ORDER
M.M. Kumar, J.
1. This order shall dispose of Criminal Miscellaneous Nos. 34740-M and 37147-M of 2003 as both the accused-petitioner’s have sought bail under Section 439 of the Code of Criminal Procedure, 1973 (for brevity, ‘Cr. P.C.’) in case FIR No. 77 dated 26-4-2003 under Sections 419, 420, 465, 471 and 409, I.P.C. registered at Police Station Division No. 8, Jalandhar.
2. The allegations in the First Information Report are that the Deputy Superintendent of Police, Special Staff (Crime Wing), Jalandhar received a secret information that the accused-petitioners-Surinder Joshi and Jatinder Parshad Tiwari along with his brother Shiv Parshad Tiwari used to take Court files to their house. They used to hold out that they had been close to judicial officers/other officers and they could get the work done from them. For the promise to work, they used to charge from the members of public hefty amount. As a matter of fact Shiv Parshad Tiwari was neither working as a Reader or Steno with any judicial
officer and used to cheat people by using the names of Bureaucrats and judicial officers. Because the information received was credible, a case under Sections 419, 420, 465, 468, 471, I.P.C. was registered. Petitioner-Jatinder Parshad Tiwari and his brother Shiv Parshad Tiwari had one residential house. The police party raided the house of accused-petitioners and found certain forged certificates, identity cards and many papers relating to the vehicles. Accused-petitioner-Jatinder Parshad Tiwari in the connected petition was arrested on 26-4-2003, whereas Surinder Joshi accused-petitioner in present petition appears to have been arrested on 5-6-2003 and he was not named in the First Information Report.
3. On the statement made by one Raj Kumar under Section 161, Cr. P.C., it was alleged that on 2-7-1994, the FIR Register and bundle of First Information Reports from 1988 to 2-7-1994 were handed over by him to Surinder Kumar Joshi, Ahlmad of the Court of Shri Bhajna Ram. In the statement under Section 161, Cr. P.C. made by Varinder Mohan on 4-6-2003, the name of Surinder Joshi had also been disclosed alleging that he had given the FIRs Register in which entries of 1995 were there along with copies of the FIRs. The challan has been presented.
4. Both the accused-petitioners filed regular bail applications before the Additional Sessions Judge, Jalandhar and the same have been dismissed on the ground that the accused-petitioner-Jatinder Parshad Tiwari has kept in his custody the official documents without any authority and official seals to fabricate and use various false documents to be genuine. Recovery of 551 FIRs has been made from joint possession of Jatinder Parshad Tiwari accused-petitioner and his brother.
5. Mr. R. S. Cheema and Mr. H. S. Gill, learned senior counsel have argued that the offences alleged against the petitioners are triable by a Magistrate. According to the learned counsel, there is allegation of using the material in order to deceive anybody and no charge could be levelled despite registration of the case since 26-4-2003. Reliance has also been placed on Sub-section (6) of Section 437 read with Section 167(2), Cr. P.C. to submit that legislative guidance is available that in case of Magisterial trial if the challan is not presented within 60 days, then the accused becomes entitled to be released on bail as a matter of right. According to the learned counsel in order to circumvent these provisions, partial challan has been presented but the investigation is still in progress. In support of their submission, the learned counsel have placed reliance on a judgment of Bombay High Court in the case of Sunil Vasantrao Phulbande v. State of Maharashtra, 2003 (2) Rec Cri R 171.
6. Mr. Gurpartap Singh Gill, learned Assistant Advocate General, Punjab has argued that under Section 173(8), Cr. P.C., the police is always free to submit a supplementary challan. According to the learned counsel, no benefit can be derived by the accused-petitioners as the challan has been presented on 26-6-2003.
7. After hearing the learned counsel and perusing the record, I am of the considered view that these petitions deserve to be allowed and the accused-petitioners are entitled to be released on ball by extending them the benefit of Section 439, Cr P.C. It is appropriate to mention that on 26-6-2003, the police has presented the supplementary challan and concluding portion of the supplementary challan reads as under :–
“In this case, on the basis of investigation carried out, evidence for challenging accused-Jatinder Prasad and Surinder Kumar Joshi has come on record. Supplementary challan of both these accused, on the basis of evidence and statements of witnesses mentioned in column No. 6 is being filed. Witnesses may be summoned and proceedings may be taken. Accused Jatinder Prasad Tiwari was arrested on 27-4-2003 and Surinder Kumar Joshi on 5-6-2003.
8. Jatinder Parshad Tiwari accused-petitioner along with others was arrested on 26-4-2003 and the period of two months was to expire on 26-6-2003. It is further pertinent to mention that investigation of the case was still in progress as is evident from the report submitted under Section 173, Cr. P.C. against Shiv Parshad Tiwari on 11-7-2003. The report when translated into English reads as under :–
“The challan against the accused is being filed because 60 days period from the arrest of accused-Jatinder Prasad is going to expire and the investigation is still continuing and in case of further progress of the investigation, supplementary challan in this regard will be filed. Investigating is being carried out regarding the documents recovered from the accused and also regarding other items. The recovered articles will be produced in the Court before the production of evidence. Sd/- Bakshish Singh, SHO, Police Station Division No. 8, Jalandhar.” 9. Section 173(2), Cr. P.C. postulates that the officer-in-charge is to forward to a competent Magistrate a report in the prescribed form as soon as investigation is complete. Section 173(1) and (2), Cr. P.C. reads as under :–
“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;
(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.”
10. The report submitted by the Investigating Officer clearly show that it was supplementary report and the investigation was not completed either on 26-6-2003 or on 11-7-2003 as is evident from both the reports. It is true that prosecution could carry on investigation but it cannot defeat the right of the accused by describing the initial report as supplementary report, whereas the requirement of Section 175(1) and (2), Cr. P.C. is that the report should be submitted after investigation is completed. The initial report cannot in any case be supplementary which could be submitted only under Section 173(8), Cr. P.C. Even otherwise, the accused-petitioner’s are in judicial custody for the last about over six months and four months. No useful purpose is likely to be served by keeping them behind the bars. Keeping in view all the facts and circumstances of the case, a balance has to be struck between the right of the prosecution to ensure the presence of the accused at the trial and investigation on one hand and the personal liberty of the accused-petitioners on the other hand. Therefore, I am of the considered view that in this case, the interest of justice would be met, if the petitioners are released on bail.
11. In view of the above, these petitions succeeded. The petitioners are directed to be released on bail by the Chief Judicial Magistrate/Duty Magistrate, Jalandhar by accepting their bail bonds to its satisfaction. The Magistrate shall be at liberty to impose any such condition to ensure that the accused-petitioners are available for investigation as well as for trial.