1. These two bail petitions have been filed under Section 439 Cr. P.C The petitioners are the accused in Crime No. 81/92 of Darsi Police Station of Prakasam District. They are accused of having committed offences punishable under Sections 147, 148, 324, 307, 302 read with Section 149 and 435 IPC and sections 3 and 5 of Explosive Substances Act.

2. In the two cases referred to above, which arise out of the same crime, the bail is sought for on the ground that the proviso to Section 167(2) Cr. P.C is violated. The case of the petitioners is that from the date of their remand, more than 90 days expired and as such, their detention became illegal and as they are ready to furnish sureties, the court of Magistrate was bound to release them on bail. The Additional Public Prosecutor appearing for the State contends otherwise. He argues that the charge-sheet was submitted within the stipulated time of 90 days and as there was some deficiency, the same was returned by the court of Magistrate after perusal of the charge-sheet and that as such, the requirement of Section 167(2) Cr. P.C was met perfectly and that there is no ground for enlargement of the petitioners on bail. The learned Additional Public Prosecutor relies upon a judgment of this court in C. Varla Krishna & Chinna Krishna v. State of A.P (1) 1989 (1) ALT 16. In the said case, similar contention was raised and the same was found favour with the learned single Judge. The learned single Judge has accepted the contention advanced by the Public Prosecutor that inasmuch police report was filed before the Magistrate on 18-7-1988 and even though it was returned for compliance of certain omissions on 20-7-1988 and again resubmitted on 1-8-1988 and again a returned but ultimately filed on 17-8-1988 in complete shape, it was held by the learned single Judge that the date to construe that police report was filed was only 20-7-1988, when the same was returned by the Magistrate and that is a sufficient compliance of the requirements of Section 167(2) Cr. P.C and that the said date should be reckoned as the date of cognizance by the Magistrate. The reasoning given by the learned Judge is that mere submission of a report is a sufficient compliance of Section 167(2), even with defects and omissions, and it is of no consequence if the said report was returned and later on resubmitted, that too after the period of 90 days. In para 8 of the judgment, the learned Judge observes “In this case, the police report was filed on 18-7-1988 and the provisions of Section 173(2) Cr. P.C have been complied with. Since the requirements under Section 173(5) have not been complied with, it was returned for compliance. Simply because the Magistrate has mentioned that a skeleton charge-sheet has been filed, it does not mean that it prevented him from taking cognizance of the case, basing on the report that has already been filed.” The learned Judge also observed in this case, we are not concerned with, preliminary or final charge-sheet. With regard to filing of preliminary and final charge-sheets, we are having number of decisions. But on facts, in this case, the report is only one and that report has been returned for complying with certain omissions as required under Section 173(5) Cr. P.C The filing of the report and the return of the same for complying with certain omissions under Section 173(5) shall be deemed that the Magistrate has applied his mind judiciously. In case where the party wants to claim the benefit on the ground that 90 days period has been expired during remand, they have to establish that the report as defined in the Code and as contemplated under Section 173(2) of the Code has not been filed within the time. The crucial date in this case is the date of the police report for compliance i.e 20-7-1988. Concisely speaking, what the learned Judge held was that mere filing of charge-sheet, even with defects and omissions, is a sufficient compliance of the requirement of filing the same within 90 days, no matter whether it forms record of the court or not. The purport of the above decision is that as the police report is submitted, even though with defects and omissions and the very fact that Magistrate has returned the same shows that he has applied his mind judiciously and that amounts to taking cognizance of the offence. Mr. T. Niranjan Reddy, the learned counsel for the petitioners submits that the judgment rendered by the learned single Judge did not take note of the other judicial precedents holding the field and cites several judgments in support of his contention which are discussed below:

3. Now, the question for consideration is as to what is meant by ‘taking cognizance of’ Again this cannot be read in isolation and has to be read together with the other concerned statutory provisions like Sections 154, 157, 167, 173, 190, 203, 204, 207 and 209 Cr. P.C vis-a-vis the most precious and cherished fundamental right to life guaranteed under Article 21 of the Constitution of India.

4. Section 173(1) Cr. P.C mandates that every investigation shall be completed without unnecessary delay. The fundamental right to life and liberty is guaranteed under Article 21 of the Constitution of India which says that no person shall be deprived of his life or personal liberty except according to procedure established by law. A doubt may arise whether this fundamental right takes in its fold, even the investigation part of a crime. That doubt no more stands in view of the authoritative pronouncement of the Supreme Court in C. Abdul Rahman Antulay v. R.S Nayak (2) (1992) 1 SCC 225 : AIR 1992 SC 1701 holding that Article 21 ensures speedy justice that fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily; that right to speedy trial is the right of the accused. The above Constitutional Bench of the Supreme Court further held that right to speedy trial flowing from Article 21 encompasses all the stages, namely, the state of investigation (emphasis supplied by me), enquiry, trial, appeal revision and re-trial and that, that is how the said court has understood this right and there is no reason to take a restricted view. The Supreme Court further ruled that the period of remand and pre-conviction detention should be as short as possible and concisely speaking, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction and that the worry, anxiety and expense and disturbance to his vocation and peace resulting from an unduly prolonged investigation, (emphasis supplied by me), enquiry or trial should be minimal.

5. In Aslam Babalal Desai v. State Of Maharashtra. (3) AIR 1992 SC Weekly 261 : 1992 (3) CCR 292 it was held that the provisions of the Code of Criminal Procedure, in particular, Sections 57 and 167, manifest the legislative anxiety that once person's liberty has been interfered with by the police arresting him without a court's order or warrant, the investigation must be carried out with outmost urgency and completed within the maximum period allowed by the proviso (a) to Section 167(2); that it must be realised that the said proviso was introduced by the Code by way of enlargement of time for which the arrested-accused could be kept in custody. It was also held that prosecuting agency must realise that if it fails to see a sense or urgency in the investigation of case or omits or defaults to file a charge-sheet within the time prescribed, the accused would be entitled to be released on bail and the order passed to that effect under Section 167(2) would be an order under Section 437(1) or (2) or 439(1). The said decision further held that even if two views are possible, release under proviso (a) to Section 167(2) being a matter pertaining to the field of criminal justice involving liberty of an independent, the provision must be construed strictly in favour of individual liberty since even the law expects early completion of the investigation (emphasis supplied by me). The court further held that the delay in completion of the investigation can be on pain of the accused being released on bail and that the prosecution cannot be allowed to trifle with individual liberty if it does not take its task seriously and does not complete it a within the time allowed by law. It was held in N. Satyanarayana in Re (4) 1975 (2) APLJ 133 that if the charge-sheet is not filed within the time stipulated under Section 167(2), the Magistrate is bound to release the accused on bail and the word ‘custody’ employed in Section 309(2) Cr. P.C means a lawful custody and not unlawful custody and that detention of accused without there being a charge-sheet within 90 days of his remand makes his detention unlawful and not lawful.

6. In a cognizable case, the investigation commences upon a report under Section 154 Cr. P.C and concludes when a final report is filed by the police under Section 173(2) Cr. P.C In between, when the accused are produced before the court, an interim report is to be filed by the police under Section 157 Cr. P.C Upto the stage of filing of a police report popularly called ‘charge-sheet’ under Section 173, any report in between is not a final report. It was held in Bandi Kotayya v. State (5) AIR 1966 AP 377 that a preliminary report filed by police cannot be called cognizance and that Magistrate takes cognizance a only on a final report. May be, even after filing a final report under Section 173, upon further disclosure of facts, a supplementary charge-sheet may be filed. It was held in Tara Singh v. The State (6) AIR 1951 SC 441 that Section 173(1) Cr. P.C requires the completion of investigation and forwarding the same to the Magistrate and that additional evidence always can be given later. Thus, the court cannot anticipate and need not wait for the supplemental report as the original final report under Section 173(2) Cr. P.C gives a cause for the Magistrate to take cognizance of the offence with entitlement of furnishing of copies of all such material to the accused under Section 173(5) Cr. P.C Further, until the stage of application of mind under Section 190(1)(b) Cr. P.C, it cannot be said that the action of the Magistrate in remanding the accused and performing various acts including that of receiving charge-sheet and returning the same because of defects, are judicial acts. It was held in R.R Chari v. State (7) AIR 1950 All. 626 that the expression “taking cognizance of an offence” means the court deciding to proceed against the offender with a view to determine his guilt. It was also held in the said case, that in cognizable cases, the stage for taking cognizance comes when the police submits the charge-sheet and that an order for investigation by a Magistrate, be it in connection with a non-cognizable or cognizable offence, does not amount to taking cognizance of the case so also the order of the Magistrate for arrest and jail custody or order granting bail does not amount to taking cognizance. It was held in Gopal Das v. State of Assam (8) AIR 1961 SC 986 that when a Magistrate applies his mind not for proceeding in various sections of Chapter XVI, but for taking action of some other kind like ordering investigation under Section 156(3) or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence. In State v. Siba Prasad (9) AIR 1953 Orissa 84 it was held that until the charge-sheet has been filed, a Magistrate cannot be said to have taken cognizance of any offence and that the Magistrate can take the cognizance of the offence and direct the a issue of process only on receipt of a police report and that till that stage is reached, he is said to be acting only as a Magistrate controlling the investigation made by the police. In D. Lakshminarayana v. Narayana (10), (1976) 3 SCC 252 : AIR 1976 SC 1672, it was held that cognizance can be said to be taken when Magistrate applies his mind for proceeding further with the case. It was held in Mowu v. Suptd. Special Jail, Nowgong, Assam (11) 1972 SCC (Cri) 184 that taking cognizance of an offence under Section 190 Cr. P.C is a judicial act and not administrative and as such, application of mind is necessary, it was held in Gandi Satyanarayana v. J. Hansli (12) 1970 Crl. L.J 778 that Magistrate takes cognizance of an offence and not of an offender. It was held by Justice Kondaiah rendering the said judgement that “once cognizance has been taken by the Magistrate, he takes cognizance of an offence, it is his duty to find out who the offenders really are. It was held in State v. Pukhia (13) AIR 1963 Rajasthan 349 and followed in In Re Raju Thevan (14) AIR 1966 Madras 349 and State of Bihar v. Sakaldip Singh (15) AIR 1966 Patna 473 that the term ‘taking cognizance’ means any judicial action permitted by the Code taken with a view to eventual prosecution preliminary to the commencement of the enquiry or trial. It was held in H.S Bains v. State (16) (1980) 4 SCC 631 : AIR 1980 SC 1883 by the Supreme Court that the Magistrate after receipt of police report under Section 173(1) Cr. P.C may decide that there is no sufficient ground for proceeding further and drop action or he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process and the Supreme Court further held that the Magistrate is not bound in any manner by the conclusion arrived at by the police in their report implying that the Magistrate has to apply his mind judiciously and arrive at independent decision of his own. In a decision reported in Punjab National Bank v. Surender Prasad (17) 1993 Supp (1) SCC 499 : AIR 1992 SC 1815, it was held that before issuing of process, relevant facts and circumstances should be considered and that process issued mechanically is bad. It was held in Frank Dalton Larkin v. State (18) 1985 Crl. L.J 377 that taking cognizance means judicial application of mind by the Magistrate to the facts mentioned either in the complaint or the police report as the case may be, for taking further action.

7. As seen from the above, it is clear that ‘taking cognizance’ is not an administrative act, but is a judicial act and that judicial act is first exercised only after the police report (charge-sheet) is filed and it conforms to the provisions of Section 173(2) with details enumerated therein. Again the crucial question is as to whether compliance of Section 173(2) itself is sufficient and whether the mandate under sub-section (5) of Section 173 Cr. P.C should be followed or not. sub-section (5) of Section 173 Cr. P.C was not there in the statute book prior to the amendment of Cr. P.C in the year 1973. The pre-amended Code of Criminal Procedure did not ensure the service of copy of the charge-sheet containing all the material papers relied upon by the prosecution, but only left the same to be done by the investigating police officer. As the same was visited in breach very often causing prejudice to the accused, with an avowed object of apprising the accused of accusation against him by service of those papers, constituting a charge-sheet, sub-section (5) was introduced into Section 173 Cr. P.C Its requirement of accompaniment of the copies of the charge-sheet along with the original charge-sheet under Section 173(2) Cr. P.C to be submitted to the court, is mandatory and not directory. This mandatory requirement of service of copies of the charge-sheet and accompaniment of the same along with the original police report under Section 173(2) Cr. P.C is a procedure established under law having genesis in the fundamental right of life and liberty under Article 21 of the Constitution of India and if there is an infraction of the same, it will be an infringement of the said fundamental right. It was held in Raghubans Dubey v. State Of Bihar (19) AIR 1967 SC 1167 that police report mentioned under Section 207(a) is a report mentioned in Section 191(b) of Cr. P.C and once cognizance is taken under Section 190(1)(b), proceeding is instituted under Section 207(a). The Supreme court dealing with the filing of a police report in Satyanarain Musadi v. State of Bihar (20) (1980) 3 SCC 152 : AIR 1980 SC 506 has held that the report as envisaged by Section 173(2) Cr. P.C has to be accompanied as required by Section 173(5) thereof by all documents and statements of the witnesses therein mentioned and that one cannot divorce the details which the details must contain as required by Section 173(2) from its accompaniments which are required to be submitted under Section 173(5) and that whole of it is submitted as a report to the court and that it follows that the court can look at the report in prescribed form along with its accompaniments for taking cognizance of offence. Thus, it is made so clear from the above verdict of the Supreme Court which is still holding the field and which is the law of the land under Article 141 of the Constitution of India that police report (charge-sheet) is one accompanied by the copies thereof to be served on the accused and that mere filing of a police report under Section 173(2) Cr. P.C without its accompaniments under Section 173(5) Cr. P.C is not a police report at all. In view of this verdict of the Supreme Court, the view of the learned single Judge of this court in C. Varla Krishna @ Chinna Krishna v. State of A.P (1) supra, that “In this case, the police report was filed on 18-7-1988 and the provisions of Section 173(2) Cr. P.C have been complied with. Since the requirements under Section 173(5) have not been complied with, it was returned for compliance. Simply because the Magistrate has mentioned that a skeleton charge-sheet has been filed, it does not mean that it prevented him from taking cognizance of the case, basing on the report that has already been filed,” cannot be followed. In normal course, I would have referred the matter to the Bench, but I feel it unnecessary to do so in view of the fact that the law laid down by the Supreme Court on this subject is of the year 1980 and the same was holding field when the learned single Judge expressed the above view.

8. Fairness and reasonable procedure is what is contemplated by the expression “procedure established by law” in Article 21 of the Constitution. Section 167(2) Cr. P.C was not there in the old Code. It was introduced in 1973 amendment. The effect of the new proviso is to entitle an accused person to be released on bail if the investigating agency fails to complete the investigation within 60 days or 90 days as the case may be. An order for release of bail made under proviso to Section 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under Section 309(2). The order of bail can only be cancelled under Section 437(5) or 439(2). The duty of the police is to forward the police report after completion of investigation under Section 173(2) Cr. P.C The forwarding is done for the purpose of taking the same on record and file of the court and then only, the same is perused by the court to take cognizance of the offence. Mere forwarding without meaning it to be taken on file is not contemplated under law. 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. P.C, 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 proceeds 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. Chapter XVI relates to-commencement of proceedings before Magistrates, process to be issued when Magistrate takes cognizance of the offence. The next stage is framing of charges under Chapter XVII. Next stage is trial and the eventual being the judgment.

9. In the instant cases, while the petitioners in Crl. P. 341/93 are remanded to judicial custody on 30-9-1992 and the period of 90 days expired on 28-12-1992, the petitioner in Crl. P. No. 559/93 was remanded to judicial custody on 29-10-1992 and the period of 90 days expired on 28-1-1993. The application was filed by the accused to release them on bail since the period of 90 days expired and there is no police report before the court and the Magistrate has failed to take cognizance of the cases. The same was rejected by the Magistrate on the ground that the petitioners are not entitled for bail under Section 167(2) Cr. P.C because the SHO (Station House Officer), filed the charge-sheet already within 90 days on 28-12-1992 and that the same was returned to comply the objections. From this, it is crystal clear that there was no police report on record of the court and even on its own showing, the prosecution has not filed the report conforming to the requirements of Sections 173(2) and 173(5) and as such the same was returned. Inasmuch as the charge-sheet was not in conformity with the procedure established by law and as the same was returned, the action of the Magistrate in returning the same was only administrative in nature and not judicial and the Magistrate was not competent to take cognizance of the offence as the charge-sheet was not filed as contemplated under law and was not there on record within the stipulated time of 90 days. It is not sufficient for the prosecution to just file some sort of police report not conforming to the provisions of Section 173(2) and 173(5) Cr. P.C and then play a fraud not only on the statute but also on the Constitution. This kind of tactics by the police to water down and nullify the constitutional and statutory guarantees cannot be countenanced and in fact, the courts should keep a strict vigil on this kind of unscrupulous acts of police officers to get over the constitutional and statutory mandate of filing a charge-sheet within the stipulated time under the guise of filing defective charge-sheet and then knowing fully well that it will be returned. Until a charge-sheet with all specifications enumerated under Section 173(2) Cr. P.C and accompaniments under Section 173(5) Cr. P.C is filed into the court and the court scrutinises it on its administrative side to satisfy that all such documents are in order and unless the court takes it on record and keeps it on its file for examination for taking cognizance or not, it cannot be said that a police report (charge-sheet) is filed as contemplated under Section 173(2) Cr. P.C Once the police report is filed, it should be capable of examination for the purpose of judicial determination to take cognizance of the offence and to proceed further into Chapter XVI Cr. P.C and any act short of that cannot be construed as ‘taking cognizance’. In view of what is stated supra, I hold as follows:

(1) That the police report (charge-sheet) under Section 173(2) Cr. P.C is not complete unless it is accompanied by the material papers (statements etc.) as contemplated under Section 173(5) Cr. P.C

(2) That a perusal of police report (charge-sheet) as to whether the same is inconsonance with sub-sections 173(2) and 173(5) Cr. P.C is only an administrative act and not a judicial act.

(3) That judicial act commences when the police report (charge-sheet) is filed in complete form, both complying with the provisions contained under Section 173(2) and 173(5) Cr. P.C and it is taken on the file of the court and perused by the court for taking a decision under Section 190(1)(b) Cr. P.C

(4) That if the investigation is not completed either within 90 days or 60 days, as the case may be, and if the police report (charge-sheet) is not filed in complete form as mentioned supra within the stipulated periods, the accused shall have absolute right for being released on bail subject to their readiness for furnishing sureties; and

(5) As the provisions of Section 167(2), have not been complied with in the instant cases, the petitioners in both the Criminal Petitions shall be released on bail on each of their furnishing personal bonds for the sum of Rs. 10,000/- (Rupees Ten thousand only) with one surety each for Rs. 10,000/- (Rupees Ten thousand only) to the satisfaction of the Judicial First Class Magistrate, Darsi, Prakasam District.

10. The Criminal petitions are allowed to the extent indicated above.