Duraipandian vs State

The petitioner is involved in a case of murder. He was arrested on 19.2.2001. He is A7 in this case. When bail was moved before this Court,

his application was dismissed. Thereafter, he moved bail before the learned Magistrate concerned before whom the first information report is

pending to release him u/s 167(2), Cr.P.C. stating that investigation has not been completed within 90 days. The learned Magistrate in his order

has stated that a report has been filed by the police against the accused including this petitioner and though the report says that it is a preliminary

report, it is only a final report and therefore Section 167(2), Cr.P.C. has no application. He also observes that since it is evident that explosive

substances, were used by some of the accused, consent of the Central Government is required for proceeding with the case. As against this order

passed by the learned Magistrate, the petitioner went to the Sessions judge u/s 439, Cr.P.C. by moving bail.

The learned First Additional Sessions Judge, Chennai by his order in Crl. M.P.No. 8614 of 2001 dismissed the application holding that the

report filed by the Investigating Officer is complete in all respects within the meaning of Section 173(2), Cr.P.C. and the final report after

completion of investigation has been filed within the stipulated time. There is no dispute that the preliminary report dated 17.5.2001 was filed on

18.5.2001.

The learned counsel appearing for the petitioner submits that there is provision for filing only final report in the procedure code and on this guise

of filing a preliminary report the accused could not be kept inside for more than 90 days against the statutory period as found in section 167(2),

Cr.P.C. Moreover, according to him, the report filed by the police is not a final report at all and since final report has not yet been filed,

investigation is deemed to be pending and hence detention of the accused beyond the period of 90 days, pending investigation is illegal.

The learned Government Advocate (Crl.side) submits that though the report speaks that it is a preliminary report only, the contents of the report

show; that it is only a final report.

The preliminary report filed by the police in this case shows that it has been filed u/s 173(2), Cr.P.C. for offences under Sections 148, 307,

326, 302 r/w 34, 149, 120(B) I.P.C. At the end of the report, there is a request from the Inspector of Police concerned to the Magistrate to take

this report on file and to proceed in accordance with law. A note at the bottom has been made stating that during the course of investigation,

offences under Explosive Substances Act and Indian Arms Act appear to have been committed and after obtaining proper sanction, final report

with reference to those of offences will be filed.

While going through the body of the report, the first information report was registered also for offences under Sections 25(1)(b) of Indian Arms

Act and 3 and 5 of Indian Explosive Substances Act along with other I.P.C. offences. Column-E of the report reads that on 19.2.2001 at about

6.00 p.m., the accused 1 to 11 formed into an unlawful assembly and the first accused was in possession of a country gun. the second and third

accused were also having small country guns, accused 4 to 7 and 9 to 11 were in possession of Aruvals, the 8th accused was having one Aruval

and also a country bomb and with the intention committing murder of one Kattadurai, they have proceeded to the place where Kattadurai was

available and then the second accused shot at Kattadurai with his small country gun which was in his possession and the first accused also shot him

with the lengthy country gun in his possession. The third accused also shot with his small country gun and thereafter other accused also cut him with

Aruval.

This is a case where the lodged preliminary report disclosed the overt acts of all the accused and the fact that they have been in possession of

fire arms as well as explosive substances. Therefore, I have no hesitation to hold that so far as the investigation regarding this crime is concerned, is

complete. Instead of describing the report as a preliminary report, the investigating officer ought to have described it as only a final report u/s

173(2), Cr.P.C., because no more investigation is required in this case. Getting a sanction or consent of the Government cannot be said to be part

of an investigation in a crime. That is the statutory requirement to be complied with. Therefore, according to me in this case, investigation is

completed even as early as 18.5.2001. The only further requirement to shape the case is to get a consent of the Central Government u/s 7 of the

Indian Explosive Substances Act and sanction of. the District Magistrate concerned u/s 39 of the Indian Arms Act. These two requirements cannot

be said to be part of investigation. Therefore, the mere description of the cause title of the report as preliminary report does not make it a

preliminary report at all. Merely because of want of sanction u/s 39 of Indian Arms Act and want of consent of Central Government under Indian

Explosive Substances Act, the report filed by the investigating agency cannot be said to be a preliminary report and the learned Magistrate as well

as the learned Sessions Judge are right, in holding that it is only a final report. Therefore, since final report in accordance with law has been filed

within the stipulated period of 90 days, the detention of the petitioner beyond that period does not become illegal.

The learned counsel appearing for the petitioner relied on a ruling of Andhra Pradesh High Court reported in Matchumari China Venkatareddy

and Others Vs. State of Andhra Pradesh, wherein, that Court has held that failure to file complete chargesheet within the prescribed period confers

on the accused, right to be released on bail and Court is not competent to take cognisance of offence on incomplete charge sheet. In this case,

investigation has been completed already. In the case before the High Court of A.P., the report was filed by the police with defects and omissions.

Therefore, it held that it is not sufficient for prosecution to just file some sort of police report not conforming to the provisions of sections 173(2)

and 173(5), Cr.P.C. and then play fraud not only on the statute but also on the Constitution. But here is a case where, in so far as the investigation

is concerned, that is absolutely complete and final report has already been filed and mere non-filing of sanction order does not make the final report

preliminary one.

The final report has been filed u/s 173(2), Cr.P.C. The section only says that the contents of the final report as stated in the provisions (a) to (g)

under sub-section (2) to Section 173, Cr.P.C. should be complied with. It does not include any sanction order or the consent of the concerned

Government. Therefore, as contemplated u/s 173(2), Cr.P.C., the report filed in this case is complete and it is in all respects only a final report.

Therefore, I am unable to agree with the learned counsel that the learned Magistrate and the learned Sessions Judge are not correct in holding the

preliminary report as a final report.

In the result, I hold that the final report has already been filed in this case before the expiry of the stipulated period and therefore out of right,

the petitioner is not entitled to be released on bail u/s 167(2), Cr.P.C.

The learned counsel appearing for the petitioner submits that this is a bail application coming up for hearing and already bail application filed

earlier was dismissed, and since the petitioner has been inside for more than five months, bail may be considered. Earlier bail application was

dismissed on the ground that the accused committed murder of one Kattadurai to wreck vengence against him for the murder of the leader of the

accused group. The murder appears to be an off shoot of the gang rivalry between two groups operating in the State. This appears to be further, a

well calculated preplanned murder. Therefore, on merits also, I am unable to enlarge the petitioner on bail in the larger interest of the society.

Hence, the petition stands dismissed.