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CR.MA/1899/2008 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 1899 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES 2 To be referred to the Reporter or not ? YES 3 Whether
their Lordships wish to see the fair copy of the judgment ?
NO
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
NO
5
Whether
it is to be circulated to the civil judge ?
NO
=========================================================
VINOD
RAJABHAI MAKWANA – Applicant(s)
Versus
STATE
OF GUJARAT & 1 – Respondent(s)
=========================================================
Appearance
:
MR
HASMUKH C PATEL for
Applicant
MR DIPEN DESAI APP for
Respondents
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 12/11/2008
C.A.V.JUDGMENT
Present
application is filed by the applicant ? original accused of
complaint being CR No.I-54 of 2007 registered with Kamlabaug Police
Station, Porbandar for the offences punishable under sections 302,
397 of Indian Penal Code r/w sec.135 of the Bombay Police Act.
Mr.Hasmukh
Patel, learned advocate appearing on behalf of the applicant –
original accused has submitted that the prayer of the applicant for
releasing him on bail is only under sec.167(2) of the Code of
Criminal Procedure i.e. default bail, on the ground that
chargesheet has not been filed by the investigating officer within
90 days from the date of his arrest. He has submitted that he does
make any submission on merits except that as the chargesheet is not
filed within 90 days, the applicant is entitled to be released on
default bail.
It
is submitted that admittedly the applicant – accused was in custody
since 19/5/2007 and as the chargesheet was not submitted within 90
days from 19/5/2007, the applicant submitted application before the
Chief Judicial Magistrate, Porbandar on 21/8/2007 for releasing him
on bail considering sec.167(2)A of the Code of Criminal Procedure
and the learned Chief Judicial Magistrate, even without issuing any
notice to the Public Prosecutor, by the impugned order
dtd.21/8/2007, dismissed the said application. He has also relied
upon the following decisions in support of his prayer to release him
on bail under sec.167(2) of the Code of Criminal Procedure:-
AIR
2002 S.C. 285 (State of Maharashtra Vs. Mrs.Bharti Chandmal Varma
alias Ayesh Khan).
(2001) 5 S.C.C.
453 (Uday Mohanlal Acharya).
2001 Criminal
Law Journal 3876 (Babubhai Bhimjibhai Kachadiya Vs. State of
Gujarat) and
(2007) 8 S.C.C.
770 (Dinesh Dalmia Vs. CBI).
The
application is opposed by Mr.Dipen Desai, learned Additional Public
Prosecutor for the State. It is submitted that in fact the
chargesheet was presented/submitted before the learned Chief
Judicial Magistrate on 23/7/2007. However, the learned Chief
Judicial Magistrate, Porbandar did not accept the chargesheet on
record and returned the same to the investigating officer on the
ground that the said chargesheet is defective inasmuch as the FSL
Report is not produced along with the chargesheet papers. It is
submitted that the mistake was committed by the learned Chief
Judicial Magistrate in returning the chargesheet on the ground that
it is defective as FSL Report is not produced. However, FSL Report
can be produced subsequently and it is not that along with the
chargesheet papers FSL Report is required to be produced. It is
submitted that the said mistake came to be corrected by the learned
Chief Judicial Magistrate having realised that when the chargesheet
is not submitted along with the FSL Report, the same can not be said
to be defective chargesheet and that as per the circular issued by
the Sessions Court, documentary evidences are required to be
considered at the time of committal of the case and therefore the
application of the applicant for releasing him on bail under
sec.167(2) of the Code of Criminal Procedure is rightly rejected.
Mr.Dipen
Desai, learned Additional Public Prosecutor for the State has
further submitted that in fact, it is not that chargesheet was not
presented at all within 90 days. However, the learned Chief Judicial
Magistrate, in utter ignorance of law and the procedure, returned
the chargesheet to the investigating officer on the ground that it
is defective chargesheet, as the FSL Report was not produced along
with the chargesheet papers and therefore, there was no fault on the
part of the investigating officer in submitting the chargesheet
within 90 days and therefore, the benefit of the mistake of the
Court should not go to the accused. Thus, when the chargesheet was
produced on 23/7/2007 i.e. within 90 days from the date of arrest,
the same can be said to be sufficient compliance so as to deny the
benefit of default bail under sec.167 of the Code of Criminal
Procedure and therefore, it is requested to dismiss the present
application.
Heard
the learned advocates appearing on behalf of the respective parties.
Present
petitioner has prayed to release him on default bail under
sec.167(2) of the Code of Criminal Procedure submitting that the
investigating officer had not submitted the chargesheet within 90
days from the date of his arrest. It is required to be noted that in
fact, chargesheet was submitted by the investigating officer before
the Chief Judicial Magistrate within 90 days from 19/5/2007, more
particularly on 23/7/2007, however, the learned Chief Judicial
Magistrate, Porbandar did not accept the chargesheet and return the
same to the investigating officer on the ground that the same is
defective inasmuch as the FSL Report was not produced along with the
chargesheet. The learned Chief Judicial Magistrate ought to have
appreciated that the submission of the chargesheet in absence of FSL
Report, can not be said to be defective chargesheet as the FSL
Report can be produced subsequently even during the course of trial
and even considering the provisions of Code of Criminal Procedure
FSL Report can be exhibited straightway. Under the circumstances,
the learned Chief Judicial Magistrate, Porbandar committed an
error in not accepting the chargesheet submitted on 23/7/2007.
However, the question is whether the benefit of the error committed
by the learned Chief Judicial Magistrate should be given to the
accused or not. It cannot be disputed that an act of Court shall
prejudice no man ?Sactus curiae neminem gravabit?? Under
the circumstances, when, in fact, the chargesheet was submitted
before the learned Chief Judicial Magistrate within 90 days, the
obligation on the part of the investigating officer to submit the
chargesheet within 90 days, was over and it cannot be said that
for the purpose of attracting sec.167(2) of the Code of Criminal
Procedure, chargesheet was not submitted with in 90 days and
therefore, it cannot be said that the chargesheet was not submitted
at all within 90 days. Under the circumstances, the contention on
behalf of the petitioner that the chargesheet has not been submitted
within 90 days and therefore, the petitioner is entitled to be
released on default bail, cannot be accepted. Once it is held that
the chargesheet has been submitted within 90 days, the decision
relied upon by the learned advocate appearing on behalf of the
petitioner referred to hereinabove, will not be of any assistance to
him, as in those cases, chargesheet was not submitted within 90 days
from the date of arrest of the accused. Under the circumstances, the
petitioner is not required to be released on default bail.
For
the reasons stated above, the petition fails and the same deserves
to be dismissed and is accordingly dismissed. Rule is discharged.
[M.R.
SHAH, J.]
rafik
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