IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN CRIMINAL REVISION PETITION NO.1344 OF 2018 BETWEEN:
SRI S.K. RAGHU S/O. LATE KALAPPA, AGED ABOUT 33 YEARS, SHIRANGALA VILLAGE, SOMWARPET TALUK, MADIKERI.
... PETITIONER (BY SRI C.N. RAJU, ADVOCATE) AND:
STATE BY KUSHALNAGAR RURAL POLICE MADIKERI, REPRESENTED BY S.P.P., HIGH COURT OF KARNATAKA, BENGALURU.
(BY SRI S.T. NAIK, H.C.G.P.) * * * ... RESPONDENT THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF THE CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 15-10-2018 PASSED BY THE 1ST ADDITIONAL DISTRICT AND SESSIONS JUDGE, KODAGU, AT MADIKERI, IN CRIME NO.99 OF 2018 OF KUSHALNAGARA RURAL POLICE, MADIKERI, FOR THE OFFENCES PUNISHABLE UNDER SECTION 302 READ WITH SECTION 34 OF THE I.P.C. AND SECTION 3(2)(V) OF THE SC/ST (POA) ACT, 1989.
THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner herein filed this revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure being aggrieved by the order of dismissal on the application filed by him under Section 167(2)(a)(i) read with Section 439 of the Code of Criminal Procedure.
2. The petitioner is accused No.1 and the respondent – State is the complainant before the trial Court. The ranks of the parties before the trial Court are retained for the sake of convenience.
3. The factual matrix of the case of the prosecution in brief is that the respondent – complainant registered a case against the petitioner/accused No.1 and others in Crime No.99 of 2018 for the offences punishable under Sections 307 and 302 read with Section 34 of the Indian Penal Code (for short, ‘the I.P.C.’) and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The petitioner was arrested by the respondent Police on 5-6-2018 and he was remanded to judicial custody. The respondent was required to file charge-sheet within ninety days from the date of remanding the petitioner to the judicial custody. Ninety days was expired on 4-9-2018, but the Investigating Officer did not file the charge-sheet and filed an application for extension of time for filing the charge- sheet, which was granted by the trial Court. Subsequently, on 9-10-2018, this accused filed application under Section 167(2)(a)(i) read with Section 439 of the Code of Criminal Procedure for granting bail on the ground that failure of submitting the charge-sheet by the Investigating Officer. The Public Prosecutor filed the statement of objections. By the order dated 15-10-2018, the learned Sessions Judge dismissed the application filed by the accused stating once the Court extends the time to file charge-sheet, the accused does not have any right to seek for bail. The same is challenged before this Court on various grounds.
4. Heard learned counsel for the petitioner and the learned High Court Government Pleader for the respondent - State.
5. Sri C.N. Raju, the learned counsel for the petitioner, strenuously contended that the trial Court has no power to extend the time for filing the charge-sheet.
Since the respondent – Police has not filed the charge- sheet even after ninety days, the accused has filed the bail application. The Court below has extended the time, which is illegal and even otherwise, before filing the charge-sheet, accused has already moved the said application, which was not considered by the trial Court. Therefore, he prayed for setting aside the order passed by the trial Court.
6. Sri S.T. Naik, the learned High Court Government Pleader, contended that charge-sheet came to be filed well within the time. He is unable to submit whether the charge-sheet was filed prior to filing of the application or not. Even the order-sheet of the trial Court goes to show that the Investigating Officer moved an application for extension of time for filing the charge-sheet and the trial Court granted the time. On 9-10-2018, the accused moved an application for bail. The trial Court has rightly considered the application of the accused and the same does not call for any interference. Therefore, he prays for dismissal of the petition.
7. On perusal of the records, the petitioner was taken into custody on 5-6-2018. The alleged offence under Section 302 of the I.P.C. is punishable with death or imprisonment for life. As per Section 167(2) of the Code of Criminal Procedure, ninety days is permitted for filing the charge-sheet. The Investigating Officer has not filed the charge-sheet as on the date of expiry of ninety days, but he filed the application on 4-9-2018 for extending the time to file the charge-sheet and the learned trial Judge extended the time, without assigning any reason. Thereafter, the Investigating Officer submitted another requisition on 1-10-2018 for further extension of time. The learned trial Judge further extended the time up to 3-11-2018. On 9-10-2018, the accused filed the application for grant of bail.
8. Learned counsel for the petitioner by relying on the judgment of the Hon'ble Supreme Court in the case of ACHPAL @ RAMSWAROOP AND ANOTHER v. STATE OF RAJASTHAN [Special Leave Petition (Criminal) No.6453 of 2018, dated 24-9-2018] held that extension of period by the Court under Section 167(2) is beyond the power and this Court has also taken the similar view in the case of KRISHNA v. STATE OF KARNATAKA AND ANOTHER in Criminal Petition No.9535 of 2017, dated 11-1-2018. In view of the ratio laid down by the Hon’ble Supreme Court in the case of Achpal @ Ramswaroop stated supra, when the law does not provide for any extension of time, the Court has no power to extend the time for filing the charge-sheet. In view of the provisions, the Court cannot extend the time for filing the charge-sheet without any reason on the application filed by the Investigating Officer. In the present case, the charge-sheet came to be filed only after the bail application was filed by the accused before the trial Court and also beyond ninety days. Therefore, once the provisions of Section 167(2)(a)(i) of the Code of Criminal Procedure provides only for ninety days, whereas the Investigating Officer has not filed the charge-sheet within ninety days, the right of the accused for default accrues from the ninety-first day. Therefore, by filing an application by the Investigating Officer, the Court cannot extend the time without power under the law which amounts to depriving the rights of the accused on bail. Admittedly, the charge-sheet came to be filed on the same date, i.e. on 9-10-2018, but specific time is not mentioned to show the charge-sheet was filed prior to filing of the bail application for default and the charge-sheet was not filed before the same Court, but it was filed before some other Court. Therefore, the trial Court committed an error and illegality in extending the time as well rejecting the application of the accused on the said ground.
Accordingly, the revision petition is allowed. The order dated 15-1-2018 passed by the I Additional District and Sessions Judge, Kodagu, Madikeri, is set aside. The matter is remanded back to the trial Court to consider the bail application filed under Section 167(2)(a)(i) read with Section 439 of the Code of Criminal Procedure.
Sd/- JUDGE kvk