Akash @ Gangu Dilip More And 4 ... vs The State Of Maharashtra, Thr. ...
2022 Latest Caselaw 1697 Bom

                                                      apeal.429.2021 judge.odt
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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   NAGPUR BENCH, NAGPUR.

                 CRIMINAL APPEAL NO. 429 OF 2021


1. Akash @ Gangu Dilip More,
   Aged about 26 yrs, Occ. Labour,
   R/o. Near Anant Mangal Karyalaya,
   Kedia Nagar, Amravati, Distt. Amravati

2. Prashant @ Sonu Laxman Chavre,
   Aged about 21 yrs, Occ. Labour,
   R/o. Belpura, Amravati.

3. Rohit Amol Mandle,
   Aged about 20 yrs, Occ. Labour,
   R/o. Near Anant Mangal Karyalaya,
   Kedia Nagar, Amravati, Dist. Amravati.

4. Karan Kailas Itoria,
   Aged about 21 yrs, Occ. Labour,
   R/o. Near Takhtmal College, Rajapeth,
   Amravati.

5. Nitesh Narayan Pival,
   Aged about 26 yrs, Occ. Labour,
   R/o. Sabnis Plot, Near Radiant
   Hospital, Distt. Amravati.                    ..     APPELLANTS

                       ...VERSUS...

1. State of Maharashtra,
   Through PSO Badnera,
   Dist. Amravati.

2. Mahadeo Hiralal Wankhede
   Aged about 69 yrs, Occ. Labour,
   R/o. Near Mashankar Hospital,
   Railway Line, Jhopadpatti,
   P. S. Rajapeth, Amravati,
   Buldhana, Amravati City (M.H.)           ..           RESPONDENTS
                                                                   apeal.429.2021 judge.odt
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      Mr A. S. Mardikar, Sr. Adv. With Mr P. V. Navlani, Counsel for the appellants
      Mr T. A. Mirza, APP for the State
      Mr S. V. Sirpurkar, Advocate for respondent No.2
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                     CORAM : A. S. CHANDURKAR AND G. A. SANAP, JJ.

DATED : 21.02.2022

JUDGMENT : (PER : G. A. SANAP, J)

1] In this appeal, filed under Section 14-A of the Scheduled

Castes and the Scheduled Tribes (Prevention of the Atrocities) Act, 1989

(herein after referred to as 'Atrocity Act') read with Section 439 and

167(2) of the Code of Criminal Procedure, 1973 (herein after referred to

as 'Cr.P.C.'), challenge is to the order dated 30.08.2021 whereby the

learned Special Judge rejected the application made by the appellants for

default bail under Section 167(2)(a)(i) of the Cr.P.C.

2] The facts leading to this appeal are as follows:

The accused were arrested on 31.05.2021 in crime, bearing

No.509 of 2021, registered at Badnera Police Station, District Amravati,

for the offences punishable under Section 302, 201, 120-B, 364, 212

read with Section 34 of the Indian Penal Code, 1860 (herein after

referred to as ' the IPC') read with Section 4/25 of the Arms Act, 1959

and Section 142 of the Maharashtra Police Act. It is the case of the apeal.429.2021 judge.odt

prosecution that the appellants- Akash More and Nitesh Pital went to the

house of a deceased -Bacchu. They took him with them under the pretext

of joining them to drink liquor. They drunk liquor. The appellants as per

the case of the prosecution, thereafter, committed murder of the Bacchu.

3] In the course of the investigation, the investigating officer

came across the evidence that the appellant- Prashant alias Sonu Chavre is

a gang leader. He has been committing offences with other accused and

other persons. Therefore, the investigating officer found that the

appellants could be prosecuted for commission of an offences under

Section 3(1)(ii), 3(2) and 3(4) of the Maharashtra Control of Organised

Crime Act, 1999 (herein after referred to as 'MCOC Act'). As such the

investigating officer, sought the permission of the Police Commissioner,

Amravati to apply these offences in the registered crime against the

appellants. The Commissioner granted approval vide order dated

13.08.2021.

4] The appellants on 30.08.2021 made an application for bail as

per the provisions of Section 167(2) proviso (a)(i) of the Cr.P.C. It is the

case of the appellants that the investigation in the crime commenced and apeal.429.2021 judge.odt

on 30.05.2021 they were arrested. They were produced before the

Magistrate on 31.05.2021. Initially the provisions of MCOC Act were

not invoked. The same came to be added on 13.08.2021. The Special

Public Prosecutor made an application on 20.08.2021 seeking extension

of the detention period of the appellants upto 180 days on the ground

that by that time the investigation could not be completed. The said

application was rejected by the learned Special Judge vide order dated

27.08.2021. It is stated that on 27.08.2021 itself the investigating officer

filed the charge-sheet for the offences punishable under the provisions of

Indian Penal Code, the Arms Act and the Atrocity Act. The request was

made to the Court in the said charge-sheet for conducting further

investigation with liberty to file further charge-sheet for the offences

punishable under the MCOC Act. On 30.08.2021 the appellants made

an application for bail under Section 167(2). It is the case of the

appellants that in order to overcome the order dated 27.08.2021,

rejecting their application for extension of detention period, the

investigating officer hurriedly filed incomplete and defective charge-sheet.

No charge-sheet was filed for the offences punishable under the MCOC

Act. Since the permission was rejected for further detention up to 180

days the right to be released on bail accrued in favour of the appellants.

apeal.429.2021 judge.odt

Therefore, they were, entitled to be released on bail by invoking the

provisions of Section 167(2) (a)(i) of the Cr.P.C.

5] The learned Special Public Prosecutor in charge of the case

filed the reply and opposed the application. It is the case of the

prosecution that the investigation for the offences under the Indian Penal

Code, the Arms Act, the Maharashtra Police Act and the Atrocity Act was

complete. The period of 90 days would have expired on 29.08.2021.

The charge-sheet filed for the principal offence of murder is complete in

all respect. The appellants, according to the prosecution has no right to

apply for bail under Section 167 (2) (a)(i) of the Cr.P.C.

6] The learned Judge after considering the rival submissions

rejected the said application by order dated 30.08.2021. Being aggrieved,

the appellants are before this Court. We have heard the learned Senior

Advocate Mr A. S. Mardikar for the appellants and the learned Additional

Public Prosecutor Mr. T. A. Mirza for the State. Perused the record and

proceedings.

7] Learned Senior Advocate Shri. A. S. Mardikar for the apeal.429.2021 judge.odt

appellants submitted that the charge-sheet filed against the appellants is

incomplete charge-sheet. The said charge-sheet could not be said to be a

charge-sheet in the eye of law and therefore, right to get bail under

Section 167(2)(a)(i) of the Cr.P.C. accrued in favour of the appellants.

The learned senior Advocate submitted that this exercise of filing of the

incomplete charge-sheet was undertaken by the investigating officer with

the sole object of defeating the right of the appellants under Section

167(2)(a)(i) of the Cr.P.C. In the submission of the learned senior

Advocate, the learned Special Judge has committed an error in rejecting

the application. The reasons recorded are not according to the law. In

order to substantiate this submission, the learned senior Advocate has

relied upon the decision in the case of Fakhrey Alam .v/s. The State of

Uttar Pradesh, Criminal Appeal No. 319 of 2021 decided on

15.03.2021. Relying upon this decision the learned Senior Advocate

submitted that the right accrued in favour of the appellants could not be

taken away by undertaking such exercise at the behest of the investigating

officer.

8] As against this the learned APP submitted that the learned

Special Judge has recorded the reasons in support of his findings. The apeal.429.2021 judge.odt

learned APP submitted that after completion of the investigation for the

principal offence of murder the charge-sheet was filed within period of 90

days. The learned APP submitted that the investigation in a crime is

prerogative of the police officer. By drawing our attention towards the

provisions of the Section 173(8) of the Cr.P.C., the learned APP

submitted that for the purpose of carrying out further investigation after

filing of the charge-sheet sanction/permission of the Court is not

necessary. Similarly, the said power cannot be scuttled either by the

Court or by the accused. The learned APP submitted that the charge-

sheet filed in this case is complete charge-sheet for the main offence. In

the submission of the learned APP in this case the right of default bail did

not accrue at all in favour of the appellants. As far as the decision of the

Hon'ble Supreme Court is concerned, the learned APP submitted that it is

not applicable to the facts of this case and the learned Special Judge to

that effect has recorded the reasons.

9] We have minutely perused the record and proceedings. The

undisputed facts having bearing with the question involved in this appeal

needs to be stated. Initially in Crime No. 509 of 2021 the provisions of

the MCOC Act were not applied. The investigating officer applied for apeal.429.2021 judge.odt

approval of the Commissioner of Police, Amravati as per the provisions of

Section 23(1) of the MCOC Act to apply the provisions of MCOC Act in

this crime. The approval was accorded on 75th day of the arrest of the

appellants i.e. on 13.08.2021. The application made by the Special

Prosecutor in terms of the provisions of Section 21(2)(b) of the MCOC

Act for extension of period of detention beyond 90 days and upto 180

days was rejected on 27.08.2021 for the reasons recorded in the said

order. The investigating officer on 27.08.2021 filed the charge-sheet

against the appellants before the learned Special Judge, Amravati for the

offences under the provisions of Indian Penal Code, the Arms Act, the

Maharashtra Police Act and the Atrocity Act. The learned Judge took the

cognizance of the offences. The learned Judge did not grant specific leave

to the investigating officer as sought for carrying out further investigation

and to file the supplementary charge-sheet for the offences under the

MCOC Act. On 30.08.2021, the appellants made an application under

Section 167(2)(a)(i) of the Cr.P.C. The main contention of the appellants

is that the charge-sheet filed by the investigating officer is incomplete and

defective charge-sheet. The said charge-sheet could not be said to be a

charge-sheet in the eye of law and therefore, due to filing of defective and

incomplete charge-sheet the right of default bail accrued in favour of the apeal.429.2021 judge.odt

appellants on expiry of the period of 90 days from the first production of

the appellants before the learned Magistrate after their arrest.

10] In this case therefore, the main question that needs to be

examined is whether the charge-sheet, as filed, could be said to be

incomplete or defective charge-sheet. It is pertinent to mention that the

investigation for the principal offence of murder under Section 302 of the

IPC and other offences under the Arms Act, the Maharashtra Police Act

and the Atrocity Act was complete on the date of the filing of the charge-

sheet. In the application made by the appellants before the learned

Special Judge as well as in this appeal memo there is no statement to

demonstrate as to how the charge-sheet filed for this principal offence

under Section 302 with other offences under the Arms Act, the

Maharashtra Police Act and the Atrocity Act would be defective. In this

background, it would be necessary to refer to the provisions of Section

173 of the Cr.P.C. Sub Section 2 provides for filing of the charge-sheet as

soon as the investigation is over. It also provides for the form of the

charge-sheet. The photocopy of the charge-sheet, filed against the

appellants, has been produced on record. The perusal of the same would

show that it is strictly in conformity with the provisions of the Section apeal.429.2021 judge.odt

173(2). It is seen on perusal of the record that for the principal offence of

murder under Section 302 and the offences under the Arms Act, the

Maharashtra Police Act and the Atrocity Act no request has been made by

the investigating officer for further investigation or for doing any other act

to give finality to the charge-sheet which has been filed. The charge-sheet

is complete. Once it is found that the charge-sheet filed under Section

173(2) is complete and in conformity with law to the extent of principal

offence of murder and other offences it would be necessary to examine

the other submissions.

11] The appellants opposed the application made by the Special

Prosecutor dated 25.08.2021 for extension of period of detention of the

appellants from 90 days to 180 days. The main crux of the objection was

that the offences under the MCOC Act could not be applied against the

appellants and therefore, no case was made out for extension of the

detention period of the appellants upto 180 days. Perusal of the record

would show that the stand taken by the appellants in the application made

under Section 167(2) of the Cr.P.C. is self contradictory. The appellants

are intending to take the benefit of the provisions of Section 167(2)(a)(i).

In the very next breath they have contended that no material has been apeal.429.2021 judge.odt

placed on record to indicate that the offences under the provisions of the

MCOC Act have been made out. The learned Special Judge while

rejecting the said application vide order dated 27.08.2021 made certain

observations. Without even venturing into the tenability of such

observation at the preliminary stage of investigation, it is seen that the

learned Judge categorically observed that the alleged illegal acts of the

appellants are not prima facie covered in the definition of the 'organized

crime' as provided under Section 2(e) of the MCOC Act. It is pertinent

to mention that this observation at the preliminary stage of the case is in

favour of the appellants. The learned Special Judge, taking note of the

material on record, was pleased to reject the application made by the

Special Prosecutor for authorizing the detention of the appellants upto

180 days.

12] A statement is made in the reply by the learned APP that the

State intends to challenge this order, however, the fact remains that the

said order is not yet challenged. At this stage, therefore, the contention of

the appellants that the charge-sheet is defective and incomplete charge-

sheet for the principal offence of murder needs appreciation. In our view,

if the undisputed facts and the material on record is appreciated and apeal.429.2021 judge.odt

considered in proper prospective it would indicate that the charge-sheet

filed against the appellants could not be said to be defective or incomplete

charge-sheet. The learned Judge for the reasons recorded vide order

dated 27.08.2021 rejected the prayer for further detention of the

appellants upto 180 days to enable the investigating officer to conduct the

investigation qua the offences under the MCOC Act. In our view the

appellants cannot be allowed to blow hot and cold from the same pipe.

They seem to be satisfied with the observations of the learned Judge that

the offences under the MCOC Act are not prima facie made out. At the

same time, besides taking the advantage of the said order and getting rid

of provisions of MCOC Act they have audacity to contend that the

charge-sheet filed against them is incomplete and defective. We are not

prepared to accept this contention.

13] Even if it is assumed for the sake of argument that the order

dated 27.08.2021 would not stand in the way of the investigating officer

to conduct the investigation qua the offences under the MCOC Act, the

charge-sheet filed could not be said to be incomplete or defective charge-

sheet. No right to seek a default bail in the fact situation accrued in

favour of the appellants. On filing of the charge-sheet the Court has

taken cognizance of the offences mentioned in the charge-sheet. At this apeal.429.2021 judge.odt

stage, it is necessary to mention that Section 173 of the Cr.P.C. is part of

Chapter XII which deals with information to the police and their powers

to investigate. Section 190 of the Cr.P.C. is a part of Chapter XIV which

deals with the conditions requisite for initiation of proceedings. The

placement of these two Sections in different chapters indicate that both

operate in different situation. The only co-relation that can be seen is that

the final report filed under Section 173 is the basis for taking cognizance

of the offence by the Magistrate. At the time of taking cognizance the

Magistrate is required to apply his mind to the report and the documents

complied in the report under Section 173 and on being satisfied has to

take cognizance. In this case after completion of the investigation for the

offences for which charge-sheet has been filed, the learned Judge has

taken cognizance of those offences in view of the material compiled in the

charge-sheet. It could not be said by any stretch of imagination that the

cognizance taken by the Court was not according to law. The acceptance

of the submissions on the part of the appellants, in the teeth of the

material compiled in the charge-sheet, would tantamount to holding that

the cognizance taken by the Court of those offences was not according to

law. In our view, it is not permissible. The investigation in the crime is

the prerogative of the Police. Sub section 8 of Section 173 of the Cr.P.C., apeal.429.2021 judge.odt

which is mandatory, empowers the Police to conduct further investigation

in respect of an offence after a report under sub section 2 has been

forwarded to the Magistrate. In our view, this right of further

investigation sanctioned under sub-section 8 of Section 173 cannot be

restricted, controlled or scuttled by the Court. In view of the rival

submissions of the parties at this stage it would be difficult to speculate

whether the Police would proceed further or not to conduct the

investigation qua the offences under the MCOC Act. As mentioned

earlier, the learned Judge on the basis of the available material recorded a

prima facie opinion that the offences are not made out. The appellants

are proceeding on the assumption that the Police would conduct the

investigation qua the offences under the MCOC Act. In our view

acceptance of this submission would be against the law.

14] In this context we may usefully refer to a decision of the

Hon'ble Supreme Court in the case of Dinesh Dalmia .v/s. CBI reported

in AIR 2008 SC78. In this case the Hon'ble Supreme Court of India has

held that the power of a Court to direct remand of an accused in terms of

Sub-section (2) of Section 167 or Sub-section (2) of Section 309 thereof

will depend on the stages of the trial. It is held that Sub-section (2) of apeal.429.2021 judge.odt

Section 167 of the Code would be attracted in a case where cognizance

has not been taken. Whereas, Sub-section (2) of Section 309 of the Code

would be attracted only after cognizance has been taken. In the context

of the right of the accused to apply for bail under Section 167(2) the

Hon'ble Supreme Court has held that so long a charge-sheet is not filed

within the meaning of Sub-section (2) of Section 173 of the Code, the

investigation remains pending. It however does not preclude the

investigating officer to carry on further investigation despite filing a police

report, in terms of Sub-section (8) of Section 173 of the Code. It is held

that the right to apply for default bail is lost once the charge-sheet is filed.

Such right does not revive only because further investigation is pending

within the meaning of Section 173(8). In our view this proposition

would squarely apply to the facts of this case.

15] The learned Single Judge (Coram: Prakash D. Naik, J.) of this

Court at Principal Seat at Bombay in Bail Application No.301 of 2020

with Bail Application No. 3505 of 2019 with Bail Application No. 3506

of 2019 (decided on 31.01.2022) has considered the above decision and

held that the charge-sheet filed in the absence of the some of the

documents could not be said to be a defective and incomplete charge-

sheet. The learned Single Judge was mainly dealing with the contentions apeal.429.2021 judge.odt

of the accused in the cases, filed under the Narcotics Drugs and

Psychotropic Substances Act, 1985, where the charge-sheets were filed

without CA report. The accused therein applied for default bail under

Section 167(2) of the Cr.P.C. on the ground that the charge-sheets were

incomplete inasmuch as the same were filed without CA report. The

learned Single Judge considered number of judicial pronouncements and

concluded that in the absence of CA report with the charge-sheet it could

not be termed as incomplete charge-sheet. Recording these findings the

bail applications were rejected. The learned Single Judge has considered

the decision in the case of Dalmia (supra) and other Judgments of the

Hon'ble Supreme Court and High Courts including our High Court. This

view supports our conclusion. The ratio in this judgment would also be

applicable to this case because it is not the case of the appellants here that

for the principal offence some material has been omitted and excluding

that material charge-sheet has been filed.

16] It would be necessary to consider the applicability of the

decision of the Hon'ble Supreme Court of India in the case of Fakhrey

Alam (supra). This decision was cited before the learned Special Judge.

The learned Judge taking note of the distinguishing facts of this case apeal.429.2021 judge.odt

found the same inapplicable. In our view, the learned Special Judge was

right in doing so. In the case before Hon'ble Supreme Court the charge-

sheet was not filed within a period of 180 days. After expiry of the period

of 180 days the accused in that case had applied for default bail. The

investigating officer filed the supplementary charge-sheet after 211 days.

The Hon'ble Supreme Court, therefore, held that since no charge-sheet

was filed within 180 days under the UAPA Act the right had accrued in

favour of the accused to get the default bail. In our opinion the

proposition in this judgment would not be helpful to the case of the

appellants. In this case charge-sheet has been filed within 90 days. It is

not clear whether the further investigation would be carried out or not.

Even if the investigating officer decides to carry out the investigation it

would be his prerogative as provided under Section 173(8) of the Cr.P.C.

The charge-sheet filed before expiry of 90 days is a complete charge-sheet

for the principal offence of murder and other offences. The learned

Judge while rejecting the application for extension of period of detention

upto 180 days has made candid observation in the order that on the date

of the said application the offences under the MCOC Act were not

prima facie made out. In this case right has not accrued in favour of

the appellants to get bail under Section 167(2)(a)(i) of the Cr.P.C. In view apeal.429.2021 judge.odt

of this position we conclude that there is no substance in the appeal. The

order passed by the learned Judge does not warrant interference. The

appeal, therefore, deserves to be dismissed. Hence, the following order-

ORDER

i] The appeal stands dismissed.

ii] No order as to costs.

                                                    JUDGE                        JUDGE

                    Namrata




Signed By:NAMRATA YOGESH
DHARKAR
P. A.
High Court Nagpur
Signing Date:22.02.2022 18:39