M CHINA VENKATARAREDDY Vs. STATE OF A P

JUDGEMENT

(1.) These two bail petitions have been filed under Section 439 Cr.P.C. The petitioners are the accused in Crime No. 81/92 of Darsi Police Station of Prakasam District. They are accused of having committed offences punishable under Sections 147, 148, 324 307, 302 read with Section 149 and 435 IPC and sections 3 and 5 of Explosive Substances Act.

(2.) In the two cases referred to above, which arise out of the same crime, the bail is sought for on the ground that the proviso to Section 167(2) Cr.P.C. is violated. The case of the petitioners is that from the date of their remand, more than 90 days expired and as such, their detention became illegal and as they are ready to furnish sureties, the court of Magistrate was bound to release them on bail. The Additional Public Prosecutor appearing for the State contends otherwise. He argues that the charge- sheet was submitted within the stipulated time of 90 days and as there was some deficiency, the same was returned by the court of Magistrate after perusal of the charge-sheet and that as such, the requirement of Section 167(2) Cr.P.C. was met perfectly and that there is no ground for enlargement of the petitioners on bail. The learned Additional Public Prosecutor relies upon a judgment of this court in C. Varla Krishna & Chinna Krishna and others vs. State of A.P. (1) 1989 (1) ALT 16. In the said case, similar contention was raised and the same was found favour with the learned single Judge. The learned single Judge has accepted the contention advanced by the Public Prosecutor that inasmuch police report was filed before the Magistrate on 18-7-1988 and even though it was returned for compliance of certain omissions on 20-7-1988 and again resubmitted on 1-8-1988 and again returned but ultimately filed on 17-8-1988 in complete shape, it was held by the learned single Judge that the date to construe that police report was filed was only 20-7-1988, when the same was returned by the Magistrate and that is a sufficient compliance of the requirements of Section 167(2) Cr.P.C. and that the said date should be reckoned as the date of cognizance by the Magistrate. The reasoning given by the learned Judge is that mere submission of a report is a sufficient compliance of Section 167(2). even with defects and omissions, and it is of no consequence if the said report was returned and later on resubmitted, that too after the period of 90 days. In para 8 of the judgment, the learned Judge observes "In this case, the police report was filed on 18-7-1988 and the provisions of Section 173(2) Cr.P.C. have been complied with. Since the requirements under Section 173(5) have not been complied with, it was returned for compliance. Simply because the Magistrate has mentioned that a skeleton charge-sheet has been filed, it does not mean that it prevented him from taking cognizance of the case, basing on the report that has already been filed." The learned Judge also observed in this case, we are not concerned with preliminary or final charge-sheet. With regard to filing of preliminary and final charge-sheets, we are having number of decisions. But on facts, in this case, the report is only one and that report has been returned for complying with certain omissions as required under Section 173(5) Cr.P.C. The filing of the report and the return of the same for complying with certain omissions under Section 173(5) shall be deemed that the Magistrate has applied his mind judiciously. In case where the party wants to claim the benefit on the ground that 90 days period has been expired during remand, they have to establish that the report as defined in the Code and as contemplated under Section 173(2) of the Code has not been filed within the time. The crucial date in this case is the date of the police report for compliance i.e. 20-7-1988. Concisely speaking, what the learned Judge held was that mere filing of charge-sheet, even with defects and omissions, is a sufficient compliance of the requirement of filing the same within 90 days, no matter whether it forms record of the court or not. The purport of the above decision is that as the police report is submitted, even though with defects and omissions and the very fact that Magistrate has returned the same shows that he has applied his mind judiciously and that amounts to taking cognizance of the offence.

(3.) Mr. T. Niranjan Reddy, the learned counsel for the petitioners submits that the judgment rendered by the learned single Judge did not take note of the other judicial precedents holding the field and cites several judgments in support of his contention which are discussed below :