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Whether the court can grant default bail to the accused if the police fail to file a supplementary charge sheet within 90 days from the date of his arrest?

IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH

BEFORE  MR. JUSTICE RAJENDRA BADAMIKAR

CRIMINAL PETITION NO.101403 OF 2021 BETWEEN

SRI. SANTOSH  HARI KADAM

Vs

THE STATE OF KARNATAKA

DATED THIS THE 03RD DAY OF AUGUST, 2021
ORDER

The petitioner has filed this petition under Section 439 of Cr.P.C., for setting aside the order passed by the Principal Sessions Judge, Koppal in Criminal Revision Petition No.21/2021 dated 07.07.2021 confirming the order passed by the Civil Judge and JMFC, Yelburga in C.C.No.1/2021 for the offences punishable under Sections 380, 457, 458, 382, 201 of IPC and Section 25(I-A) of the Arms Act, 1959.

2. The brief facts of the case are that the petitioner has been arrayed as accused No.1 and he has been prosecuted for the offences punishable under Sections 380, 457, 458, 382, 201 of IPC and Section 25(IA) of the Arms Act, 1959. Initially, crime was registered in Crime No.78/2020 of Bevoor police station and after investigation, the investigation officer has submitted charge sheet on 04.01.2021 at 3.00 pm against the accused persons. The present petitioner is shown as

THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

The petitioner has filed this petition under Sectisn 439 of Cr.P.C., for setting aside the order passed by the Principal Sessions Judge, Kopnai in Criminal Revision Petition No.21/2021 deted C7.07.2021 confirming the order passed by the Civil Judge and JMFC, Yelburga in C.C.No.1/2021 tor the offences punisnable under Sections 380, 457, 458, 382, 201 of IPC and Section 25(I-A) of the Arms Act, 1959.

2. Tne brief facts of the case are that the petitioner has been arrayed as accused No.1 and he has been prosecuted for the offences punishable under Sections 380, 457, 458, 382, 201 of IPC and Section 25(IA) of the Arms Act, 1959. Initially, crime was registered in Crime No.78/2020 of Bevoor police station and after investigation, the investigation officer has submitted charge sheet on 04.01.2021 at 3.00 pm against the accused persons. The present petitioner is shown as accused No.1 in the charge sheet. The present petitioner was arrested on 06.02.2021. The supplementary charge sheet came to be filed on 17.05.2021 under Section 173(8) of Cr.P.C., Hence, it is contended that the charge sheet has not been submitted within 90 days from the date of his arrest and as such, he sought for statutory bail under Section 167(2) of Cr.P.C. The learned Magistrate has rejected the said petition and against the said order, the petitioner has filed revision before the learned Sessions Judge at Koppal and his revision petition also came to be rejected. Hence, he has approached this Court.

3. Heard the arguments advanced by both the parties and perused the records.

4. Learned counsel for petitioner would simply submit that he was arrested on 06.02.2021 and supplementary charge sheet was submitted on 17.05.2021 and as the supplementary charge sheet is not filed within 90 days, as per the statute, he is entitled for statutory bail accused No.1 in the charge sheet. The present petitioner was arrested on 06.02.2021. The supplementary cherge sheet came to be filed on 17.05.2021 under Section sheet has not been submitted within 90 days from the date sougist under Section 167(2) of Cr.P.C. The learned Magistrate has befcre Judge at Konpal and his revision petition also came to be Heard the arguments advanced by both the Learned counsel for petitioner would simply supplementary charge sheet was submitted on 17.05.2021 90 days, as per the statute, he is entitled for statutory bail 173(8) of Cr.P.C., Hence, it is contended that the charae of his arrest and as such, he sougitt for statutory bail rejected the said petition and against the said order, the petitioner has filed revision befere the learned Sessions rejected. Hence, ne has approached this Court. parties and perused the records.

submit that he was arrested on 06.02.2021 and and as the supplementary charge sheet is not filed within and both the Courts have erred in rejecting his application. He has also placed reliance on two citations.

5. Per contra, learned HCGP has objected the petition on the ground that the charge sheet was submitted against the present petitioner prior to his arrest only. Hence, he submits that the provisions of Section 167(2) of Cr.P.C. cannot be applicable to him. Hence, he would seek for rejection petition.

6. Having heard the arguments, it is evident that at the first instance, the petitioner has filed this petition under Section 439 of Cr.P.C. challenging the order of the Trial Court as well as Revisional Court. The petition itself is not maintainable as the provisions of Section 482 of Cr.P.C., were not invoked in this petition. The office ought to have raised objections in this regard, but for the best reasons known, no office objections have been raised.

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7. Even otherwise on merits also, the petition is not maintainable as the charge sheet was submitted on 04.01.2021 itself, which is evident from the records and both the Courts have erred in rejecting his 2nptication, He has also placed reliance on two citations.

5. Per contra, learned HCGP.has objected. tre petition on the ground thet the. charge sneet was submitted against the present petitioner prior to his arrest only. Hence, he submits tnat the provisions of Section 167(2) of Cr.P.€. cannot be aprlicable to him. Hence, he would seek for rejection petition.

6. Having heard the arguments, it is evident that at the first instance, the petitioner has filed this petition under Section 439 of Cr.P.C. challenging the order of the Trial Court as well as Revisional Court. The petition itself is not maintainable as the provisions of Section 482 of Cr.P.C., were not invoked in this petition. The office ought to have raised objections in this regard, but for the best reasons known, no office objections have been raised.

7. Even otherwise on merits also, the petition is not maintainable as the charge sheet was submitted on 04.01.2021 itself, which is evident from the records produced by the present petitioner himself. The present petitioner was arrayed as accused No.1 in the charge sheet. The charge sheet was submitted for the offences punishable under Sections 380, 457, 458, 382, 201 of IPC and Section 25(I-A) of the Arms Act, 1959 against the present petitioner. However, as some of the accused were absconding, the investigation officer in his charge sheet itself sought leave of the Court to submit supplementary charge sheet in due course. The supplementary charge sheet was submitted on 17.05.2021 by collecting some additional material. Section 173(8) of Cr.P.C., deals with supplementary charge sheet, which states as under:

173. Report of police officer on completion of investigation.

Nothing in this section shall be deemed to preclude further investigation in respect of an produced by the present petitioner himself. The present petitioner was arrayed as accused No.1 in the charge sheet. The charge sheet was submitted for the offences punishable under Sections 380, 457, 458, 382, 201 of IPC and Section 25(I-A) of the Armis Act, 1959 against the present petitioner. However, as some of the accused were absconding, the investigation officer in his charge sheet itself sought. leave of the Court to submit supplementary charge sheet in due course. The supplementary charge sheet was submitted en 17.05.2021 by collecting some additional material. Section 173(8) of Cr.P.C., deals with supplementary charge srieet, which states as under: 173. Report of police officer on completion of investigation.

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 office-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 report forwarded under sub- section (2).

8. Hence, for submitting supplementary charge sheet, leave of the Court is not required and the statute itself has given powers to the investigation officer to submit supplementary charge sheet, if any material is found. However, in the instance case, the charge sheet is submitted against the present petitioner on 04.01.2021 itself and he was arrested on 06.02.2021 i.e. after submission of the charge sheet.

9. Therefore, now it is necessary to consider Section 167(2) of Cr.P.C., which reads as under: 167. Procedure when investigation cannot be completed in twenty-four hours offence after a report under sub- section (2) tias been forwarded to the Magistrate anc, where upon such investigation, the office-ii-charge of the police station obtains surther evidence, crel ,sorward such evidence in the form prescribed; and the sections shail, far as may be, apply in relation te such report forwarded uncer sub- section (2).

8. Hence, for submitting supplementary charge sheet, leave of the Court is not required and the statute itself has. given powers to the investigation officer to submit supplementary charge sheet, if any material is found. However, in the instance case, the charge sheet is submitted. against the present petitioner on 04.01.2021 itself and. he was arrested on 06.02.2021 i.e. after submission of the charge sheet.

9. Therefore, now it is necessary to consider Section 167(2) of Cr.P.C., which reads as under: 167. Procedure when investigation cannot be completed in twenty-four hours or documentary, he _ shall forward to. the Magistrate a further report or reports regarding provisions of sub- sectivons (2) to (6) shali, as or reports as they apply in relation to a report

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(1) xxxxxx

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no 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,-

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the 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,

(1) XxXxxxx

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

person, custody of tke police, beyond the period of grounds exist for doing so, but no Magistrate shail 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, having sucti jurisdiction.

(a) the Magistrate may authorise the detention of the accused nserson, otherwise than in the fifteen days, if he is satisfied that adequate

(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 subsection 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), (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 person released on bail under iris subsection under the provisions of Chapter XXXIII for

(b) no Magistrate shall authorise detention of section unless the accused is produced before remains in the custody of the police, but the judicial custody on production of the accused electronic video linkage; ]

specially empowered in this behalf by the High of the police.

Explanation I.- For the avoidance of doubts, it is expiry of the period specified in paragraph (a), prepared to and cloes furnish bail, and every shal! be deemed te be so released the purposes of that Chapter; j the accused in custody of the police under this him -in. person. for. the first time and subsequentiy every time till the accused Magistrate may extend further detention in either in person or through the medium of

(c) no Magistrate of the second class, not Court, shall authorise detention in the custody hereby declared that, notwithstanding the the accused shall be detained in custody so long as he does not furnish bail;].

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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 though the medium of electronic video linkage, as the case may be:]

PROVIDED FURTHER that in case of women under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognized social institution.]

10. Hence, as per Section 167(2) of Cr.P.C., the Magistrate can order for detention of the accused for maximum 90 days or 60 days as the case may be if the charge sheet is not filed and investigation is not concluded from the date of arrest. Section 167(2) of Cr.P.C., is applicable only when charge sheet is not laid down and it starts operative when accused is arrested during the course of investigation, but if charge sheet is filed against the accused shall be detained in custody se 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 Magistrate as to. production of trie accused linkage, as the case may be:]

PROVIGED under eighteen years of age, the detention shall bein 1Q. Hence, as per Section 167(2) of Cr.P.C., the Magistrate can order for detention of the accused for maximum 90 days or 60 days as the case may be if the charge sheet is not filed and investigation is not concluded from the date of arrest. Section 167(2) of Cr.P.C., is applicable only when charge sheet is not laid down and it starts operative when accused is arrested during the course of investigation, but if charge sheet is filed against detention or by the order certified by the person though the meaium of electronic video

PROVICED FURTHER that in case of women be authorised to be in the custody of a remand home or recognized social institution. ]

particular accused and supplementary charge sheet is submitted against other accused or for additional evidence, the provisions of Section 167(2) of Cr.P.C., cannot be applicable. Hence, question of applicability of Section 167(2) of Cr.P.C., does not arise at all in the present case to the accused, against whom charge sheet has already been submitted and who was arrested subsequently. The learned counsel for petitioner has placed reliance on a decision of the Hon’ble Apex Court in Criminal Appeal No.699/2020 arising out of SLP (Criminal) No.2333/2020 and also Criminal Appeal No.319/2021 arising out of SLP (Criminal) No.6181/2020, but both the cases are pertaining to UAPA Act and further in both the cases, after arrest, charge sheet came to be filed. Hence, the principles enunciated in the above cases, cannot be made applicable to the facts and circumstances of present case on hand. In the present case, after submission of the charge sheet against the present petitioner, who is accused No.1, he was arrested and later on supplementary charge sheet is submitted. Supplementary charge sheet is only an particular accused and supplementary charge sheet is submitted against other accused or for additional evidence, the provisions of Section 167(2) of Cr.P.C., cannot be applicable. Hence, question of appiicability. of Section 167(2) of Cr.P.C., does not arise at all in the present case been submitted and who was arrested subsequently. The learned counsel! for petitioner has placed reliance on a No.699/20290 arising. ovt of SLP (Criminal) No.2333/2020 (Criminal) -No.6181/2620, but both the cases are arrest, charge sheet came to be filed. Hence, the principles enunciated in the above cases, cannot be made applicable to the facts and circumstances of present case on hand. In the present case, after submission of the charge sheet against the present petitioner, who is accused No.1, he was arrested and later on supplementary charge sheet is submitted. Supplementary charge sheet is only an to the accused, against whom charge sheet has already counse! decision cf tne Hon’ble Apex Court in Criminal Appeal and also Criminal Appeal No.319/2021 arising out of SLP pertaining to UAPA Act and further in both the cases, after additional material collected against the accused persons. Hence, the petition is devoid of any merits and is misconceived and hence, it needs to be rejected both on maintainability and as well as on merits. Hence, the following;

ORDER

The petition is dismissed.

In view of dismissal of the above petition, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.

Sd/-
JUDGE

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