Full Text
HIGH COURT OF DELHI
BANTY ..... Petitioner
Through: Mr.Furkan Ali Mirza, Adv.
Through: Mr.Aman Usman, APP
JUDGMENT
1. This petition has been filed under Section 397 of the Code of Criminal Procedure, 1973 (in short, ‘Cr.P.C.’) challenging the Order dated 15.03.2024 (hereinafter referred to as ‘Impugned Order’) passed by the learned Metropolitan Magistrate (10), South-West District, Dwarka Courts, New Delhi (hereinafter referred to as the ‘Metropolitan Magistrate’) in FIR No.552/2023 registered at Police Station: Kapashera, New Delhi under Sections 394/34 of the Indian Penal Code, 1860 (in short, ‘IPC’), rejecting the application filed by the petitioner herein under Section 167(2) of the Cr.P.C. seeking statutory bail. Brief Facts
2. The above FIR was registered on 10.12.2023, on the statement of one Sh. Gaurav Vij, wherein he alleged that he was robbed of Rs.3.25 Lacs on gunpoint by three assailants. Upon investigation, the petitioner along with two other was apprehended by the police. The petitioner was arrested on 13.12.2023 and was produced before the learned Metropolitan Magistrate on 14.12.2023 and was remanded to judicial custody on the same day.
3. It is the case of the petitioner that 90 days’ period in terms of the Section 167(2) of the Cr.P.C. would expire on 12.03.2024 and, therefore, the Charge Sheet should have been filed on or before the said date. The petitioner further states that on 11.03.2024, Charge Sheet was not filed and, therefore, the judicial custody of the petitioner was extended by one day. It was again extended for one day on 12.03.2024, as the Charge Sheet had not been filed. On 13.03.2024, at about 10:05 AM, the pairokar and the counsel for the petitioner enquired from the Naib Court and Ahlmad in the Court of the learned Metropolitan Magistrate as to whether the Charge Sheet had been filed. They both confirmed that the Charge Sheet had not been filed in Court so far. The petitioner claims that on the same day, at about 10:15 AM, the counsel for the petitioner mentioned the application under Section 167(2) of the Cr.P.C. seeking statutory bail before the learned Metropolitan Magistrate. The learned Metropolitan Magistrate, however, returned the application and asked the counsel to file the same in the Facilitation Centre. The petitioner claims that at about 10:25 AM, the application was filed at the Facilitation Centre of the Court, and was received by the Court of the learned Metropolitan Magistrate at about 10:47 AM. At 12:00 noon, the application was taken up for hearing and notice was issued to the Investigating Officer (in short ‘IO’) and reply was sought for the next date of hearing. The petitioner claims that at about 3:30 PM, the petitioner was produced from the Judicial Custody and was informed that the Court has just received the Charge Sheet and the same will be supplied on the next date, that was, 19.03.2024. On 15.03.2024, the learned Metropolitan Magistrate by way of the Impugned Order dismissed the application filed by the petitioner under Section 167(2) of the Cr.P.C., observing therein that the perusal of the record reveals that as per the e-filing history of the Court, the Charge Sheet had been filed on 11.03.2024, that is, within 90 days statutory period and, therefore, there was no merit in the application. Submissions of the learned counsel for the petitioner
4. The learned counsel for the petitioner, placing reliance on the judgment of the Supreme Court in Enforcement Directorate Government of India v. Kapil Wadhawan & Anr., 2023 SCC OnLine SC 972, submits that the e-filing of the Charge Sheet is not recognized in law and the Charge Sheet having been filed only on 13.03.2024, that is, after the filing of the application under Section 167(2) of the Cr.P.C. by the petitioner, cannot take away the right of the petitioner for seeking statutory bail. Analysis and Findings
5. This Court, taking note of the above submission, by way of Orders dated 22.03.2024 and 26.04.2024, sought reports from the learned District and Sessions Judge, South-West District, Dwarka Courts, New Delhi (hereinafter referred to as the ‘PDSJ’) and the learned Registrar General of this Court on when the Charge Sheet was filed in the above FIR, and on the guidelines/instructions that are applicable to the e-filing of the Charge Sheets.
6. In compliance with the said direction, Reports dated 06.04.2024, 06.05.2024, and 08.05.2024 have been received from the learned PDSJ, and a Report dated 09.05.2024 has been received from the learned Registrar General of this Court.
7. In Report dated 08.05.2024, the learned PDSJ has informed that as per the Interoperable Criminal Justice System (in short, ‘ICJS’), the Charge Sheet was submitted by the concerned police official in the filing counter, Facilitation Centre, Dwarka Courts on 11.03.2024. Thereafter, in compliance with the directions contained in Circular dated 20.07.2020 issued by the then learned Principal District and Sessions Judge (HQs), Tis Hazari Courts, Delhi, the same was allocated to the Court of the learned Metropolitan Magistrate against filing no.14712/2024 generated through the Case Information System (in short ‘CIS’), reflecting e-filing date of the Charge Sheet as 11.03.2024. Since e-filing is not mandatory in case of Charge Sheet filed in the State Cases, so the physical file/Charge Sheet was handed over in the Court as per prevailing practice, on 13.03.2024, and, thereafter, was registered by the Court staff on the CIS data-base against no.2866/2024 on 13.03.2024. The learned PDSJ in the report dated 08.05.2024 has reported as under: “In view of the above, it is humbly submitted the charge-sheet in question was filed in this office i.e. Filing Counter, Facilitation Centre, Dwarka Courts on 11.03.2024 by the concerned Police Official. As per prevailing practice, the same was sent to the Court concerned by the Facilitation centre, Dwarka Courts in due course. The physical form of charge-sheet in question was submitted by the staff of Facilitation Centre, Dwarka Courts on 13.3.2024. However, for the purpose of considering the right of the accused for grant of Statutory Bail u/s 167(2) of the Cr.P.C., the submission of the charge-sheet by the Police Official in this office i.e. Filing Counter, Facilitation Centre, Dwarka Courts, New Delhi may be considered as 11.3.2024 as the same was allocated to the Court concerned in Electronic Form on that day itself.”
8. In the Report dated 09.05.2024, the learned PDSJ has summarised the effect of the Circulars dated 20.07.2020 issued by the then learned Principal District and Sessions Judge (HQs) and 27.10.2021 issued by the Nodal Officer and Centralised Computer Committee, as under: “In virtue of aforesaid circulars, the procedure of receipt of charge-sheet and its meta data through ICJS Platform in the Delhi District Courts is summarized as here below: Step-1: Investigating Officer/Delhi Police uploads/efile the details of the case/meta data and the charge-sheet in CCTNS Software which is pushed to the ICJS Platform maintained by NIC. Step-2: Investigating Officer/Delhi Police physically produce the charge-sheet with Court Staff/Ahlmad of the concerned Court. Step-3: The concerned Court Staff/Ahlmad will consume the charge-sheet in CIS through ICJS Module and will further scrutinize/co-relate the meta data as well as the PDF Files with the physically produced charge-sheet. Step-4: In case of any mismatch of PDF files and meta data of the charge-sheet, concerned Court Staff/Ahlmad will reject the said consumed charge sheet in CIS and inform the Investigating Officer/Delhi Police about the said mismatch/shortcomings with a request to remove the same. However, in case, during scrutiny, the contents of meta data and PDF files are found correct, the court staff will make an initials/acknowledgment on the physically produced chargesheet. Investigating Officer will reach the respective Filing Counter with said acknowledgment. The official/staff at Filing Counter will verify the same in CIS. This verification will automatically generate CNR Number as well as Filing Number to the consumed chargesheet. Step-5: Thereafter the Filing Counter official/staff will allocate the said consumed charge-sheet to the concerned Court. Step-6: The concerned Court Staff/Ahlmad thereafter register the charge-sheet (through his/her user ID in CIS) and the case is finally registered by the Court concerned in CIS wherein all future proceedings can be recorded/updated. It is further to apprise that till the time, the case/chargesheet (at Step-6 above) is not registered by the Ahlmad of the concerned Court, the CIS will only reflect the e-filing number and CNR number. It is only after registration of the charge-sheet in the CIS (by the Ahlmad of the concerned Court), the case stands registered and the same starts reflecting in the cause list of the Court concerned and the case proceedings including uploading of the orders etc. can be initiated in the case.”
9. As far as the filing of the application seeking statutory bail is concerned, the learned PDSJ has confirmed that the said application was filed by the petitioner on 13.03.2024 in the Facilitation Centre, Dwarka Courts, and was sent to the concerned Court of the learned Metropolitan Magistrate on the same day itself at about 10:47 AM.
10. The learned PDSJ along with his report has also annexed a copy of the Circular dated 20.07.2020 issued by the then learned Principal District and Sessions Judge (HQs), which, inter alia, frames the following guidelines/instructions for ‘Consuming of Charge Sheet’: “Consuming of Charge Sheet: The concerned court staff shall consume the charge sheets pertaining to the Police Station within the jurisdiction of the Court only, check and verify with the hard copy of charge sheet and then the concerned Investigating Officer shall report at the counter earmarked for filing of matter pertaining to establishment of Chief Metropolitan Magistrate at Facilitation Center of the respective court complex. The dealing official at Filing Counter- Facilitation Centre shall check the metadata of the consumed charge sheet with the hard copy of the charge sheet and verify the same, as per procedure available in NC CIS. After due verification, shall allocate the charge sheet to the court concerned, as per prevailing norms. After receipt of charge sheet from Filing Counter, the concerned court staff shall again check the hard copy of charge sheet and after due verification and scrutiny shall register the same in NC CIS.”
11. The learned Registrar General in its Report dated 09.05.2024, has also stated the above detailed procedure in terms of the Circulars dated 20.07.2020 and 27.10.2021.
12. The learned Registrar General in its report clarifies that the efiling rules of the High Court of Delhi-2021 are, however, not applicable to the Charge Sheets.
13. In view of the above Circulars/Instructions, it is to be determined as to when the Charge Sheet for the purposes of Section 167 of the Cr.P.C. stood filed in the present case, and consequently, whether the petitioner is entitled to the statutory bail.
14. Section 167(2) of the Cr.P.C. is reproduced hereinbelow:
(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.”
15. A bare perusal of the above provision would show that pending investigation, the Magistrate may authorise the detention of the accused in custody for a period not exceeding fifteen days in the whole, and beyond a period of fifteen days, if he is satisfied that adequate grounds exist for doing so, however, no Magistrate shall authorise the detention of the accused person in custody for a total period exceeding 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); or for sixty days (where the investigation relates to any other offence). The provision further states that on expiry of the said period of ninety days/sixty days, the accused person shall be released on bail, if he is prepared to and does furnish bail. This is in common parlance referred to as the default bail or the statutory bail.
16. The right to seek statutory bail under Section 167(2) of the Cr.P.C. is a Fundamental Right flowing from Article 21 of the Constitution of India and is, therefore, indefeasible. It prevails and takes precedence over the right of the State to carry on the investigation and submit a Charge Sheet. Reference in this regard may be made to judgments of the Supreme Court in S. Kasi v. State (through the Inspector of Police, Samaynallur Police Station, Madurai District), 2020 SCC OnLine SC 529 and Satender Kumar Antil v. CBI, (2021) 10 SCC 773.
17. In Sanjay Dutt v. State through CBI, Bombay (II), (1994) 5 SCC 410, the Supreme Court, however, emphasised that the indefeasible right accrued to the accused is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Cr.P.C.. I may quote from the judgment as under:
and also a prayer for extension of time to complete the investigation according to the proviso in Section 20(4)(bb), both of them should be considered together. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. (emphasis supplied)
18. In Suresh Kumar Bhikamchand Jain v. State of Maharashtra & Anr., (2013) 3 SCC 77, the Supreme Court held that where the Charge Sheet was filed within the stipulated time, even though cognizance has not been taken by the Court, the accused would not be entitled to statutory bail under Section 167(2) of the Cr.P.C.. It was observed as under:
remand of an accused, first during the stage of investigation and, thereafter, after cognizance is taken, indicates that the legislature intended investigation of certain crimes to be completed within 60 days and offences punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, within 90 days. In the event, the investigation is not completed by the investigating authorities, the accused acquires an indefeasible right to be granted bail, if he offers to furnish bail. Accordingly, if on either the 61st day or the 91st day, an accused makes an application for being released on bail in default of chargesheet having been filed, the court has no option but to release the accused on bail. The said provision has been considered and interpreted in various cases, such as the ones referred to hereinbefore. Both the decisions in Natabar Parida case [(1975) 2 SCC 220: 1975 SCC (Cri) 484]and in Sanjay Dutt case [(1994) 5 SCC 410: 1994 SCC (Cri) 1433] were instances where the charge-sheet was not filed within the period stipulated in Section 167(2) CrPC and an application having been made for grant of bail prior to the filing of the charge- sheet, this Court held that the accused enjoyed an indefeasible right to grant of bail, if such an application was made before the filing of the charge-sheet, but once the chargesheet was filed, such right came to an end and the accused would be entitled to pray for regular bail on merits.
18. None of the said cases detract from the position that once a charge-sheet is filed within the stipulated time, the question of grant of default bail or statutory bail does not arise. As indicated hereinabove, in our view, the filing of charge-sheet is sufficient compliance with the provisions of Section 167(2)(a)(ii) in this case. Whether cognizance is taken or not is not material as far as Section 167 CrPC is concerned. The right which may have accrued to the petitioner, had chargesheet not been filed, is not attracted to the facts of this case. Merely because sanction had not been obtained to prosecute the accused and to proceed to the stage of Section 309 CrPC, it cannot be said that the accused is entitled to grant of statutory bail, as envisaged in Section 167 CrPC. The scheme of CrPC is such that once the investigation stage is completed, the court proceeds to the next stage, which is the taking of cognizance and trial. An accused has to remain in custody of some court. During the period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced. During that stage, under Section 167(2) CrPC, the Magistrate is vested with authority to remand the accused to custody, both police custody and/or judicial custody, for 15 days at a time, up to a maximum period of 60 days in cases of offences punishable for less than 10 years and 90 days where the offences are punishable for over 10 years or even death sentence. In the event, an investigating authority fails to file the chargesheet within the stipulated period, the accused is entitled to be released on statutory bail. In such a situation, the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the court trying the offence, when the said court assumes custody of the accused for purposes of remand during the trial in terms of Section 309 CrPC. The two stages are different, but one follows the other so as to maintain a continuity of the custody of the accused with a court.” (emphasis supplied)
19. This was reiterated by the Supreme Court in Serious Fraud Investigation Office v. Rahul Modi & Ors., 2022 SCC OnLine SC
153.
20. In Judgebir Singh @ Jasbir Singh Samra @ Jasbir and Ors v. National Investgation Agency, 2023 SCC OnLine SC 543, the Supreme Court, while considering a similar question, and relying on Suresh Kumar Bhikamchand Jain (supra) and Serious Fraud Investigation Office (supra), observed that:
21. Therefore, while the statutory bail under Section 167(2) of the Cr.P.C. is not only a Statutory Right but a Constitutional Right guaranteed under Article 21 of the Constitution of India, the accused is entitled to the same only until the Charge Sheet is filed. Once the Charge Sheet has been filed, though after a period of 60/90 days, and the accused till that date has not exercised his right to claim statutory bail, the right shall end and not survive. It is not necessary for the Court to have taken cognizance of the Charge Sheet so filed.
22. In the present case, there is no allegation by the petitioner that the Charge Sheet that was e-filed on 11.03.2024 was any different than the one filed on 13.03.2024 in any manner whatsoever; therefore, the moot question to be determined is as to when the Charge Sheet was filed.
23. As is becoming evident from the reports of the learned PDSJ, the IO filed the Charge Sheet at the Filing Counter, Facilitation Centre on 11.03.2024. The investigation was, therefore, complete and the Charge Sheet was filed. The same was sent to the Court concerned by the Facilitation Centre in due course, and the physical form of the Charge Sheet was submitted by the staff of the Facilitation Centre, Dwarka Courts, to the staff of the Court of the learned Metropolitan Magistrate, on 13.03.2024, when the staff of the said Court registered the Charge Sheet in the CIS system. Therefore, as far as the completion of the investigation and the filing of the Charge Sheet is concerned, the same stood completed/filed on 11.03.2024.
24. Though the filing of the Charge Sheet is not governed by the efiling rules of the High Court, detailed procedure in that regard has been laid down in the Circulars dated 20.07.2020 and 27.10.2021, referred to hereinabove. The process and the time that is consumed after the filing of the Charge Sheet on the ICJS, therefore, can not detract from the fact that the investigation is complete and the Charge Sheet in terms of Section 173 of the Cr.P.C. stands filed. The right of the accused to a statutory bail, thereafter shall stand extinguished if the same has not been exercised before such filing, even if the Charge Sheet is filed after 60/90 days. Position may be different if it is later found on scrutiny that the Charge Sheet filed on the ICJS was defective or incomplete. However, this has not even been alleged in the present case. This Court therefore, does not deem it necessary to examine the effect of a defective or incomplete charge sheet being filed on the ICJS by the IO.
25. In terms of Section 173 of the Cr.P.C., as soon as the investigation is complete, ‘the officer in-charge of the police station shall forward to the Magistrate empowered to take cognizance of the offence on a police report’ a report in the form prescribed by the State and, inter alia, including the details mentioned in Section 173 (2) of the Cr.P.C.. Such a report was filed on 11.03.2024 by the police. The same was, therefore, filed within the statutory period and the applicant was, therefore, not entitled to seek statutory bail.
26. In Kapil Wadhawan (Supra), though the Supreme Court noticed that the Complaint under the Prevention of Money Laundering Act, 2002 had been filed by way of an e-mail on 11.07.2020 and subsequently in a physical form on 13.07.2020, the Court did not consider the effect of the complaint filed by way of an e-mail. The only question considered by the Court was whether the date of remand is to be included or excluded for considering a claim of statutory bail under Section 167(2) of the Cr.P.C.. The said judgment, therefore, would not be relevant to the facts of the present case and to the issue raised herein. Decision
27. In view of the above, I find no merit in the present petition. The same is dismissed.