IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 11TH JANUARY 2010 / 21ST POUSHA 1930 Bail Appl..No. 6890 of 2009 CRIME NO.197 OF 2009 OF NEDUMUDY POLICE STATION, ALAPPUZHA PETITIONERS/A4 & 5 --------------------------------- 1. SHINO PAUL,S/O.SUNNYCHEN, ILLATHUPARAMBIL VEEDU, NALUKODY BHAGOM,WARD NO:12 PAYIPPAD PANCHAYATH. 2. AKASH SASIDHARAN @ RAJESH,S/O.SASIDHARAN CHANGAMKULANGARA VEEDU,NALUKODY BHAGOM, PAYIPPAD VILLAGE. BY ADV. SRI.T.P.PRADEEP RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. DIRECTOR GENERAL OF PROSECUTION SRI.V.G.GOVINDAN NAIR PUBLIC PROSECUTOR SRI.C.K.SURESH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 06/01/2010, ALONG WITH BA NO. 6816 OF 2009 THE COURT ON 11/01/2010 PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NOS.6890 & 6816 OF 2009 ------------------------------------------------------ Dated this the 11th day of January, 2010 O R D E R The questions of law involved in this Bail Application are (1) whether the accused would be entitled to ‘default bail’ under the proviso (a) to sub section (2) of Section 167 of the Code of Criminal Procedure in a case where the charge sheet filed within time was returned by the learned Magistrate to the investigating officer with certain directions regarding investigation, and when the charge sheet was not re-submitted within ninety days from the date of arrest of the accused. (2) When the charge sheet was filed within time and cognizance was not taken, whether the Magistrate has jurisdiction to remand an accused to judicial custody. If so, would Section 319 Code of Criminal Procedure apply to the situation ? 2. Bail Application No. 6816 of 2009 is filed by Sunil alias Suni (accused No. 7), Aneesh Kumar (accused No. 9), Binoy Markose alias Binoy (accused No. 10) and Jain Jose alias Jain (accused No. 11) in Crime No. 197 of 2009 of Nedumudy Police B.A. NOS.6890 & 6816 OF 2009 :: 2 :: Station. Bail Application No. 6890 of 2009 is filed by Shino Paul (Accused No. 4) and Akash Sasidharan alias Rajesh (accused No. 5) in the aforesaid Crime. The Bail Applications are filed under Section 439 of the Code of Criminal Procedure. Apart from contending that the petitioners are entitled to get ‘default bail’, the petitioners have also raised a contention that even if they are not entitled to relief on that count, they are otherwise entitled to be released on bail. 3. The offences alleged against the accused persons, 25 in number, are under Sections 143, 147, 148, 324, 302, 120-B, 201 and 212 of the Indian Penal Code and Section 5 of the Explosive Substances Act. 4. The prosecution case is that Paul M. George, who is also known as Paul Muthoot, a young businessman aged 32 years was brutally murdered at about 0.15 hours on 22-8-2009 at a place two Kilometres east of Pallathuruthy bridge in Alapuzha – Changanassery road. Paul M. George was brought dead at about 00.50 hours on 22-8-2009 at the Medical College Hospital, Alapuzha by his driver Shibu Thomas. B.A. NOS.6890 & 6816 OF 2009 :: 3 :: 5. According to the prosecution, Accused Nos. 1 to 11 were arrested on 24-8-2009 from a hotel at Changanassery. 6. Bail Application Nos. 5832 and 6088 of 2009 filed by the petitioners before the High Court were dismissed as per the order dated 27th October 2009. 7. It is stated that after completing the investigation, final report was filed before the Court of the Judicial Magistrate of the First Class, Ramankari on 19-11-2009. The learned Magistrate passed a detailed order dated 8th December 2009 pointing out certain “irregularities” mentioned as items 1 to 15 in the order. The last two paragraphs of the said order read thus: “On independently applying my mind to the facts emerging from investigation I find that police has not done its duty of investigating the case satisfactorily. Investigation was not carried in respect of certain aspects. I find some very relevant materials, on which, investigators must pay their attention. There are missing links and areas to be unearthed and investigated. Some facts which are relevant for arriving truth had not been gone into. Investigation on these areas are necessary for the free and fair trial and just B.A. NOS.6890 & 6816 OF 2009 :: 4 :: disposal of the case. Hence it is my duty to indicate those materials to investigation team who shall make an in depth study of those materials before filing a final report. For the reasons stated above, the present report filed by the police cannot be said to be complete. The investigation is not satisfactory. Hence it is returned for conducting investigation on all aspects and to file a correct and complete report. Investigation officer is directed to retain an attested copy of the report in this court.” 8. The State filed W.P. (C) No. 37407 of 2009 challenging the order dated 8-12-2009 passed by the learned Magistrate. A Division Bench of this Court passed an interim order of stay of the order passed by the learned Magistrate, for a period of three weeks. It is submitted that the stay was extended. It is also not in dispute after the order of stay was granted, the investigating officer re-submitted the charge sheet before the Magistrate’s Court. It is submitted by the counsel that the aforesaid Writ Petition is being considered by the Division Bench along with a Writ Petition filed by the father of Paul Muthoot, praying for entrusting the investigation of the case to the Central Bureau of Investigation. B.A. NOS.6890 & 6816 OF 2009 :: 5 :: 9. The learned counsel for the petitioners submitted that since the charge sheet was returned by the learned Magistrate, it is to be taken that there is no charge sheet in the case and therefore the petitioners are entitled to ‘default bail’ under proviso (a) (i) to sub- section (2) of Section 167 Crl.P.C. The learned counsel for the petitioners submitted that cognizance of the offence was not taken by the learned Magistrate and therefore Section 309 would not apply. The counsel would contend that in these circumstance, the learned Magistrate has no jurisdiction to remand the petitioners to judicial custody, either under Section 167 or under Section 309 Cr.P.C. and the only course open to the learned Magistrate is to release the petitioners on bail. Advocate Sri.Madhavankutty, the learned counsel for the petitioners, relying on Aslam Babalal Desai V. State of Maharashtra: AIR 1993 SC 1, contended that even if two views are possible, release under the proviso (a) to Section 167 (2) Cr.P.C. being a matter belonging to the field of criminal justice involving the liberty of an individual, the provision must be construed strictly in favour of individual liberty. 10. For the sake of convenience, the relevant portion of sub section (2) of Section 167 Crl.P.C. is extracted below: B.A. NOS.6890 & 6816 OF 2009 :: 6 :: “(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, a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, an 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 day, where the investigation relates to any other offence, B.A. NOS.6890 & 6816 OF 2009 :: 7 :: 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;” 11. In Sanjay Dutt V. State through C.B.I., Bombay: (1994) 5 SCC 410, the Constitution Bench held: “The indefeasible right accruing to accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by S. 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 Cr.P.C. ceases to apply.” B.A. NOS.6890 & 6816 OF 2009 :: 8 :: 12. In Bhpinder Singh and others V. Jarnail Singh and Another : 2006 (4) KLT 460 (SC) = JT 2006 (6) SC 619, the challan was incomplete. The requisite documents were not produced along with the challan. It was contended that the proviso to Section 167 (2) Crl.P.C. would apply. It was held thus: “17. In the instant case undisputedly the challan was filed on 30.10.2004 and the trial court passed an order to the effect that the Ahlmad was to check and report. The Ahlmad examined the challan and noted as follows: “Challan checked and found that negatives of the three photographs are not attached with. 18. The negatives were filed on 1.11.2004 and it was indicated that “Challan checked, found correct.” ............ 20. Stand of learned counsel for the appellant was that the mere filing of the defective challan was really of no consequence. This aspect has been dealt with in Tara Singh’s and Satya Narain’s cases (Tara Singh V. The State JT 1988 (3) SC 729= (1989 (1) SCC 235 and Saya Narain Musadi & Ors. V. State of Bihar: AIR 1980 SC 506) in detail. Since all the relevant documents were before the court before expiry of 90 days period, grievance of the appellant is sans merit.” B.A. NOS.6890 & 6816 OF 2009 :: 9 :: 13. In Prasanthkumar V. C.I. of Police: 2009 (3) KLT 494, it was held: “In the present case, according to the petitioner, the charge sheet was returned as defective for want of post- mortem certificate in respect of Accused Nos. 6,7 and 8 and list of documents and on a query regarding the address of the 4th accused. The charge sheet was re-presented within time. Cognizance was taken on 20.3.2009. In Central Bureau of Investigation V. R.S. Pai and another : 2002 (2) KLT 149 (SC)= (2002) 5 SCC 82, it was held that if a mistake is committed in not producing the relevant documents at the time of submitting the report or the charge sheet, it is always open to the investigating officer to produce the same with the permission of the court. In the case on hand, the charge sheet was returned as defective. It implies permission to cure the defects. The defects were cured and the charge sheet was re-p[resented. It cannot be said that the proviso to S. 167 (2) Cr.P.C. would get attracted enabling the accused to get default bail if the charge sheet is re-presented, after curing the defects, beyond the period mentioned in the said proviso, when the charge sheet was originally filed within time.” 14. In Dinesh Dalmia V. C.B.I. : (2007) 8 SCC 770, the Supreme Court considered the question of applicability of Section B.A. NOS.6890 & 6816 OF 2009 :: 10 :: 167 (2) Cr.P.C. in a case where charge sheet was filed, but further investigation was going on. It was held thus: “25. Such a right of bail although is a valuable right but the same is conditional one; the condition precedent being pendency of the investigation. Whether an investigation in fact has remained pending and the investigating officer has submitted the charge sheet only with a view to curtail the right of the accused would essentially be a question of fact. Such a question strictly does not arise in this case inasmuch as, according to CBI, sufficient materials are already available for prosecution of the appellant. According to it, further investigation would be inter alia necessary on certain vital points including end use of the funds. ................. 39. The statutory scheme does not lead to a conclusion in regard to an investigation leading to filing of final form under sub-section (2) of Section 173 and further investigation contemplated under sub-section (8) thereof. Whereas only when a charge-sheet is not filed and investigation is kept pending, benefit of proviso appended to sub-section (2) of Section 167 of the Code would be available to an offender; once, however, a charge sheet is filed, the said right ceases. Such a right does not revive only because a further investigation remains pending within the meaning of sub-section (8) of Section 173 of the Code.” B.A. NOS.6890 & 6816 OF 2009 :: 11 :: 15. For the purpose of disposal of this Bail Application, it is not necessary to decide the correctness or otherwise of the order dated 8-12-2009 passed by the learned Magistrate. That question is pending consideration in a Writ Petition. It is well settled that a further investigation under Section 173 (8) Crl.P.C. can be made at various stages. It can be made even after cognizance of the offence is taken. However, after taking cognizance of the offence, the Magistrate cannot, of his own, make an order for further investigation. Such an order can be passed on the application of the investigating officer. Filing the charge sheet, however, does not preclude the investigating officer from making further investigation in terms of Section 173 (8) Crl.P.C. (See Kishan Lal V. Dharmendra Bafna and another: (2009) 7 SCC 685; Randhir Singh Rana V. State (Delhi Administration): (1997) 1 SCC 361=AIR 1997 SC 639; Reeta Nag V. State of West Bengal and others: (2009) 9 SCC 129; Dinesh Dalmia V. CBI : (2007) 8 SCC 770; State of Bihar and another V. J.A.C. Saldanna and others : AIR 1980 SC 326). In the present case, the charge sheet was filed well within time. Even though the learned Magistrate returned the charge sheet, it cannot B.A. NOS.6890 & 6816 OF 2009 :: 12 :: be held that the proviso to Section 167 (2) is attracted. I am not inclined to accept the contention of the petitioners that the case has to be dealt with as if no charge sheet is filed. 16. The next question to be considered is whether in the fact situation in the present case, the learned Magistrate has jurisdiction to remand the accused to judicial custody. 17. Sri.M.P.Madhavankutty, the learned counsel for the petitioner relied on paragraph 29 in Dinesh Dalmia V. CBI : (2007) 8 SCC 770 = 2008 Crl.LJ 337 (paragraph 22 in Crl.L.J), which reads as follows: “The power of a court to direct remand of an accused either in terms of sub-section (2) of Section 167 of the Code or sub-section (2) of Section 309 thereof will depend on the stages of the trial. Whereas sub- section (2) of Section 167 of the Code would be attracted in a case where cognizance has not been taken, sub-section (2) of Section 309 of the Code would be attracted only after cognizance has been taken.” 18. The question whether remand could be made either under B.A. NOS.6890 & 6816 OF 2009 :: 13 :: Section 167(2) or Section 309 (2) Cr.P.C. in a case where charge sheet was filed but cognizance was not taken, as such did not arise for consideration before the Supreme Court in Dinesh Dalmia’s case. In Dinesh Dalmia’s case, charge sheet was filed under Section 173 (2) Cr.P.C. In the charge sheet, it was mentioned that further investigation into certain aspects was still continuing. Cognizance of the offence was taken by the learned Magistrate. Thereafter, the appellant was arrested and he was produced before the Magistrate. On application, police custody of the accused concerned was granted by the Magistrate. On the ground that further investigation was pending, CBI could secure remand of the accused under Section 167(2) Cr.P.C. from time to time. On the expiry of 60 days of the date of arrest, the accused (appellant) filed an application for statutory bail on the ground that no further charge sheet was filed. That application was dismissed by the Magistrate. The Sessions Judge set aside the order of the Magistrate. The High Court set aside the order of the Sessions Judge, which was challenged before the Supreme Court. The High Court held that since cognizance was taken, remand of the appellant was under Section 309 Cr.P.C. and quoting of a wrong provision of law (Section 167) in the application for remand was not very material. The question to be resolved by B.A. NOS.6890 & 6816 OF 2009 :: 14 :: the Supreme Court was whether the appellant was entitled to statutory bail under the proviso to Section 167 (2) and it was held that the appellant was not entitled to the same. (Vide: paragraphs 25 and 39 in Dinesh Dalmia’s case quoted above). In that context, the Supreme Court held in paragraph 29, as quoted above. In the present case, cognizance was not taken by the learned Magistrate. 19. In Kamalaksha V. S.I. of Police: 2007 (1) KLT 299, Justice V. Ramkumar deprecated the practice followed by some Magistrates in not accepting final reports which are not accompanied by the certificate of chemical analysis in Abkari cases on the ground that such final reports are incomplete, and held thus: “The report under Section 173 (2) Cr.P.C. is nothing more than an opinion of the police officer that as far as he is concerned, he has been able to collect evidence during his investigation about the commission of the offence by the accused who is being placed on trial. If the police report or charge sheet contains necessary details so as to enable the Magistrate to take cognizance of the offence and proceed further, it cannot be said that there is failure of compliance of S. 173 (5) Cr.P.C. just because the scientific reports have not been produced along with the charge sheet filed by the police officer. In such a case it cannot be B.A. NOS.6890 & 6816 OF 2009 :: 15 :: said that the charge sheet so produced is incomplete (vide Swami Premananda @ Premkumar @ Ravi V. Inspector of Police : XXXIX MLJ (Crl) 702. Even in a case where the investigating officer has chosen to term the police report as “incomplete”, the power of the Magistrate to take cognizance of the offence is not lost. If the police report and the materials produced along with it are sufficient to satisfy the Magistrate that he should take cognizance of the offence, then power is not fettered by the label which the investigating agency chooses to give to the report submitted under S. 173 (2) Cr.P.C. (see State of Maharashtra V. S.V. Dongre : AIR 1995 SC 231).” 20. Advocate Sri.Pradeep relied on the Division Bench decision in Furtado V. CBI : 1996 (2) KLT 1, with particular reference to paragraph 13, wherein it was held: “13. A remand under S. 309 (2) of the Code can be made only after taking cognizance of the offence. That being the position, in the absence of a final report regarding all the offences alleged to have been committed by the accused persons, it has to be held that the Magistrate has not taken cognizance of the offences as required by S. 309 (2) of the Code. The Magistrate is not empowered to order remand of the accused to judicial custody unless final report as contemplated under S. 173(2) of the Code is laid before Court.” B.A. NOS.6890 & 6816 OF 2009 :: 16 :: 21. In Furtado’s case, the offences alleged were under the Foreigners Act, Territorial Water Continental Shelf, Exclusive Economic Zone and other Maritme Zones Act, Official Secrets Act and the Indian Penal Code. The investigating officer filed a ‘charge report’ in respect of some of the offences. Investigation continued in respect of the other offences. The Division Bench held, in that context, thus: “The investigation under S. 167 of the Code can be one involving one or more offences against the accused persons. The investigation of a case cannot be split up in such a way to file piece-meal reports before Court. S. 173 of the Code does not stipulate a piece-meal investigation and filing of incomplete charge sheet before Court. It contemplates filing of a charge/refer report after completion of the entire investigation of the case in respect of all offences and where several offences are involved in a case, a charge report could be laid before court only after the investigation is over and formation of an opinion regarding all the offences alleged against the accused.” 22. The relevant provisions relating to detention of an accused in custody before conviction are contained in Section 57, 167, 209 and 309 of the Code of Criminal Procedure. Section 57 provides that B.A. NOS.6890 & 6816 OF 2009 :: 17 :: no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court. Section 167 provides for the procedure when investigation cannot be completed in twenty four hours. Section 209 provides for commitment of the case to the Court of Session when the offence is triable exclusively by it. Section 209 also provides for remand of the accused to custody. Only after taking cognizance of the offence, a remand under Section 209 is possible. The only other provision which remains for consideration is Section 309. Relevant portion of Sub section (2) Section 309 and the Explanation, reads thus: “309 (2): If the Court after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: .......... B.A. NOS.6890 & 6816 OF 2009 :: 18 :: ............. Explanation I : If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.” 23. Sub section (2) of Section 309 provides for remand of the accused, after taking cognizance of an offence. There may be cases where the charge sheet is filed on the 90th day or 60th day, as the case may be, depending on the nature of the offence. If so, the proviso to Section 167 (2) would not apply and the accused would not be entitled to ‘default bail’. The Magistrate may, thereafter, decide the question as to whether cognizance