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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • N.P Chapalgaonker, J.
Acts
  • section 20(4)(bb) of the TADA Act read with section 167(2) of the Code of Criminal Procedure
  • sections 20, 21, 22, 25 and 27 of Narcotic Drugs and Psychotropic Substances Act, 1985
  • Section 173 of the Code of Criminal Procedure, 1973 by its sub-section (2)
  • NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT 1985
  • provisions of section 167(2) of the Code of Criminal Procedure.
  • section 167(2) of the Code of Criminal Procedure
  • sub-section (5) of section 173
  • sub-section (2)(b).
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • N.P Chapalgaonker, J.
Acts
  • section 20(4)(bb) of the TADA Act read with section 167(2) of the Code of Criminal Procedure
  • sections 20, 21, 22, 25 and 27 of Narcotic Drugs and Psychotropic Substances Act, 1985
  • Section 173 of the Code of Criminal Procedure, 1973 by its sub-section (2)
  • NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT 1985
  • provisions of section 167(2) of the Code of Criminal Procedure.
  • section 167(2) of the Code of Criminal Procedure
  • sub-section (5) of section 173
  • sub-section (2)(b).
See more information ...
Smart Summary

Structured Summary of the Opinion — N.P. Chapalgaonker, J.

Factual and Procedural Background

The applicant is an accused in Crime No. 31 of 1995 registered at Rahuri Police Station, charged with offences under sections 20, 21, 22, 25 and 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The prosecution's case is that the applicant was found in possession of ganja and was arrested on 11-2-1995. Under the Code of Criminal Procedure the charge sheet was required to be submitted within 90 days of arrest.

On 14-3-1995 Police Constable Prakash Rukhmaji Padale reportedly took the charge sheet to the Special Judge's Court (IInd Additional Sessions Judge, Ahmednagar), but the court clerk allegedly refused to accept it because photographs of the seized articles had not been supplied. A report about this refusal was submitted to the Police Inspector and an affidavit from Assistant Police Inspector Thorat was placed on record. The prosecution did not take further corrective action until 17-5-1995, by which time the 90-day period had expired (noted as having expired on 12-5-1995).

The applicant applied for bail under section 167(2) of the Code of Criminal Procedure. The matter came before the court (hearing involved counsel Shri V.S. Bedre for the applicant and Shri V.B. Ghatage, Additional Public Prosecutor for the State). An application for bail had earlier been presented to the learned 5th Additional Sessions Judge, Ahmednagar; the record indicates the Additional Public Prosecutor did not press a contention that the charge sheet had been submitted in time but refused by the clerk.

Legal Issues Presented

  1. Whether the accused is entitled to bail under section 167(2) Cr.P.C. where the investigation was not completed and the charge sheet was not filed within the statutory 90-day period.
  2. Whether a court clerk's alleged refusal to accept a charge sheet on the ground that photographs of seized articles were not supplied constitutes a valid reason to treat the charge sheet as not filed or justifies delay beyond the statutory period.

Arguments of the Parties

Applicant's Arguments

  • The applicant sought bail under section 167(2) Cr.P.C. on the ground that the investigation was not completed and the charge sheet was not filed within the 90-day period following arrest.
  • The bail application to the Special Court was filed on 15-5-1995 before the charge sheet was filed; accordingly the applicant asserted entitlement to bail under the statutory provision.

State's Arguments

  • The prosecution alleged that the charge sheet was presented to the Special Court on 14-3-1995 but was not accepted by the court clerk because photographs of the seized articles had not been provided; a report to the Police Inspector and an affidavit by Assistant Police Inspector Thorat were placed on record to that effect.
  • The Additional Public Prosecutor relied on the Supreme Court's observations in Sanjay Dutt v. The State (1995 Cri. L.J. 477) to the effect that the accused's statutory right to be released on bail for default under section 167(2) Cr.P.C. comes to an end when the challan (charge sheet) is filed; the State therefore contended that filing of the charge sheet terminates that default-based right.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Sanjay Dutt v. The State, 1995 Cri. L.J. 477 Holds that the accused's indefeasible right to release on bail for default in completing investigation under section 167(2) Cr.P.C. is enforceable until the challan (charge sheet) is filed; once the challan is filed the right ends and subsequent bail entitlement is governed by the ordinary bail provisions applicable at that stage. The court relied on this precedent to explain that the accused's default-based right to bail ceases when a charge sheet is filed, but observed that in the instant case the bail application was made before the charge sheet had been filed; therefore the Sessions Judge should have accepted and granted bail under section 167(2).
Hitendra Vishnu Thakur (referenced in the Sanjay Dutt quotation) Referred to as authority for the proposition that default in filing the challan gives rise to a right to release on bail under the relevant provisions (as mentioned in the Sanjay Dutt extraction). The court cited the Sanjay Dutt passage which itself refers to Hitendra Vishnu Thakur to support the general legal principle that default-based bail arises on expiry of the statutory period and is enforceable until the challan is filed.

Court's Reasoning and Analysis

The court proceeded through the following analytical steps, relying only on material and authorities presented in the opinion:

  1. Statutory time-limit: The court noted the statutory entitlement of the accused under section 167(2) Cr.P.C. to be released on bail if the investigation is not completed within the stipulated time (90 days in the factual matrix of this case). The charge sheet therefore had to be filed within that 90-day period after the applicant's arrest on 11-2-1995 (the court records 90 days expiring on 12-5-1995).
  2. Prosecution's explanation for delay: The prosecution's case was that a court clerk refused to accept the charge sheet on 14-3-1995 because photographs of seized materials had not been supplied. The investigating agency placed on record a report by the constable and an affidavit from an Assistant Police Inspector describing that refusal.
  3. Statutory provisions on seized articles and charge sheets: The court observed that section 52-A of the NDPS Act prescribes procedures for disposal of seized articles and contemplates that photographs of certain articles be taken in the presence of the Magistrate under sub-section (2)(b). Separately, section 173(2) Cr.P.C. defines the necessary contents of a valid charge sheet; section 173(5) requires submission of certain documents or relevant extracts but clarifies that such documents do not form part of the charge sheet itself.
  4. Invalidity of clerk's refusal as justification for delay: The court concluded that the clerk's alleged refusal to accept the charge sheet on the ground that photographs were not provided was not a tenable ground to treat the charge sheet as not filed. The court analyzed that, even assuming photographs were necessary, they were to be taken in the presence of the Magistrate (per section 52-A(2)(b)), and absence of photographs did not invalidate the charge sheet where the statutory contents required by section 173(2) were present. A refusal by a court official to accept a charge sheet for such a reason fell outside the clerk's jurisdiction and the responsible police officers should have approached the judge immediately to secure acceptance.
  5. Prosecution's lapse: The court found that the prosecution "slept over" the matter from 14-3-1995 to 17-5-1995 and did nothing to correct the alleged procedural problem before expiry of the 90-day period on 12-5-1995, thereby engaging the accused's entitlement under section 167(2).
  6. Constitutional context and applicability to NDPS offences: Although the court acknowledged the seriousness of NDPS offences and the legislature's stricter limitations on bail in such cases, it emphasized the supremacy of the right to personal liberty under Article 21. The court noted that the protection of section 167 is available to accused under the NDPS Act as well.
  7. Application of precedent on timing: The court considered the Additional Public Prosecutor's reliance on Sanjay Dutt and its teaching that the default-based right under section 167(2) ends when the challan is filed. The court distinguished the present factual posture by noting that the accused's bail application was made on 15-5-1995 before the charge sheet was filed; therefore, the accused's statutory right to bail on expiry of the investigation period was in force and should have been recognized by the Sessions Judge.
  8. Remedial and administrative directions: Beyond ordering bail, the court also addressed systemic practice: it held that courts should examine and endorse acceptance of a charge sheet on the very day it is submitted, and if a charge sheet is incomplete in respect of section 173(2) contents this should be specifically recorded by the presiding officer to avoid later disputes. The court directed the Sessions Judge to inquire into the truthfulness of the constable's report about refusal to accept the charge sheet and to report back within three months.

Holding and Implications

Holding: The Court ordered release on bail and administrative directions. Concretely:

  • DISPOSITION: Both accused applicants were directed to be released on bail on furnishing a bond of Rs. 15,000 with two sureties of like amount each (Rs. 15,000 each).
  • Conditions of bail: The accused were directed to report to Shrigonda Police Station every Monday, Thursday and Saturday between 10 a.m. and 12 noon, and were prohibited from leaving the district of Ahmednagar until the case is disposed of.
  • Further directions: The Sessions Judge at Ahmednagar was directed to hold an inquiry into the truthfulness of the report submitted by Police Constable Prakash Padale (annexed as Exhibit R1) and to receive the affidavit of Assistant Police Inspector Rambhan Thorat; the Sessions Judge was ordered to send a report of the inquiry to this court within three months.

Implications: The immediate and direct legal consequence is the grant of bail to the accused under section 167(2) Cr.P.C. with the specified conditions. The opinion also issues administrative guidance to trial courts and registry staff to (a) examine and endorse charge sheets on the day of filing, and (b) explicitly record any deficiency under section 173(2) Cr.P.C. to prevent later dispute. The court did not purport to lay down a novel legal principle beyond applying existing statutory provisions and precedent (Sanjay Dutt and the principles referenced therein); the ruling's principal effect is the determination of bail entitlement in this factual matrix and the issuance of administrative directions to prevent similar procedural delays.

Disposition recorded in the opinion: "Criminal application disposed of." The court's operative directions and deadline for the Sessions Judge's inquiry are noted above.

Show full summary ...

    Balu v. State Of Maharashtra

    N.P Chapalgaonker, J.:— Heard Shri V.S Bedre, counsel for the applicant and Shri V.B Ghatage, Addl. Public Prosecutor for the State.

    2. Applicant, who is accused in Crime No. 31 of 1995 registered by Rahuri Police Station for allegedly having committed offence punishable under sections 20, 21, 22, 25 and 27 of Narcotic Drugs and Psychotropic Substances Act, 1985 prays for bail by virtue of the provisions of section 167(2) of the Code of Criminal Procedure. It is the case of the prosecution that applicant was found in possession of Ganja and he was arrested on 11-2-1995. Therefore, the charge sheet should have been submitted within 90 days thereafter.

    3. It is the case of the prosecution that on 14-3-95. Police Constable Prakash Rukhmaji Padale-Bakkle No. 776 of Rahuri Police Station had been to Special Judge's Court But the said charge sheet was not accepted by the concerned Clerk and Nazir and, therefore, a report came to be submitted to the Police Inspector at Rahuri by the said Police Constable and a copy of the report has also been submitted along with the affidavit of the Assistant Police Inspector Thorat. The report alleged that the clerk of the Special Court at Ahmednagar refused to accept the charge sheet on the ground that photographs of seized articles have not been supplied and unless those photographs are taken, the charge sheet cannot be accepted.

    4. Section 52-A prescribes the procedure for the disposal of the seized articles of Narcotic Drugs and Psychotropic Substance which speaks about the taking of the photographs in presence of the Magistrate of certain articles under sub-section (2)(b). It is the allegation of the investigating agency that the charge sheet was not accepted by the clerk of the Special Court on the ground that the photographs of the seized articles are still to be drawn. It is not only surprising but agonizing. When the Criminal Procedure Code has given a specific absolute right to the accused detained, that he shall be released on bail, if the investigation is not completed within the stipulated time, the filing of the charge sheet within that time becomes the duty of all responsible police officers. It is also surprising that the clerk gave such explanation for not accepting charge sheet and the police officers also does not take immediate action to approach to the Judge himself and requests the acceptance of the charge sheet.

    5. It appears that the prosecution agency slept over the matter from 14-3-95 to 17-5-1995. Admittedly, 90 days period was over on 12-5-1995 and nothing was done to correct the mistake which was allegedly caused by clerk of the Court in not accepting the charge sheet Section 173 of the Code of Criminal Procedure, 1973 by its sub-section (2) gives the requirement of a valid charge sheet. If those requirements are there, the charge sheet is complete. Though sub-section (5) of section 173 requires that the documents or relevant extracts thereof which the prosecution proposes to rely other than already sent to the Magistrate during the investigation and the statement under section 167 should also be submitted alongwith the report. They do not form part of the charge sheet. If any of such statement is not accompanying, it can never be said that the charge sheet was not complete. To refuse to accept the charge sheet for any untenable reason would be beyond the jurisdiction of the Court which is duty bound to accept the charge sheet. It is surprising as to why the clerk of the Court thought that the photographs are necessary. Even assuming that the photographs were necessary, they were to be taken in presence of the Magistrate and, therefore, that can never be the ground to refuse to accept the charge sheet. A copy of the application submitted by the Public Prosecutor to the Special Court i.e IInd Additional Sessions Judge, Ahmednagar is also made available by the learned Counsel for the applicant. This application does not make a mention of the fact chat the charge sheet was submitted in time to Court but the Court has refused to accept the same. On the contrary, they make a submission that the investigation is under progress.

    6. Application for bail was presented to the learned 5th Additional Sessions Judge, Ahmednagar and the grounds for opposition to the prayer for bait mentioned in paragraph 4 of the said order clarifies that no ground of refusal of the charge sheet though submitted in time was pressed in service by the Additional Public Prosecutor.

    7. It is true that the offences under the Narcotic Drugs and Psychotropic Substances Act are menace to the society and lightly dealing with such offenders is bound to have serious effect. The legislature has put certain extra limitation on the power to grant bail in such case but the right of liberty under Article 21 will have to be given its supreme position and if that liberty is not taken away by the valid restraints the accused will have to be released on bail. The right given to the accused persons under section 167 is also available to the accused persons governed under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985.

    8. In this case, charge sheet was not submitted within a period of 90 days. I, therefore, direct that both the accused applicants be released on bail on furnishing a bond of Rs. 15,000/- with two sureties in the like amount each Rs. 15000/- with a further direction that they shall report Shrigonda Police Station on every Monday, Thursday and Saturday between 10 a.m to 12 noon and will not leave the district of Ahmednagar until the case is disposed of.

    9. 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 put 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 learned Magistrate or the Judge as the case may be. This would protect investigating agency as well as registry of Court against unsustainable allegations.

    10. Shri Ghatage, learned Additional Public Prosecutor, submitted that as per the observations of the Supreme Court in (Sanjay Dutt v. The State)1, 1995 Cri. L.J 477, right of accused person to be released on bail by virtue of default under section 167(2) of the Code of Criminal Procedure will come to an end as soon as the charge sheet is filed. In para 55(2)(b), the Supreme Court was pleased to observe:

    “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 Code of Criminal Procedure 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 ensures to, and is enforceable on the challan being filed. If the accused applies for bail under this provisions 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 Code of Criminal Procedure. 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 filling of the challan only by the provisions relating to the grant of bail applicable at that stage.”

    11. In the instant case, an application for bail was submitted by the accused before the charge sheet is filed i.e on 15-5-1995 before the Special Court. It is not a case in which the application for bail is filed after filing of the charge sheet. The learned sessions Judge should have accepted the submission and granted bail. I direct the learned Sessions Judge, at Ahmednagar to hold an inquiry about the truthfulness of the report submitted by the police constable Shri Prakash Padale which is annexed at page 25 of the compilation of this proceeding and is marked as Exhibit RI A copy of this report alongwith the copy of the affidavit submitted by Assistant Police Inspector Shri Rambhan Thorat be sent to him and he should make a report to this Court about the findings of the inquiry to be completed within a period of 3 months.

    12. Criminal application disposed of.

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    Comments

    Balu v. State Of Maharashtra
    (Jun 28, 1995)