Decided on September 29,1995



- (1.) THE petitioner herein is seeking for grant of bail. He along with seven others is charge sheeted for offences punishable under Secs. 120 (B), 302 read with 34, 376 (2) (c) read with 109, 201, 202 read with 114 and 506 (ii) of the Indian Penal Code.
(2.) THE case of the prosecution is that pursuant to a conspiracy entered into by the petitioner herein along with 7 other accused, fifteen young girls were rapped by the petitioner and some of the victim girls happened to be minors. All the victim girls have given statements stating that the petitioner had committed rape on them. THE victim girls were examined by the Doctors, who opined that victim girls were subjected to sexual intercourse. It is further stated that the materials gathered during the course of investigation disclosed that one of the erstwhile inmates of the ashram by name Ravi was murdered by being attacked brutally with casuarina sticks and he was deliberately confined in a room without food being provided. Besides, the deceased Ravi who had been confined in a room all by himself, was tortured and beaten up because he started confronting the behaviour of the petitioner and declared to expose about his clandestine activities. On the materials gathered during the course of investigation including the scientific evidence relating to the examination of the bones, revealed the involvement of the petitioner and his associates, in the aforesaid callous and brutal murder of the said Ravi. During the course of investigation, 109 witnesses have been examined and number of them have given statements under Sec. 164 of the Code of criminal Procedure before the Judicial Magistrate No. I, Pudukottai and also before learned V Metropolitan Magistrate, Madras. Besides two accused, viz. , ambiganathan and Nesan, who are Silankan Nationals and who were residing in the said Ashram during the relevant time have given voluntary confessional statements before learned Judicial Magistrate No. I, Pudukottai and they have been taken as approvers in the case after tendering pardon in accordance with law. According to the version of the approvers, the petitioner herein was responsible for committing this lurid and brutal rape on the helpless young girls, some of whom were minors and who hail from weaker strata of the society, unable to fend themselves. THEse victim girls have given out detailed statements including the modus operandi adopted by the petitioner before committing the rape on them. THE modus operandi adopted by the petitioner is to isolate young girls and rape them when they were alone who could not resist his physical assault on them. He has also created a core group of associates to abet his nefarious activities. THE helpless victim girls of tender age ranging between 14 and 18 were made to believe that having sex with the petitioner was divine. In the event of any girl not acceding to his demand for physical attack, the petitioner used to administer some kind of intoxicating substance and thereafter commit rape on such helpless victim girls. It is also submitted that after filing of the charge sheet, the prosecution became aware of the fact that one Arul Jothi became pregnant as a result of sexual intercourse with the petitioner without her consent. She gave statement under Sec. 164, Crl. P. C. before the V Metropolitan Magistrate, Madras, setting out the facts and circumstances under which she became pregnant and also sought the same court to help her to terminate her illegitimate pregnancy. At para 9 of the counter, it is stated that learned Judicial Magistrate, Keeranur, directed the production of Arul Jothi before the Medical Officer at Kilpauk Medical College Hospital, madras and subsequently the girl was produced before the police-surgeon and got admitted in the family welfare unit and abortion was performed on 21. 2. 1995 and the products of conception were preserved and subjected for DNA steady at centre for Cellular and Molecular Biology at Hyderabad. On examination of the foetus at the CCMB at Hyderabad, the DNA report established the factum of such pregnancy by the petitioner. THE statement of witnesses examined during the course of investigation, the DNA report, abortion certificate and all other documents relied on by the prosecution to prove its case were filed and challan was filed on 25. 1. 1995 before learned Judicial Magistrate. THE challan was returned on 28. 1. 1995 and later represented and taken on file on 2. 2. 1995 in p. R. C. No. 1 of 1995 and cognizance was taken on 2. 2. 1995 under Secs. l20-B, 376, 302 read with 34, 201, 114 and 506 (2), I. P. C. It is submitted that on 13. 5. 1995 the petitioner approached the learned Judicial Magistrate, Keeranur, for copies of the charge sheet and connected documents. Learned Judicial Magistrate declined to grant copies and passed an order stating'scientific reports are awaited. After the receipt of which only charge sheet to be prepared and furnished to the petitioner'. On 28. 6. 1995, all the documents as required in the memo were issued by learned Magistrate including the certificate pertaining to abortions. Learned counsel for the petitioner submitted that the charge against the petitioner are not only demonstrably false, but also both absurd and actuated by oblique motives. He contended that the entire investigation against the petitioner was initiated upon the information lodged by one R. Sureshkumari alias Baby, aged 20 years. According to the First information Report lodged by her, she was raped by the petitioner on number of occasions in 1988 and 1989, when she was about 12 or 13 years of age, both before and after attaining majority. Apart from the fact that the complaint of rape is extremely belated having been lodged 6 to 7 years after the date of the alleged incidents, there is no explanation as to why the complainant did not lodge the complaint in respect of the alleged offences for the last 6 to 7 years. The said complaint alleges in the First Information Report that she was threatened and caned by the petitioner and thus she was compelled to submit for rape. According to her, unable to put up with this torture any more, she escaped from the Ashram and went to Madras, when she was fourteen years of age. At Madras, she was intercepted by the police and sent back to Trichy. Even at this stage, when she admittedly left the Ashram to get away from the petitioner's conduct, she did not inform the Madras police about the conduct of the petitioner, although it would have been the most natural course of conduct on the part of the victim. It is further contended that she was emboldened to lodge the First Information Report, because of the help given to her by one anand Mohan, a relative of her and a regular visitor at the Ashram. In fact, the said Anand Mohan sought the spiritual guidance of the petitioner from 1990 onwards to control his chronic alcoholism and drug addiction and he used to go to Ashram on Fridays to do gardening. At the Ashram, he used to approach number of foreign lady devotees and make improper suggestions and talk about sexual matters with them. Three such foreign female devotees by name Ms. Ellencomba, ms. Zena Rogers and Ms. Sabina Steiner complained to the petitioner, who prohibited the said Anand Mohan from visiting the Ashram, since August, 1994. The role and motivation of Anand Mohan in framing the petitioner In the instant case is brought out both in the letter from the complainant's mother to the petitioner and also in an affidavit filed by one A. Kumaran, son of ambikanathan, who was originally an accused in this case, but subsequently made an approver and he contends that he was falsely implicated by some of the accused persons by becoming approvers and that the allegation of rape had no substance whatsoever. It is further submitted that the police has tried subsequently to implicate the petitioner in a case of murder of an inmate of the Ashram by name Ravi, who expires on 17. 4. 1994 and that the entire case regarding the murder of Ravi by the petitioner along with some of the co-accused is a tissue of lies and once again demonstrably false. It is stated that Ravi was seriously suffering from a mental illness, which led him to be aggressive and boisterous. Sometime in 1989, his mother and sister contacted one munneeya Chandrapal resident of Colombo, whose son Rajendranath had also been suffering from mental problems, who contacted the petitioner in 1988 regarding his son's mental illness. The said Chandrapal took his son to the Ashram in Trichy in November, 1988 and left him there. The said Chandrapal recommended to the deceased's mother and sister to send Ravi to the petitioner's Ashram. Thereupon, the sister and mother of Ravi contacted swami Gunananda who was in-charge of the Colombo Ashram. Swami Gunananda was informed by the mother and sister of the deceased Ravi that Ravi was mentally unsound and was treated at Mental Hospital, Angoda, Sri Lanka but such treatment was of no avail. He was also informed that Ravi's conduct was violent and they were unable to tolerate the boy at home. Swami Gunananda told them that they should take Ravi to the petitioner and the boy was left in the ashram. The circumstances of Ravi's death and the fact of his mental illness and his consequent propensity for violent and abnoxious behaviour has also been attested by the residents of the Ashram, both foreign and Indian, some of whom were entrusted with the case of Ravi, while he was alive. All these affidavits were read over to court. The contents of the affidavits, according to the petitioner, indicate that Ravi died a natural death and his burial was witnessed by several inmates of the Ashram as well as the villagers residing near the Ashram. The petitioner denies the allegation that Ravi was murdered because he threatened to expose the sexual misdeeds of the petitioner. It is further contended that the case of the prosecution is incredible, improper and fabricated at the instance of persons, who are inimical towards him. Learned counsel for the petitioner contended that the remand can only be subject to the time constraints of the proviso to Sec. 167 (2) of the Code and when there is no complete valid charge sheet in view of the order of the learned Magistrate dated 13. 5. 1995, the petitioner has an indefeasible right to seek bail, under Sec. 167 (2) of the Code of Criminal procedure. He further contends that the purported taking of cognizance was irregular and a purported charge sheet filed while the investigation is not complete is not in law a report contemplated under Sec. 173 (2) of the Code. If investigation is continued or resumed under Sec. 173 (8) a fresh report under sec. 173 (2) of the Code is compulsory, and the first stands superseded. He also submitted that if the requirement is not complied with initially the report shall be deemed to be regularly forwarded only when the last statement or document reaches the court. Learned counsel, in addition to these two legal contentions, namely, Secs. 167 (2) and 173 (2) of the Code, further contended that since charge sheet has already been filed, the question of tampering does not arise, keeping in view the fact situation, namely, that the petitioner herein has established educational institution and he is working for the upliftment of the down trodden people of that area and his non-release will affect the Management and the Administration of the Institution and even for effective defence, his presence is essential and sought for grant of bail, keeping in view the delay caused at the instance of the prosecution in not adhering to the time schedule undertaking before this Court. In these backdrop of facts, the points that arise for consideration are: (1) Whether the charge sheet filed on 2. 2. 1995 is in law a report contemplated under Sec. 173 (2) of the Code" (2) Whether the petitioner has an indefeasible right under Sec. 167 (2) of the Code" (3) Whether prima facie in the facts and circumstances of the case, the release of the petitioner is conducive for fair trial" (4) Whether the delay in not starting the trial entitles the petitioner for bail"
(3.) POINT No. 1: Cognizance of an offence could only be taken on a police report as envisaged under the Criminal Procedure Code, as per sub-Sec. (2) of Sec. 173 of the Code. Police report is defined under Sec. 2 (r)of the Criminal Procedure Code (hereinafter referred to as'code'), as a report forwarded by a police officer to a Magistrate under Sub-Sec. (2) of sec. 173. Sec. 173 of the Code deals with filing of a report by a police officer on completion of investigation, which is popularly called as'filing of a charge sheet'. Investigation as defined under Sec. 2 (h) of the code, includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person who is authorised by a magistrate in this behalf. Sub-Sec. (2) of Sec. 173 prescribes, what the report of a police officer should contain. A report in the form prescribed by the state Government shall contain the following particulars: (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under Sec. 170. Sub-Sec. (5) of Sec. 173 of the Code contemplates that when such report is in respect of a case to which Sec. 170 applies, the police officer shall forward to the Magistrate along with the report (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; (b) the statements recorded under Sec. 161 of all the persons whom the prosecution proposes to examine as its witnesses. Sub-Sec. (8) of Sec. 173 of the Code does not preclude further investigation in respect of an offence after a report under Sub-Sec. (2) has been forwarded to the Magistrate and, whereupon such investigation, the officer in charge of the police station obtains further evidence, oral and documentary he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-Secs. (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-Sec. (2 ). Sub-Sec. (2) of Sec. 173 of the Code gives certain guidelines as to what information the police report should contain. Sub-Sec. (5) contemplates police report should also contain all documents or relevant extracts on which the prosecution proposes to rely upon and the statements record under Sec. 101 of the Code. The report under Sec. 173 (2) of Criminal Procedure Code is nothing more than an opinion of the police officer that as far as he is concerned, he has been able to procure evidence during his investigation about the commission of the offence. If the police report or charge-sheet contains necessary details so as to enable the Magistrate to take cognizance of the offences and proceed further, it cannot be said that there is failure of compliance of this section. A Division Bench of the Andhra Pradesh High Court in velinedi Purnam v. State, (1994) 1 Crimes 270 has overruled the view taken by a learned single Judge in Matchumari China Venkata Reddy v. State of Andhra pradesh, (1993)1 An. L. T. (Crl.) 531 and observed that the report under Sec. 173 (2) is an intimation to the Magistrate that upon investigation into a cognizable offence, the investigating officer has been able to procure sufficient evidence for the court to inquire into the offence and necessary information is being sent to it. The report under Sec. 173 (2) is nothing more than an opinion of the police officer that as far as he is concerned, he has been able to procure evidence during his investigation about the commission of the offence. The Division Bench has held thus: "if all the necessary details as contemplated under sec. 173 (2), Criminal Procedure Code are not disclosed in the police report in the first instance, but they are furnished at a later date, perhaps it is for the court to consider the probative value of those details furnished later during the trial of the case, but to say that the police report filed with certain omissions or gaps is not a valid report contemplated under Sec. 173 (2)is reading something more into the section. Consequently non-filing of all the enclosures under Sec. 173 (5) along with the report filed under Sec. 173 (2) is not a ground to release the accused on the promise that full charge sheet is not filed within the stipulated time" The Full Bench of Punjab and Haryana in State v. Mehal singh, A. I. R. 1978 P. & H. 341, has held thus: "10. The stand taken on behalf of the accused-petitioners is that a report shall be a police report in terms of Sec. 173 (2) of the Code only if it is accompanied by such documents and statements as are referred to in Sub-Sec. (5) of Sec. 173 of the Code. This argument is sought to be sustained with the decision of the Delhi High Court in Hari Chand's case, 1977 Crl. L. J. (NOC.) 262 and a Division Bench decision of the Patna High court reported in Suresh Singh v. The State, 1978 Crl. L. J. (NOC.) 58 at page 30, besides that of A. D. Koshal, A. C. J, (as my Lord the Chief Justice then was)in Kanahiya's case, Crl. Misc. No. 2287 -M of 1976, dated 12. 5. 1976 (Punjab ). . . . . . . . . 15-A. It was argued in the first instance on behalf of the accused that the Magistrate on October 3 had no power to take cognizance of the case. It was contended that cognizance of an offence could only be taken on a police report of the kind envisaged in Clause (b) of Sub-Sec. (1) of Sec. 190 of the old Code. It was urged, on the strength of the provisions of Sec. 173 (1)of the old Code, which is in the following terms and which is also pari materia with the provisions of Sub-Sec. (2) of Sec. 173 of the new Code, that the police were not permitted to send in an incomplete report; 173 (1) Every investigation under this Chapter shall be completed without unnecessary delay, and as soon as it is completed, the officer in charge of the police station, shall- (a) forward to a Magistrate empowered to take cognizance of the offence on a police report, a report, in the form prescribed by the state Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and (b) communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given. Vivian Bose, J. , who delivered the opinion for the Bench without going into the question as to whether the police were entitled to submit an incomplete report or not, held that the report dated October 2, 1949, which the police referred to as an incomplete challan was, in fact, complete report within the meaning of Sec. 190 (1) (b) read with Sec. 173 (1) of the old code. The following observations of his Lordship are instructive on the point (at page 442 ). "when the police drew up their challan of 2. 10. 1949 and submitted it to the court on the 3rd, they had in fact compleated their investigation except for the report of the Imperial Serologist and drawing of a sketch map of the occurrence. It is always permissible for the Magistrate to take additional evidence not set out in the challan. Therefore, the mere fact that a second challan was put in on 5th October, would not necessarily vitiate the first. All that Sec. l73 (1) (a) requires is that as soon as the police investigation under Chapter 14 of the Code is complete, there should be forwarded to the Magistrate a report in the prescribed form; 'setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case.' All that appears to have been done in the report of 2nd october, which the police called their incomplete challan. The witnesses named in the second challan of 5th October, were not witnesses who were acquainted with the circumstances of the case. They were merely formal witnesses on other matters. So also in the supplementary challan of the 19th. The witnesses named are the 1st Class Magistrate, Amritsar, who recorded the dying declaration, and the Assistant Civil Sugeon. They are not witnesses who were acquainted with the circumstances of the case. Accordingly, the challan which the police called an incomplete challan was in fact a completed report of the kind which Sec. 173 (1)of the Code contemplates. There is no force in this argument, and we hold that the Magistrate took proper cognizance of the matter. The learned counsel for the accused-petitioner, however, contended that in the old Code the provisions, like the one contained in Sub-Sec. (5) of Sec. 173 of the new Code, were not there and, therefore, the authority of the Supreme Court decision in Tara Singh's case would not be applicable in the context of the changed situation brought about by the incorporation in the new Code of Sub-Sec. (5) of Sec. 173 thereof. The learned counsel for the accused- petitioners laid emphasis on the fact that the investigation in terms of the definition thereof shall not be considered complete unless the police had collected all the evidence and formed their opinion thereon and since in cases, where the expert's report was awaited, obviously, it could not be said that all evidence had been collected, and in its absence the investigating officer would be in a position to form an opinion. In order to show that the aforesaid steps are the necessary ingredients of the investigation, reliance has been placed on the following observations of Jagannadhadas, J. , who delivered the judgment for the Bench in h. N. Rishbud v. State of Delhi, A. I. R. 1955 S. C. 196 at 201. If upon the completion of the investigation, it appears to the officer in charge of the police station that there is no sufficient evidence or reasonable ground, he may decide to release the suspected accused, if in custody, on his executing a bond. If, however, it appears to him that there is sufficient evidence or reasonable ground, to place the accused on trial, he is to take the necessary steps therefor under Sec. 170 of the Code. In either case, on the completion of the investigation he has to submit a report to the Magistrate under Sec. 173 of the Code in the prescribed form furnishing various details. Thus, under the Code investigation consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons including the accused, and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under Sec. 173. " It is no doubt true that the definition of investigation in terms conceives within its scope the collection of the evidence and formation of the opinion by the investigating officer, but the question arises as to what do we mean by the collection of evidence and formation of opinion thereon. Does the collection of evidence necessarily envisage that the investigating officer must record the statements of the witnesses who are to be cited to prove the prosecution case or must the investigating officer receive the reports of the experts which reports are admissible in evidence by virtue of Sec. 293 of the Code" It has been authoritatively held at the highest judicial level in Noor Khan v. State of Rajasthan, A. I. R. 1964 S. C. 286, that sub-Sec. (3) of Sec. 161 does not oblige the police officer to reduce in writing the statements of witnesses examined by him in the course of investigation. In this regard, the following observations can be noticed with advantage (at page 291 ). The object of Secs. 162, 173 (4) and 207-A (3) is to enable the accused to obtain a clear picture of the case against him before the commencement of the inquiry. The sections impose an obligation upon the investigating officer to supply before the commencement of the inquiry copies of the statements of witnesses who are intended to be examined at the trial so that the accused may utilise those statements for cross-examining the witnesses to establish such defence as he desires to put up, and also to shake their testimony. Sec. l61 (3) does not require a police officer's record in writing the statements of witnesses examined by him in the course of the investigation, but if he does record in writing any such statements, he is obliged to make copies of those statements available to the accused before the commencement of proceedings in the court so that the accused may know the defails and particulars of the case against him and how the case is intended to be proved. . . . . " From the above observations of their Lordships of the supreme Court, it is clearly deducible that it is not incumbent on the investigating officer to reduce in writing the statements of the witnesses-he may merely include their names in the list of witnesses in support of the prosecution case when submitting the charge-sheet. Surely, if the charge-sheet thus submitted would be complete as enabling the Magistrate to take cognizance of the offence, there is no rational basis for holding that similar charge-sheet would not be a police report of the requisite kind if the statements of the witnesses although had been recorded under Sec. 161 (3), but either by design or by inadvertence are not appended with the report and that the investigation of the case for that reason alone would be considered to be incomplete thus entitling the accused to claim release on bail in view of the proviso to Sub-Sec. (2) of Sec. 167 of the Code if his detention had exceeded sixty days. 16. In view of the above conclusion, the accused would be on still a weaker ground in canvassing that the report, which did not include the report of the experts, such as Chemical Analyst, Serologist, Ballistic Expert, Finger print Expert, etc. , would not be a complete police report as envisaged in sub-Sec. (2) of Sec. 173 of the Code within in terms is prepared and submitted only after the completion of the investigation. 16-A. So far as the investigation part of the job of the investigating officer is concerned, it is in our opinion complete the moment he had collected all evidence and facts that are detailed in Sub-Sec. (2) of Sec. 173 of the Code and from the evidence thus collected he is satisfied that the case deserves to be initiated against the accused. And, further even if the investigating officer had not received the report of the expert, so far as his job of collecting of the evidence is concerned, that is over the moment he despatches the material for the opinion of the expert and incidentally cites him as a witness if he relies on his testimony" The court further held that the investigation of an offence cannot be considered to be inconclusive merely for the reason that the investigating officer when he submitted his report in terms of Sub-Sec. (2) of sec. 173 of the Code to the Magistrate, still awaited the reports of the experts or by some chance, either inadvertently or by design, he failed to append to the police report such documents or the statements under Sec. 161 of the Code. " ;

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