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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