CRIMINAL REVISION NO.1006 OF 2008 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JANUARY 28, 2009 Linda and another .....Petitioners VERSUS Central Bureau of Investigation ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Akshay Bhan, Advocate, for the petitioners. (In Crl.R. No.1006 of 2008) Mr. S.D.Singh & Mr. Manjeet Singh, Advocates, for the petitioners. (In Crl.R.No.1007 of 2008) Mr. R. K. Handa, Advocate & Mr. Sukhdeep Singh Sidhu, Advocate, for C.B.I. **** RANJIT SINGH, J. This order will dispose of two revision petition Nos.1007 of 2008 (Ms.Linda and another Vs. Central Bureau of Investigation) and 1008 of 2008 (Manoj Kumar and others Vs. Central Bureau of Investigation). Claiming that the petitioners are entitled to be released on bail under the operation of Section 167 (2) Cr.P.C., the petitioners have challenged the order passed by Special Judicial Magistrate, C.B.I., Ambala, who has declined the prayer of the petitioners in this CRIMINAL REVISION NO.1006 OF 2008 :{ 2 }: regard for their release on bail by operation of law. Grievance of the petitioners is that C.B.I., which is investigating this case, has not filed the charge sheet within a period of 90 days of the date of arrest of the respective petitioners and, thus, order denying bail passed by Special Judicial Magistrate, C.B.I., Ambala, is illegal, improper and liable to be set-aside. FIR No.27 dated 25.1.2008 stands registered against the petitioners under Section 420 IPC read with Section 18 and 19 of the Transplantation of Human Organ Act, 1994 (hereinafter referred to as “TOHO Act”) at Police Station Palm Vihar, District Gurgaon. Stating briefly, the allegations against the petitioners in the FIR are that pursuant to a disclosure statement made by Dr.Upender, who was arrested during investigation a search of house/hospital was conducted. Five persons were found lying on separate beds in room No.206. On asking, they disclosed their names as mentioned in the FIR. Shakil, one of the person present, told that he was brought in an esteem car from Ghaziabad for doing labour work about 10 to 12 days ago and that he was kept in a forest for 8 to 9 days and then brought to the hospital on 21.1.2008. He alleged that on 22.2.2008, his kidney was forcibly removed. He was promised a payment of Rs.60-70 thousand and was told to keep quiet. Wasim and Saleem two other persons present their made a similar disclosure about the fact that their kidneys were removed. This led to the proceedings against the petitioners under Section 420 IPC and under the relevant provisions of TOHO Act. On a request made by Government of Haryana, the investigation of this case was transferred to C.B.I on 8.2.2008. Pursuant to the same, CBI has registered FIR No.27 dated CRIMINAL REVISION NO.1006 OF 2008 :{ 3 }: 25.1.2008. During investigation, petitioner, Ms.Linda was arrested on 30.1.2008 and produced before a Magistrate at Gurgaon on 31.1.2008. Counsel for the petitioners claims that statutory period of 90 days, as prescribed under Section 167(2) Cr.P.C for filing of charge sheet, expired on 29.4.2008 qua this petitioner. Petitioner, Amit Kumar, however, was arrested on 11.2.2008 and was produced before the Magistrate on the same date and, thus, period of 90 days qua him expired on 11.5.2008, according to the counsel. Petitioner, Manoj Kumar was arrested on 18.2.2008 and produced before the Magistrate on 19.2.2008. Dr.Saraj Kumar surrendered before the C.B.I. on 11.2.2008 and was produced before the Magistrate on 12.2.2008. Dr.Upender Kumar Dublesh was arrested on 11.2.2008 and produced before the Magistrate on the same date. Jeevan Kumar Raut surrendered on 10.2.2008 and produced before the Magistrate on 11.2.2008. Plea accordingly is that statutory period of 90 days in respect of these petitioners expired on 19.5.2008 and 11.5.2008 respectively. Concededly, C.B.I. filed a complaint against 9 persons, including the petitioners, under Section 22 of TOHO Act on 29.4.2008 for taking cognizance of the offence against the persons mentioned as accused in the said complaint. Copy of the complaint is annexed with the petition as Annexure P-4 with Criminal Revision No.1007 of 2008. The case was adjourned to 3.6.2008. In this background, the petitioners applied for bail pressing into service the provisions of Section 167(2) Cr.P.C., urging that the charge sheet had not been filed within prescribed period of 90 days and, thus, CRIMINAL REVISION NO.1006 OF 2008 :{ 4 }: they would be entitled to the grant of bail by operation of Section 167 (2) Cr.P.C. This prayer of the petitioners has been declined by Special Magistrate, Ambala, by holding that the complaint, which is filed by C.B.I. on 29.4.2008, can be treated as a complaint under the TOHO Act and as a police report qua the offence punishable under the IPC. The Magistrate has further held that since this has been done within a period of 90 days, therefore, the petitioners would not be entitled to be released on bail by operation of Section 167(2) Cr.P.C. This order is under challenge in the present revision petitions. Attacking the view taken by the Magistrate, Mr.Akshay Bhan, appearing for the petitioners in Criminal Revision No.1006 of 2008 would submit that complaint can never be treated as a police report and as such, the view taken by the Magistrate is legally unsound. He refers to the definition of a complaint as given in Section 2(d) of the Criminal Procedure Code, which, as per this definition, means that any allegation made orally or in writing to a Magistrate with a view to his taking action under the Code that some person whether known or unknown has committed an offence but does not include a police report. The counsel would stress this part of the definition “but does not include a police report” to bring home his point that compliant can never be treated as a police report in view of definition contained in Section 2(d) Cr.P.C. Reference is also made to Section 2(r) of the Code to highlight the definition of “police report”, which is a report forwarded by police officer to a magistrate under sub-section (2) of Section 173 Cr.P.C. The counsel would then refer to the provisions of Section 57 of Cr.P.C. to say that no police CRIMINAL REVISION NO.1006 OF 2008 :{ 5 }: officer can detain a person in custody without warrant for a longer period exceeding 24 hours in the absence of special order of a Magistrate under Section 167 Cr.P.C. Reading the provisions of Section 167 Cr.P.C with special emphasis on sub-section (2) thereof, the counsel says that detention beyond the period of 90 days in offences punishable with death and imprisonment for life or for a term of not less than 10 years is the maximum period for which a magistrate can authorise detention and on the expiry of period of 90 days, the accused shall be released on bail if he is prepared to and if he does furnish bail. The submission of the learned counsel obviously is that if charge sheet under Section 173 (2) is not filed within a statutory period of 90 days in this case, the petitioners, who are under arrest, are to be released on bail, if they are prepared to and do furnish bail. The petitioners had applied for grant of bail, showing willingness to furnish bail bonds in accordance with provisions of the Section 167 Cr.P.C. It would be of advantage to refer to the said provision, which is reproduced below:- “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 CRIMINAL REVISION NO.1006 OF 2008 :{ 6 }: 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 the 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— (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 offence, 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 CRIMINAL REVISION NO.1006 OF 2008 :{ 7 }: 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. (2-A) 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 CRIMINAL REVISION NO.1006 OF 2008 :{ 8 }: 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 Magistrate 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. (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 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 CRIMINAL REVISION NO.1006 OF 2008 :{ 9 }: 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.” The prayer of the petitioners is stoutly opposed by the counsel appearing for C.B.I. Apart from highlighting the fact that the petitioners are accused of very serious offence, which would be shocking to the conscious of the Society, as such, the prayer made by the petitioners has been opposed on the ground by contesting the legal plea raised on behalf of the petitioners. Counsel for the C.B.I would defend the view taken by the Magistrate to say that the complaint which was filed on 29.4.2008 can be treated as a police report under Section 173(2) so far as offences under IPC are concerned and same is a complaint under the provisions of TOHO Act. The necessity of filing a complaint under the TOHO Act by the C.B.I perhaps was due to the provisions contained under the TOHO Act, whereby no Court is to take cognizance of any offence under the TOHO Act except on a complaint made by an appropriate authority. This is so provided under Section 22 of the TOHO Act, which is CRIMINAL REVISION NO.1006 OF 2008 :{ 10 }: reproduced below:- “Cognizance of offences:-(1) No Court shall take cognizance of an offence under this Act except on a complaint made by- (a) the Appropriate Authority concerned, or any officer authorised in this behalf by the Central Government or the State Government or, as the case may be, the Appropriate Authority; or (b) a person who has given notice of not less than sixty days, in such manner as may be rescribed, to the Appropriate Authority concerned, of the alleged offence and of his intention to make a complaint to the court. (2) No Court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act. (3) Where a complaint has been made under clause (b) of sub-section (1), the Court may, on demand by such person, direct the Appropriate Authority to make available copies of the relevant records in its possession to such person.” The appropriate authority defined under Section 2(b) of the TOHO Act means appropriate authority appointed under Section 13. Section 13 defines the term 'appropriate authority' and reads as under:- “Appropriate Authority.- (1) The Central Government shall appoint, by notification, one or more officers as Appropriate Authorities for each of the Union Territories CRIMINAL REVISION NO.1006 OF 2008 :{ 11 }: for the purpose of this Act. (2)The State Government shall appoint, by notification, one or more officers as Appropriate Authorities for the purposes of this Act. (3)The Appropriate Authority shall perform the following functions, namely:- (i)to grant registration under sub-section (1) of Section 15 or renew registration under sub-section (3) of that section; (ii)to suspend or cancel registration under sub-section (2) of Section 16. (iii)to enforce such standards, as may be prescribed, for hospitals engaged in the removal, storage or transplantation of any human organ; (iv)to investigate any complaint of breach of any of the provisions of this Act or any of the rules made thereunder and take appropriate action; (v)to inspect hospitals periodically for examination of the quality of transplantation and the follow up medical care to persons who have undergone transplantation and persons from whom organs are removed; and (vi)to undertake such other measures as may be prescribed.” Thus, the Central Government is to appoint by notification one or more officers as `appropriate authority' for each of the Union Territories and State Government is to appoint one or more officers as `appropriate authority' for the purpose of this Act. The offence CRIMINAL REVISION NO.1006 OF 2008 :{ 12 }: alleged against the petitioners is under Sections 18, 19 and 20 of the TOHO Act, apart from various other offences under Sections of Indian Penal Code. Offence under Section 18 is punishable with imprisonment for a term which may extend to five years whereas offences under Sections 19 and 20 are punishable upto seven years and three years respectively. In fact, for an offence under Section 19, term of imprisonment shall not be less than two years. Thus, this is the minimum sentence which is prescribed for the said offence. Learned counsel representing the parties have drawn my attention to some precedents in support of their respective pleas. Mr.Bhan, appearing for the petitioners, would refer to the case of The Public Prosecutor Vs. Mulugu Jwala Subrahmanyam, AIR 1957 Andhra Pradesh 987. This was a case where common charge sheet for offences under Sections 294A and 420 IPC was filed but for the purpose of enquiry the offence under Section 420 IPC was separated. No separate charge sheet or a complaint was filed for offence under Section 294A IPC. The High Court took a view that the same document can not be treated as both a report of a police officer and a complaint because that would be in the teeth of Section 4(1)(h) Cr.P.C (old Cr.P.C.). From this, the counsel seems to contend that the submission made on behalf of CBI that a complaint under the TOHO Act can be treated as a Police report under the IPC can not be accepted. The counsel also refers to Asaduddin Owaise Vs. State of A.P., 2001 (3) RCR (Criminal) 387, to say that complaint does not include a police report and sub-section (2) of Section 2 Cr.P.C. defines a police report to mean a report forwarded by police officer to a Magistrate under Section 173(2) Cr.P.C. He has also CRIMINAL REVISION NO.1006 OF 2008 :{ 13 }: drawn my attention to case of Rameshwar Dayal Vs. Col.Ram Singh, 1998 (2) RCR (Criminal) 802 to highlight the difference between the police report and the complaint. Reference is also made to Sham Lal Vs. The State, AIR 1965 Himachal Pradesh 37, wherein it is observed that the expression `police report' as used in the Code for reports of offences made by the police carries a special meaning. It is further observed that as used in the old Section 190(1) (b), the expression was interpreted by several High Courts as meaning reports made under Section 173 that is to say, reports of cognizable offences or non-cognizable with regard to which there had been a direction by a Magistrate to investigate made after an investigation under Chapter XIV. As observed, the result of that interpretation was that cognizance of an offence could be taken under Section 190(1)(b) only on police reports of that particular kind and not on other police reports. Other police reports were to be treated as complaints, coming under Sections 190(1)(a). The Court went on to observe that apparently the legislature did not desire that the operation of Section 190(1)(b) should be so restricted and so in 1923 it amended the Section by replacing the expression `police report' by the more general words that `reports in writing of such facts made by any police officer' which would cover all police reports. At the same time, the legislature left the expression, as occurring in Sections 170, 173 untouched. The High Court accordingly observed that it must therefore, be presumed that the legislature accepted the judicial construction of the expression `police report' as used in the Code for reports of offences made by the police, and that where it left the expression used in similar context untouched, it intended the CRIMINAL REVISION NO.1006 OF 2008 :{ 14 }: expression to continue to bear the meaning which had been put upon it by the Courts. Not only did the legislature not make any change in the expression `police report' when amending the Code in 1923, at any place other than Section 190(1)(b), but when it amended the Code again in 1955, it itself used the same expression in enacting Section207, 207A, 251 and 251-A and in amending Secs.208 and 252. In those circumstances it must equally be presumed that in the amendments made by it in 1955, the Legislature used the expression `police report' in the sense in which it had been construed to bear in the old Section 190(1)(d). The counsel has also referred to certain judgments to say that an accused can claim an indefeasible right under Section 167(2) in case the police fails to file the police report or a charge sheet within 90 days. In this regard, he refers to the observations made in Punjaram Vs. State of Maharashtra, 2006 (1) RCR (Criminal) 541 and Uday Mohanlal Acharya Vs. State of Maharashtra, 2001(2) RCR (Criminal) 452. To support their stand, the counsel appearing for C.B.I has highlighted the observations made by Calcutta High Court in Chittaranjan Das Vs. State of West Bengal and others, AIR 1963 Calcutta 191 to urge that complaint by police officer except in special cases is to be treated as a police report for the purpose of Section 173(4). The relevant observations of the High Court are as under:- “Cognizance of offences is taken by Magistrate under Section 190 of the Code; sub-section (1) of cl. (b) provides that a Magistrate may take cognizance of an offence upon receiving a complaint of facts which constitute such offence; and sub-section (1), cl. (b) CRIMINAL REVISION NO.1006 OF 2008 :{ 15 }: provides that a Magistrate may take cognizance of an offence upon a report in writing of such facts made by any police officer. Before the amendment of 1923, cl. (b) provided for taking cognizance “upon a police report of such facts”. As pointed out by a Bench of this Court in Prem Chand Khetry V. State, AIR 1958 Cal 213, by the decision of various High Courts, the expression “police report” as used in the Code came to acquire a special meaning, viz., a report made under Section 173 of a cognizable offence, or of a non-cognizable offence which the police had been directed to investigate under Section 155(2), after investigation under Chapter XIV of the Code; cognizance could be taken under Section 190(1)(b) only on such a police report; other police reports were treated as complaints coming under Section 190(1)(a). When the legislature substituted a more general expression in clause (b) of Section 190(1) viz., “a report in writing of such facts made by any police officer”, all kinds of reports by police officers (of facts constituting as offence) came under Section 190(1)(b); and since the amendment in 1923 therefore, a statement of facts constituting an offence contained in an application by a police officer cannot be treated as a complaint as defined in Section 4 (1)(h), but must be deemed to be a report by the police, of which cognizance is taken under Section 190(1)(b). In Tarapada Sarkar V. State, AIR 1959 Cal. 640, it was held that when a police officer investigates a non-cognizable CRIMINAL REVISION NO.1006 OF 2008 :{ 16 }: offence without obtaining before-hand an order from a Magistrate under Section 155(2), the report which he submits after