HIGH COURT OF JAMMU AND KASHMIR AT JAMMU B.A no. 90/2008 Date of order: 04.12.2008_ Captain Chatnaya SB vs. State of J&K and another __________________________________________________ Coram: MR. JUSTICE J. P. SINGH, JUDGE Appearing Counsel: For the Applicant(s) : Mr. Sunil Sethi, Advocate. For Respondent(s): : Mr. P. C. Sharma, AGG. i) Whether to be reported in Press/Journal/Media : Yes ii) Whether to be reported in Digest/Journal : Yes Captain Chatnaya’s application seeking release on bail in a case arising out of FIR No. 34/2008 registered at Police Station Gangyal under Sections 306/498-A RPC was rejected by 3rd Additional Sessions Judge, Jammu, on September 29, 2008. He has approached this Court seeking his release on bail. I have considered the submissions of Shri Sethi appearing for the applicant and Shri Sharma, learned Additional Advocate General, appearing for the State in the light of judgments they had referred to at the time of consideration of this application. Applicant’s counsel’s submission that applicant is entitled to his release on bail in view of the provisions of 2 Section 167(2) of Code of Criminal Procedure, arises out of a misconception, in that, he treats the Final Police Report, the Police Challan, as it is commonly so known, which had been filed within the prescribed period of 60 days of applicant’s arrest, as an incomplete police challan because the investigation had not been completed by that time as the Investigating Police Officer would require some more time to record the statements of some of the witnesses under Section 161 of the Code of Criminal Procedure, who are stated to have been posted at far off places and the Forensic Science Laboratory’s Report too was awaited. This is so because the Police Challan, which had been filed within the period prescribed under Section 167(2) of the Code of Criminal Procedure, does not indicate it to be an incomplete Police Challan. It, on the other hand, is in the requisite form prescribed by the State Government for production of Final Police Report under Section 173 (2) of the Code of Criminal Procedure. Not only this, the Final Police Report contains, besides a list of 53 witnesses which the Investigating Police Officer had relied upon to substantiate the charge against the applicant, the statements of witnesses recorded under Section 164-A and Section 161 of the Code of Criminal Procedure. A categoric finding too stands recorded in the Final Police Report that, on the basis of the evidence collected by the Investigation Police Officer, a case for commission of offences punishable under Sections 306 and 498-A RPC had been made out against the applicant. The documents relied upon in the case too form part of the challan. Mere recital in the report that statements of some more witnesses, who were posted at far off places, were yet to be recorded and the Report 3 of the Forensic Science Laboratory had to be obtained, would not, in my opinion, make the Police Challan filed in the present case, an incomplete Final Police Report. Filing of subsequent supplementary challan to form part of the original challan too would not affect the status of earlier filed Final Police Report. Applicant’s counsel’s submission that applicant had acquired an indefeasible right to bail in view of the provisions of Section 167(2) of the Code of Criminal Procedure too is found unsustainable, in that, on production of the Final Police Report, which had been filed within the prescribed period of 60 days, on May 30, 2008, learned Chief Judicial Magistrate, Jammu had taken cognizance of the offence, and after delivering the copies of the challan and documents to the applicant-accused, committed the case to the Court of Sessions for his trial. In this view of the matter, cognizance having been taken by the learned Chief Judicial Magistrate on the Final Police Report, the applicant’s custody would be governed by the provisions of Section 344 of the Code of Criminal Procedure and not by the provisions of Section 167 of the Code of Criminal Procedure, as urged by Shri Sethi, and in that view of the matter, provisions of Section 167 (2) of the Code of Criminal Procedure cannot be pressed into service by the applicant for his release on bail thereunder. Another factor which needs to be noticed is that applicant does not appear to be either prejudiced or aggrieved by the order of learned Chief Judicial Magistrate, Jammu, taking cognizance of the offences on the basis of the Final Police Report because he has opted not to question the 4 cognizance which had been taken by learned Chief Judicial Magistrate, and it is now too late in the day for him to urge that he had any surviving indefeasible right of being released on bail, particularly when learned 3rd Additional Sessions Judge, Jammu had found a prima facie case against him for his trial under Sections 306/498-A RPC for which he stands, accordingly, charged. The view which I have taken in the case on the question in issue is supported by the law laid down by Hon’ble Supreme Court of India in Dinesh Dalmia vs. C.B.I, reported as 2007 AIR SCW 6112, where, while referring to a Constitution Bench judgment of Hon’ble Supreme Court of India in K. Veeraswami v. Union of India and ors, reported as (1991)3 SCC 655 and the dicta laid-down in its judgment Sanjay Dutt vs. State through C.B.I. Bombay (II), reported (1994) 5 SCC 410, their lordships had held as under:- “17. We may notice that a Constitution Bench of this Court in K. Veeraswami v. Union of India and Others [(1991) 3 SCC 655] stated the law in the following terms :  "76 As observed by this Court in Satya Narain Musadi v. State of Bihar that the statutory requirement of the report under Section 173(2) would be complied with if the various details prescribed therein are included in the report. This report is an intimation to the magistrate that upon investigation into a cognizable offence the investigating officer has been able to procure sufficient evidence for the Court to inquire into the offence and the necessary information is being sent to the Court. In fact, the report under Section 173(2) purports to be an opinion of the investigating officer that as far as he is concerned he has been able to procure sufficient material for the trial of the accused by the Court. The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 175(5). Nothing more need be stated in the report of the Investigating Officer. It is also not necessary that all the details of the offence must be stated. The details of the offence are required to be proved to bring home the guilt to the accused at a later stage i.e. in the course of the trial of the case by adducing acceptable evidence. 5 18. It is true that ordinarily all documents accompany the charge sheet. But, in this case, some documents could not be filed which were not in the possession of the CBI and the same were with the GEQD. As indicated hereinbefore, the said documents are said to have been filed on 20.01.2006 whereas the appellant was arrested on 12.02.2006. Appellant does not contend that he has been prejudiced by not filing of such documents with the charge sheet. No such plea in fact had been taken. Even if all the documents had not been filed, by reason thereof submission of charge sheet itself does not become vitiated in law. The charge sheet has been acted upon as an order of cognizance had been passed on the basis thereof. Appellant has not questioned the said order taking cognizance of the offence. Validity of the said charge sheet is also not in question. Application of Sub-section (2) of Section 173 of the Code vis-`-vis Sub-section (2) of Section 309 must be considered having regard to the aforementioned factual and legal backdrop in mind. 19. Concededly, the investigating agency is required to complete investigation within a reasonable time. The ideal period therefor would be 24 hours, but, in some cases, it may not be practically possible to do so. The Parliament, therefore, thought it fit that remand of the accused can be sought for in the event investigation is not completed within 60 or 90 days, as the case may be. But, if the same is not done with the stipulated period, the same would not be detrimental to the accused and, thus, he, on the expiry thereof would be entitled to apply for bail, subject to fulfilling the conditions prescribed therefor. Such a right of bail although is a valuable right but the same is a 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 the 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. It is now well settled that the court takes cognizance of an offence and not the offender. [See Anil Saran v. State of Bihar and another (1995) 6 SCC 142 and Popular Muthiah v. State represented by Inspector of Police (2006) 7 SCC 296] 22. 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. 23. If submission of Mr. Rohatgi is to be accepted, the Magistrate was not only required to declare the charge sheet illegal, he was also required to recall his own order of taking 6 cognizance. Ordinarily, he could not have done so. [See Adalat Prasad v. Rooplal Jindal and Ors. (2004) 7 SCC 338, Subramanium Sethuraman v. State of Maharashtra and Anr. 2004 (8) SCALE 733 and Everest Advertising Pvt. Ltd. v. State, Govt. of NCT of Delhi and Ors. JT 2007 (5) SC529] It is also well-settled that if a thing cannot be done directly, the same cannot be permitted to be done indirectly. If the order taking cognizance exists, irrespective of the conduct of the CBI in treating the investigation to be open or filing applications for remand of the accused to police custody or judicial remand under Sub-section (2) of Section 167 of the Code stating that the further investigation was pending, would be of no consequence if in effect and substance such orders were being passed by the Court in exercise of its power under Sub-section (2) of Section 309 of the Code. 27. We had noticed the dicta of the Constitution Bench judgment of this Court. At this juncture, we may notice the dicta laid down by this Court in Sanjay Dutt v. State Through C.B.I Bombay (II) [(1994) 5 SCC 410] wherein it was held: “53 (2) (b) The ‘indefeasible right’ of the accused to be released on bail in accordance with Section 20(4) (bb) of the TADA Act read with Section 167 (2) of the Cr.P.C in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being field. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the CrPC. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage.” 28. It is a well-settled principle of interpretation of statute that it is to be read in its entirety. Construction of a statute should be made in a manner so as to give effect to all the provisions thereof. Remand of an accused is contemplated by the Parliament at two stages; pre-  cognizance and post cognizance. Even in the same case depending upon the nature of charge sheet filed by the investigating officer in terms of Section 173 of the Code, a cognizance may be taken as against the person against whom an offence is said to have been made out and against whom no such offence has been made out even when investigation is pending. So long a charge sheet is not filed within the meaning of Sub-section (2) of Section 173 of the Code, investigation remains pending. It, however, does not preclude an investigating officer, as noticed hereinbefore, to carry on further investigation despite filing of a police report, in terms of Sub-section (8) of Section 173 of the Code. 7 29. 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.” Applicant’s learned counsel’s submission that applicant is entitled to be released on bail in terms of Section 167 (2) of the Code of Criminal Procedure is thus found to be without substance. It is, accordingly, rejected. I will now proceed to consider applicant’s plea for his release on bail on merits of the case. The law with regard to grant or refusal of bail is well settled. The discretion, which the Court while admitting a person to bail is required to exercise, is not, as a matter of course. On the other hand, it is required to be exercised in a judicious manner. Although a detailed examination of evidence and elaborate documentation of the merits of the case is not required to be undertaken at this stage, lest it may prejudice the prosecution or the defence, yet at the same time what is required to be indicated in the order granting bail, are the reasons on the basis whereof the Court may, prima facie, conclude as to why bail was being granted in non-bailable offences. During the course of consideration of the plea of the accused for grant or refusal of bail, the Court is required to keep in mind (1) the nature of accusation, (2) the severity of punishment in case of conviction, (3) the nature of evidence relied upon by the Investigating Agency, (4) the reasonable apprehension that if, released on bail, the accused would 8 tamper with the prosecution evidence, (5) the possibility of accused’s fleeing from justice when set to liberty and (6) whether there exists any statutory impediment in considering the release of accused on bail. With this prelude on legal aspect, I will now examine the facts of the case. Applicant’s married life with the deceased, as it so appears from the Final Police Report, had gone into rough waters after a short time of about one month of their marriage. Deceased Megha Razdan had been soar over applicant’s indulging in extra marital affairs, which is stated to be rather the main cause for the deceased to end her life. There is no statutory prohibition, as such, in considering applicant’s release on bail. While considering his release on bail, the rigour of Section 497 (1) RPC too may not apply and no finding needs to be recorded as to whether or not there are reasonable grounds for believing that the applicant is guilty of the offence punishable with death or imprisonment for life. His case is thus required to be treated like any other case where a person may be accused of committing non-bailable offence(s), punishment wherefor is not Death or Imprisonment for Life. After the commission of suicide by his wife on July 1, 2007, the applicant remained initially in Army custody, thereafter in police custody and is now finally in the Judicial custody. Learned State Counsel has not projected any such case on the basis whereof it may be said that the applicant, who is a Captain in the Indian Army, is likely to flee from justice or 9 there are reasonable grounds for believing that he would tamper with the prosecution evidence, when released on bail. Taking an over all view of the allegations leveled against the applicant in the Final Police Report, in the light of the evidence which the prosecution proposes to lead in the case, the provisions of Section 306 RPC read with Section 107 RPC and those of Section 498-A RPC which require the prosecution to prove that the applicant’s conduct was willful, and of such a nature, which was likely to derive his wife to commit suicide, besides the punishment which is provided for the offences with which the applicant stands charged and the principle of law that bail cannot be withheld as a matter of punishment, I am of the view that applicant has succeeded in making out a case for his release on bail during the trial of the case. Thus allowing the application, applicant is admitted to bail on his furnishing recognizance of a surety besides his own recognizance in the amount of Rs. 50,000/- each to the satisfaction of learned 3rd Additional Sessions Judge Jammu, undertaking that he would attend the trial regularly and will not, in any manner whatsoever, come in contact with prosecution witnesses or otherwise do any such act or omission which may impede the trial in the case. ( J. P. Singh ) Judge JAMMU: 04.12.2008 Anil Raina, Secretary 10