VINOD RAJABHAI MAKWANA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) PRESENT application is filed by the applicant original accused of complaint being CR No. I-54 of 2007 registered with Kamlabaug Police Station, Porbandar for the offences punishable under sections 302, 397 of Indian Penal Code r/w sec. 135 of the Bombay Police Act. Mr. Hasmukh Patel, learned advocate appearing on behalf of the applicant - original accused has submitted that the prayer of the applicant for releasing him on bail is only under sec. 167 (2) of the Code of Criminal Procedure i. e. default bail, on the ground that chargesheet has not been filed by the investigating officer within 90 days from the date of his arrest. He has submitted that he does make any submission on merits except that as the chargesheet is not filed within 90 days, the applicant is entitled to be released on default bail. It is submitted that admittedly the applicant - accused was in custody since 19/5/2007 and as the chargesheet was not submitted within 90 days from 19/5/2007, the applicant submitted application before the Chief Judicial Magistrate, Porbandar on 21/8/2007 for releasing him on bail considering sec. 167 (2)A of the Code of Criminal Procedure and the learned Chief Judicial Magistrate, even without issuing any notice to the Public Prosecutor, by the impugned order dtd. 21/8/2007, dismissed the said application. He has also relied upon the following decisions in support of his prayer to release him on bail under sec. 167 (2) of the Code of Criminal Procedure:-AIR 2002 S. C. 285 (State of Maharashtra Vs. Mrs. Bharti Chandmal Varma alias Ayesh Khan ). (2001) 5 S. C. C. 453 (Uday Mohanlal Acharya ). 2001 Criminal Law Journal 3876 (Babubhai Bhimjibhai Kachadiya Vs. State of Gujarat) and (2007) 8 S. C. C. 770 (Dinesh Dalmia Vs. CBI ). The application is opposed by Mr. Dipen Desai, learned Additional Public Prosecutor for the State. It is submitted that in fact the chargesheet was presented/submitted before the learned Chief Judicial Magistrate on 23/7/2007. However, the learned Chief Judicial Magistrate, Porbandar did not accept the chargesheet on record and returned the same to the investigating officer on the ground that the said chargesheet is defective inasmuch as the FSL Report is not produced along with the chargesheet papers. It is submitted that the mistake was committed by the learned Chief Judicial Magistrate in returning the chargesheet on the ground that it is defective as FSL Report is not produced. However, FSL Report can be produced subsequently and it is not that along with the chargesheet papers FSL Report is required to be produced. It is submitted that the said mistake came to be corrected by the learned Chief Judicial Magistrate having realised that when the chargesheet is not submitted along with the FSL Report, the same can not be said to be defective chargesheet and that as per the circular issued by the Sessions Court, documentary evidences are required to be considered at the time of committal of the case and therefore the application of the applicant for releasing him on bail under sec. 167 (2) of the Code of Criminal Procedure is rightly rejected. Mr. Dipen Desai, learned Additional Public Prosecutor for the State has further submitted that in fact, it is not that chargesheet was not presented at all within 90 days. However, the learned Chief Judicial Magistrate, in utter ignorance of law and the procedure, returned the chargesheet to the investigating officer on the ground that it is defective chargesheet, as the FSL Report was not produced along with the chargesheet papers and therefore, there was no fault on the part of the investigating officer in submitting the chargesheet within 90 days and therefore, the benefit of the mistake of the Court should not go to the accused. Thus, when the chargesheet was produced on 23/7/2007 i. e. within 90 days from the date of arrest, the same can be said to be sufficient compliance so as to deny the benefit of default bail under sec. 167 of the Code of Criminal Procedure and therefore, it is requested to dismiss the present application. Heard the learned advocates appearing on behalf of the respective parties. Present petitioner has prayed to release him on default bail under sec. 167 (2) of the Code of Criminal Procedure submitting that the investigating officer had not submitted the chargesheet within 90 days from the date of his arrest. It is required to be noted that in fact, chargesheet was submitted by the investigating officer before the Chief Judicial Magistrate within 90 days from 19/5/2007, more particularly on 23/7/2007, however, the learned Chief Judicial Magistrate, Porbandar did not accept the chargesheet and return the same to the investigating officer on the ground that the same is defective inasmuch as the FSL Report was not produced along with the chargesheet. The learned Chief Judicial Magistrate ought to have appreciated that the submission of the chargesheet in absence of FSL Report, can not be said to be defective chargesheet as the FSL Report can be produced subsequently even during the course of trial and even considering the provisions of Code of Criminal Procedure FSL Report can be exhibited straightway. Under the circumstances, the learned Chief Judicial Magistrate, Porbandar committed an error in not accepting the chargesheet submitted on 23/7/2007. However, the question is whether the benefit of the error committed by the learned Chief Judicial Magistrate should be given to the accused or not. It cannot be disputed that an act of Court shall prejudice no man Sactus curiae neminem gravabit Under the circumstances, when, in fact, the chargesheet was submitted before the learned Chief Judicial Magistrate within 90 days, the obligation on the part of the investigating officer to submit the chargesheet within 90 days, was over and it cannot be said that for the purpose of attracting sec. 167 (2) of the Code of Criminal Procedure, chargesheet was not submitted with in 90 days and therefore, it cannot be said that the chargesheet was not submitted at all within 90 days. Under the circumstances, the contention on behalf of the petitioner that the chargesheet has not been submitted within 90 days and therefore, the petitioner is entitled to be released on default bail, cannot be accepted. Once it is held that the chargesheet has been submitted within 90 days, the decision relied upon by the learned advocate appearing on behalf of the petitioner referred to hereinabove, will not be of any assistance to him, as in those cases, chargesheet was not submitted within 90 days from the date of arrest of the accused. Under the circumstances, the petitioner is not required to be released on default bail. For the reasons stated above, the petition fails and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged.