Friday 27 August 2021

Whether the court can grant default bail to the accused if the police fail to file a supplementary charge sheet within 90 days from the date of his arrest?

Even otherwise on merits also, the petition is

not maintainable as the charge sheet was submitted on

04.01.2021 itself, which is evident from the records

produced by the present petitioner himself. The present

petitioner was arrayed as accused No.1 in the charge

sheet. The charge sheet was submitted for the offences

punishable under Sections 380, 457, 458, 382, 201 of IPC

and Section 25(I-A) of the Arms Act, 1959 against the

present petitioner. However, as some of the accused were

absconding, the investigation officer in his charge sheet

itself sought leave of the Court to submit supplementary

charge sheet in due course. The supplementary charge

sheet was submitted on 17.05.2021 by collecting some

additional material. 

supplementary charge sheet is

submitted against other accused or for additional evidence,

the provisions of Section 167(2) of Cr.P.C., cannot be

applicable. Hence, question of applicability of Section

167(2) of Cr.P.C., does not arise at all in the present case

to the accused, against whom charge sheet has already

been submitted and who was arrested subsequently.

IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

BEFORE

 MR. JUSTICE RAJENDRA BADAMIKAR

CRIMINAL PETITION NO.101403 OF 2021

BETWEEN

SRI. SANTOSH  HARI KADAM Vs THE STATE OF KARNATAKA

DATED THIS THE 03RD DAY OF AUGUST, 2021


ORDER

The petitioner has filed this petition under Section

439 of Cr.P.C., for setting aside the order passed by the

Principal Sessions Judge, Koppal in Criminal Revision

Petition No.21/2021 dated 07.07.2021 confirming the

order passed by the Civil Judge and JMFC, Yelburga in

C.C.No.1/2021 for the offences punishable under Sections

380, 457, 458, 382, 201 of IPC and Section 25(I-A) of the

Arms Act, 1959.

2. The brief facts of the case are that the

petitioner has been arrayed as accused No.1 and he has

been prosecuted for the offences punishable under

Sections 380, 457, 458, 382, 201 of IPC and Section 25(IA)

of the Arms Act, 1959. Initially, crime was registered in

Crime No.78/2020 of Bevoor police station and after

investigation, the investigation officer has submitted

charge sheet on 04.01.2021 at 3.00 pm against the

accused persons. The present petitioner is shown as

THIS PETITION COMING ON FOR ORDERS THIS DAY, THE

COURT MADE THE FOLLOWING:

ORDER

The petitioner has filed this petition under Sectisn

439 of Cr.P.C., for setting aside the order passed by the

Principal Sessions Judge, Kopnai in Criminal Revision

Petition No.21/2021 deted C7.07.2021 confirming the

order passed by the Civil Judge and JMFC, Yelburga in

C.C.No.1/2021 tor the offences punisnable under Sections

380, 457, 458, 382, 201 of IPC and Section 25(I-A) of the

Arms Act, 1959.

2. Tne brief facts of the case are that the

petitioner has been arrayed as accused No.1 and he has

been prosecuted for the offences punishable under

Sections 380, 457, 458, 382, 201 of IPC and Section 25(IA)

of the Arms Act, 1959. Initially, crime was registered in

Crime No.78/2020 of Bevoor police station and after

investigation, the investigation officer has submitted

charge sheet on 04.01.2021 at 3.00 pm against the

accused persons. The present petitioner is shown as

accused No.1 in the charge sheet. The present petitioner

was arrested on 06.02.2021. The supplementary charge

sheet came to be filed on 17.05.2021 under Section

173(8) of Cr.P.C., Hence, it is contended that the charge

sheet has not been submitted within 90 days from the date

of his arrest and as such, he sought for statutory bail

under Section 167(2) of Cr.P.C. The learned Magistrate has

rejected the said petition and against the said order, the

petitioner has filed revision before the learned Sessions

Judge at Koppal and his revision petition also came to be

rejected. Hence, he has approached this Court.

3. Heard the arguments advanced by both the

parties and perused the records.

4. Learned counsel for petitioner would simply

submit that he was arrested on 06.02.2021 and

supplementary charge sheet was submitted on 17.05.2021

and as the supplementary charge sheet is not filed within

90 days, as per the statute, he is entitled for statutory bail

accused No.1 in the charge sheet. The present petitioner

was arrested on 06.02.2021. The supplementary cherge

sheet came to be filed on 17.05.2021 under Section

sheet has not been submitted within 90 days from the date

sougist under Section 167(2) of Cr.P.C. The learned Magistrate has

befcre Judge at Konpal and his revision petition also came to be

> 3. Heard the arguments advanced by both the

4. Learned counsel for petitioner would simply

supplementary charge sheet was submitted on 17.05.2021

90 days, as per the statute, he is entitled for statutory bail

173(8) of Cr.P.C., Hence, it is contended that the charae

of his arrest and as such, he sougitt for statutory bail

rejected the said petition and against the said order, the

petitioner has filed revision befere the learned Sessions

rejected. Hence, ne has approached this Court.

parties and perused the records.

submit that he was arrested on 06.02.2021 and

and as the supplementary charge sheet is not filed within

and both the Courts have erred in rejecting his application.

He has also placed reliance on two citations.

5. Per contra, learned HCGP has objected the

petition on the ground that the charge sheet was

submitted against the present petitioner prior to his arrest

only. Hence, he submits that the provisions of Section

167(2) of Cr.P.C. cannot be applicable to him. Hence, he

would seek for rejection petition.

6. Having heard the arguments, it is evident that

at the first instance, the petitioner has filed this petition

under Section 439 of Cr.P.C. challenging the order of the

Trial Court as well as Revisional Court. The petition itself is

not maintainable as the provisions of Section 482 of

Cr.P.C., were not invoked in this petition. The office ought

to have raised objections in this regard, but for the best

reasons known, no office objections have been raised.

7. Even otherwise on merits also, the petition is

not maintainable as the charge sheet was submitted on

04.01.2021 itself, which is evident from the records

and both the Courts have erred in rejecting his 2nptication,

He has also placed reliance on two citations.

5. Per contra, learned HCGP.has objected. tre

petition on the ground thet the. charge sneet was

submitted against the present petitioner prior to his arrest

only. Hence, he submits tnat the provisions of Section

167(2) of Cr.P.€. cannot be aprlicable to him. Hence, he

would seek for rejection petition.

6. Having heard the arguments, it is evident that

at the first instance, the petitioner has filed this petition

under Section 439 of Cr.P.C. challenging the order of the

Trial Court as well as Revisional Court. The petition itself is

not maintainable as the provisions of Section 482 of

Cr.P.C., were not invoked in this petition. The office ought

to have raised objections in this regard, but for the best

reasons known, no office objections have been raised.

7. Even otherwise on merits also, the petition is

not maintainable as the charge sheet was submitted on

04.01.2021 itself, which is evident from the records

produced by the present petitioner himself. The present

petitioner was arrayed as accused No.1 in the charge

sheet. The charge sheet was submitted for the offences

punishable under Sections 380, 457, 458, 382, 201 of IPC

and Section 25(I-A) of the Arms Act, 1959 against the

present petitioner. However, as some of the accused were

absconding, the investigation officer in his charge sheet

itself sought leave of the Court to submit supplementary

charge sheet in due course. The supplementary charge

sheet was submitted on 17.05.2021 by collecting some

additional material. Section 173(8) of Cr.P.C., deals with

supplementary charge sheet, which states as under:

173. Report of police officer on completion of

investigation.

(1) xxxxx

(2) xxxxx

(3) xxxxx

(4) xxxxx

(5) xxxxx

(6) xxxxx

(7) xxxxx

(8) Nothing in this section shall be deemed to

preclude further investigation in respect of an

produced by the present petitioner himself. The present

petitioner was arrayed as accused No.1 in the charge

sheet. The charge sheet was submitted for the offences

punishable under Sections 380, 457, 458, 382, 201 of IPC

and Section 25(I-A) of the Armis Act, 1959 against the

present petitioner. However, as some of the accused were

absconding, the investigation officer in his charge sheet

itself sought. leave of the Court to submit supplementary

charge sheet in due course. The supplementary charge

sheet was submitted en 17.05.2021 by collecting some

additional material. Section 173(8) of Cr.P.C., deals with

supplementary charge srieet, which states as under:

173. Report of police officer on completion of

investigation.

(1) XxXxx

(3) XXxxx

(5) XxXxxx

(6) XXxxx

(8) Nothing in this section shall be deemed to

preclude further investigation in respect of an

(2) XKXXX

(4) XXXxx

(7) XXXXx

offence after a report under sub- section (2) has

been forwarded to the Magistrate and, where

upon such investigation, the office-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).

8. Hence, for submitting supplementary charge

sheet, leave of the Court is not required and the statute

itself has given powers to the investigation officer to

submit supplementary charge sheet, if any material is

found. However, in the instance case, the charge sheet is

submitted against the present petitioner on 04.01.2021

itself and he was arrested on 06.02.2021 i.e. after

submission of the charge sheet.

9. Therefore, now it is necessary to consider

Section 167(2) of Cr.P.C., which reads as under:

167. Procedure when investigation cannot

be completed in twenty-four hours

offence after a report under sub- section (2) tias

been forwarded to the Magistrate anc, where

upon such investigation, the office-ii-charge of

the police station obtains surther evidence, crel

,sorward such evidence in the form prescribed; and the

sections shail, far as may be, apply in relation te such report

forwarded uncer sub- section (2).

8. Hence, for submitting supplementary charge

sheet, leave of the Court is not required and the statute

itself has. given powers to the investigation officer to

submit supplementary charge sheet, if any material is

found. However, in the instance case, the charge sheet is

submitted. against the present petitioner on 04.01.2021

itself and. he was arrested on 06.02.2021 i.e. after

submission of the charge sheet.

9. Therefore, now it is necessary to consider

Section 167(2) of Cr.P.C., which reads as under:

167. Procedure when investigation cannot

be completed in twenty-four hours

or documentary, he _ shall forward to. the

Magistrate a further report or reports regarding

provisions of sub- sectivons (2) to (6) shali, as

or reports as they apply in relation to a report

-7-

(1) xxxxxx

(2) The Magistrate to whom an accused person

is forwarded under this section may, whether he

has or has no 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 the

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,

(1) XxXxxxx

(2) The Magistrate to whom an accused person

is forwarded under this section may, whether he

has or has no jurisdiction to try the case, from

time to time, authorise the detention of the

accused in such custody as such Megistrate

thinks fit, for a term not exceeding fifteen Cays

in the whole; and if he has no jurisdiction to try

the case or commit it fer trial, and considers

further detention unnecessary, he may order

the accusea to Le forwarded to a Magistrate

PROVIDED trat,-

serson, custody of tke police, beyond the period of

grounds exist for doing so, but no Magistrate

shail 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,

having sucti jurisdiction.

(a) the Magistrate may authorise the detention

of the accused nserson, otherwise than in the

fifteen days, if he is satisfied that adequate

-8-

(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 subsection

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),

(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

person released on bail under iris subsection

under the provisions cf Chapter XXXIII for

(b) no Magistrate shall authorise detention of

section unless the accused is produced before

remains in the custody of the police, but the

judicial custody on production of the accused

electronic video linkage; ]

specially empowered in this behalf by the High

of the police.

Explanation I.- For the avoidance of doubts, it is

expiry of the period specified in paragraph (a),

prepared to and cloes furnish bail, and every

shal! be deemed te be so released

the purposes of that Chapter; j

the accused in custody of the police under this

him -in. person. for. the first time and

subsequentiy every time till the accused

Magistrate may extend further detention in

either in person or through the medium of

(c) no Magistrate of the second class, not

Court, shall authorise detention in the custody

hereby declared that, notwithstanding the

-9-

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 though the medium of electronic video

linkage, as the case may be:]

PROVIDED FURTHER that in case of women

under eighteen years of age, the detention shall

be authorised to be in the custody of a remand

home or recognized social institution.]

10. Hence, as per Section 167(2) of Cr.P.C., the

Magistrate can order for detention of the accused for

maximum 90 days or 60 days as the case may be if the

charge sheet is not filed and investigation is not concluded

from the date of arrest. Section 167(2) of Cr.P.C., is

applicable only when charge sheet is not laid down and it

starts operative when accused is arrested during the

course of investigation, but if charge sheet is filed against

the accused shall be detained in custody se 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 perso may be

proved by his signature orn the order authorising

Magistrate as to. production of trie accused

linkage, as the case may be:]

PROVIGED under eighteen years of age, the detention shall

bein 1Q. Hence, as per Section 167(2) of Cr.P.C., the

Magistrate can order for detention of the accused for

maximum 90 days or 60 days as the case may be if the

charge sheet is not filed and investigation is not concluded

from the date of arrest. Section 167(2) of Cr.P.C., is

applicable only when charge sheet is not laid down and it

starts operative when accused is arrested during the

course of investigation, but if charge sheet is filed against

detention or by the order certified by the

person though the meaium of electronic video

PROVICED FURTHER that in case of women

be authorised to be in the custody of a remand

home or recognized social institution. ]

particular accused and supplementary charge sheet is

submitted against other accused or for additional evidence,

the provisions of Section 167(2) of Cr.P.C., cannot be

applicable. Hence, question of applicability of Section

167(2) of Cr.P.C., does not arise at all in the present case

to the accused, against whom charge sheet has already

been submitted and who was arrested subsequently. The

learned counsel for petitioner has placed reliance on a

decision of the Hon’ble Apex Court in Criminal Appeal

No.699/2020 arising out of SLP (Criminal) No.2333/2020

and also Criminal Appeal No.319/2021 arising out of SLP

(Criminal) No.6181/2020, but both the cases are

pertaining to UAPA Act and further in both the cases, after

arrest, charge sheet came to be filed. Hence, the principles

enunciated in the above cases, cannot be made applicable

to the facts and circumstances of present case on hand. In

the present case, after submission of the charge sheet

against the present petitioner, who is accused No.1, he

was arrested and later on supplementary charge sheet is

submitted. Supplementary charge sheet is only an

particular accused and supplementary charge sheet is

submitted against other accused or for additional evidence,

the provisions of Section 167(2) of Cr.P.C., cannot be

applicable. Hence, question of appiicability. of Section

167(2) of Cr.P.C., does not arise at all in the present case

been submitted and who was arrested subsequently. The

learned counsel! for petitioner has placed reliance on a

No.699/20290 arising. ovt of SLP (Criminal) No.2333/2020

(Criminal) -No.6181/2620, but both the cases are

arrest, charge sheet came to be filed. Hence, the principles

enunciated in the above cases, cannot be made applicable

to the facts and circumstances of present case on hand. In

the present case, after submission of the charge sheet

against the present petitioner, who is accused No.1, he

was arrested and later on supplementary charge sheet is

submitted. Supplementary charge sheet is only an

to the accused, against whom charge sheet has already

counse! decision cf tne Hon'ble Apex Court in Criminal Appeal

and also Criminal Appeal No.319/2021 arising out of SLP

pertaining to UAPA Act and further in both the cases, after

additional material collected against the accused persons.

Hence, the petition is devoid of any merits and is

misconceived and hence, it needs to be rejected both on

maintainability and as well as on merits. Hence, the

following;

ORDER

The petition is dismissed.

In view of dismissal of the above

petition, pending interlocutory applications, if

any, do not survive for consideration and are

dismissed accordingly.

Sd/-

JUDGE


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