Md. Sahidur Rahman vs The State Of Assam
2022 Latest Caselaw 2062 Gua

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GAHC010044792022




                              THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Bail Appln./524/2022

            MD. SAHIDUR RAHMAN
            S/O AKBAR ALI, R/O VILL- BHANGAGARH, CHILARAI NAGAR, P.S.-
            BHANGAGARH, DIST- KAMRUP(M), GUWAHATI-781005, ASSAM



            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM



Advocate for the Petitioner   : MR. A M BORA

Advocate for the Respondent : PP, ASSAM




                                   BEFORE
                     HONOURABLE MR. JUSTICE AJIT BORTHAKUR

                                           ORDER

10.06.2022

Heard Mr. A. M. Bora, learned Sr. Counsel assisted by Mr. M.K. Das, learned counsel appearing for the accused petitioner. Also heard Mr. B.B. Gogoi, learned Addl. P.P., appearing for the State respondent and Mr. B.K. Mahajan, learned counsel appearing for the informant.

2. By this petition under Section 439 of the Code of Criminal Procedure ('Cr.P.C.' Page No.# 2/13

for short), the accused-petitioner, namely Md. Sahidur Rahman has prayed for grant of bail in connection with Bhangagarh P.S. Case No. 607/2021 under Sections 120B/302/34 of the Indian Penal Code ('IPC' for short).

3. The scanned copy of the case record along with the case diary, as called for, is placed before the Court. Perused.

4. Mr. A.M. Bora, learned Sr. Counsel appearing for the accused petitioner, submitted that the accused has been in judicial custody for 246 days since 07.10.2021 despite being innocent and he underwent interrogation in police custody for three days. Mr. Bora further submitted that part charge-sheet was submitted keeping further investigation on under Section 173(8) of the Cr.P.C. and when the accused was on the verge of completion of the mandatory period of bail, that is, 90 days, with a view to frustrate the benefit of default bail under Section 167 of the Cr.P.C. It has been submitted that the case is yet to be committed to the Sessions Court for trial as one of the accused persons is absconding against whom coercive steps to compel his appearance has been initiated, for which reason, there is no immediate prospect of commencement of trial of the case. Mr. A.M. Bora, learned Sr. Counsel for the accused petitioner has relied on the principles of law laid down by the Hon'ble Supreme Court in this context in Dataram Singh Vs. State of Uttar Pradesh and Anr., reported in (2018) 3 SCC 22; Fakhrey Alam Vs. State of Uttar Pradesh , reported in 2021 SCC OnLine SC 532; Achpal Alias Ramswaroop and Anr. Vs. State of Rajasthan, reported in (2019) 14 SCC 599; and the orders passed by the High Court of Andhra Pradesh in the case of Akula Ravi Teja Vs. State of Andhra Pradesh, reported in 2020 SCC OnLine AP 1464 as well as High Court of Delhi in State Vs. Hargyan, reported in 2016 SCC OnLine Del 3730.

5. Vehemently opposing the bail application, Mr. B.B. Gogoi, learned Additional Public Prosecutor, submitted that in fact, final charge-sheet has been submitted against the present accused and two others and part charge-sheet against one Amir Page No.# 3/13

Khan, who is shown as absconder under Sections 120B/302/34 of the IPC on 04.01.2022. Mr. Gogoi further submitted that the police arrested the accused on 07.10.2021, on which date itself, the learned Magistrate remanded him in police custody and thus, computing from the date of first remand, the charge-sheet was

submitted on 04.01.2022, that is, on the 89 th day, which was within the prescribed period of 90 days under Section 167(2) of the Cr.P.C. Therefore, Mr. Gogoi submitted that the accused petitioner is not entitled to default bail, but his case is to be considered on merit only.

6. Mr. B.K. Mahajan, learned counsel appearing for the informant, submitted that as the charge-sheet in the case has been submitted within the prescribed period of 90 days and the case being pending at the committal stage and further, considering the nature and seriousness of the offences, the accused petitioner may not be released on bail. In support of his contentions Mr. Mahajan relied on the judgments rendered by the Hon'ble Supreme Court in State of Maharashtra Vs. Sharadchandra Vinayak Dongre and Ors., reported in (1995) 1 SCC 42; Serious Fraud Investigation Office Vs. Rahul Modi and Ors., reported in 2022 SCC OnLine SC 153 and the orders passed by this Court in AB No. 482/2022; Bail Appln. No. 176/2019; Bail Appln. 2718/2019 and Bail Appln. 229/2022.

7. The prosecution case, in brief, is that on 07.10.2021, the informant Raj Kumar Ray lodged an F.I.R. before the Officer-in-Charge, Bhangagarh P.S., alleging, inter-alia, that in the evening of 06.10.2021, someone killed his nephew, namely Bipul Ray near Nemcare Hospital. Upon seeing the informant's nephew lying there in a pool of blood, one neighbour, namely Hazarat Ali informed the matter to him. Accordingly, the informant rushed to the place of occurrence and found his nephew lying there. It is alleged by the informant that one Sahidur, the accused petitioner herein, used to quarrel with his nephew and therefore, he strongly suspected that said Sahidur along with one Nur Alam and some other persons might have killed him.

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8. A perusal of the case record along with the case diary, it is revealed that the accused has been in judicial custody since he was arrested on 07.10.2021. After completion of investigation, the police laid a part charge-sheet under Sections 120B/302/34 of the IPC against the present accused and 3(three) others showing one of them, namely Amir Khan as absconder vide order, dated 04.01.2022, that is, on the

89th day. Accordingly, the learned committal court issued summons to the absconder accused for his appearance vide order, dated 04.01.2022 and for having returned unserved of summons with report that he was absconding since the date of the incident, by order, dated 03.02.2022, the learned Court issued NBWA and P&A against him to compel his appearance entailing continuation of detention of the accused beyond 246 days awaiting committal of the case for trial under Section 209 of the Cr.P.C.

9. It may be pointed out that the issue of default bail has come up due to the investigating officer's use of the expression 'part charge-sheet' in the charge-sheet. For better understanding, the relevant paragraphs of the charge-sheet are extracted hereinbelow-

"..... I submit the Part Charge-Sheet of this case against the accused persons namely 1) Md. Sahidure Rahman, S/O: Akbar Ali, R/O: Kodomtoli P/S: Sukshor, Dist: South Salmara, Assam, 2) MD Noor Alom, Age 33 S/O: Abdul Ali, R/O: Patakata gram, P/S: South Salmara, Dist: South Salmara, Assam 3) MD Hazarat Ali, Age 23 S/O: Safiur Ali, R/O: Agamoni Kalduba, P/S: Agamoni Dist: Dhuburi Assam to prosecute them under section 120(B)/302/34 IPC showing the accused Amir Khan, Age 24 Yrs, S/O: Md Jayan Khan, R/O: Srimatapur, Near LP School, P/S: Bhangagarh, Dist: Kamrup Metro, Assam as absconders.

However, the investigation will continue to till apprehended the absconding accused because the police custodial interrogation is highly required of the absconder accused namely Amir Khan, due to he is one of the culprit of the case and will submit further additional report/charge sheet U/S- 173(8) Cr.P.C. The witnesses noted in column NO. 6 will prove the case and so they may kindly be summoned during the time trial to give evidence."

10. In paragraph 20 of the judgment rendered by the Hon'ble Supreme Court in Page No.# 5/13

Achpal (Supra), it is observed that the provisions of the Code do not empower anyone to extend the period within which the investigation must be completed nor does it admit of any such eventuality. Reiterating the aforesaid same proposition of law, the Apex Court in Fakhrey (supra) held in paragraph 13 that "We do not think that the State can take advantage of the fact that in one case there is one charge-sheet and supplementary charge-sheets are used to extend the time period in this manner by seeking to file the supplementary charge-sheet......" In paragraph 16, it is held that "the appellant is entitled to default bail under Section 167(2) of the Cr.P.C......"

11. In Kamlesh Chaudhury Vs. State of Rajasthan, reported in 2020 SCC OnLine Raj 2127, the Rajasthan High Court held that keeping matter pending under Section 173(8) of Cr.P.C............is not a ground to deny the bail, more particularly when it is clearly mentioned in the charge-sheet that the investigation is kept pending under Section 173(8) of the Cr.P.C. against the present petitioner. It is true that Investigating Agency has a right to continue with the investigation, but equally it is true that if the investigation is not completed within the prescribed time, the accused is entitled to default bail under the provision of Section 167 of the Cr.P.C.

12. Section 167 of the Cr.P.C. reads as under-

"167. Procedure when investigation cannot be completed in twenty-four hours.- (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that--

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[(a) the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence,and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;] [(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;]

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

[Explanation I.--For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.] [Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.] [Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution.] [(2A) Notwithstanding anything contained in sub-section (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make Page No.# 7/13

such order; and, where no order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2):

Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.] (3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.

(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.

(5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.

(6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify."

13. A bare reading of the above Section 167 of the Cr.P.C. shows that any person arrested must be produced before the Magistrate within 24 hours when investigation cannot be completed within the prescribed period so that the Magistrate can take further course of action as contemplated by Section 167 (2) of the Cr.P.C. Sub clauses

(i) and (ii) of Clause (a) of the proviso of Section 167 (2) of the Cr.P.C. provide that where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10(ten) years, the maximum detention of the accused is for a period of 90 (ninety) days; and for any other offence, the maximum detention period is 60 (sixty) days.

14. It is well settled that when a charge sheet is filed within the aforesaid prescribed period of 90 days or 60 days, as the case may be, the accused's right to be Page No.# 8/13

released on bail has to be considered under the aforesaid limits provided in sub- clauses (i) and (ii) of the proviso of section 167 (2) Cr.P.C. and if the charge-sheet is submitted within the aforesaid period(s), his bail prayer, thereafter, is to be considered on merit.

15. Right to bail under proviso (a) of Section 167 (2), is absolute if the investigating agency fails to file the charge-sheet before expiry of 60 or 90 days, as the case may be and therefore, it is the duty of the Court to release the accused on bail in the aforesaid compulsive legal situation. The said statutory period of detention shall be reckoned from the date of the accused's remand in first instance.

16. It may be mentioned that the law enjoins that as soon as the investigation is completed in a case, the Officer-in-Charge of the police station is required to forward a 'police report' defined in Section 2(r) to the Magistrate empowered to take cognizance of the offence in the prescribed format stating the particulars as specified in Sub-Section (2)(i) of Section 173 Cr.P.C. The report signifies completion of investigation launched under Section 157 of the Cr.P.C. in the case and the opinion of the investigating officer, based on the prima facie evidence he collected during investigation, reported to the jurisdictional Magistrate. This opinion of the investigating officer being not a legal evidence, the same is subject to the judicial scrutiny of the Court. The statutory requirement of the report under Section 173(2) of the Cr.P.C. is complete, if the various details prescribed therein are stated.

17. For ready reference, the said Section 173 of the Cr.P.C. is extracted hererinbelow-

"173. Report of police officer on completion of investigation.- (1) Every investigation under this Chapter shall be completed without unnecessary delay.

[1(A) The investigation in relation to [an offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of the Indian Penal Code (45 of 1860) shall be completed within two months] from the date on which the information was recorded by the Page No.# 9/13

officer in charge of the police station.] (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, weather with or without sureties;

(g) whether he has been forwarded in custody under section 170.

(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under [sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB] or section 376E of the Indian Penal Code(45 of 1860)].

(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.

(3) Where a superior officer of police has been appointed under section 158, the report, shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation, (4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report-

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.

(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject- matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.

(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub- section (5).

(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a Page No.# 10/13

report forwarded under sub- section (2)."

18. Further, the final report of police under Section 173(2) containing the aforesaid statutory details is complete when it is accompanied with all documents and statements of witnesses as per requirement of Section 173(5) Cr.P.C.

19. In Dinesh Dalmia Vs.C.B.I., reported in (2007) 8 SCC 770, the Hon'ble Supreme Court observed as under:

"15. A charge sheet is a final report within the meaning of Sub-section (2) of Section 173 of the Code. It is filed so as to enable the court concerned to apply its mind as to whether cognizance of the offence thereupon should be taken or not. The report is ordinarily filed in the form prescribed therefor. One of the requirements for submission of a police report is whether any offence appears to have been committed and, if so, by whom. In some cases, the accused having not been arrested, the investigation against him may not be complete. There may not be sufficient material for arriving at a decision that the absconding accused is also a person by whom the offence appears to have been committed. If the investigating officer finds sufficient evidence even against such an accused who had been absconding, in our opinion, law does not require that filing of the charge sheet must await the arrest of the accused." (extracted from Supreme Today software)

20. It may be pointed out that as held by the Hon'ble Apex Court in T.T. Antony Vs. State of Kerala reported in (2001) 6 SCC 181, if the investigating agency after filing report under Section 173 (2) of the Cr.P.C. comes into possession of further information or material, they are empowered to make further investigation, normally with the leave of the Court, and where during further investigation they collect further evidence, oral or documentary, they are obliged to forward the same in one or more further reports under Section 173 (8) of the Cr.P.C.

21. Therefore, continuation of further investigation, that is, additional or supplemental investigation of the earlier investigation is permissible, which can be made even at any stage of the trial of the case. This statutory power of further investigation (not reinvestigation) of the investigating officer may be exercised when new facts come to his knowledge; when certain aspects of the matter had not been Page No.# 11/13

considered by him and he found that further investigation is necessary to be carried out from a different perspective.

22. Now, on bare perusal of the charge-sheet in question, it transpires that the investigating officer has used the expression 'Part Charge-Sheet' and contemplated to continue the investigation against the 'absconding accused' namely Amir Khan and after completion of the further investigation to submit 'additional report/charge sheet' under Section 173(8) Cr.P.C.

23. Now, the relevant question is whether the aforesaid charge-sheet against the accused person is really a part charge-sheet? The answer is certainly in the negative inasmuch as the aforesaid final report or charge-sheet is in the prescribed format and contains all the necessary particulars required under Section 173 (2)(i) of the Cr.P.C. and further, it is accompanied by all the relevant documents and statements of witnesses recorded under Section 173 (5) of the Cr.P.C. Therefore, the aforesaid final report or charge-sheet is a complete charge-sheet after completion of investigation within the meaning of Section 173 (2) of the Cr.P.C. so far it relates to the arrested accused persons irrespective of the terminology or expression used by the investigating officer that it is a 'part charge sheet'. It is apparent that the investigating officer has been undertaking a course of action in exercise of his right vested under Section 173 (8) of the Cr.P.C. against the accused Amir Khan only, who has been absconding since the investigation was launched. As stated above, the police enjoy the statutory right to hold further investigation as often as necessary under Section 173(8) of the Cr.P.C. when fresh evidence or information comes to light.

24. It is further noticed that in the instant case, the arrested accused persons were initially remanded in police custody for 3(three) days vide order, dated 07.10.2021 and then remanded in judicial custody vide order, dated 10.10.2021. The aforestated charge-sheet under Sections 120B/302/34 of the IPC was submitted on 04.01.2022, that is within 90 days as required under Section 167(2)(a)(i) of the Cr.P.C.

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25. Therefore, in the opinion of this Court, no indefeasible right to default bail had accrued to the arrested accused persons on 04.01.2022 for having filed the charge- sheet within the prescribed maximum period of 90 (ninety) days of their detention for the alleged commission of the charge-sheeted offences. However, after filing of the charge-sheet under Section 173(2) of the Cr.P.C., the accused petitioner appears to have been remanded in judicial custody without taking cognizance of the reported alleged offences and resorting to either Section 209 or 309 of the Cr.P.C. as the committal proceeding has been stalled due to issue of process against the absconding accused and continuation of further investigation against him under Section 378(8) of the Cr.P.C.

26. Now, a perusal of the case record along with the case diary, it is revealed that the case is presently pending at the appearance stage for the accused Amir Khan, who has been absconding.

27. The post-mortem report shows that the cause of death of Bishal Ray was due to haemorrhage and shock resulting from ante-mortem injuries sustained on the neck, which were caused by sharp cutting elongated weapon.

28. Further, the alleged occurrence took place in the early evening hours near a hospital located at the heart of Guwahati city and the entire prosecution case is basically rested on circumstantial evidence. On the other hand, the accused persons are in judicial custody since 07.10.2021, that is, for 246 days till date. As stated above, after filing of the charge-sheet, the case is at appearance stage of their co-accused namely Amir Khan, who is absconding from the time of investigation and as such, there is no possibility of early committal of the case to the Sessions Court for trial. Hence, this Court is of the opinion that in the backdrop of facts and circumstances peculiar to the present accused person, who is a permanent resident of Guwahati, his further continuation of detention in judicial custody is not warranted.

29. Accordingly, it is directed that the accused petitioner shall be released on bail of Page No.# 13/13

Rs.50,000/- (Rupees Fifty Thousand) only with two sureties of like amount to the satisfaction of the learned C.J.M., Kamrup (M), Guwahati, subject to the following conditions-

i) That the accused petitioner shall continue to appear before the learned trial Court on all dates to be fixed from time to time till the case is disposed of; and

ii) That the accused petitioner shall not, directly or indirectly, make any inducement, threat or promise to any of the listed witnesses of the charge-sheet, who is acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court.

30. Breach of any of the above conditions shall render cancellation of the bail in accordance with law.

Be it mentioned here that no observation made in this bail order shall have any bearing in the judicial discretion of the learned Courts below.

This disposes of the bail application.

JUDGE

Comparing Assistant