SAHAB KHAN Vs. STATE OF HARYANA

JUDGEMENT

(1.) SECOND bail application for grant of bail on behalf of petitioners Sahab Khan and Hanif has mainly been pressed on the ground that the investigating agency has not submitted the complete challan in the committing Court, in as much as the report of the Director, Forensic Science Laboratory has not been submitted by the prosecution along with the challan, and this aspect of the case would entitle the petitioners to be released on bail as contemplated under Section 167 (2) of the Code of Criminal Procedure in support of this contention, as many as four authorities have been cited by the counsel for the petitioners, which may be noticed as under :

(2.) IN Bandi Kotyya's case (supra) merely a preliminary charge sheet had been filed and in that situation, it was hold as under : A preliminary charge-sheet is no doubt a police report, but the Magistrate holding inquiry under Section 207-A, cannot take cognizance of the offence mentioned in that report and proceed with the inquiry upon receipt of the report. He must wait for the report under Section 173, forwarded to him by the police after completing their investigation." But the above said authority does not help the case of the present petitioner is an much as the report under Section 173 of the Code of Criminal Procedure filed by the investigating agency in the committing Court cannot be termed as a preliminary charge-sheet merely because the prosecution has yet to produce the report of the Ballistic Expert. To the similar effect is the authority in T.V. Sarma's case (supra) which deals with the matter for grant of bail under Section 167 (2) Cr.P.C. proviso (a), wherein also a preliminary charge sheet had been filed by the investigating agency which was not held to be a police report within the meaning of Section 173 of the Code, and, in that particular case, it was specifically mentioned in the preliminary report that the final, charge sheet would be submitted against all the persons involved in the crime in question after the entire investigation was completed. But this authority too does not help the case of the present petitioners, in as much as in the present case there is no mention in the report under Section 173 Cr.P.C. filed by the prosecution that it was merely a preliminary, or an interim report or that the final report under Section 173 Cr.P.C. had yet to be submitted. Thus mere mention in the report that the report of the Director, Forensic Science Laboratory would be filed in Court after its receipt, would not be sufficient to uphold the plea of the petitioners that said report is a preliminary report and not a final one.

(3.) THE last authority, namely, Raghubir Singh and others (supra) relates to the right to a speedy trial which forms part of fundamental right to life and liberty guaranteed by Article 21 of the Constitution and that the delay caused by the willfulness, or the negligence of the prosecuting agency infringes that right. The facts and circumstances of the aforesaid case are entirely different from those of the case in hand. The delay in obtaining the report of the Ballistic Expert in the instant case cannot be deemed to have been caused by wilfulness, or the negligence of the prosecuting agency. Rather the delay in obtaining that report would be caused due to circumstances beyond the control of the prosecuting agency. Since the report has get to be obtained from the office of the Director, Forensic Science Laboratory where such delay is inevitable, because numerous other cases for comparison of fire-arms are normally pending in that office. The prosecution in the present case cannot be blamed for the non-production of the report of the Ballistic Expert, as the weapon said to have been used in the commission of the offence, the crime-cartridge and the piece of lead recovered from the body of the deceased were sent to the office of the Director, Forensic Science Laboratory for comparison at the earliest, as stated by the learned counsel appearing for the State. The trial of the case is already fixed for 28/29-8-1989. If available, the investigating agency can, submit the report of the Ballistic Expert in the trial Court. The trial Court can also direct the Director of the said Laboratory to get the weapons and other material sent for analysis examined at an early date, and secure the report of the Ballistic Expert expeditiously.