) Cr.P.C, the date on w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge sheet . The Hon'ble High Court of Bombay, quashed the proceedings on the basis of both the grounds taken by the respondents. On appeal by the State of Maharashtra, the Supreme Court held that the first ground by which the order of the CJM was set aside, i.e. of having taken cognizance against the respondents by allowing the application of the Prosecution for condonation of delay, behind the back of the respondents, was per se legal. However, the Supreme Court further held that the right course which ought to have been adopted by the High Court, was to remand the case to the CJM to decide the application for condonation of delay afresh after giving an opportunity of hearing to the respondents. It is the finding on the second issue, relating to the taking of cognizance by the Court of the learned CJM on the basis of an Incomplete Police report , which is relevant to the case at hand. The three Judge bench of the Hon'ble Supreme Court held that the purpose of submission of a Police report with details as mentioned in section 173(2) Cr.P.C, is to enable the Magistrate to satisfy himself whether on the basis of the police report and material filed along with it, there e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort. Finally, the Supreme court held that the provisions of section 167(2) Cr.P.C. stood fully complied with and that the petitioners in that case were not entitled to statutory bail under section 167(2) Cr.P.C. The part of the charge sheet which was relied upon by the petitioner in that case, in his attempt to establish before the Supreme Court that the investigation was incomplete is, foreign bank transaction details are to be collected and the call data records have to be further analysed. The records pertaining to Thanal Foundation Trust need to be collected and verified. Hence, further investigation is inevitable and is in progress. Additional list of witnesses, additional statements of witnesses and additional list of documents will be filed in due course. Hence it is also prayed that further investigation under section 173(8) Cr.P.C may kindly be permitted . This did not appeal to the Supreme Court that investigation was still pending against the Petitioner in that case, and his appeal was dismissed. On the basis of the above, the learned counsel for the State has submitted that the charge sheet which has been filed by them passes muster of the law laid down by the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 169 Cr.P.C is an additional safe guard to protect the personal liberty of an individual. Under its provisions, the police can release a suspect on his personal bond where there is no sufficient evidence or reasonable ground of suspicion for the forwarding of the accused to a Magistrate . Thus, it is evident that the Cr.P.C has sufficient provisions for balancing the civil liberties of an individual while giving sufficient time to the investigating authority to complete the investigation. The implied objective of the code as seen from the various provisions, is to ensure that the pre-trial incarceration of a person suspected to have committed an offence, is kept to the bare minimum. 24. The power to arrest need not justify its exercise. In Joginder Kumar Vs. State of U.P (1994) 4 SCC 260 , the Hon'ble Supreme Court, while explaining about the power to arrest observed in paragraph 20 that the existence of the power to arrest is one thing and its exercise, quite another. The Supreme Court held out in no uncertain terms that restriction on the liberty of an individual by arrest is something that should be reasonable and it must appear necessary from the facts and circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est the accused with the right of a default bail u/s. 167(2) Cr.P.C. (d) That a police report u/s. 173(2) must be complete in all material particulars and must ideally disclose that investigation is complete. The police report must not be filed in such a manner that its contents reveal that the investigation is incomplete and that the report has been filed only to defeat the right of the accused to a default bail u/s. 167(2) Cr.P.C, and finally, (e) Whether a police report is one u/s. 173(2) Cr.P.C or whether the same has been filed with the intention of curtailing the right of the accused to secure default bail u/s. 167(2) Cr.P.C is essentially a question of fact to be determined on the merits of each case. 26. As already discussed above, the role of the Petitioner appears to be limited to the extent of operating illegal gateways using SIM cards allegedly procured through fraudulent mean from the various telecom service providers and giving access to people to make and receive international calls routed partly over VoIP and partly though the cellular networks and thereby cause loss to the public exchequer. When the bail applications of the Petitioner and similarly placed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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