NARENDRA KUMAR AMIN Vs CBI
Bench: V. GOPALA GOWDA,C. NAGAPPAN
Case number: Crl.A. No.-000094-000094 / 2015
Diary number: 33881 / 2013
Advocates: SAURABH AJAY GUPTA Vs
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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 94 OF 2015 (ARISING OUT OF SLP (CRL) NO. 9599 OF 2013)
NARENDRA KUMAR AMIN ……APPELLANT
Vs.
CBI & ORS. ……RESPONDENTS
J U D G M E N T
V.GOPALA GOWDA, J.
Leave granted.
2. This appeal is filed by the accused appellant
against the judgment and order dated 16.08.2013 of
the High Court of Gujarat at Ahmedabad in Special
Criminal Application (quashing) No. 2167 of 2013
rejecting the Default Bail under Section 167 (2) of
the Code of Criminal Procedure, 1973 (in short
“Cr.P.C.”) to the appellant in a case instituted by
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filing a charge sheet dated 3.7.2013 submitted by
the CBI in the Court of Additional Chief Judicial
Magistrate, Court No.II, Mirzapur, numbered 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
Cr.P.C.
4. The appellant by a written application dated
4.7.2013 claimed his right to be released on bail.
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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
appellant that there was no judicial order of remand
made on 3.7.2013 and the custody was illegal for all
the days between 3.7.2013 and 8.7.2013.
5. It is further contended that the documents
required to be filed along with the police report
were admittedly filed by CBI in some installments
and completed only on 8.7.2013. In view of the
aforesaid statement of facts, the appellant/accused
is entitled to be released on bail on the following
grounds:
a) The impugned judgment of the High Court is
erroneous because the period in question had
already expired. 26 days of April leaving
aside 4.4.2013, namely the date of arrest, 31
days of May, 30 days of June and 3 days of
July complete the period of 90 days. The
error of law committed by the High Court is
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to exclude the first day of arrest, namely,
4.4.2013.
b) It is further contended that once the
period of 90 days expired even according to
the High Court on 3.7.2013, any further
detention without judicial order under
Section 209 or Section 309 of the Cr.P.C. as
the case may be, is a requirement of law. The
order made during the investigation on
21.6.2013 expired on 5.7.2013. Therefore, it
could not have any legal efficacy after
3.7.2013 because the power under Section 167
of Cr.P.C. comes to an end.
c) It is further contended by the learned
senior counsel that no cognizance was taken
on 3.7.2013. The accused had no right to
oppose on the ground of want of sanction or
total want of legal evidence. The right
could not be claimed nor could the court
intelligently adjudicate upon it without the
documents which had to be filed under Section
173(5) of Cr.P.C.
6. It is further contended by the learned senior
counsel that even on the finding of the High Court
that the police power came to an end on 3.7.2013,
after that it required an order under Section 209
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and not under Section 167 of Cr.P.C. The provision
for bail under this proviso is in favour of liberty
and must be liberally construed. In support of this
contention, the learned senior counsel has also
placed reliance upon the following two
constitutional Bench judgments of this Court in 1)
K.Veeraswamy v. Union of India & Ors.1 and 2) Uday
Mohanlal Acharya v. State of Maharashtra2.
7. The learned senior counsel for the CBI has
filed their 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
1 (1991) 3 SCC 655 para 76 2 (2001) 5 SCC 453 para 13
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Satyanarayana & Ors. v. State of Andhra Pradesh3 and
2) Central Bureau of Investigation, Special
Investigation Cell-I, New Delhi) v. Anupam J.
Kulkarni4. Further reliance is placed upon the
decision in State of M.P. v. Rustam & Ors.5, 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
has placed strong reliance in justification of the
reason assigned by the High Court with regard to the
police report filed in this case within 90 days.
10. Section 173 (2) of Cr.P.C. enumerates the
information that must be detailed in the police
report forwarded to the Magistrate by the
Investigating Officer. This includes :
3 (1986) 3 SCC 141 para 25 4 (1992) 3 SCC 141 5 (1995) Supp 3 SCC 221
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(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, whether with or without sureties;
(g) whether he has been forwarded in custody under
section 170.
11. Further under Section 190 (1) (b) Cr.P.C. which
states that it is upon a police report that the
Magistrate may take cognizance of the offences. In
the instant case, as could be seen, it is the
learned Additional Chief Judicial Magistrate (“ACJM”
in short), who has ordered on 3.7.2013 as under:
“The charge sheet is hereby ordered to be registered after due verification. In case of accused No. 1 Shri P.P. Pandey order has been passed on 21.6.2013 below application
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under Section 82 of the Code of Criminal Procedure to appear before this Court on 31st
July, 2013. Yaadi be made to respective Jail Superintendent of accused No. 2 Shri D.G. Vanzara and accused No. 3 Dr. N.K. Amin. Issue summons to accused No. 4 Shri G.L. Singhal, accused No. 5 Shri J.G. Parmar, Accused No. 6 Shri Tarun Barot and accused No. 7 Anaju Jhman Chaudhary mentioned in charge sheet, for the offence under Sections 302, 364, 368, 346, 120-B, 201, 203, 204, 217, 218 of Indian Penal Code and Sections 25 (1) (e), 27 of the Arms Act.”
12. The learned senior counsel appearing for the
de-facto complainant placed strong reliance upon the
said order of the learned ACJM to contend that the
cognizance of the offences alleged in the report,
filed in the Court, was taken on 3.7.2013, but the
same has not been challenged by the appellant.
Therefore, it is not open for the appellant to
seek default bail for non filing of the full set of
documents along with the report on 3.7.2013.
13. In this regard he squarely relied on the three
Judge Bench judgment of this Court in Central
Bureau of Investigation v. R.S. Pai & Anr.6 wherein
at para 7, regarding relevant documents to be
submitted at the time of charge sheet, it is held as
6 (2002) 5 SCC 82
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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 omission, it would not mean that the remaining documents cannot be produced subsequently. Analogous provision under Section 173(4) of the Code of Criminal Procedure, 1898 was considered by this Court in Narayan Rao v. State of A.P. (SCR at p. 293) and it was held that the word “shall” occurring in sub-section (4) of Section 173 and sub-section (3) of Section 207-A is not mandatory but only directory. Further, the scheme of sub-section (8) of Section 173 also makes it abundantly clear that even after the charge-sheet is submitted, further investigation, if called for, is not precluded. If further investigation is not precluded then there is no question of not
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permitting the prosecution to produce additional documents which were gathered prior to or subsequent to the investigation. In such cases, there cannot be any prejudice to the accused. Hence, the impugned order passed by the Special Court cannot be sustained.”
In the said decision it is held that if some mistake
is committed in not producing the relevant documents
at the time of submitting the report, it is always
open to the investigating officer to produce the
same with the permission of the court. The Bench
proceeded further to observe that if further
investigation is not precluded, then there is no
question of not permitting the prosecution to
produce additional documents which were gathered
prior to or subsequent to the investigation and the
word “shall” used in sub-section (5) cannot be
interpreted as mandatory, but as directory.
Therefore, it is contended that the High Court is
justified in refusing to grant Default Bail in
favour of the appellant.
14. With reference to the aforesaid rival legal
contentions we have examined the impugned order to
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find out the correctness of the findings and reasons
recorded keeping in view the statutory provisions
under Section 173 (2)and (5) read with Section 2
(r) of Cr.P.C. and with reference to the judgments
on which both the learned senior counsel placed
reliance upon. In our considered view, it is an
undisputed fact that the charge sheet was filed on
3.7.2013 that is 90th day. Section 2 (r) of Cr.P.C.
defines the expression “police report” as a report
forwarded by a police officer to a magistrate under
Section 173 (2) of Cr.P.C. The particulars to be
furnished in the police report which are extracted
as above 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:
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“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 High Court is right in rejecting the
prayer of default bail under Section 167 (2) of
Cr.P.C. Upon the filing of the police report,
cognizance was taken by the learned ACJM on
3.7.2013 which is evident from the order passed by
him which is extracted above. It is pertinent to
point out that the said order remains unchallenged
by the appellant. Therefore, it is not open for
him to turn around and contend that cognizance was
not taken by the learned ACJM on 3.7.2013. On this
count, the contentions urged by the learned senior
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counsel Mr. Ram Jethmalani appearing for the
appellant are wholly untenable and liable to be
rejected.
16. The observation made at para 76 of the
constitution Bench judgment of this Court in the
case of K. Veeraswamy (supra) that the report is
complete if it is accompanied by all documents
and statement of witnesses as required under
Section 173 (5) of Cr.P.C. cannot be construed as
the statement of law, since it was not made in the
context of the police report under Section 2 (r)
read with Section 173 (2) (5) and (8) of Cr.P.C.
On the contrary, the three Judge Bench of this
Court in the decision in Central Bureau of
Investigation v. R.S. Pai’s case (supra), after
referring to the earlier judgment of the coordinate
Bench in Narayan Rao’s case (supra) categorically
held that the word “shall” used in sub-Section (5)
cannot be interpreted as mandatory, but directory.
The said statement of law is made after considering
the provisions of Section 2(r) read with Section
173 (5) and (8) of Cr.P.C. Therefore, filing of
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police report containing the particulars as
mentioned under Section 173 (2) amounted to
completion of filing of the report before the
learned ACJM, cognizance is taken and registered
the same. The contention of the appellant that the
police report filed in this case is not as per the
legal requirement under Section 173 (2) & (5) of
Cr.P.C. which entitled him for default bail is
rightly rejected by the High Court and does not
call for any interference by this Court.
17. We find no merit in the appeal and the same is
dismissed.
………………………………………………………………………J. [V. GOPALA GOWDA]
………………………………………………………………………J. [C. NAGAPPAN]
New Delhi, January 15, 2015