BA2/94/2025
2025 Latest Caselaw 2707 UK

Uttarakhand High Court

BA2/94/2025 on 20 May, 2025

Author: Rakesh Thapliyal

Bench: Rakesh Thapliyal

                                                                       2025:UHC:2203
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      Date    or directions                    COURT'S OR JUDGE'S ORDERS
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                               BA2 No. 94 of 2025

                               Hon'ble Rakesh Thapliyal, J.

1. Mr. S.R.S. Gill, learned counsel for the applicant.

2. Mr. Sandeep Sharma, learned A.G.A. for the State.

3. Mr. Alok Kumar, learned counsel for the complainant.

4. In this case the first bail application was already rejected and at that time the copy of the chargesheet was not placed on record.

5. Now, the second bail application has been moved on two grounds, firstly on the date when the first bail application was rejected the charge sheet was not on record and, secondly, the empty cartridges, which were shown to be recovered from the place of incident was never been sent to the FSL despite this the charge sheet has been filed.

6. Apart from this, learned counsel for the applicant submits that though the charge sheet has been filed but this is on an incomplete investigation since in the charge sheet there is a reference that the part pending investigation is going on against the rest of the accused. He submits that on an incomplete investigation the charge sheet has been filed only in order to deprive the present applicant to get a default bail, which in fact is a statutory and fundamental right of the applicant.

7. On perusal of the charge sheet it reveals that admittedly there is a reference of part pending investigation against the rest of the accused and this cannot be treated as a charge sheet in terms of Section 173(1) (2) of Cr.P.C. and the part pending investigation against the rest of the accused may be a subject matter of further investigation in view of Section 173(8) but the same is not a requirement as per Section 173(2) of Cr.P.C.

8. Learned counsel for the applicant Mr. S.R.S. Gill has placed before this court one of the 2025:UHC:2203 judgment of Bombay High Court i.e. 1991 crlj 3329 Bombay Sharadchandra Vinayak Dongre vs. State of Maharashtra, wherein, it has been held any report sent before the investigation is completed will not be a police report within the meaning of sub section (2) of Section 173 r/w Section 2(r) of Cr.P.C.

9. Learned counsel for the applicant Mr. S.R.S. Gill also apprise this court that in the charge sheet on an incomplete investigation the Magistrate concerned take cognizance.

10. Apart from this, he submits that the applicant has also been chargesheeted under the Arms Act in the said offence in which the charge sheet has been filed and there is blank in column no. 15 which pertains to result of laboratory analysis, which itself reveals that the empty cartridges alleged to be recovered from the place of incident was never been sent to the FSL.

11. On the other side, learned A.G.A. submits that he may be granted some time to get instructions whether the empty cartridges were sent for the FSL or not.

12. On this, Mr. S.R.S. Gill submits that since the column no. 15 of the charge sheet is completely blank which itself establishes that the empty cartridges were never been sent for FSL. He submits that the investigation was done by the Investigating Agency in a haste manner and even as on today the part pending investigation has not been completed so far and the two charge sheets have been filed one relating to the panel provisions of the Indian Penal Code and other one under the Arms Act and both the charge sheets are based upon incomplete investigation and the same are not the charge sheet in terms of Section 173(2) and this attempt was made by the investigating agency only in order to deprive to get the default bail which in fact is the statutory and fundamental right of the applicant. He submits that the present applicant is languishing in jail since 13.12.2024.

13. After hearing the arguments of learned counsel for the parties and further taking into consideration that the empty cartridges were never been sent to the FSL, which is evident from the charge sheet itself and the present applicant is 2025:UHC:2203 languishing in jail since 13.12.2024, this court is of the view that the applicant deserves for bail.

14. Accordingly, without expressing any opinion on the merit of the case the instant second bail application is allowed.

15. Let the applicant 'Shashank' be released on bail on furnishing his personal bond and two sureties each of the like amount to the satisfaction of the court concerned.

16. It is made clear that after being released on bail if the applicant is found to be indulged in any criminal activity the prosecution is free to move an application for cancellation of bail.

(Rakesh Thapliyal, J.) 20.05.2025 PR 2025:UHC:2203