Satish Kumar v. State

Delhi High Court · 19 Feb 2024 · 2024:DHC:1258

Amit Mahajan

CRL.REV.P. 727/2023 & CRL.REV.P. 739/2023

2024:DHC:1258

criminal appeal_dismissed Significant

AI Summary

The Delhi High Court held that non-filing of the FSL report with the charge sheet does not render it incomplete and does not entitle accused to default bail under Section 167(2) CrPC.

Full Text

CRL.REV.P. 727/2023 & CRL.REV.P. 739/2023
HIGH COURT OF DELHI

JUDGMENT

delivered on : 19.02.2024

CRL.REV.P. 727/2023, CRL.M.(BAIL) 958/2023, CRL.M.A. 17873/2023 & CRL.M.A. 17874/2023
SATISH KUMAR ..... Petitioner

versus

STATE ..... Respondent

CRL.REV.P. 739/2023
TEEKA RAM ..... Petitioner

versus

STATE THROUGH PS SPECIAL CELL ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr. Aditya Aggarwal, Mr. Manas Agarwal
& Mr. Mohd. Yasir, Advocates for the petitioner in CRL.REV.P. 727/2023.
Mr. Vikram Hegde, Advocate for the petitioner in CRL.REV.P. 739/2023.
For the Respondent : Mr. Utkarsh, APP for the State.

CORAM

HON’BLE MR JUSTICE AMIT MAHAJAN

JUDGMENT

1. The petitioners, Teeka Ram (petitioner in CRL.REV.P. 739/2023) and Satish (petitioner in CRL.REV.P. 727/2023) have filed the present petitions under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (‘CrPC’) challenging the orders dated 07.06.2022 and 23.03.2023 passed by the learned Additional Sessions Judge, Special Judge, NDPS, Patiala House Courts, New Delhi in SC No. 468/2022 captioned State v. Firoz Alam & Ors.

2. The learned ASJ by the orders dated 07.06.2022 and 23.03.2023 had dismissed the application for default bail of the petitioners filed under Section 167(2) of the CrPC read with Section 36A of the Narcotics Drugs and Substances Act, 1985 (hereafter ‘NDPS Act’).

3. Briefly stated, the facts relevant for adjudication of the present petitions are as under: 3.[1] The petitioners are in judicial custody in case arising out of FIR No. 67/2022 dated 01.04.2022, registered at Police Station Special Cell for offences punishable under Sections 21/29 of the NDPS Act. 3.[2] It is alleged that the petitioners have indulged in transportation of contraband alleged to be “smack”. As per the complaint filed by the State, it is alleged that the accused/petitioner Teeka Ram was the main link between the supplier of the contraband and the receivers. It is further alleged that the recovery made from other co-accused persons in the present case of 2.5kgs smack from Firoz Alam and 2.5kg smack from Rana Singh, was supplied by the accused Teeka Ram. 3.[3] It is alleged that there is a recovery of 550 grams of smack from the accused/petitioner Satish Kumar in the present case. 3.[4] The petitioners were arrested on 04.04.2022 and 03.04.2022, respectively. 3.[5] After the completion of the investigation, the charge sheet in the present case filed on 26.09.2022 under Sections 21/29 of the NDPS Act. 3.[6] The petitioners had filed an application under Section 167(2) of the CrPC read with Section 36A (4) of the NDPS Act and under Section 439 of the CrPC before the learned Trial Court seeking grant of bail in default on the ground that even though the chargesheet was filed on 26.09.2022, the same was incomplete since it did not accompany the FSL Report regarding the nature of the contraband. The learned Trial dismissed the said applications by orders dated 23.03.2923 and 07.06.2023 and held that mere non filing of FSL report do not make the charge sheet incomplete.

4. The learned counsel for the petitioners submitted that the first arrest in the present cases was made on 01.04.2022. The charge sheet in the present was required to be filed within 180 days thereafter, in terms of Proviso to Section 36A(4) of the NDPS Act. The chargesheet, though was filed within the stipulated time period, but the same was incomplete and therefore, the petitioners are entitled to default bail.

5. The learned counsel submitted that at the time the charge sheet was filed, the FSL report was awaited and therefore, it cannot be said that the charge sheet filed is indicative of the completion of investigation in terms of Section 167(2) of the CrPC.

6. The learned counsel submitted that no extension of time was sought or obtained by the Respondent PS Special Cell under Section 36A (4) of the NDPS Act.

7. The learned counsel submitted that the purpose of a complaint/charge sheet is to enable the learned Magistrate to form an opinion on the culpability of the accused. However, in the absence of any report of physical testing of the substance recovered, to ascertain whether the substance recovered from the petitioners or illegally trafficked by them is prohibited under the NDPS Act, no congnizance can be taken.

8. The learned counsel submitted that the present case is not fit for taking cognizance by the learned Trial Court or framing of charges since the FSL report is not filed yet and that renders the charge sheet incomplete.

9. The learned counsel submitted that the petitioners are in judicial custody for more than one year, and there are 26 witnesses to be examined in the present case. Since, the FSL report has not been filed yet, there is no chance of the trial completing in an expeditious manner.

10. The learned counsel vehemently argued that the Hon’ble Apex Court, in the case of Mohd. Arbaz v. State of NCT of Delhi: SLP (Crl.) 8164-8166/2021, Divyas Bardewa v. Narcotics Control Bureau: SLP (Crl) No.11628/2022 and in Arif Khan v. State (Govt. of NCT of Delhi): SLP(Crl.) No. 8610/2023, was pleased to extend the benefit of interim bail to the accused persons and have kept the question pertaining to completeness of the charge sheet if the same is filed without the FSL Report, for further consideration. To buttress their arguments, the learned counsel further placed reliance on the following orders: 10.[1] Ritu Chhabaria v. Union of India: 2023 SCCOnline SC 10.[2] Gurjeet Singh v. The State of NCT of Delhi: CRL. REV. P. 135/2023 10.[3] Amanpreet Kaur @Preeti v. State: CRL. REV. P. 471/2023

11. Per Contra, Learned Additional Public Prosecutor for the State vehemently opposed the prayers in present petitions, and submitted that the investigation in relation to the petitioners is complete and there is sufficient material which was placed on record along with the main charge sheet, including the statements of the witnesses recorded under Section 161 of the CrPC to show their involvement in the present case.

12. The learned APP submitted that there is a recovery of 550 grams of smack from the accused Satish Kumar, and accused Teeka Ram is the main link between the supplier of contraband and receivers in the present case.

13. The learned APP submitted that mere non-filing of the FSL report does not render the charge sheet incomplete, especially when there is sufficient incriminating material on record to initiate prosecution against the petitioners.

14. The learned APP further submitted that the question whether the charge sheet is incomplete without FSL Report or not, is yet to be decided by the Hon’ble Apex Court, and therefore the reliance has to be placed on the law laid down by the Division Bench of this Court in Kishan Lal vs State: 1989 SCC OnLine Del 348, and the Coordinate Bench of this Court in Rahima & Ors. v. State: 2023: DHC:2021, wherein it is held that non-filing of FSL report will not render the charge sheet incomplete. He submitted that the learned Special Judge, rightly, denied the statutory relief to the petitioners.

15. The learned APP submitted that in the case of Mohd Arbaz & Ors. v. State of NCT of Delhi (supra), the Hon’ble Apex Court has only opted to examine the legal issue in detail and for the time being, interim relief has been granted to the petitioners.

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16. The present petitions have been filed seeking default bail on the ground of non-filing of FSL report along with the charge sheet, and the main grievance of the petitioners is that the learned Special Judge, NDPS, Patiala House Court, New Delhi has erroneously declined the relief of default bail to them.

17. The principal question that falls for the consideration of this Court is, whether the petitioners are entitled to the benefit of the statutory right conferred under the proviso to sub-section 2 of Section 167 of the CrPC, on the ground that non-filing of the FSL report renders the charge sheet incomplete, even though filed within the prescribed time limit. Section 167(2) of the CrPC provides as under:

“167. Procedure when investigation cannot be completed in twenty-four hours.— xxxx xxxx xxxx (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 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 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;

(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.] [Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution.]”

18. The inherent right to personal life and liberty, as enshrined in Article 21 of the Constitution of India, and its interconnection with Section 167(2) of the CrPC, has been unequivocally affirmed over the years through judicial pronouncements by the Hon’ble Apex Court and various High Courts. The entitlement of an accused to default bail under Section 167(2) of the CrPC arises when the investigation is not completed within the prescribed timeframe. Another circumstance giving rise to the right to default bail occurs when the prosecution submits a preliminary or incomplete charge sheet within the prescribed period for the offences mentioned therein, thereby impinging upon the statutory right of the accused to obtain bail.

19. The report on completion of investigation is filed in the form of charge sheet under Section 173(2) of the CrPC.

20. The Constitution Bench in K. Veeraswami vs. Union of India and Others: (1991) 3 SCC 655 has explained the scope of Section 173(2). The relevant paragraph of the said judgment is reproduced as under:

“76. The charge-sheet is nothing but a final report of police officer under Section 173(2) of the CrPC. The Section 173(2) provides that on completion of the investigation the police officer investigating into a

cognizable offence shall submit a report. The report must be in the form prescribed by the State Government and stating therein (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom (e) whether the accused has been arrested; (f) whether he had been released on his bond and, if so, whether with or without sureties; and (g) whether he has been forwarded in custody under Section 170. As observed by this Court in Satya Narain Musadi v. State of Bihar [(1980) 3 SCC 152, 157: 1980 SCC (Cri) 660] that the statutory requirement of the report under Section 173(2) would be complied with if the various details prescribed therein are included in the report. This report is an intimation to the magistrate that upon investigation into a cognizable offence the Investigating Officer has been able to procure sufficient evidence for the court to inquire into the offence and the necessary information is being sent to the court. In fact, the report under Section 173(2) purports to be an opinion of the Investigating Officer that as far as he is concerned he has been able to procure sufficient material for the trial of the accused by the court. The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 175(5). Nothing more need be stated in the report of the Investigating Officer. It is also not necessary that all the details of the offence must be stated. The details of the offence are required to be proved to bring home the guilt to the accused at a later stage i.e. in the course of the trial of the case by adducing acceptable evidence.”

21. The Hon’ble Apex Court, in Dinesh Dalmia v. CBI:(2007) 8 SCC 770, explained the scope of Section 167(2) vis-à-vis Section 173(8) of the CrPC and held as under:

“19. A charge-sheet is a final report within the meaning of sub-section (2) of Section 173 of the Code. It is filed so as to enable the court concerned to apply its mind as to whether cognizance of the offence thereupon should be taken or not. The report is ordinarily filed in the form prescribed therefor. One of the requirements for submission of a police report is whether any offence appears to have been committed and, if so, by whom. In some cases, the accused having not been arrested, the investigation against him may not be complete. There may not be sufficient material for arriving at a decision that the absconding accused is also a person by whom the offence appears to have been committed. If the investigating officer finds sufficient evidence even against such an accused who had been absconding, in our opinion, law does not require that filing of the charge-sheet must await the arrest of the accused. 20. Indisputably, the power of the investigating officer to make a prayer for making further investigation in terms of sub-section (8) of Section 173 is not taken away only because a charge-sheet under sub-section (2) thereof has been filed. A further investigation is permissible even if order of cognizance of offence has been taken by the Magistrate. xxxx xxxx xxxx 22. It is true that ordinarily all documents accompany the charge-sheet. But, in this case, some documents could not be filed which were not in the possession of CBI and the same were with GEQD. As indicated hereinbefore, the said documents are said to have been filed on 20-1-2006 whereas the appellant was arrested on 12-2-2006. The appellant does not contend that he has been prejudiced by

not filing of such documents with the charge-sheet. No such plea in fact had been taken. Even if all the documents had not been filed, by reason thereof submission of charge-sheet itself does not become vitiated in law. The charge-sheet has been acted upon as an order of cognizance had been passed on the basis thereof. The appellant has not questioned the said order taking cognizance of the offence. Validity of the said charge-sheet is also not in question.

28. It is now well settled that the court takes cognizance of an offence and not the offender. (See Anil Saran v. State of Bihar [(1995) 6 SCC 142: 1995 SCC (Cri) 1051] and Popular Muthiah v. State [(2006) 7 SCC 296: (2006) 3 SCC (Cri) 245].)

29. The power of a court to direct remand of an accused either in terms of sub-section (2) of Section 167 of the Code or sub-section (2) of Section 309 thereof will depend on the stages of the trial. Whereas sub-section (2) of Section 167 of the Code would be attracted in a case where cognizance has not been taken, sub-section (2) of Section 309 of the Code would be attracted only after cognizance has been taken.

30. If submission of Mr Rohatgi is to be accepted, the Magistrate was not only required to declare the chargesheet illegal, he was also required to recall his own order of taking cognizance. Ordinarily, he could not have done so. (See Adalat Prasad v. Rooplal Jindal [(2004) 7 SCC 338: 2004 SCC (Cri) 1927], Subramanium Sethuraman v. State of Maharashtra [(2004) 13 SCC 324: 2005 SCC (Cri) 242: (2004) 7 Scale 733] and Everest Advertising (P) Ltd. v. State, Govt. of NCT of Delhi [(2007) 5 SCC 54: (2007) 2 SCC (Cri) 444: JT (2007) 5 SC 529].) It is also well settled that if a thing cannot be done directly, the same cannot be permitted to be done indirectly. If the order taking cognizance exists, irrespective of the conduct of CBI in treating the investigation to be open or filing applications for remand of the accused to police custody or judicial remand under sub-section (2) of Section 167 of the Code stating that the further investigation was pending, would be of no consequence if in effect and substance such orders were being passed by the court in exercise of its power under sub-section (2) of Section 309 of the Code.

38. It is a well-settled principle of interpretation of statute that it is to be read in its entirety. Construction of a statute should be made in a manner so as to give effect to all the provisions thereof. Remand of an accused is contemplated by Parliament at two stages; pre-cognizance and postcognizance. Even in the same case, depending upon the nature of charge-sheet filed by the investigating officer in terms of Section 173 of the Code, a cognizance may be taken as against the person against whom an offence is said to have been made out and against whom no such offence has been made out even when investigation is pending. So long a charge-sheet is not filed within the meaning of sub-section (2) of Section 173 of the Code, investigation remains pending. It, however, does not preclude an investigating officer, as noticed hereinbefore, to carry on further investigation despite filing of a police report, in terms of sub-section (8) of Section 173 of the Code.

39. The statutory scheme does not lead to a conclusion in regard to an investigation leading to filing of final form under sub-section (2) of Section 173 and further investigation contemplated under sub-section (8) thereof. Whereas only when a charge-sheet is not filed and investigation is kept pending, benefit of proviso appended to sub-section (2) of Section 167 of the Code would be available to an offender; once, however, a charge-sheet is filed, the said right ceases. Such a right does not revive only because a further investigation remains pending within the meaning of sub-section (8) of Section 173 of the Code.”

22. The principle of law articulated in the aforesaid judgment was reiterated elaborately by the Hon’ble Apex Court in a recent judgment of CBI v. Kapil Wadhawan: 2024 SCC OnLine SC 66, wherein it was held as under:

“22. In view of the above settled legal position, there remains no shadow of doubt that the statutory requirement of the report under Section 173 (2) would be complied with if the various details prescribed therein are included in the report. The report under Section 173 is an intimation to the court that upon investigation into the cognizable offence, the investigating officer has been able to procure sufficient evidence for the court to inquire into the offence and the necessary information is being sent to the court. The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 175 (5). As settled in the afore-stated case, it is not necessary that all the details of the offence must be stated. 23. The benefit of proviso appended to sub-section (2) of Section 167 of the Code would be available to the offender only when a chargesheet is not filed and the investigation is kept pending against him. Once however, a chargesheet is filed, the said right ceases. It may be noted that the right of the investigating officer to pray for further investigation in terms of sub-section (8) of Section 173 is not taken away only because a chargesheet is filed under sub-section (2) thereof against the accused. Though ordinarily all documents relied upon by the prosecution should accompany the chargesheet, nonetheless for some reasons, if all the documents are not filed along with the chargesheet, that reason by itself would not invalidate or vitiate the chargesheet. It is also well settled that the court takes cognizance of the offence and not the offender. Once from the material produced along with the chargesheet, the court

is satisfied about the commission of an offence and takes cognizance of the offence allegedly committed by the accused, it is immaterial whether the further investigation in terms of Section 173(8) is pending or not. The pendency of the further investigation qua the other accused or for production of some documents not available at the time of filing of chargesheet would neither vitiate the chargesheet, nor would it entitle the accused to claim right to get default bail on the ground that the chargesheet was an incomplete chargesheet or that the chargesheet was not filed in terms of Section 173(2) of Cr. P.C.”

23. The Division Bench of this Court, in Syed Maqbool v. N.I.A.: 2014 SCC OnLine Del 3966, held as under: ― “31. Concerning the other three appeals, the argument proceeds on the reasoning that the Code of Criminal Procedure, 1973 contemplates investigation of cognizable offences to be completed and a report filed in the Court of competent jurisdiction. The argument is premised on the reason that sub-Section 2 of Section 173 of the Code of Criminal Procedure envisages the filing of the report before a Magistrate empowered to take cognizance of the offence and that the report must be on the completion of the investigation. The forward limb of the argument would be that an incomplete report is no report in the eyes of law. If a complete report is not filed within 180 days, the appellants would be entitled to statutory bail.”

32. Section 173 of the Code of Criminal Procedure reads as under: - “173. Report of police officer on completion of investigation.—(1) Every investigation under this Chapter shall be completed without unnecessary delay. (2)(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating— (a) the names of the parties; (b) the nature of the information;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, weather with or without sureties; (g) whether he has been forwarded in custody under section 170.

(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. (3) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation. (4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order-for the discharge of such bond or otherwise as he thinks fit. (5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate alongwith the report— (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; (b) the statements-recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses. (6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request. (7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5). (8) 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 officer 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).” (emphasis supplied)

24. In light of the observations made in Syed Maqbool v. NIA (supra), it is noted that the charge sheet filed in the present case satisfies the conditions in sub-clause (a) to (d) of Section 173(2)(i). The charge sheet is filed upon completion of the investigation, and after the Investigating Officer has found sufficient evidence to prosecute an accused for offences under which the FIR has been registered. The FSL report, therefore, would only be corroborative in nature to the material collected and filed alongwith the chargesheet by the Investigating Officer. Hence, report of the FSL if received on a subsequent stage would be covered under Section 173(8) of the CrPC.

25. The purpose of a further investigation is to bring the true facts before the Court even if they are discovered at a stage subsequent to the primary investigation. Thus, it cannot be said that the complaint filed, be treated as incomplete. A further investigation is not antithetical to an investigation being completed. (Ref: Vinod Tyagi v. Irshad Ali: (2013) 5 SCC 762)

26. In the case of Taj Singh v. State (Delhi Admn): 1988 CrLJ 1634, this court held that submitting a challan stating all particulars required by Section 173(2), but without appending thereto Chemical Examiner’s report, is a complete report.

27. This Court, while considering the plea of default bail on a similar ground, in case of Arif Khan v. State (NCT of Delhi): 2023 SCC OnLine Del 2374, had made the following observations, while dismissing the petition: “9....Learned counsel for the petitioner had primarily relied upon the decision in Mohd. Arbaz (supra) where the Hon'ble Apex Court has been pleased to observe as under: “In all these petitions the question that arises for consideration is relating to the completeness of the charge sheet in accordance with law if the same is filed without the CFSL Report. The matter would require detailed consideration. In the meantime, all parties to complete their pleadings. For the present, though the issue of default bail is to be considered in the petitions since it would require some time, without reference to that aspect of the matter, keeping in view that the petitioners in SLP (Crl.) Nos. 6876-6877/2022, SLP (Crl.) No. 532/2022 and SLP (Crl.) No. 5190/2022 are still in custody, we order that they be released on bail subject to the conditions to be imposed by the concerned trial courts. While indicating so we also take note of the objection put forth by learned counsel for the respondent-State in SLP (Crl.) No. 2666/2022 who objects to the grant of bail since the petitioner therein has not surrendered despite the bail being cancelled by the High Court. Though in a normal circumstances we would have taken a serious view of the matter keeping in view the fact that the petitioner has approached this Court immediately after cancellation of the bail and the petition has been tagged alongwith similar matters and could not be taken up, we allow the benefit of bail to the petitioner. Hence, the order cancelling bail which is impugned in SLP (Crl.) No. 2666/2022 shall remain stayed. List all these petitions on 17.01.2023.

10. In the aforesaid case, the Hon'ble Supreme Court has been pleased to grant bail to the petitioners therein, however, it has been clearly mentioned that bail was granted without ‘reference to that aspect of the matter’. It is, thus, clear that bail in the said case was not granted with reference to the question of completeness of chargesheet in accordance with law, if the same is filed without FSL report. Therefore, the contention of learned counsel for the petitioner that since the Hon'ble Supreme Court has granted bail in the case of Mohd. Arbaz (supra), the present petitioner is also entitled to same relief is devoid of merit.”

28. Thus, it has been held by this Court in plethora of decisions that non-filing of FSL report along with the charge sheet does not fall within the ambit of Section 173(2) of CrPC so as to consider it as “incomplete charge sheet” and, accordingly, no right of default bail is accrued in favour of the accused.

29. Though in case of Mohd Arbaz & Ors. v. State of NCT of Delhi (supra), as well as in other subsequent cases filed assailing the orders of refusal of grant of default bail, the accused persons have been enlarged on interim bail by the Hon’ble Apex Court, the said relief however has been granted to the accused persons on the ground of pendency of larger issue i.e. whether charge sheet filed without FSL report is incomplete charge sheet. However, neither the decisions challenged before the Hon’ble Apex Court have been stayed, nor any directions have been given to the Courts to release the accused persons on interim bail if the charge sheet is filed without FSL report.

30. Thus, the judicial discipline mandates this Court to decide the matters on the basis of the law as it stands and the pendency of any reference would not mean that the other proceedings involving the similar issue would remain stayed. This Court is, therefore, bound by the decision of the Division Bench of this Court in Kishan Lal v. State (supra) and cannot refuse to follow a judgment on the ground that the issue is now pending consideration before the Hon’ble Apex Court.

31. The Hon’ble Apex Court in Union Territory of Ladakh v. Jammu & Kashmir National Conference: 2023 SCC OnLine SC 1140 held as under:

“35. We are seeing before us judgments and orders by High Courts not deciding cases on the ground that the leading judgment of this Court on this subject is either referred to a larger Bench or a review petition relating thereto is pending. We have also come across examples of High Courts refusing deference to judgments of this Court on the score that a later Coordinate Bench has doubted its correctness. In this regard, we lay down the position in law. We make it absolutely clear that the High Courts will proceed to decide matters on the basis of the law as it stands. It is not open, unless specifically directed by this Court, to await an outcome of a reference or a review petition, as the case may be. It is also not open to a High Court to refuse to follow a judgment by stating that it has been doubted by a later Coordinate Bench. In any case, when faced with conflicting judgments by Benches of equal strength of this Court, it is the earlier one which is to be followed by the High Courts, as held by a 5-Judge Bench in National Insurance Company Limited v. Pranay Sethi, (2017) 16 SCC 680. The High Courts, of course, will do so with careful regard to the facts and circumstances of the case before it.”

32. Mere non-filing of the FSL Report along with the charge sheet is not sufficient to arrive at the conclusion that the charge sheet filed was incomplete. The said report can be filed by way of a supplementary charge sheet. In any case, The FSL report, if any, would only be a corroborative piece of evidence. And, even after filing of the charge sheet, further investigation can continue under Section 173(8) of the CrPC.

33. In view of the above, this Court finds no merit in the present petitions, and same are dismissed.

34. It is made clear that the present petitions are limited to the issue of default bail and nothing stated hereinabove is an opinion on the merits of the case.

35. A copy of this judgment be placed in both the matters. AMIT MAHAJAN, J FEBRUARY 19, 2024

Satish Kumar v. State

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