Naresh H. Patil, J.
1. Heard learned Counsel for the parties.
2. A question raised before this Court is as to whether a report filed under Section 173(2) Code of Criminal Procedure, 1973 (hereinafter, referred to as “the Code” for the sake of brevity), without filing the investigation papers, as envisaged under Section 173(5) of the Code, which is referred to as “charge-sheet”, defeats the indefeasible right of the accused conferred by the provisions of Section 167(2) of the Code.
3. On a complaint filed on 22-7-2004 by one Radhabai Chate widow of the deceased a Crime at No. 116/2004 came to be registered with the Mantha Police Station, Dist. Jalna, for an offence punishable under Sections 302, 201 read with Section 34 of the Indian Penal Code. In connection with the said offence the applicants along with three other accused persons were arrested by the police on different dates and after they were remanded for few days in the police custody, were remanded to Magisterial custody.
4. These applicants filed an application on 29-10-2004 in the Court of the Judicial Magistrate, First Class, Partur, Dist. Jalna. According to the record and proceedings, which is placed before me, the endorsement of the Magistrate’s Court shows that the said application was filed in R.C.C. No. 312/2004 at 4.30 p.m. On 29-10-2004 the further endorsement made by the learned Magistrate is to the effect that the said application was placed before the Court at 4.45 p.m. and the Assistant Superintendent of the Court was directed to submit a report as to whether a charge-sheet was filed in the said case. The Assistant Superintendent (Judicial) submitted a Say on 29-10-2004 itself that final charge-sheet is not submitted along with police papers on the said day but a provisional charge-sheet at 2.00 p.m. was filed. The matter was thereafter directed to be put up by the Court on the next day i.e. 30-10-2004. On the said date by an order the Judicial Magistrate dismissed the application as the period of 90 days was already completed and a report was filed in the prescribed pro forma as mentioned under Section 173 of the Code on 29-10-2004 at 2.00 p.m. which was placed before the Court at 2.45 p.m. and the application for claiming relief under Section 167(2) was filed at 4.30 p.m. in the office of the Court and was placed before the Court at 4.45 p.m.
5. The applicants thereafter filed an application before the Sessions Court claiming benefit under Section 167(2) of the Code as no charge sheet was filed within the period prescribed by Section 167(2)(a)(i) of the Code. The said application was filed by the present applicants on 2-11-2004. By an order dated 6-11-2004 the learned 1st Ad-hoc Additional Sessions Judge rejected the said application. While rejecting the application reliance was placed on a judgment in the case of Velinedipurnam v. State reported in 1994 Cri LJ 2579 delivered by the Andhra Pradesh High Court.
6. The learned Counsel appearing for the applicants contends that the report submitted in the pro forma as provided under Section 173(2) of the Code does not amount to filing of a charge-sheet indicating completion of investigation in a criminal case. Complete report as envisaged in Section 173(2) could be one which complies with the requirement under the provisions of Section 173(2) and (5) of the Code. For the purpose of claiming benefit of indefeasible right of an accused conferred by the provisions of Section 167(2) the prosecution, according to the learned Counsel, must indicate that the investigation in the case has been completed. In the present case the police filed a pro forma as prescribed under Section 173(2) of the Code and there was not a single piece of paper indicating the state of investigation process undertaken by the police machinery. Therefore, filing of such a pro forma shall not defeat the indefeasible right accrued to an accused disentitling him to claim the relief conferred by law.
7. The learned A.P.P. was of the opinion that keeping in view the judgment of Satya Narain Musadi v. State of Bihar and the view adopted by our High Court in Sharadchandra Vinayak Dongre v. State of Maharashtra reported in 1991 Cri LJ 3329 the report to be filed under Section 173(2) by the prosecution shall include the necessary investigation papers amounting it to be a charge-sheet indicating completion of investigation for the purpose of consideration of the issue as to whether benefit is to be granted to an accused under Section 167(2). He places reliance in the case of Sunil Vasantrao Phulbande v. State of Maharashtra reported in 2002 (3) Mah LJ 689 wherein identical question was considered by this Court by placing reliance on the judgment in Sharadchandra Vinayak Dongre (cited supra).
8. The learned A.P.P. in fairness submitted that some High Courts have taken a contrary view and have held that filing of report under Section 173(2) without complying with the provisions of Section 173(5) amounts to filing of report under Section 173(2) disentitling the accused to claim relief under Section 167(2). The learned A.P.P. even relied upon a case of Balu Rakhmaji Khamkar v. State of Maharashtra .
9. In the case of Central Bureau of Investigation v. R.S. Pai the Apex Court observed that, as there is no specific prohibition, it cannot be held that additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or charge-sheet, it is always open to the investigating officer to produce the same with the permission of the Court.
10. In the case of 1994 Cri LJ 2579 (cited supra) a Division Bench of the Andhra Pradesh High Court was of the view that if all the necessary details as contemplated under Section 173(2), Cr. P.C. are not disclosed in the police report in the first instance, but they are furnished at a later date, perhaps it is for the Court to consider the probative value of those details furnished later during the trial of the case, but to say that the police report filed with certain omissions or gaps is not a valid report contemplated under Section 173(2) is reading something more in the statute. It is further observed that non filing of all the enclosures under Section 173(5) along with the report filed under Section 173(2) is not a ground to release the accused on the premise that full charge-sheet is not filed within the stipulated time.
11. I have considered the rival submissions of the parties and perused the record of the trial Court.
“Investigation” is defined in Clause (h) of Section 2 of the Code which reads :
“(h) “investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.”
“Police report” is defined in Clause (r) of Section 2 which reads:
“(r) “police report” means a report forwarded by an police officer to a Magistrate under Sub-section (2) of Section 173″.
12. The provisions of Section 167(2) of the Code indicate that 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, the officer in charge of the police station shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary and the Magistrate to whom an accused person is forwarded can authorize the detention of the accused in such custody for a term not exceeding fifteen days in the whole and he may further order detention for a period of ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than ten years.
13. The provision of Section 57 of the Code reads:
“57. Person arrested not to be detained more than twenty-four hours. — 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.
14. The plain reading of the provision of Section 167 would show that, it refers to making of investigation by police and in case the investigation is not completed within 24 hours the accused in certain circumstances gets a right to claim relief under different provisions of Section 167 of the Code.
15. In the case of Satya Narain (cited supra) the Apex Court was considering the case of taking cognizance by the Magistrate and while considering the issue it was observed that even if a narrow construction is adopted that the police report can only be what is prescribed in Section 173(2) there would be sufficient compliance if what is required to be mentioned by the statute has been set down in the report. The Apex Court in clear terms states that one cannot divorce the details which the report must contain as required by Sub-section (2) from its accompaniments which are required to be submitted under Sub-section (5) and a whole of it is submitted as report to the Court.
16. An accused can claim indefeasible right under Section 167(2) in case the police fails to file a police report or charge-sheet within 90 days. Submission of pro forma as envisaged in Section 173(2) by the police without any accompaniments as envisaged in Section 173(5) does not indicate completion of investigation in a criminal case. Therefore, in my considered view filing of report under Section 173(2) in the pro forma as prescribed by the statute without there being any accompaniments or the investigation papers indicating completion of investigation would entitle an accused to claim his indefeasible right conferred under Section 167(2). What is contemplated in Section 173(8) is further investigation. I am supported in my view by judgments reported in 1991 Cri LJ 3329 and 2002 Cri LJ 2029 (cited supra) and I hold that I am not convinced to take a different view. In the case of Balu Rakmaji v. State of Maharashtra reported in 1995 (4) Bom CR 335 (cited supra) the facts of the said case were that a charge-sheet was filed in the Court of the Special Judge but the same was not accepted by the concerned Clerk and Nazir on the ground that, photographs of seized articles have not been supplied and unless those photographs were given, the charge-sheet could not be accepted. On the facts the judgment does not apply to the present set of facts and issues raised before me. In the case of (cited supra) it was a case where the investigating machinery sought to produce additional documents, which were gathered during investigation but were not produced before the Court. Such is not a situation here.
17. There is one distinguishing feature while considering the issue of grant of benefit of the provisions of Section 167 of the Code to an accused. The provisions of Section 167 refers to completion of investigation as contemplated under Section 57 of the Code and not to taking cognizance of an offence. Therefore there shall be sufficient material placed before the Court in the shape of a report showing completion of the investigation of the offence. The police report submitted under Section 173(2) of the Code in the present ase, therefore, would amount to an incomplete report or charge-sheet for the purposes of consideration of the application of the provisions of Section 167(2) of the Code. Such a Police report could not be termed as provisional charge-sheet and the accused be denied their indefeasible right conferred by the statutory provisions. The benefit accrued to an accused under the provisions of Section 167 of the Code further relates to his personal liberty guaranteed under Article 21 of the Constitution of India. Therefore, the said right accrued to an accused is indefeasible one and provisions of Section 167(2) will have to be viewed from this angle too.
18. Learned Counsel for the applicants places reliance on the following judgments.
19. In the case of Satya Narain v. State of Bihar while dealing with the issue concerning cognizance of the case to be taken by Magistrate and filing of the report under Section 173(2), the Apex Court observed in para 10 :
“10. — The report as envisaged by Section 173(2) has to be accompanied as required by Sub-section (5) by all the documents and statements of the witnesses therein mentioned. One cannot divorce the details which the report must contain as required by Sub-section (2) from its accompaniments which are required to be submitted under Sub-section (5). The whole of it is submitted as a report to the Court.”
20. In the case of M.C. Venkatareddy v. State of A.P. reported in 1994 Cri LJ 257 (Andhra Pradesh High Court) while dealing with the identical issues, as is raised in the present case, it was observed:
“9. — If the police report is forwarded to the Magistrate for taking it on file, but if the Magistrate finds that the said report is not in consonance with Section 173(2) read with Section 173(5) Cr PC he declines to take it on record and that act is only administrative and not judicial. The judicial act commences only when the charge-sheet is in order and the Magistrate proceeded further under Chapter XVI. Unless the charge-sheet is in the official custody of the court together with its accompaniments to be furnished to the accused, it cannot be construed that there is a filing of charge-sheet.”
21. In the case of Uday Mohanlal Acharya v. State of Maharashtra it was observed by the Apex Court:
“An accused must be held to have availed of his right flowing from the legislative mandate engrafted in the proviso to Sub-section (2) of the Section 167 of the Code if he has filed an application after the expiry of the stipulated period alleging that no challan has been filed and he is prepared to offer the bail, that is ordered, and it is found as a fact that no challan has been filed within the period prescribed from the date of arrest of the accused. Such an interpretation would subserve the purpose and the object for which the proviso in question was brought on to Statute Book.”
22. In the case of Sharadchandra Vinayak Dongre v. State of Maharashtra reported in 1991 Cri LJ 3329 this Court observed:
“25. The question thus emerges naturally is, whether the Magistrate can take cognizance on the admittedly “incomplete charge-sheet” forwarded by the police. The answer stubbornly and admittedly must be in the negative, because the investigation is yet incomplete and the “Police Report” yet remains to be filed. Thus, the filing of the incomplete charge-sheet cannot circumvent the provisions of Sub-section (2) of Section 173 of the Code and incomplete report or an incomplete charge-sheet with whatsoever expression it may be called does not meet the obligatory requirements of law. If the view as contended by the State is accepted, the provisions of Section 167(2) or to say Section 468 of the Criminal Procedure Code can always be circumvented by the prosecution and the apparent legislative intents under those provisions would not only be not effectuated but undoubtedly stultified.”
23. For the reasons stated above I am not inclined to follow the contrary view adopted by the Division Bench of the Andhra Pradesh High Court.
24. Apart from the legal issues raised in this application, after perusal of the record and proceedings of the trial court and after hearing the submissions of the learned A.P.P. I have found that the record relating to acceptance of the police report submitted under Section 173(2) is not properly maintained. The initial endorsement on the police report made by the Assistant Superintendent (Judicial) of the court indicates that it was filed on 27-10-2004 at 2.00 p.m. but on 30-10-2004 the Assistant Superintendent submitted a report to the Court that inadvertently instead of 29-10-2004 he had made endorsement on the report showing receipt of the same on 27-10-2004. He prayed for excusing him for this mistake. The learned Magistrate by his order made on 30-10-2004 warned the Assistant Superintendent that he should be careful in future and to avoid such mistake. By a further application made to the Court on 1-11-2004 the Assistant Superintendent sought permission from the Court to correct the endorsement made on the charge-sheet and by an order dated 1-11-2004 the learned Magistrate permitted him to carry out the corrections. The learned Counsel for the applicants submitted that these endorsements made by the Court officer are suspicion and such confusion ought to have been avoided.
25. An affidavit-in-reply was filed in this Court by Mr. Baburao Rathod, presently working as Police Sub Inspector, Police Station, Mantha, District Jalna, who stated in para 2 of the reply that investigation was completed and charge-sheet was filed by the Police Inspector, Shri. S.S. Kamble on 29-10-2004. In spite of such an averment, the police preferred to file only the report in the shape of a pro forma as envisaged under Section 173(2) of the Code.
26. The Police Sub Inspector filed an application on 29-10-2004 to the court stating that 90 days period is over and much of the investigation remains to be completed and therefore provisional charge-sheet is being filed. He prayed that provisional charge-sheet be accepted and 15 days time be granted for submitting the original charge-sheet. The learned Magistrate endorsed on the said application on 29-10-2004 to the effect that said report was placed before him at 2.45 p.m. and till that time no challan under Section 167 Cr.P.C. was placed before the Court and the investigating officer shall show under which provision such report/request was made. Considering the record of the case and the submissions advanced by the learned Counsel for applicants, I am of the view that the trial courts must be vigilant to avoid such situation, which would create undesirable controversies concerning the record of the Court. Even this Court in the case had an occasion to observe:
“10. There are growing instances wherein the charge-sheet submitted is either refused or is not accepted and contentions are raised before the Courts that the charge-sheet was submitted within time but it was not accepted. It is the duty of every Court before whom the charge-sheet is filed to examine it on the very day when it is submitted and make an endorsement by Presiding Officer himself about its acceptance. If the charge-sheet is incomplete in respect of any of the necessary contents as defined in Section 173(2), this can specifically be pointed out in the order passed by the learned Magistrate or the Judge as the case may be. This would protect investigating agency as well as registry of Court against unsustainable allegations.”
27. The learned Counsel for the applicants had even argued the application for bail on merits. As the applicants deserve to be released on bail by granting benefit under Section 167(2), I have not considered the bail application on factual merits of the case. The application, therefore, has to be allowed. The learned APP at this stage says that in view of the peculiar facts of the case, the applicants shall be ordered to stay away from the village till conclusion of the trial. The learned Counsel for the applicants submits that, they are willing to abide by such a condition.
28. The applicants (1) Punjaram s/o Ashorba alias Asroba Kangne, (2) Vishnu s/ o Ashorba Chate and (3) Pralhad s/o Haribhau Chate shall be released in the sum of Rs. 20,000/- each with one surety in the like amount each and on conditions that, (1) they shall not enter village Takalkhopa, Taluka Mantha, till conclusion of the trial, (2) they shall report to Mantha Police Station once in a month and shall not tamper with the prosecution evidence in any manner and (3) they shall not contact the prosecution witnesses directly or indirectly.
29. The criminal application stands disposed of.