TaxTMI 
TaxTMI 
2018 (9) TMI 1863
X X X X Extracts X X X X
X X X X Extracts X X X X
...., Criminal Misc. Petition No. 3517 of 2018 was filed by the complainant praying for fair and impartial investigation in the matter, in which an order came to be passed by the High Court on 03.07.2018. Said order recorded the submission of the Public Prosecutor as under: The learned Public Prosecutor for the State, to allay the apprehension of the Petitioner, at the outset, has submitted that not only fair investigation shall be conducted by a gazetted police officer, not below the rank of Additional Superintendent of Police but the report of the investigation along with the opinion of the Investigating Officer shall be submitted in the concerned Court within a period of two months from the date of receipt of certified copy of this order by the Investigating Officer. The petition was disposed of in terms of the submissions so recorded. 5. Since the Appellants had been in custody from 08.04.2018, the investigation, in terms of Section 167 of the Code of Criminal Procedure (the Code for Short) had to be completed by 07.07.2018. On 05.07.2018 a report Under Section 173 of the Code was filed by the police before the concerned Judicial Magistrate. Since said report was filed by a pol....
X X X X Extracts X X X X
X X X X Extracts X X X X
....late any extension of period within which the investigation could be completed and as such the High Court order dated 03.07.2018 can never be construed to have extended the period for investigation. In his submission, the Appellants having shown their willingness to be admitted to the benefit of bail and preferred appropriate application, in view of the law laid down by this Court they were entitled to be released on bail. The learned Advocates for the State and the complainant on the other hand submitted that the investigation was completed and appropriate charge-sheet was filed on 05.07.2018 and the return of the papers in compliance of the order dated 03.07.2018 ought to be construed as a step towards further investigation in the matter. 10. The law on the point as to the rights of an Accused who is in custody pending investigation and where the investigation is not completed within the period prescribed Under Section 167(2) of the Code, is crystallized in the judgment of this Court in Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453. This case took into account the decision of this Court in Hitendra Vishnu Thakur and Ors. v. State of Maharashtra and Ors. (1994) 4....
X X X X Extracts X X X X
X X X X Extracts X X X X
....furnishes the bail as directed by the Magistrate. 12. The questions however arise in the present matter are slightly of different dimension. Here investigation was completed and Challan Under Section 173 was filed on 05.07.2018. However, just two days before that, an order had been passed by the High Court recording submission of the public prosecutor that investigation in the matter would be conducted by a Gazetted Police Officer. The investigation which led to the filing of the report on 05.07.2018, was not in conformity with the statement made before the High Court. It was for this reason that the papers were returned by the Magistrate. All this happened before the expiry of 90th day. Can it be said that the investigation was complete for the purposes of Section 167(2) of the Code so as to deny the benefit to the Accused in terms of said provision. Additionally another issue which arises for consideration is whether the order passed by the High Court could be construed as one under which the period for completing the investigation was extended. 13. We may at this stage extract the relevant provisions namely Section 167 (1) & (2) of the Code: 167. Procedure when investigation....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to the enactment of Section 167 of the Code, as it presently stands has been dealt with by Madan B. Lokur, J. in paragraphs 11 to 15 of his judgment in Rakesh Kumar Paul v. State of Assam (2017) 15 SCC 67. Paragraphs 11 and 12 extract portions from the report of Law Commission of India in its 41st report, the proposed provisions as suggested by the Law Commission and the Statement of Objects and Reasons dated 07.11.1970 while introducing the Code. Said Paragraphs 11 and 12 are quoted here: 11. Unfortunately, all laws tend to be misused whenever opportunity knocks, and Section 167 of the Code of Criminal Procedure, 1898 was no exception. Since there was a practical difficulty in completing investigations within the 15-day time-limit, the prosecution often took recourse to the provisions of Section 344 of the Code of Criminal Procedure, 1898 and filed a preliminary or incomplete report before the Magistrate to keep the Accused in custody. The Law Commission of India noted this in its 41st Report (after carefully studying several earlier Reports) and proposed to increase the time-limit for completion of investigations to 60 days, acknowledging that: 14.19. ... such an extension ma....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on may result in the maximum period becoming the Rule in every case as a matter of routine; but we trust that proper supervision by the superior courts will prevent that. We propose accordingly to revise Sub-sections (2) and (4) of Section 167 as follows: 167. (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 at a time and sixty days in the whole. 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) no Magistrate shall authorise detention in any custody under this Section unless the Accused is produced before him; (b) 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. ** * (4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e same time forward the Accused to such Magistrate. Thereafter, it is for the Magistrate to consider whether the Accused be remanded to custody or not. Sub-section (2) then prescribes certain limitations on the exercise of the power of the Magistrate and the proviso stipulates that the Magistrate cannot authorize detention of the Accused in custody for total period exceeding 90 or 60 days, as the case may be. It is further stipulated that on the expiry of such period of 90 and 60 days, as the case may be, the Accused person shall be released on bail, if he is prepared to and does furnish bail. 17. The provision has a definite purpose in that; on the basis of the material relating to investigation, the Magistrate ought to be in a position to proceed with the matter. It is thus clearly indicated that the stage of investigation ought to be confined to 90 or 60 days, as the case may be, and thereafter the issue relating to the custody of the Accused ought to be dealt with by the Magistrate on the basis of the investigation. Matters and issues relating to liberty and whether the person Accused of a charge ought to be confined or not, must be decided by the Magistrate and not by the Pol....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... directly or indirectly extend such period. In any event of the matter all that the High Court had recorded in its order dated 03.07.2018 was the submission that the investigation would be completed within two months by a Gazetted Police Officer. The order does not indicate that it was brought to the notice of the High Court that the period for completing the investigation was coming to an end. Mere recording of submission of the Public Prosecutor could not be taken to be an order granting extension. We thus reject the submissions in that behalf advanced by the learned Counsel for the State and the complainant. In our considered view the Accused having shown their willingness to be admitted to the benefits of bail and having filed an appropriate application, an indefeasible right did accrue in their favour. 19. We must at this stage note an important feature. In Rakesh Kumar Paul (supra), in his conclusions, Madan B. Lokur, J. observed in para 49 as under: 49. The Petitioner is held entitled to the grant of "default bail" on the facts and in the circumstances of this case. The trial Judge should release the Petitioner on "default bail" on such terms and conditions as may be rea....