Varun Goyal v. The State NCT of Delhi

16. It is further submitted that the petitioners obtained fresh insurance policies only two months prior to the incident and filed for insurance claim immediately after the fire broke out, due to which the possibility of foul play or conspiracy on their part cannot be ruled out.

17. During investigation, it was found that the demised premises was booked on account of unauthorized construction by MCD Zone as no building plan was sanctioned for the same. She relies on the judgment passed by this Court in Devesh Kumar v. State; 2018 SCC Online Del 13078, to contend that the facts of the present case give sufficient evidence to attract Section 304 Part I of IPC, which allows the State extended time to complete investigation within 90 days of the detention.

18. Learned senior counsel, in rejoinder submits that insurance policy was obtained on regular basis as required for any business establishment. He submits that the policy was not taken for the first time, but the earlier policy was renewed which had lapsed in the month of January. He further submits that it is a requirement of any Fire Insurance Policy that the claim for insurance has to be filed immediately so that the surveyor can be appointed by the Insurance Company. The same cannot be faulted with and made a ground for the alleged foul play. Conclusion

19. The chargesheet in the present case was filed on 08.08.2022. It is alleged that the building was unauthorized and there was storage beyond the capacity. Moreover, the card board boxes were stored in the premises. The police has not been able to categorically hold the cause of the fire since the complete electrical cable installation had gutted down. They, however, state that the cause of the fire due to electric short circuit cannot be ruled out.

20. The reason for adding Section 467 IPC has been stated to be the wrong information being given by the petitioners with respect to the employees to the Employees’ State Insurance Corporation (ESIC).

21. It is further alleged that in online factory licensing record, no valid factory licence was found to have been issued in favour of the company. All the employees / injured / deceased were not found to be covered under the ESIC Act.

22. It is alleged that the insurance policy was taken so as to reap the benefits with a mala fide intention. The premises were insured for a huge amount and the claim was made within 24 hours which shows that the incident was not accidental and was committed intentionally.

23. By making these allegations, it is contended that the chargesheet was required to be filed within a period of 90 days from the first date of detention since the offence would fall in Part I of Section 304 IPC.

24. Section 167 (2)(a) of Cr.P.C., provides that magistrate can authorise detention of the accused for a total period not exceeding 90 days where investigation relates to an offence punishable with death, life imprisonment or for a term not less than ten years and 60 days where the investigation relates to any other offence. In other words, State is required to complete investigation within a period of 90 days or 60 days as the case may be and in case of default the accused shall be released on Bail in case he is prepared to and does furnish bail.

25. Section 167(2)(a) reads as under:

26. The right to be released on Bail in case of default has been recognised as not only a statutory but a constitutional right. It is also a settled law that the right of the default bail cannot be curtailed by filing of chargesheet after the expiry of 60 days or 90 days from the first day of detention as the case may be.

27. It is not disputed that in case the investigation relates to offences under Sections 304 Part I, 308, 120B, 467, 34 IPC, the magistrate was empowered to detain Petitioners up to a period of 90 days or in other words the Police had 90 days to complete investigation from the first day of detention. In case the investigation relates to offences under Sections 304 Part II, 308, 120B, 34 IPC, the magistrate was empowered to detain Petitioners up to a period of 60 days or in other words the Police had 60 days to complete investigation from the first day of detention.

28. The FIR, in the present case however, did not specify whether the same was registered in relation to Section 304 Part I or Section 304 Part II. It is also not disputed that Sections 467, 468, 471, 420, 406, 417 of IPC were added subsequently and were made part of the chargesheet. Section 467 reads as under:

29. It is significant to note that Section 304, IPC, is not divided into sub-sections. At the same time, the first part of the section prescribes a punishment of imprisonment for life or imprisonment of either description for a term which may extend up to 10 years if the Act by which the death is caused is done with the intention of causing death.

30. The second part of the same Section 304 prescribes a punishment of imprisonment which may extend to 10 years if the act by which the death is caused is done with the knowledge of causing death. Therefore, nomenclature of Section 304, Part I and Section 304, Part II has been used by the Courts over the years and if the investigation relates to an offence falling under Part I, the same would grant the prosecuting agency to complete investigation within 90 days of the date of detention or else 60 days in case the investigation relates to offence under Part II of Section 304, before any right under Section 167(2) can be claimed.

31. The maximum punishment in some of the cases falling under Section 467 IPC also is the imprisonment for life which would entitle the prosecuting agency to complete investigation within 90 days from the first day of detention or in other words the accused can be detained up to 90 days from the first day of detention before claiming any right under Section 167(2) C.r.P.C.

32. There is no provision in Cr.P.C. which prescribes that whenever some sections are added during the course of the investigation, the police is required to register a supplementary FIR. The police has a right to investigate every aspect of the offence and file a chargesheet for the offences which are found to have been committed. It is, however, not disputed that the offences which are investigated apart from the ones mentioned in the FIR or are added during the course of the investigation are mentioned by the police in the case diary and are brought to the knowledge of the Magistrate. On being specifically asked from the IO, who was present in the Court, it was stated that Section 467 IPC was added on 18.07.2022.

33. The application under Section 167(2) of the Cr.P.C was filed by the petitioners on 16.07.2022, that is, the 62nd day of the detention. Therefore, even though the right to file an application under Section 167(2) Cr.P.C had accrued on the 61st day, the said right was availed by filing an application on 16.07.2022 and Section 467 IPC was admittedly added after the petitioners had availed of that right. Therefore, even though that application was considered after the said Section 467 IPC was added, the same, in my opinion, was not relevant.

34. The Hon’ble Apex Court in M. Ravindran vs. The Intelligence Officer, (2021) 2 SCC 485, after noting various judgments passed by the Hon’ble Apex Court had clarified that the accused is entitled for the benefit of Section 167(2) Cr.P.C, the moment it avails of such right by filing an application. It is of no consequence that the chargesheet is subsequently filed before the said application is disposed of. The Court had disagreed with the view taken by the Apex Court in Pragyna Singh Thakur vs. State of Maharashtra, (2011) 10 SCC 445, wherein the Supreme Court had held that the right to bail would distinguish if the prosecution subsequently files the chargesheet before consideration of the application under Section 167(2) Cr.P.C.

35. Applying the same principle, the moment the Petitioners in the present case had filed an application under Section 167(2), the subsequent adding of Section 467 of IPC was of no consequence even though the said application had not been disposed of till the date Section 467 IPC was added. It is settled law that the investigating agency cannot curtail the indefeasible right of the accused conferred by Section 167(2) Cr.P.C by any subsequent act.

36. The Hon’ble High Court of Bombay in Alnesh Akil Somji v. State of Maharashtra, 2021 SCC OnLine Bom 5276, wherein, Section 409 of the IPC was invoked even though after the expiry of 60 days of the detention therein but a day prior to filing of the application by the accused under Section 167(2) Cr.P.C, had examined the facts and held that the said section was not rightly invoked and was merely added so as to deny the accused the benefit of167(2) Cr.P.C.

37. Learned Senior Counsel, relying upon the judgment in Alnesh Akil Somji (supra), contends that Section 467, IPC, has not been rightly invoked in the present case and was merely added so as to deny the petitioners, the benefit of Section 167(2) of Cr.P.C.

38. In the present case, however, Section 467 of the IPC was added by the State on 18.07.2022, that was subsequent to the filing of the applications by the petitioners. Thus, when the application was filed availing the right under Section 167(2), Cr.P.C., investigation was not in relation to offence punishable under Section 467 IPC giving State, extended time of 90 days to complete investigation. Therefore, this Court does not consider it apposite to give any finding whether the said section was rightly invoked or not and the same would be considered by the learned trial court at an appropriate stage.

39. Therefore, insofar as Section 467 of IPC is concerned, the same being added after the expiry of 60 days, the petitioner cannot be denied the indefeasible right of default bail on filing of the application under Section 167(2), Cr.P.C..

40. The other section which also makes the accused liable for punishment of imprisonment up to life and thus giving State 90 days time to complete investigation is Part I of Section 304 IPC. However, in the absence of the same being specifically mentioned in the FIR, what is to be considered is whether the allegation and investigation on the day, the application under Section 167(2) was filed, was in relation to intentionally committing culpable homicide not amounting to murder so as to entitle the Magistrate to authorise the detention for a period of 90 days.

41. It is settled law that the indefeasible right under Section 167(2) of Cr.P.C., accrues immediately when the accused avails of his right of on non-completion of investigation within the prescribed period of time. The role of the Magistrate, at that stage, is to ascertain from the record available at the stage when application is filed and decide whether the investigation relates to an offence punishable with an imprisonment that would give the investigating agency, a period of 60 days or 90 days to complete the investigation. The Magistrate does not have to wait for the filing of the chargesheet in order to ascertain the said fact. Therefore, the moment, the application is filed, for instance, on the 61st day, the Magistrate is not required to wait up to the 90th day to decide whether the investigation relates to such category of offences that entitle the Police to complete investigation within 90 days of the date of detention. That would amount to allowing the detention of the accused for extended period even though he is entitled to be released on bail on the 61st day.

42. The Hon’ble Apex Court in the case of Vikramjit Singh Vs. The State of Punjab, 2020 10 SCC 616 held that the default bail under the first proviso of Section 167(2) Cr.P.C is a Fundamental Right and not merely a Statutory Right. The right is guaranteed to an accused to be released on bail once the conditions of the first proviso to Section 167(2) are satisfied. It has also been held by the Hon’ble Apex Court that the accused is not even required to file a written application for such purpose and even an oral application would suffice. Therefore, once the application is made whether written or oral, the Court has to see whether on the said date of the application, the chargesheet was filed or not. The chargesheet is filed after the investigation on the allegations made in the FIR or any other offence that may have been found during the course of the investigation. It is settled that subsequent filing of the chargesheet does not take away the indefeasible right which accrues in favour of the accused on non-filing of the chargesheet within the specified period.

43. The issue, therefore, to be considered in the present case, is whether at the time of filing of application under Section 167(2) of Cr.P.C., the investigation was in relation to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years giving State 90 days’ time to complete investigation from the first day of detention.

44. As discussed above, if the investigation relates to an offence under Part-I of Section 304 then the investigating agency has a time of 90 days to complete investigation, whereas if the offence falls under Section 304 Part II IPC then the investigation is to be completed within 60 days from the date of detention, before any right could be claimed under Section 167(2), Cr.P.C..

45. The FIR, in the present case, was registered on information in relation to the death caused due to fire. At that stage, the investigating agency is not aware whether the Act by which the death is caused is done with the intention of causing death or whether the same was done with the knowledge. Had the same been alleged, it was the duty of the Police to mention the same in the FIR itself.

46. The Court is also at the stage of considering an application under Section 167(2),Cr.P.C., is not required to give a finding whether the act which resulted in the death was caused with the intention or knowledge so as to fall within Part I or Part II of Section 304 IPC as the case may be, but only has to ascertain whether the investigation relates to Section 304 Part I or Part II of IPC.

47. Limited issue which is required to be addressed at this stage is whether an allegation of Section 304 IPC which does not specify whether the same is under Part I or Part II is required to be investigated within a period of 60 days or 90 days, for the purpose of claiming right under Section 167(2), Cr.P.C.. At the time when application is filed, Magistrate has before him, a case diary and record of investigation done till that time and not the chargesheet. The same needs to be looked into from the totality of the facts which led to registration of the FIR and after consideration of the statements of the witnesses recorded consequent to the FIR.

48. Police has all the rights to investigate an offence in all respect. It is the duty of the Police to not only investigate but also find out during the course of investigation if any other offence is also attracted in the alleged incident.

49. However, at the same time, it cannot be left to the whims of the Police to come to the Court after the expiry of 60 days and to contend that they are also investigating offences which are much serious in nature than initially alleged and, thereby, leaving the Court as well as the accused guessing as to the period when the statutory right under Section 167(2) of Cr.P.C. can be availed.

50. It is for this reason that whenever the state, during the course of investigation, finds that certain other sections are attracted than what are mentioned in the FIR or what the initial allegations referred to, they add such additional sections and bring it to the knowledge of the Magistrate. For instance, during the course of investigation of an allegation of Section 420, IPC if it is found that the forgery has been committed, leading to the investigation in relation to Sections 467, 468 etc. of IPC, the Police is within its powers to add such sections and point this out to the Magistrate.

51. However, the said exercise is required to be done before the expiry of a period of 60 days or else the accused would be left at the whim and mercy of the Police who will get an opportunity to defeat the right of the accused under Section 167(2) of Cr.P.C.

52. It is not in doubt that while investigating an offence in relation to accident, the Police is free to also investigate whether the same involves the offence in relation to culpable homicide of such nature so as to entitle them to complete investigation within the extended period of 90 days from the date of initial detention. The same has to be brought to the knowledge of the Magistrate before expiry of period of 60 days after which the accused gets an indefeasible right to apply for a bail in terms of Section 167(2) of Cr.P.C..

53. The same can be brought to the knowledge of the Magistrate by means of applications seeking remand which are necessarily to be filed after expiry of the judicial custody after every 15 days. In addition, it is the duty of the Magistrate to ask the Investigating Agency, especially, when the term of the remand asked for goes beyond the total period of 60 days, the need for such custody and whether the Police is investigating such offences which entitles them to complete the investigation in extended period of 90 days.

54. In the absence of any such information to the Magistrate or any request of such nature, it should be presumed that investigation is required to be completed within a period of 60 days, unless the FIR is initially registered in relation to offences which attracts punishment of death, imprisonment up to life or more than 10 years. It is not in doubt that up to the 59th day, the investigating agency can gather material during the course of investigation which would lead to further investigation in relation to more serious offences giving them extended period to complete investigation within a period of 90 days. But the same, in my opinion, should be immediately brought to the knowledge of the Magistrate because that involves the personal liberty of the accused who is entitled to be released on bail on expiry of 60 days if the investigation is not complete.

55. In so far as Section 304, IPC, is concerned, it should be seen from the FIR and the statement recorded during the course of investigation up to the filing of the application under Section 167 as to whether the investigation is in relation to Part ‘I’ or Part ‘II’. The same, in my opinion, cannot be decided on the basis of the reply filed by the Police to the application under Section 167, which is filed after 60 days, in the absence of the same being reflected in the case diary. In order to avoid any ambiguity, the same should be brought to the knowledge of the Magistrate before the expiry of the period of 60 days, whether the investigation relates to offence falling under Part I of Section 304, IPC or Part II of Section 304, IPC.

56. Merely showing or filing a reply that the investigation is in relation to Part I, in my opinion, is not sufficient because that would give whimsical powers to the Police authorities to mention any section in order to defeat the right of the accused. It is then the duty of the Magistrate to see at the stage when the application is filed, as to whether there is any substance for making such statement and should not wait for filing of the chargesheet.

57. In an event, an accused is initially arrested under section 304 IPC without specifying the nature of accusation as to Part (I) or Part (II), the accused is liable to be detained for a period of 60 days without any demurer since the investigation for the purpose of determination whether the offence falls in Part (I) or Part (II) is still possible as in both the scenario his detention for initial 60 days cannot be objected to for the purpose of investigation.

58. However, where even on the 60th day, the prosecution is still unable to determine whether the offence falls within Part (I) or Part (II), there is nothing to presume that the offence shall fall in Part (I) entitling further 30 days (total of 90 days) for completion of investigation and any remand thereafter, for the said purpose without specifying the offence being in Section 304 Part (I) of IPC shall vest a right in the favor of accused to be released on bail in terms of Section 167(2)(a)(ii) CrP.C. Since, it is a matter of liberty of a person and a person cannot be detained in custody even for a day more than what is permitted under law. Where the prosecution even after 60 days of investigation, is not in a position to definitively assert, that the offence falls under sub-clause(1) of Section 304 IPC, in such a situation, the denial of bail and remanding the accused further to custody to enable the prosecution to determine if Part (1) of Section 304 IPC applies, cannot be permitted.

59. Provision of Section 167(2), Cr.P.C. is in the nature of beneficial provision. It is settled law that in case of any ambiguity or doubt, the benefit has to go in favor of the accused.

60. Needless to say that in a matter of personal liberty, the statute has to be interpreted strictly and no leverage or benefit can be extended to the prosecution and an interpretation in favour of the accused is to be accepted. Failure of the prosecution cannot be at the detriment of the accused.

61. I have perused the statements recorded of various witnesses and victims. It is alleged that the accused persons were running the factory in a dangerous condition without taking appropriate precautions for the fire. Some of the victims / witnesses have stated that minor incidence of short circuits etc. had happened in the past also, but the petitioners have not taken any remedial measures. Till the time of filing of Application under Section 167(2), Cr.P.C., no material has been brought before the court which would show that any allegation with regard to the Petitioners intention to kill was made by any of the witnesses.

62. It is pointed out that certain aspects in relation to insurance being taken by the petitioners were being looked into by the investigating agency even before the applications under Section 167(2) Cr.P.C were filed by the petitioners. The learned Senior Counsel for the petitioners, though has argued that insurance policy was not taken for the first time and in fact was renewed. He has further argued that filing of claim within 24 hours isthe requirement of the policy itself which cannot be faulted with or made as an excuse to allege any foul play. The said aspects, however, in my opinion are not required to be gone into or commented upon at this stage and would be looked into by the learned Trial Court at an appropriate stage.

63. This Court in somewhat similar circumstances in the case of Devesh Kumar Vs. State, 2018 SCC OnLine Del 13073 has held as under: “9. The issue which now arises for consideration is that whether at this stage from the FIR itself the Court can form an opinion and/or is required to form an opinion whether a case is made out for offence punishable under Section 304-I or 304-II. In a given case on the facts it may be difficult to ascertain whether the act which resulted in the death was caused with the intention or knowledge, in which case the Court would not be required to form an opinion whether the offence would fall under Section 304-I or 304-II. If the offence fall under Part-I, then the sentence being punishable up to life imprisonment the investigating agency would have time of 90 days for filing the charge-sheet whereas if the offence falls within Section 304-II, then the charge-sheet is required to be filed within 60 days.

10. As noted above taking the allegations as stated in the present FIR as it is the appellant cannot be said to have possessed an intention to do an act so as to cause the death of the two of the victims and at best what is attributable to the petitioner is the knowledge that his act was likely to cause the death of people sleeping in the footpath, in which case offence punishable under Section 304-II was clearly made out. When the facts speak for themselves and clarify that offence made out is punishable under 304-II, the investigating agency would be ordained to file the charge-sheet within 60 days.

11. Learned APP for the State has relied upon the decision of the Allahabad Court in Lakhan Tomar v. State of U.P. wherein it was held that whether the conviction would be under Section 304-II or otherwise can only be ascertained after conclusion of evidence during the course of trial and the High Court cannot preempt the decision of the Trial Court before the evidence is recorded. The said finding may be true when there is any doubt in the facts, in the ingredients of offence or during the course of investigation further material comes to show that offence would fall under Section 304-I, however when on the face of the FIR and investigation carried out ingredients of offence punishable under Section 304-II are made out the investigating agency would be ordained to file the charge-sheet within 60 days.

12. Consequently, this Court is of the considered opinion that from the FIR and statements of witnesses an offence under Section 304-II IPC having been made out, the investigating agency was required to file the charge-sheet within 60 days and having not filed the same and the petitioner having exercised his right to default bail by an oral prayer of additional grounds on 13th November, 2018 before the learned Trial Court, the petitioner was entitled to default bail. Consequently, the petitioner is directed to be released on bail on his furnishing a personal bond in the sum of Rs. 50,000/- with two surety bonds of the like amount to the satisfaction of the learned Trial Court, further subject to the condition that the petitioner will not leave the country without the prior permission of the Court concerned and in case of change of residential address the same will be intimated to the Court concerned by way of an affidavit.” (Emphasis Supplied)

64. Whether the conviction would be under the provisions of Section 304 Part II IPC or Part I IPC can only be ascertained after the conclusion of the trial. It cannot be alleged at the initial stage when the FIR is registered, unless the specific allegations of such nature are made so as to fall under Section 304 Part I of the IPC.

65. Another significant fact is that the IO, during the course of proceedings before the Trial Court, had submitted before the Trial court on 06.07.2022 that the chargesheet would be filed within a period of one week from that date. The petitioners were arrested on 14.05.2022. Therefore, on 06.07.2022, the IO himself was under the belief that the chargesheet is to be filed within a period of 60 days.

66. In my opinion, the Court is not required to give any finding on the chargesheet as to whether the investigation as culminated into said chargesheet would make out a case under Part I or Part II of Section 304 IPC. From the allegations as stated in the FIR, it cannot be said that the petitioners had an intention to do an act so as to cause death of the victims which also included their own father.

67. From the record, it is also seen that during the course of investigation, prior to the expiry of 60 days, no material was brought to the knowledge of the learned Trial Court either in the form of the application seeking remand or by adding any section in the FIR to claim that the investigating agency required extended period of 90 days to complete the investigation from the date of arrest. In fact, on a pointed query from the Court, it was stated that Section 467, IPC was added in the FIR on 18.07.2022 i.e., after the expiry of 60 days. It is after filing of the application under Section 167(2) of Cr.P.C seeking default bail.

68. Therefore, considering the allegations made in the FIR, the statements given by the various witnesses and the admitted fact that the father of the petitioners also died in the said unfortunate incidence of fire and also the fact that the petitioners also got burn in same fire, it cannot be stated that the allegations made were in relations to offences falling under Part I of Section 304 IPC. The same, therefore, were required to be investigated within a period of 60 days from the first day of detention of the petitioners and non filing of the same gave an indefeasible right to the petitioners to be released on default bail on their exercising their right by filing an application on 16.07.2022.

69. Consequently, the present petitions are allowed and the petitioners are directed to be released on bail on their furnishing a bail bond for a sum of ₹1,00,000/- (Rupees One Lakh only) with two sureties each of the like amount to the satisfaction of the learned Trial Court/ Duty Metropolitan Magistrate, subject to the following terms and conditions: i) The petitioners shall provide their mobile numbers to the concerned IO/SHO and shall keep their mobile phones switched on at all times; ii) The petitioners shall not take unwarranted adjournment and attend the Trial Court proceedings on every date; iii) The petitioners shall not leave the city without informing the concerned IO / SHO; iv) The petitioners shall not in any manner contact any of the witnesses; v) The petitioners shall not in any manner tamper with the evidence; vi) The petitioners shall not leave the country without permission of the learned Trial Court.

70. In the event if the petitioners are found to be violating any of the conditions, it would be open to the State to seek redressal by filing appropriate application for cancellation of bail.

71. It is made clear that any observation made in the present order are only for the purpose of deciding the present application and should not influence the outcome of the trial and also not be taken as an expression of opinion on the merits of the case. AMIT MAHAJAN, J MARCH 3, 2023 “SS”/SK/RS/ HK Note: Corrected by the order dated 06.03.2023, by modifying the contents of Paragraph Nos. 43, 50 and 58 of the judgment.