Rahima v. The State GNCT of Delhi

1. The present bail applications have been proposed to be taken together and disposed of vide this common order as the question involved herein is similar that whether the charge sheet filed without the FSL report is an „incomplete charge sheet‟ and by virtue of this the petitioners accrued a statutory right to be released on default bail.

2. Learned counsels for the petitioners have argued vehemently that in view of the latest judgment of the Hon‟ble Supreme Court in Mohd. Arbaz vs. State of NCT of Delhi, SLP (Crl.)8164-8166/2021 dated 09.11.2022, Suleman vs. The State (Govt. of NCT of Delhi) in Special Leave to Appeal (Crl.) No.1929/2023, order dated 17.04.2023, Divyas Bardewa vs. Narcotics Control Bureau in Special Leave to Appeal (Crl.) No.11628/2022 order dated 01.05.2023 and Arif Khan vs. State in Special Leave to Appeal (Crl.) No.8610/2023 order dated 28.07.2023, the Hon‟ble Apex Court has extended the benefit of bail to the accused persons and have kept the question relating to the completeness of the charge sheet in accordance with the law if the same is filed without the CFSL report for consideration. Learned counsels for the petitioners have submitted that the Hon‟ble Apex Court is of the view that the matter requires detailed consideration. It has further been submitted that the High Court of Punjab and Haryana vide its Judgment dated 11.02.2022 in Joginder Singh vs. State of Haryana, Crl.Misc.No.M-48705 of 2021, judgment dated 17.02.2022 in Ajaib Singh vs. State of Haryana, CRR-40-2022 (O&M), and in judgment dated 01.06.2022 in Rohtas @ Raju vs. State of Haryana, CRR-933 of 2022 (O&M) have also inter alia held as under: “The report of the FSL goes to the root of the case and is a material document and as such, filing of challan without the same is not to be treated as complete challan, as has been held by the coordinate Bench of this Court in Jagvinder Singh case (supra) and Ajaib Singh’s case (supra). The similar view has been taken by the coordinate Bench of this Court in Criminal Revision No.1314 of 2021, Joginder Singh Vs. State of Haryana, decided on 11.02.2022. Even the Hon’ble Apex Court in SLP (Criminal) No.8164- 8166/2021 Mohammad Arbaz and others Vs. State of NCT and Delhi, also granted relief to the accused, under the similar circumstances. In the light of the above, the impugned order dated 24.03.2022 rejecting default bail to the petitioner is hereby set aside and he is ordered to be released on default bail on furnishing requisite bail bonds to the satisfaction of concerned trial Court/Special Judge (Duty).”

3. Learned counsels for the petitioners have also submitted that this court has also followed the same view in Crl. Rev. P.135/2023 titled Gurjeet Singh vs. State of NCT of Delhi and in Crl. Rev. P.471/2023 titled Amanpreet Kaur @ Preeti (in JC) vs. State in order dated 28.04.2023. It is pertinent to mention that in Amanpreet Kaur @ Preeti (supra) only the interim bail was granted.

4. Learned APP for the state has vehemently opposed the bail applications and has submitted that the Division Bench of this court in Kishan Lal vs. State, Crl.W.P.No.622/1988, has authoritatively held that under Section 173 of the Code there is no mandate that a police report must enclose the document purporting to be a report under the hand of a Government scientific expert. Learned APP submits that in the present cases, as the cognizance of the offences has already taken by the magistrate properly and validly, therefore, no order releasing the petitioners on bail under Section 167 (2) of the Code is required to be passed. Learned APP for the State has submitted that Kishan Lal (supra) has been followed by this court in Babu vs. State (1951)2 SCR 729, Mehabub Rehman @ Empha vs. State Crl.Rev.P. 340/2020 and Suleman (supra) and a plethora of other cases.

5. Learned APP has submitted that the Sikkim High Court in Anwar Alam vs. State of Sikkim, Crl. Rev P. No. 4 of 2022 (date of decision 29.11.2022) has also inter alia held that since the charge sheet having been filed within the statutory period regardless of the admitted fact of absence of the FSL report, the bail was declined.

6. I have considered the submissions of the parties and perused the record carefully.

7. Before proceeding further, it is necessary to advert to the settled law laid down by this court in Kishan Lal (supra), whereby, it has been inter alia held as under:

19. We thus hold that under Section 173(2) of the Code there is no mandate that a police report must enclose the document purporting to be a report under the hand of a Government scientific expert. In the present cases, as cognizance of the offences taken by the Magistrate was proper and valid, no order releasing the petitioners on bail under Section 167(2) of the Code was required to be passed.”

8. Similarly, in Babu vs. State (supra), this Court inter alia held as under:

9. In Mohd. Arbaz; Abdul Rashid and Mohd. Nazim vs. State of NCT of Delhi, (2020) 275 DLT 323, this court, while considering the question as to “whether in a case of commission of an offence punishable under the provisions of the NDPS Act, which is founded on recovery of narcotic drugs and/or psychotropic substance, a police report under Section 173(2) of the CrPC can be considered as such if it is not accompanied by a Chemical Examiner's Report with regard to the substance recovered, and; whether an accused would be entitled to bail in default under Section 167(2) of the CrPC where his application for such bail has been filed prior to the submission of the report under Section 173(2) of the CrPC but is taken up for consideration simultaneously with the said report being filed” held as under: “24. This Court concurs with the view expressed by the Coordinate Bench of this Court in Babu (supra). Thus, the view expressed by the Division Bench of Punjab and Haryana High Court in Ajit Singh @Jeeta (supra) and the view expressed by the Bombay High Court in Sunil Vasantrao Phulbande (supra),convinced this Court that the view of the Division. Bench in Kishan Lal (supra) is binding.

25. In view of the above, the petitioners' contention that the report submitted on 27.05.2019 could not be construed as a report under Section 173(2) of the Cr.PC must be rejected. The first question is, thus, answered in the negative.”