((-1-)) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.7350 OF 2005 1. Anil Somdatta Nagpal, Age 50 years, Occ.Business, R/o.Bungalow No.7-A/202, Ganga Estate, Chembur, Mumbai 400 071. 2. Lalit Somdatta Nagpal, Age 52 years, Occ.Business, R/o.Bungalow No.36, Atur Park, Sion-Trombay Road, Chembur, Mumbai-71. Applicants versus The State of Maharashtra. Respondent Shri S.L.Maneshinde with Shri Amin H. Solkar, advocate for the applicants. Shri S.R.Borulkar, APP for State. CORAM : S.C.DHARMADHIKARI, J. CORAM : S.C.DHARMADHIKARI, J. CORAM : S.C.DHARMADHIKARI, J. DATE OF RESERVING THE JUDGEMENT : 19-11-2005 DATE OF PRONOUNCING THE JUDGEMENT : 13-12-2005 JUDGEMENT :- 1. This is an application for bail on the ground that the mandate of law pertaining to filing of charge sheet being not adhered to, the applicants be released. 2. The facts necessary to consider the ((-2-)) applicability of the relevant statutory provisions are these. In pursuance to the raid on the factory premises of one Deepak Mundada, original accused no.3, wherein two iron tanks of 12,000 and 6,000 litres capacities, a motor tanker containing Benzin, Greenish lubricating in 200 litres barrel, 45 kilos of white powder in 5 gunny bags and a motor tanker containing Mineral Turpentine Oil (MTO) were found and were seized under panchanama. On the basis of a statement of Ranjit Pandurang Desai a case was registered as C.R.No.39/2004 with Karveer Police Station, Kolhapur, against eleven accused persons named in the F.I.R. for offences under sections 3 and 7 of Essential Commodities Act, 1955 and under section 3 of Petroleum Storage and Distribution Act, 2000. 3. The applicants state that on 20.5.2004 the investigation of the above C.R.No.39/2004 came to be transferred to C.B.(Control), Crime Branch, Worli Police Station, Mumbai, on the orders of Director General of Police, Maharashtra State. 4. During the course of investigation some more persons came to be arrested taking the tally to 17 and after initial period of custody, all ((-3-)) accused have been released on bail. On the completion of their investigation the police filed a charge sheet on 5.5.2005 against them also under sections 465, 467, 468, 471, 420 R/W 34 of IPC.. The case was then numbered as R.C.C.No.288/2005. 5. It is contended that after filing of the charge sheet, on 6th May 2005, Police sought permission for further investigation u/s 173(8) of Code of Criminal Procedure (hereinafter referred to as "the Code"), which was granted by the learned Magistrate. Therefore, the applicants submit that the charge sheet filed on 5th May 2005, cannot be a report as contemplated u/s 173(2) of the Code. Such report has to be filed after completion of investigation and not when the same is pending. On 1st July 2005 and 6th July 2005, applicant nos.2 and 1 respectively surrendered before the learned JMFC, Kolhapur. He was pleased to remand them to Judicial Custody. On 8th July 2005 an application was moved by the prosecution seeking their Police Custody on the ground that their involvement is to be fairly investigated, which cannot be done unless and until they are remanded. The applicants state that the learned Magistrate was ((-4-)) pleased to remand them to Police Custody. After the period of police custody, permissible by law, the applicants were remanded to judicial custody. They are detained in the same. 6. Specific case of the applicants is that during pendency of the investigation against them they moved this Court for bail on merits but their applications were rejected. 7. It is their further case that requisite period of 90 days’ custody, as contemplated u/s 167(2) of Code, expired on 28th September 2005 in the case of applicant no.2 and on 5th October 2005 in respect of applicant no.1. Till this date the Police did not file any supplementary charge sheet against them. Therefore, an indefeasible right to be released on bail accrued to the applicants. They were ready and willing to furnish bail. Accordingly, on 30th September 2005 applicant no.2 filed an application for bail u/s 167(2) of the Code. It is the applicant’s case that this application was directed to be listed for hearing by the learned Magistrate at 12.35 hours on 30th September 2005. He directed the Assistant Superintendent of Court to file report regarding filing of any supplementary ((-5-)) charge sheet against applicant no.2. He also directed that the say of APP and the Investigating Officer, if any, be filed within the time stipulated by him. The Assistant Superintendent attached to the Court, gave his report on the bail application and pointed out that the only charge sheet in this case is filed on 4th May 2005. 8. Thereafter, it is the case of the applicants that on same day i.e. on 30th September 2005, Police filed some documents along with a covering letter addressed to the learned Magistrate. No permission was obtained while doing so from the learned Magistrate. There is no question of such documents being forwarded and/or taken on record because the matter was not listed before the Court. It was on the application of the applicants that the matter was taken up on board. Such documents could not have been, therefore, forwarded to the Magistrate of the Court and that too without prior permission of the learned Magistrate. It is contended that the Assistant Superintendent received documents and gave an endorsement to that effect without written orders of the learned Magistrate. The only inference that can be drawn is that the endorsement of the ((-6-)) Assistant Superintendent is ante-timed. Reliance is placed upon the forwarding letter. In these circumstances, the documents that are filed pursuant to orders of further investigation, can be treated as an action traceable at the most to Section 173(5) and not to Section 173(8) of the Code. The contention, therefore, raised was that forwarding of documents along with forwarding letter is no compliance with provisions of Section 173(2) of the Code. 9. Similarly, applicant no.1 also filed an application for bail on 6th October 2005 upon identical events. 10. The abovementioned bail applications were heard by the learned Magistrate and by an order dated 11th October 2005, he rejected the same. 11. After the order of the learned Magistrate, the applicants moved the learned Sessions Judge, Kolhapur for bail vide Criminal Application Nos.474/2005 and 475/2005. The learned Sessions Judge by a common order delivered on 27th October 2005, rejected their applications. The Courts below have held that there is compliance of Section 173(2) of the Code on 5th May 2005. ((-7-)) Though, the Police have committed an error in not filing a report in the form prescribed while tendering documents u/s 173(8) on 30th September 2005, it is a mere irregularity. 12. Unsuccessful in getting bail on statutory grounds, the present application has been moved by the applicants - original accused. 13. Shri Maneshinde - learned counsel appearing for the applicants submits that the provisions of Section 173 of the Code are mandatory. He also invites my attention to provisions of Section 167 of the Code. He states that report contemplated by Section 173 has necessarily to be in accordance with sub section (2) thereof. The provisions of this sub section are mandatory. He submits that forwarding documents is no compliance with the requirement stipulated by Section 173(8). He invites my attention to the endorsement on the forwarding letter as well as on the bail applications. He invites my attention then to page nos.13 and 15 of the application. He submits that it is clear that the applicants are in custody. The custody, as contemplated by law, can only be under section 167 of the Code. The limitations contemplated ((-8-)) therein fully apply. He states that mere filing of a charge sheet on 5th May 2005 is of no consequence. Once permission to investigate is sought and supplementary charge sheet has to follow, then all requirements stipulated by sub sections (2) to (6) of Section 173 have to be complied with. He submits that supplementary charge sheet has not been filed. There is no question of forwarding letter being treated as a report contemplated by law. In any event, the said letter/report does not satisfy mandatory requirements of Sections 173(2) to (5) of the Code. He submits that conduct of the applicants is irrelevant. Once the requirement stipulated by law is not fulfiled and the applicant gets a statutory and indefeasible right to be released on bail, then acceptance of the documents is also of no consequence. In any event, the entire action is to defeat the indefeasible right of the applicants. Hence, the application be allowed and bail be granted as prayed. 14. In support of his submissions Shri Maneshinde places reliance on the following decisions :- (a) State (CBI) Vs. Dawood Ibrahim ((-9-)) Kaskar (AIR-1997-SC-2494); (b) Velu Vishwanathan Vs. State (DB) (Ker) (1971-CrlJ-725). (c) Aslam Babalal Desai Vs. State of Maharashtra (AIR-1993-SC-1). (d) Sanjay Dutt Vs. State (II) (1994-SCC (Cri)-1433). (e) Uday Mohanlal Acharya Vs. State of Maharashtra (2001-CrLJ-1832 Journal 194). (f) M.C.Venkatareddy Vs. State of A.P. (1994-CrLJ-257). (g) S.M.Purtado Vs. Dy.S.P., CBI, Cochin (1996-CrLJ-3042). (h) State of West Bengal Vs. Anwar (2000-CrLJ-2189). (i) Punjaram Vs. State of Maharashtra (2005[5]-AIR Bom R-119). (j) Chaganti Satyanarayana and others Vs. State of Andhra Pradesh (AIR-1986-SC-2130). 15. On the other hand, Shri Borulkar - learned Public Prosecutor states that submissions of the applicants with regard to interpolation and additions/alterations in the record of the Court below, cannot be accepted. He states that it is well settled that the Court record has to be presumed as correct. About alterations or interpolations therein, unless and until it is demonstrated that the record does not reflect the proceedings in the Court, correctness of the same cannot be disputed. ((-10-)) 16. That apart, Shri Borulkar states that there is no substance in the contentions that the applicants are entitled to be released on bail because of the failure of the prosecution to file charge sheet within the prescribed period. He submits that a charge sheet has been filed in this case on 5th May 2005. That charge sheet shows that the applicants are arrayed as accused. The entire material disclosed till that date has been forming part of the said charge sheet. Shri Borulkar then points out the distinction between Sections 167 and 190 of the Code and contends that Section 190(1)(b) postulates taking cognizance of the offence. Criminal law is unaware of a concept of taking cognizance of the accused. Cognizance of offence is taken upon filing of charge sheet. The Magistrate has already taken cognizance. Page 13 of the paper book is then referred to by Shri Borulkar. His next submission is that Shri Maneshinde does not contend that the charge sheet dated 5th May 2005 is not complying with Section 173(2) of the Code. Therefore, there is no question of applicants having any indefeasible right to apply for and being released on bail. The present application must, therefore, be dismissed. ((-11-)) 17. Alternatively, he submits that in Section 173(8) the words used are "as far as may be". There is no question of strict compliance with Section 173(2) when such is the intention of the Legislature. Section 173(8) deals with further investigation. That is not a provision dealing with taking cognizance. He submits that in the present case one of the applicants surrenders on 1st July 2005 and the other on 6th July 2005. Police custody remand is of 8th July 2005. Therefore, 90 days are not completed from the date of arrest. Therefore, right is extinguished. It is only upon failure of the prosecution to comply with the mandate of Section 173(2) that the indefeasible right accrues and not otherwise. In any event, Shri Borulkar states that further report is in time. There is no question of delay and therefore, this application must be dismissed. 18. Shri Borulkar relies upon following decisions in support of his submissions. (a) AIR-1998-SC-2001 (K.Chandrasekhar Vs. State of Kerala and others). (b) 2004-ALL MR (Cri) - 2107 (Hamaja Mohiddin Kutty Vs. State of ((-12-)) Maharashtra). 19. For a proper appreciation of the rival contentions, firstly it is necessary to refer to Section 167 of the Code and thereafter Section 173 thereof. These provisions so far as they are relevant for our purpose read thus :- "167. Procedure when investigation cannot be completed in twenty-four hours.- (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that - ((-13-)) (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding - (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. (ii) sixty days, where the investigation relates to any other offences, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;) (b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. (Explanation I- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.) (Explanation-II - If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his ((-14-)) signature on the order authorising detention. (2A) Notwithstanding anything contained in sub section (1) or sub section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2); Provided that before the expiry of the period aforesaid, the Executive Engineer shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.) (3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing. ((-15-)) (4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate. (5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary. (6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify." "173. Report of police officer on completion of investigation - (1) Every investigation under this Chapter shall be completed without unnecessary delay. (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating - a) the names of the parties; (b) the nature of the information; ((-16-)) (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. (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. (3) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation. (4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. (5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report - (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; ((-17-)) (b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses. (6) If the police officer is of opinion that any part of any such statement is not relevant to the subject matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request. (7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub section (5). (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub section (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub section (2)." 20. Section 167 sets out procedure when investigation cannot be completed in 24 hours. That is a contingency covered by sub section (1). It is not necessary to go into this aspect at all. Sub section (2) mandates that the Magistrate to whom an accused is forwarded under ((-18-)) this section, may whether he has jurisdiction to try the case or not, from time to time, authorise his detention in such custody as he thinks fit. However, he can do so for a term not exceeding 15 days in all. If he has no jurisdiction to try the case or commit the same for trial and he considers further detention of the accused necessary, he may order the accused to be forwarded to a Magistrate having jurisdiction. However, no Magistrate can authorise detention of accused person in custody under Section 167 for a total period exceeding 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than 10 years and where investigation relates to any other offence, 60 days. It is clear that after expiry of 90 days or 60 days, as the case may be, the accused the accused the accused person shall be released on bail, if he is person shall be released on bail, if he is person shall be released on bail, if he is prepared to and does furnished bail prepared to and does furnished bail prepared to and does furnished bail. It is this provision which is pressed into service in the present case. The argument is that within the aforesaid period the mandate enshrined in Section 173 of the Code must be complied with. The mandate flowing from Section 173(1) is that every investigation under Chapter-XII must be completed without unnecessary delay. As soon as it is ((-19-)) completed, the officer in-charge of the police station, shall forward to the Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government setting out the particulars in sub section 2 of section 173. Section 173 vide sub sections (3) to (7) provide for procedure to be adopted while forwarding the report. Sub section (8) of Section 173 opens with a non obstante clause and with an intent to permit further investigation. What happens if such investigation is made, is provided in this sub section. The further report on such investigation has also to be forwarded, but the procedure prescribed in sub sections