NITIN NAGPAL Vs. STATE OF DELHI

JUDGEMENT

(1.) The petitioner seeks release on bail under Section 167(2) read with Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code"). The petitioner's case is that the investigation was not completed within the prescribed period of 90 days and, as such, he became entitled to bail- on-default which has been denied to him by the Courts below. It is also the petitioner's case that cognizance was not taken within the said period of 90 days and, therefore, his detention in custody was illegal and that the taking of cognizance on a subsequent date beyond the period of 90 days, would not cure this illegality. The submissions made by the learned counsel for the State were: 1) that investigation had, in fact, been completed and the police report had been filed within the period of 90 days and, therefore, the proviso to Section 167(2) would not come into play and the petitioner would not be entitled to bail-on-default; 2) that cognizance was subsequently taken and, thereafter, the petitioner has been remanded to custody from time to time under Section 309 of the Code and, as such, the petitioner is not in illegal custody and is not entitled to bail on these grounds. This, in brief, is the field within which this case requires determination.

(2.) Since this case involves the question of bail-on-default, dates would be relevant. They are:- 23.6.2005: The petitioner was arrested. The case for the prosecution is that on this day at about 12.10 p.m. the accused persons (including the present petitioner) entered House No. E-174, Ashok Vihar New Delhi for committing dacoity and shot at one Giriraj Kishore who died on the spot. It is further alleged that the accused, while they were running away, were chased by the police party but, they opened fire at the police party and as a result of which one ASI was seriously injured. However, other police personnel arrived at the spot and surrounded the assailants. Finding themselves to be trapped, the assailants opened fire indiscriminately upon the police party and as a result of which the Additional SHO, Constable Dharampal and Constable Devinder were seriously injured. The accused (including the present petitioner) were apprehended on the spot. An FIR was registered, being FIR No. 419 dated 23.6.2005 at Police Station Ashok Vihar, against the accused under Sections 302/307/393/ 353/186/332/34 IPC and Sections 25/ 27 of the Arms Act, 1959. 20.9.2005: This was the 89th day after the arrest of the petitioner. On this day, it is alleged that a challan (police report) was filed. However, it is the case of the petitioner that this was not a "police report" in terms of Section 173 (2) of the Code inasmuch as it was incomplete because - (1) the statement of one injured had not been recorded; (2) the Central Forensic Science Laboratory Report had not been obtained/not filed; (3) sanction under Section 39 of the Arms Act, 1959 had not been obtained/not filed. Submissions were made at length with regard to whether the challan was complete or incomplete and the same will be dealt with in detail below. The order passed by the Metropolitan Magistrate on this date reads as under:-

(3.) Mr Andley, the learned Senior Counsel who appeared on behalf of the petitioner, referred to the provisions of Sections 167 (2), 2(r) and 173 of the Code. Referring to Section 167 of the Code, he submitted that it is an admitted position that the detention of the petitioner could not continue beyond 90 days if the investigation was incomplete. He submitted that the completion of investigation is signalled by the forwarding of a police report to a Magistrate empowered to take cognizance of the offence or offences under Section 173 (2) of the Code. The forwarding of such a police report or challan, as it is commonly known, indicates the conclusion of the investigation. It is clear that during the pendency of an investigation the custody of an accused is not permissible beyond the period of 90 days (applicable in the present case). If the investigation is not completed within this period, then an indefeasible right accrues to the petitioner to be released on bail. Mr Andley further submitted that the expression "police report" is defined in Section 2(r) as a report forwarded by a police officer to a Magistrate under sub-Section (2) of Section 173. He submitted that in the present case the purported Challan filed on 20.9.2005 cannot be regarded as a police report as contemplated under the Code. The statement of one injured was not recorded. The CFSL Report had not been obtained. And, the sanction under Section 39 of the Arms Act, 1959 had also not been obtained. Therefore, according to Mr Andley, there was no police report in the eye of law on 20.9.2005. The 90 day period expired on 21.9.2005 and the "police report" had not been filed. Implying thereby that the investigation had not been completed and, therefore, the petitioner became entitled to bail-on-default in terms of the proviso to Section 167 (2) of the Code. The petitioner had indicated his willingness to furnish bail by moving an application on 4.10.2005. Accordingly, the petitioner ought to have been released on bail straightway. Mr Andley also submitted that when the purported challan was filed on 20.9.2005, the learned Metropolitan Magistrate did not take cognizance on that day nor did he remand the accused to judicial custody. He submitted that cognizance was taken by the learned Metropolitan Magistrate only on 18.10.2005. As such, the petitioner's detention was clearly illegal. Mr Andley referred to the decision of the Supreme Court in the case of Raghubir Singh and Others Vs. State of Bihar: 1986 SCC (CRI) 511 = (1986) 4 SCC 481. In paragraph 20 of the said decision, the Supreme Court observed that the proviso to section 167 (2) of the Code entitled an accused person to be released on bail if the investigating agency failed to complete the investigation within the stipulated period which, in the present case, was 90 days. It further observed that a person released on bail under the proviso to Section 167 (2) of the Code on the default of the investigating agency is statutory deemed to be released under the provisions of Chapter XXXIII of the Code for the purposes of that Chapter. It held that an order for release on bail under this provision is effective until an . order is made under Section 437 (5) or Section 439 (2) or, in other words, unless the bail is cancelled. The Supreme Court also repelled the arguments advanced by the counsel for the State that an order for release on bail under Section 167 (2) of the Code stood extinguished on the remand of the accused to custody under Section 309 (2) of the Code. In this context, the Supreme Court held as under-