Nandkishor Sharma vs Union Of India Through Swapak ...
2023 Latest Caselaw 2678 MP

                                                              1
                           IN     THE        HIGH COURT OF MADHYA PRADESH
                                                  AT JABALPUR
                                                      BEFORE
                                        HON'BLE SMT. JUSTICE NANDITA DUBEY
                                              ON THE 14 th OF FEBRUARY, 2023
                                           MISC. CRIMINAL CASE No. 56304 of 2022

                          BETWEEN:-
                          NANDKISHOR SHARMA S/O SHIV PRASAD SHARMA,
                          AGED ABOUT 20 YEARS, OCCUPATION: MAJDOORI,
                          GANJBASOUDA, POLICE STATION GANJBASOUDA, ZILA
                          VIDISHA (MADHYA PRADESH)

                                                                                            .....APPLICANT
                          (BY SHRI SANDEEP KUMAR JAIN - ADVOCATE )

                          AND
                          UNION OF INDIA THROUGH SWAPAK NIYANTRAN
                          BUREAU (N.C.B.) INDORE, DISTRICT INDORE (MADHYA
                          PRADESH)

                                                                                          .....RESPONDENT
                          (BY SHRI PUSHPENDRA YADAV - ASST. SOLICITOR GENERAL)

                                This application coming on for admission this day, the Court passed
                          the following:
                                                               ORDER

This is the first application filed by the applicant under Section 439 read with Section 167(2) of the Cr.P.C. for grant of default bail.

The applicant is in custody since 14.04.2022 in connection with Crime No.6/2022 registered at Police Station N.C.B., Indore (M.P.) for the offence punishable under Sections 8/20(b)(c)(ii), 25, 27/A read with Section 29 of NDPS Act.

As per prosecution, on 13.04.2022, the Police Station N.C.B., Indore

Signature Not Verified (M.P.) received an information that present applicant alongiwth co-accused Signed by: SMT. GEETHA NAIR Signing time: 2/17/2023 11:30:38 AM

Indrajeet is transporting huge quantity of ganja from Orissa to Vidisha by vehicle No.M.P.-04/EA-1397. On the basis of this information, the said vehicle was intercepted at cross road of Jabalpur-Bhopal Highway. The vehicle was found carrying 169.380 kgs of ganja. The applicant and co-accused were arrested on the spot and sent to judicial custody.

It is the contention of learned counsel for the applicant that applicant is under custody since 14.04.2022, but till date the complete charge sheet has not been filed, under the circumstances, he is entitled to be released on bail under Section 167(2) of Cr.P.C. as the investigation has not been completed with the stipulated period of 180 days. It is submitted that this aspect has been

considered in the case of Manish Gandhi Vs. State of M.P. (M.Cr.C. No.15397/2017) by the co-ordinate Bench while granting bail under similar circumstances. It is pointed out that the co-ordinate Bench after referring to judgments of various High Courts and Supreme Court has arrived at the conclusion in para 25 that :

(a) That there can be no indelible proposition of law with regard to what constitutes a police report and the same is depended upon the opinion of the Magistrate empowered to take cognizance upon a police report in a given case.

(b) Merely because the report u/s. 173(2) states that further investigation is in process, does not bar the Magistrate from taking cognizance of the offences based upon the material forwarded along with the police

Signature Not Verified Signed by: SMT. GEETHA NAIR Signing time: 2/17/2023 11:30:38 AM

report. The Magistrate can take cognizance upon a report which discloses that further investigation is in progress if the Magistrate is satisfied that there is adequate evidence already on record enabling him to take cognizance u/s. 190(1)(b) Cr.P.C. In other words, the power of the Magistrate to take cognizance of an offence is not affected merely because the investigation is incomplete, even as per the contention of the police. If the material on record of the incomplete investigation is sufficient to take cognizance of an offence, the Magistrate can do so.

(c) An application by the police seeking further investigation u/s. 173(8) Cr.P.C would not raise the presumption that the report filed by raise the presumption that the police report u/s. 173(2) Cr.P.C is incomplete. If the report u/s. 173(2) Cr.P.C is complete with regard to the core issues which constitute the substratum of the offence under investigation and only certain peripheral or collateral issues remain to be investigated u/s. 173(8), then such a police report

cannot be labelled as incomplete and thereby invest the accused with the right of a default bail u/s. 167(2) Cr.P.C.

(d) That a police report u/s. 173(2) must be complete in all material particulars and must ideally Signature Not Verified Signed by: SMT. GEETHA NAIR Signing time: 2/17/2023 11:30:38 AM

disclose that investigation is complete. The police report must not be filed in such a manner that its contents reveal that the investigation is incomplete and that the report has been filed only to defeat the right of the accused to a default bail u/s. 167(2) Cr.P.C, and finally,

(e) Whether a police report is one u/s. 173(2) Cr.P.C or whether the same has been filed with the intention of curtailing the right of the accused to secure default bail u/s. 167(2) Cr.P.C is essentially a question of fact to be determined on the merits of each case.

Learned counsel for the respondent, on the other hand has vehemently opposed the contention put forth on behalf of the applicant. He submitted that charge sheet is complete in all material aspects as far as present applicant is concerned and fully complied with the requirement of a police report under Section 173(2) of Cr.P.C. He further stated that just because further investigation is kept open if in future any other person is found involved in the said offence does not mean that investigation as far as it relates to present applicant is still pending. He stated that the applicant has previous criminal records of similar nature and he is also a part of inter State gang dealing in contraband. He has placed reliance on the decision in MCrC No. 54454/2022, Sajid Khan Vs. State of MP., 2022 and Navinkumar Pandu Jatot Vs. State of Maharashtra SCC Online Bom. 3131 to substantiate that charge sheet without accompanying CDR does not make it incomplete.

Heard the learned counsel for the parties, perused the case diary and the Signature Not Verified Signed by: SMT. GEETHA NAIR Signing time: 2/17/2023 11:30:38 AM

case laws referred to by them.

In the present case, the applicant is merely seeking default bail under Section 167(2) of Cr.P.C. On perusal of case diary, it appears that the charge sheet against the present applicant has already been filed. Further investigation is kept open in case if any other person is found involved in the case. One of the requirement of police report is whether any offence appears to have been committed on the basis of existing material to enable the Magistrate to take cognizance of the offence. In the presence case, charge sheet is accompanied by the photographs, statement of witnesses, panchnama, field testing report, nature of commodity seized, FSL report dated 27.04.2022 etc. Merely because CDR and CAF and certificate under Section 65(B) is awaited does not make the charge sheet incomplete. Therefore, no case for default bail is made out. On merits also, looking to the large quantity of contraband seized from the applicant, no ground for bail is made out.

This application under Section 439 of the Cr.P.C. is accordingly dismissed.

(NANDITA DUBEY) JUDGE gn

Signature Not Verified Signed by: SMT. GEETHA NAIR Signing time: 2/17/2023 11:30:38 AM