TMI Blog2020 (10) TMI 1340X X X X Extracts X X X X X X X X Extracts X X X X ..... in the said stipulated period of time as contemplated under the Code, the accused is entitled to claim default bail. The said right conferred by the statute on the accused is an indefeasible right and he is entitled to bail as a matter of right on account of the default committed by the prosecuting agency in completing the investigation within the time stipulated by the statute. It is significant to note that a plain reading of proviso (a) to Section 167(2) Cr.P.C. makes it manifest that what is required to claim for default bail under proviso (a) to Section 167(2) Cr.P.C. is failure on the part of the Investigating Agency to complete the investigation within the stipulated period of time - when the Investigating Agency files only preliminary charge-sheet within the said stipulated time keeping the investigation pending or without completing the investigation, it will not under any circumstances defeat the right conferred on the accused to claim for default bail. By mere filing a preliminary charge-sheet without completing the entire investigation and filing a final and full-fledged charge-sheet, the prosecuting agency cannot vanquish the indefeasible statutory right of the accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate-cum-Addl. Mahila Magistrate, Vijayawada, whereby she has dismissed the petition filed under Section 167(2) Cr.P.C. seeking bail on account of the default committed by the investigating agency in completing the investigation within the stipulated time. 2. The petitioner is accused No. 3 in Crime No. 453 of 2020 of Patamata Police Station, Krishna District. 3. A case under Sections 143, 148, 188, 269, 324, 307, 302 r/w. 149 of IPC was registered in the above crime against the petitioner and the other accused in the said crime. 4. The petitioner was arrested in connection with the above crime on 04.06.2020 and he was remanded to judicial custody on 05.06.2020 and since then he has been in judicial custody. Police have filed preliminary charge-sheet in the above crime on 28.08.2020. The said charge-sheet was returned with certain objections by the learned Magistrate on the ground that the requisite copies to supply to the accused are not filed and on other technical grounds. The petitioner has filed a petition under Section 167(2) Cr.P.C. seeking default bail on the ground that police failed to complete the investigation within the stipulated period of 90 days and filed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that major part of the investigation in this case is completed which is evident from the contents of the charge-sheet. However, he submits that some of the witnesses, who are accused in the counter-case registered against them, were arrested and remanded to judicial custody and they are in jail and as such, the investigating officer could not examine them and he also submits that some of the witnesses, who are also accused in the counter-case, are absconding and as such, the investigation officer could not examine them also in the said circumstances. Therefore, he submits that in the said circumstances a preliminary charge-sheet is filed stating the above facts. He then contends that although the said charge-sheet was returned with certain technical objections for filing copies of the accused and other documents etc., the same will not confer any right on the accused to claim default bail under Section 167(2) Cr.P.C. as the charge-sheet was already filed in this case within the stipulated period of 90 days. He would submit that when major part of the investigation is completed, the mere nomenclature mentioned in the charge-sheet that it is a preliminary charge-sheet as some more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from the date of arrest of the accused i.e. 04.06.2020 would be completed by 03.09.2020. So, the investigation is to be completed and charge-sheet is to be filed on or before 03.09.2020. Both the learned counsel for the petitioner and the learned Additional Public Prosecutor would submit that the charge-sheet was filed on 28.08.2020. Therefore, the date of filing the charge-sheet is not in controversy. So, it is now evident that charge-sheet was filed within the stipulated period of 90 days. 11. However, the said charge-sheet was returned by the learned Magistrate with certain objections for filing list of documents, and for filing copies of charge-sheet for supplying the same to the accused and for not filing the statements of witnesses recorded under Section 164 Cr.P.C. etc. Thereafter, the petitioner has filed a petition under Section 167(2) Cr.P.C. before the learned Magistrate on 04.09.2020 seeking default bail on the ground that the police have failed to complete the investigation within the stipulated period of 90 days and to file charge-sheet within the said period. It is the specific case of the petitioner that only a skeleton charge-sheet was filed and as such, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge-sheet in the said circumstances will not confer any right on the petitioner to claim for default bail. 14. In so far as the first ground is concerned, this Court do not find any legal flaw or infirmity in the said finding of the learned Magistrate. If a charge-sheet is filed within the stipulated period of 90 days or 60 days, as the case may be, and if the said charge-sheet is returned with some technical objections for not filing certain material documents along with the charge-sheet, as per the settled law in this regard, it will not confer any right on the accused to claim for default bail under proviso (a) to Section 167(2) Cr.P.C., because it indicates that entire investigation is completed and a final charge-sheet is filed within the stipulated period as contemplated under Section 167 Cr.P.C. Therefore, if the charge-sheet is only returned for complying with certain technical objections of producing copies of documents etc, the accused cannot claim the benefit of default bail in the said circumstances. 15. The Division Bench of this Court in the case of Venkatrayanakota Krishnappa Raghavendra Buvanahalli Muniyappa Nagesh Babu v. The State of A.P. 2009 (2) A.P.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to specify the overt-acts of each and every accused, till the recording of 161 Cr.P.C. statements of 22 crucial witnesses, who are in Central Prison, Rajahmundry as remand prisoners in Cr. No. 452/2020; and also recording of 161 Cr.P.C. statements of 8 more crucial witnesses who are absconding for their involvement in Cr. No. 452/2020. The unknown person who video graphed the Rioting (Gang War) and flashed it to media, has to be traced and his video instrument has to collected. A-20, A-23, A-24 and A-27 are still absconding from date of commission of offence. They are to be apprehended. Hence Preliminary Charge Sheet. 18. Therefore, from the above contents of the charge-sheet, it is now evident that the investigation is not fully completed and still 22 crucial witnesses, who are in judicial custody in connection with another crime, are yet to be examined and another 8 crucial witnesses, who are also accused in the said counter-case and are absconding, are also to be examined and the person, who has recorded the rioting in the video and flashed it to media has to be traced and the said video instrument has to be collected. Therefore, considering the above contents of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the charge-sheet after completion of investigation will be filed to enable the Court to take cognizance of the offence. So, the Court cannot take cognizance of the offence on the basis of a preliminary charge-sheet filed without completing the entire investigation. Therefore, the crucial aspect that needs to be ascertained to consider the claim of the accused for default bail is whether the investigation is completed within the stipulated time of 90 days or not. So, when the Investigating Agency files only preliminary charge-sheet within the said stipulated time keeping the investigation pending or without completing the investigation, it will not under any circumstances defeat the right conferred on the accused to claim for default bail. By mere filing a preliminary charge-sheet without completing the entire investigation and filing a final and full-fledged charge-sheet, the prosecuting agency cannot vanquish the indefeasible statutory right of the accused to claim for default bail. 21. The 3-Judge Bench of the Supreme Court in the case of Rakesh Kumar Paul v. State of Assam (2017) 15 SCC 67 held that right to personal liberty under Article 21 of the Constitution of India inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bail. 23. The very contents of the charge-sheet, which are extracted above, clinchingly establishes that the investigation is not completed and many crucial witnesses are yet to be examined to prove the overt acts of the accused in this crime and some other evidence as stated by the investigating officer is still to be secured. Therefore, on account of default committed by the prosecuting agency in completing the investigation within the stipulated period of time, the petitioner acquired an indefeasible right to claim default bail under proviso (a) to Section 167(2) Cr.P.C.. 24. In a petition filed under proviso (a) to Section 167(2) Cr.P.C. for grant of default bail, no discretion is vested with the Magistrate/Court to deny bail to him. In the judgment of the aforesaid 3-Judge Bench of the Apex Court, it is clearly held that no discretion is vested with the Court while granting default bail where accused satisfies the prerequisite for grant thereof. The Apex Court in another case Rajnikant Jivanlal Patel v. Intelligence Officer, Narcotic Control Bureau, New Delhi (1989) 3 SCC 532 : AIR 1990 SC 71 held as follows: The right to bail under Section 167(2) proviso (a) thereto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India. 26. Although the learned Additional Public Prosecutor vehemently argued and made his effort to convince the Court that as the crucial witnesses, who are the other accused in the counter-case, are in judicial custody and some other witnesses, who are also accused in the counter-case are also absconding that it is beyond the control of the investigating officer to examine them and to complete the investigation that there are no laches on his part and as such the petitioner cannot take advantage of the said situation and claim default bail, this Court is unable to countenance the said contention. Whatever may be the reason and whatever may be the circumstance and even when the same is beyond the control of the investigation officer, when once it is established before the Court that the investigation is not completed within the stipulated period of 90/60 days, as the case may be, no discretion is vested with the Court and if the accused claims default bail, the Court is left with no other option except to grant the same. 27. Therefore, the Criminal Petition is allowed setting aside the impugned order of the learned Magistrate. The petition filed by the petitioner under pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
