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Case Number

Criminal Application No.143 of 2011

Attorney(S)

For the Applicant: A.J. Thakkar
Advocate. For the Respondent: N.R. Rode APP
Advocate.

Judges

Mr. M. N. GILANI

Acts

provisions of Sub Section 2 of Section 167 of Code of Criminal Procedure
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT 1985
Section 409, 436, 201 and 204 of Indian Penal Code
Section 173(8) of the Criminal Procedure Code.
Section 167(2) of Code of Criminal Procedure.
Section 167(2) of Criminal Procedure Code
Section 167(2) Criminal Procedure Code.
provisions of Section 173(8) of Cr.P.C.
provision of Section 2(r) of Cr.P.C.
Sub Section 2 of Section 309,
provisions of Section 167(2)
Section 409, 420, 436, 204, 201
Section 173(5) of Cr. P. C.
section 173(2) Cr.P.C.
Section 175(5). 14.
Section 173(8)." 15.

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Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

The applicant is accused in Crime No.127 of 2010 registered at Police Station Chikhali, District Buldhana, for offences under Sections 409, 436, 201 and 204 of the Indian Penal Code. The applicant was a Head Constable and, between 09.06.2007 and 09.09.2009, served as Head Moharir in charge of the Malkhana (the place where seized properties are deposited). He is alleged to have tampered with muddemal properties (gold and silver ornaments and cash) and to have misappropriated government property valued at over Rs. 11,23,946/-. After being transferred, he allegedly avoided handing over charge and, on 05.09.2010 at about 10:10 p.m., is accused of setting fire to the Muddemal Room using kerosene with the motive of destroying evidence. An FIR was lodged by a Police Sub-Inspector and offences were registered.

The applicant was arrested on 14.09.2010 and a charge sheet was filed on 10.12.2010. He sought bail from the learned Judicial Magistrate, Chikhali, who on 04.02.2011 considered whether the charge sheet was "incomplete" for purposes of the statutory bail provision in Section 167(2) Cr.P.C. The learned Additional Sessions Judge, Buldhana, rejected the applicant's bail application by order dated 24.02.2011. The applicant thereafter filed the present application before this Court.

Legal Issues Presented

Whether the accused was entitled to statutory bail under Section 167(2) Cr.P.C. on the ground that the charge sheet filed by the investigating agency was "incomplete" (i.e., no full and final charge sheet was filed within 90 days of arrest).
Whether an investigating officer's request, made at the time of filing the report/charge sheet, for permission to conduct further investigation and to file supplementary evidence under Section 173(8) Cr.P.C. renders the charge sheet incomplete for the purpose of invoking Section 167(2) Cr.P.C.

Arguments of the Parties

Applicant's Arguments

The charge sheet filed before the Magistrate was incomplete; therefore the statutory right to bail under Section 167(2) Cr.P.C. accrued to the applicant because there was no full and final charge sheet within 90 days from the date of arrest.
The contention relied on precedent where a charge sheet not accompanied by a Chemical Analyser's Report in NDPS prosecutions was held to be incomplete (Sunil Vasantrao Phulbande), and on decisions where provisional or incomplete charge sheets entitled accused to claim the right under Section 167(2) (Punjaram).

The opinion does not set out a detailed, separate statement of the prosecution's oral submissions in this High Court application; the record contains judicial observations from the Magistrate and the Additional Sessions Judge that the charge sheet was complete despite a prayer for further investigation under Section 173(8) Cr.P.C.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court in This Opinion
Sunil Vasantrao Phulbande & Another v. State of Maharashtra, 2002 (3) M.L.J. 689	Held that a charge sheet not accompanied by the Chemical Analyser's Report in an NDPS prosecution was an incomplete charge sheet for the purpose of Section 167(2) Cr.P.C., entitling accused to statutory bail.	The applicant relied on this case. The Court recorded the reliance but treated the facts as distinguishable—this case was considered in light of the material actually placed before the Magistrate and the concluding words of the charge sheet here indicating that sufficient evidence accompanied the report.
Punjaram s/o Ashroba @ Asroba Kangne & Ors. v. State of Maharashtra, 2005 ALL MR (Cri) 1020	Recognized that filing of an incomplete or provisional charge sheet can entitle an accused to claim the indefeasible right under Section 167(2) Cr.P.C.	The decision was relied upon by the applicant. The Court noted the reliance but proceeded to examine whether the charge sheet in the present case was in fact incomplete; it concluded that the factual matrix differed and that the charge sheet here was sufficient for cognizance.
State of Maharashtra v. Sharadchandra Vinayak Dongre & Others, 1995 (3) Bom.C.R. 4 (Supreme Court)	If the police report and material filed therewith are sufficient to satisfy the Magistrate to take cognizance, the label given by the investigating agency to the report under Section 173(2) Cr.P.C. is not decisive; an application for permission to file a supplementary charge sheet does not affect the Magistrate's jurisdiction to take cognizance.	The Court applied this principle to hold that an investigating agency's request under Section 173(8) to carry out further investigation or to file additional material does not, by itself, render a charge sheet incomplete or prevent the Magistrate from taking cognizance if sufficient material is already presented.
Rafael Palafox Garcia v. Union of India & Anr., 2008 (6) AIR Bom. Rep. 709	When a charge sheet contains the necessary material contemplated under Section 173(5) Cr.P.C., the prosecution is not precluded from producing additional material such as a Chemical Analyser's report later; absence of such report at charge-sheet stage does not automatically render the charge sheet incomplete.	The Court relied on this reasoning to observe that the mere non-filing at the time of charge sheet of certain corroborative documents (for example, material akin to a C.A. report) does not convert a charge sheet into an incomplete one if sufficient material was already placed before the Magistrate to take cognizance.
Dinesh Dalmis v. C.B.I., 2008 Cri.L.J. 337	The Apex Court explained that if a charge sheet, within the meaning of Section 173(2) Cr.P.C., is filed, the right under Section 167(2) Cr.P.C. ceases; further investigation under Section 173(8) does not revive that right.	This principle was applied by the Court to hold that once a police report/charge sheet is filed and the Magistrate is satisfied to take cognizance, the accused's statutory right under Section 167(2) does not survive merely because further investigation under Section 173(8) may be permitted.

Court's Reasoning and Analysis

The Court framed the central enquiry as whether the material placed before the learned Magistrate was sufficient for the Magistrate to take cognizance of the offence. The Court emphasised these legal and evidentiary points, drawn directly from the opinion:

The statutory scheme: a report under Section 173(2) Cr.P.C. must contain the details prescribed and be accompanied by the documents and statements required by Section 175(5) to be regarded as a complete police report/charge sheet.
The label given by the investigating agency to its report (for example, calling it a "police report" or filing an application seeking permission for further investigation under Section 173(8)) is not decisive. The Court relied on the Supreme Court's pronouncement that sufficiency of material is what matters for the Magistrate's power to take cognizance.
Merely seeking permission to undertake further investigation or to file further documents under Section 173(8) does not, by itself, render the charge sheet incomplete. The Court stressed that there cannot be a rigid formula; completeness depends on the facts and circumstances and on what material was actually produced to the Magistrate.
The Court examined the concluding portion of the charge sheet filed in this case, which expressly stated that offences under Sections 409, 420, 436, 406, 209 (and in other places recorded 409, 436, 201, 204) were made out and that full and complete evidence of all kinds had been submitted with the charge sheet. The learned Magistrate had accepted this and taken cognizance.
The Court referred to decisions (Rafael Palafox Garcia and State v. Dongre) that support the proposition that missing corroborative documents at the time of filing do not necessarily amount to an incomplete charge sheet if sufficient material otherwise exists; it also relied on Dinesh Dalmis for the proposition that once a charge sheet is filed, the proviso right under Section 167(2) ceases and does not revive merely because further investigation under Section 173(8) is permitted.
Applying these principles to the facts, the Court concluded that the charge sheet in this case was, in substance, complete for the purposes of Section 173(2) and that the Magistrate's taking of cognizance was not precluded by the investigating officer's prayer for further investigation.
Separately, the Court observed that, given the serious nature of the allegations (a police officer allegedly setting fire to the Muddemal Room to destroy evidence of misappropriation), the applicant was not entitled to bail on the merits in any event.

Holding and Implications

Holding: Application for bail rejected.

Implications:

Direct effect on the parties: The applicant's bail application was denied; the learned Magistrate's and the Additional Sessions Judge's conclusions that the charge sheet was complete and that cognizance could be taken were upheld by this Court.
On legal precedent: The Court applied established principles from higher and co-ordinate courts (including the Supreme Court decision in State v. Dongre and the Apex Court's observations in Dinesh Dalmis) to conclude that a request for further investigation under Section 173(8) does not automatically render a charge sheet incomplete for the purposes of Section 167(2). The opinion does not purport to lay down a new legal principle; it applies existing authorities to the facts before it.

Order recorded in the opinion: "Application is rejected." The opinion contains no extended remedial directions beyond the refusal of bail.

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Sheikh Shabbir S/O Mohd. Shafi v. State Of Maharashtra

P.C.

The applicant who is accused in Crime No.127 of 2010 registered with the Police Station Chikhali District Buldhana for the offences punishable under Section 409, 436, 201 and 204 of Indian Penal Code is seeking bail pending trial.

2. The applicant was holding the post of Head Constable in the State Police Force. During the period from 09.06.2007 to 09.09.2009 he was Head Moharir in charge, that means in-charge of Malkhana where the seized properties are deposited. The applicant tampered with three muddemal properties which were gold, silver ornaments and the cash amount. He thus mis-appropriated the Government properties worth more than Rs. 11,23,946/-. He was then transferred from Chikhali to Malkapur Police Station. However, he was avoiding to handover the charge. It is alleged that with the motive to destroy evidence of misappropriation on 05.09.2010 at about 10.10 p.m. the accused by using kerosene oil set on fire the Muddemal Room. On the basis of the F.I.R. lodged by Police Sub Inspector attached to Police Station Chikhali, offence came to be registered.

3. After submission of the charge sheet, the applicant applied for bail to the Sessions Court Buldhana. Learned Additional Sessions Judge by order dated 24.02.2011 rejected the application. Therefore, this application before this Court.

4. Learned counsel for the applicant contended that because of incomplete charge sheet submitted before the learned Magistrate an indefeasible rights conferred under Section 167(2) of Criminal Procedure Code has been accrued to the applicant. He, therefore, prayed for bail on the ground of default.

5. Before filing an application in the Sessions Court, Buldhana, the applicant had approached the learned Judicial Magistrate Chikhali with the similar prayer. The applicant was arrested on 14.09.2010 and the charge sheet has been submitted on 10.12.2010. However, the charge sheet which has been submitted being incomplete, it is no charge sheet in the eye of law and consequently there being no full and final charge sheet within the period of 90 days from the date of arrest, the applicant got statutory right to seek bail, was the contention before the learned Magistrate. Learned Magistrate in his order dated 04.02.2011 dealt with this issue and observed:

"The facts in the case in hand, to my mind, are distinguishable from the facts of the above cited cases. In the case in hand, the last but-one para of the charge sheet reveals that investigation is completed. But there being bulky record and various types of muddemal properties are involved and therefore the I.O. required further investigation with permission as contemplated under the provisions of Section 173(8) of Cr.P.C. To my mind merely seeking permission for further investigation under the provisions of Section 173(8) of Cr.P.C. it cannot be said that police report, charge sheet filed in the case in hand cannot be termed as police report as contemplated under the provision of Section 2(r) of Cr.P.C. Only the permission for furnishing further evidence and documents is given to the I.O. It does not mean that I.O. shall file additional evidence or supplementary charge sheet whatever it may be."

6. Similar ground was raised before the learned Additional Sessions Judge who in para 6 of his order dated 24.02.11 observed that:

"The Investigating Officer sought permission to collect the corroborative and additional evidence at the time of filing this charge sheet, as per provisions of Section 173(8) of Cr.P.C. Therefore, it cannot be said that "final report" or "Police report" filed against this applicant is incomplete."

7. Shri A.J. Thakkar learned counsel for the applicant invited my attention to the last para of the Police Report. Charge Sheet:

"Ashya prakare aaropine sarkarvirudha tasech sarvsamanya mansachya japta zalelya choriche dagine aani rupyancha dastevjancha aphar karun samaj virodhi gambhir gunha kelyache nishpanna zalyane aropivirudha 409, 420, 436, 406, 209 bha.d.vi. pramane dosharop aahe. Aropivirudha sarv prakarcha paripurna purava modya pramanat dosharop patrasobat sadar kela aahe."

8. The concluding words point out that whatever the charge sheet submitted is 'complete'. However, the Investigating Officer sought permission of the Court for further investigation. This does not mean that Investigating Officer would be able to collect further evidence and in turn would produce before the Court. In fact making prayer of such a nature is insignificant for the reason that issue of further investigation is governed by Section 173(8) of the Criminal Procedure Code. In that light of the matter the learned Magistrate was right in observing that the charge sheet submitted before him cannot be termed as incomplete charge sheet.

9. Learned counsel for the applicant replied upon the case of Sunil Vasantrao Phulbande and another Vs. State of Maharashtra 2002 (3) Maharashtra Law Journal 689. Learned Single Judge of this Court, while dealing with the case in which the charge sheet was not accompanied by Chemical Analyser's Report, held that it was incomplete, which would give a right to the accused to be released on bail under Section 167(2) of Code of Criminal Procedure. It was the prosecution under Narcotic Drugs and Psychotropic Substances Act, 1985.

10. The other decision relied upon is in case of Punjaram s/o Ashroba @ Asroba Kangne & Ors. Vs. State of Maharashtra 2005 ALL MR (Cri) 1020. Learned Single Judge of this Court observed that filing of incomplete charge sheet would entitled accused to claim his indefeasible right conferred under Section 167(2) Criminal Procedure Code. Learned Single Judge was dealing with the case in which provisional charge sheet was submitted.

11. Reference can usefully be made to a decision of the Supreme Court in State of Maharashtra Vs. Sharadchandra Vinayak Dongre and others 1995 (3) Bombay Cases Reporter 4. Their Lordships held that:

"Therefore, if the police report and the material filed therewith is sufficient to satisfy the Magistrate that he should take congnizance, his power is not fettered by the lable which the investigating agency chooses to give to the report submitted by it under section 173(2) Cr.P.C. Merely, because the prosecution had filed an application, after submission of the charge sheet, seeking permission to file "supplementary charge sheet" if could not affect the jurisdiction of the Magistrate to take cognizance, if he was otherwise satisfied from the material placed before him along with the charge sheet that cognizance of the offence was required to be taken." (emphasis supplied).

12. Learned Single Judge of this Court in Rafael Palafox Garcia Vs. Union of India & Anr. 2008 (6) AIR Bombay Report 709, was seized of the similar issue. In that case the charge sheet was submitted alleging commission of offence under Narcotic Drugs and Psychotropic Substances Act without the Chemical Analyser's Report. It was the prosecution for possessing controlled substance and for that the samples in question were tested on the spot. Learned Single Judge observed that:

"When the charge sheet was filed on 13.02.2008, it contained all necessary material as contemplated under Section 173(5) of Cr. P. C. and the prosecution is not precluded from filing any additional material like the C. A. report at a later stage. Filing of C. A. report has not changed the nature of the offence of the charge sheet. Thus, there was sufficient material to connect the accused with the offence and there was sufficient material before the Court on 13.02.2008 to take cognizance of the offence. In the present case even though the report of the C. A. was not filed, it cannot be said that an incomplete charge sheet has been filed and hence the learned magistrate could not have taken cognizance. Looking to all these facts, i am of the opinion that the applicant is not entitled to bail under the provisions of Section 167(2) of Cr.P.C."

13. Thus the crucial question would be whether the material placed before the learned Magistrate was sufficient to take cognizance of the offence. The lable which the Investigating Agency choses to give to the report submitted by it under section 173(2) Cr.P.C. is not decisive. The concluding part of the charge sheet which I have already quoted point out that the offence under Section 409, 420, 436, 204, 201 have been made out against the accused and to substantiate it sufficient evidence of all nature has been submitted with the charge sheet. The statutory requirement of the report under Section 173(2) could be complied with if the various details prescribed therein are included in the report. The report is complete if it is accompanied with all the documents and statements of the witnesses as required by Section 175(5).

14. In Dinesh Dalmis Vs. C.B.I. 2008 CRI.L.J. 337 while interpreting provisions of Sub Section 2 of Section 167 of Code of Criminal Procedure and vis-a-vis Sub Section 2 of Section 309, their Lordships of the Apex Court observed that:

"So long a charge sheet is not filed within the meaning of Section 173(2) investigation remains pending. It, however, does not preclude an investigation office to carry on further investigation despite filing of a police report, in terms of Section 173(8). The statutory scheme does not lead to a conclusion in regard to an investigation leading to filing of final form under Sec. 173(2) and further investigation contemplated under S. 173(8). Whereas only when a charge sheet is not filed and investigation is kept pending, benefit of S 167(2) proviso would be available to an offender; once, however, a charge sheet is filed, the said right ceases. Such a right does not revive only because a further investigation remains pending within the meaning of Section 173(8)."

15. What emerges from the discussion made above can be summarised as under:

16. The charge sheet is an intimation to the Magistrate that after investigation in to a cognizable case the Investigating Officer has been able to procure sufficient evidence for the Court to enquire into the offence and the necessary information is being sent to the Court. The Court empowered to take cognizance considers material placed before it as sufficient. The lable which the investigating agency chooses to give to it becomes insignificant. There cannot be any straight jacket formula to hold that the charge sheet filed in the particular case is still incomplete. It depends upon facts and circumstances of each case. Merely Investigating Agency seeking permission to conduct further investigation or file certain documents in future would not by itself makes the charge sheet incomplete.

17. In the instant case after the charge sheet was submitted the learned Magistrate held it as complete charge sheet and proceeded to take cognizance as against the accused/applicant. Only because the prayer of further investigation is appearing in the concluding part of the charge sheet, would not confer a right upon the accused to claim bail under Section 167(2) of Code of Criminal Procedure. Therefore, in my view the contention of the learned counsel for the applicant that the indefeasible right has been accrued to the accused to claim his release on bail under Section 167(2) has no force, particularly in the facts and circumstances of the case.

18. The applicant is also not entitled to be released on bail considering the nature of the accusation leveled against him. Being a Police Officer he did not hesitate in setting on fire the Muddemal Room with a purpose that there would be no evidence to prove the charges of misappropriation leveled against him.

Application is rejected.

From the date of taking charge i.e. from 17.03.2011 till 06.05.2011 His Lordship Hon'ble Shri Justice M.N. Gilani was sitting at High Court Bombay.

Sheikh Shabbir S/O Mohd. Shafi v. State Of Maharashtra

Concise Analytical Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Applicant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sheikh Shabbir S/O Mohd. Shafi v. State Of Maharashtra

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