B.P. Das, J.
1. This application under Section 482 of the Code of Criminal Procedure ('Cr.P.C.' in short) is directed against the order dated 26.6.2001 passed by the S.D.J.M. (P), Rourkela, (Annexure-1) rejecting the applications for bail filed under Section 167(2), Cr.P.C. by the present petitioners, who are accused of the offences under Section 395 of the Indian Penal Code ('IPC' hereinafter) read with Sections 25 and 27 of the Arms Act, in G.R. Case No. 70 of 2001, arising out of Bondamunda P.S. Case No. 3 dated 9.1.2001, and the order dated 28.7.2001 passed by the Addl. Sessions Judge, Rourkela, in Criminal Revision No. 33 of 2001 (Annexure-2), confirming the order in Annexure-1.
2. The short facts relevant for disposal of the present application are that on 9.1.2001 the Manager of United Bank of India, Bondamunda Branch, lodged an FIR at the Bondamunda Police Station alleging that on that day at about 1.55 P.M. while the banking operation was going on, a group of dacoits armed with fire arms like pistol, stengun, etc., entered into the Bank, frightened the customers and the Bank staff at the gun-point, assaulted the Manager and asked him to open the strong room and the chest and took away about Rs. 6,00,000/- from the strong room and fled away along with the cash in a jeep. During the course of investigation, the accused persons were apprehended and forwarded to custody. Two separate applications were filed by accused-present petitioners (Md. Khurshid Alam and Pradeep Kumar Deo) under Section 167(2), Cr.P.C. alleging therein that as the charge-sheet had not been filed within the mandatory period of 120 days, their custody was illegal and they had an indefeasible right to be enlarged on bail and a valuable statutory right had accrued in their favour.
3. Learned counsel for the petitioners has submitted that the petitioners' custody for 120 days was completed on 14.5.2001. As the investigation had not been completed, on 11.5. 2001 the Investigating Officer submitted an incomplete charge-sheet with a prayer for continuing the investigation and on 14.5.2001, part file with charge-sheet case record was submitted to the Court of the Add). Sessions Judge, Rourkela, to be tagged with the original case record, which was sent in Crl. Misc. Case No. 196 of 2001. The further case of the petitioners is that on 5.6.2001 the L.C.R. was received from the Court of the Addl. Sessions Judge and the matter was posted to 12.6. 2001 for further consideration. On 13.6.2001 the petitioners filed two separate applications for bail under Section 167(2) of the Cr.P.C. which were ultimately rejected by the learned S.D.J.M by order dated 26.6.2001 (Annexure-1) and on the same day the S.D.J.M. took cognizance of the offences as indicated above. Learned counsel for the petitioners has further submitted that as the cognizance was taken beyond the period of 120 days, the petitioners were entitled to get the statutory benefit available to them under Section 167(2) of the Cr.P.C.
4. On perusal of the impugned order dated 26.6.2001, I find that the accused persons were forwarded to custody on 14.1.2001 and charge-sheet was filed on 11.5.2001. As such, the charge-sheet was submitted before completion of the period of 120 days, i.e., on the 118th day, for which the applications of the accused were rejected by the S.D.J.M. But according to learned counsel for the petitioners, as admittedly cognizance of the offences was not taken within the period of 120 days, the petitioners were entitled to get bail.
5. On perusal of the L.C.R. I find that the charge-sheet was submitted on 11.5.2001. The order dated 11.5.2001 passed by the S.D.J.M. runs thus :
'11.5.01 - Received C.S. No. 47 dt. 11.1.01 under Section 395, IPC. against accd. persons (1) Pradeep Ku. Deo, 1973 son of late Gangadhar Deo, (2) Md. Khursid, 1976 son of Alafjan Ansari, (3) Debendranath Singh, 1954 son of late Pitu Singh, (4) Md. Arite, 1977, son of Md. Murtyaja, (5) Md. Irfan, 1978, son of Md. Abbas. The original case record is with A.D.J.. C.R. is put up after receipt of original case record for taking cognizance and prayer for continuing investigation.
Sd.
S.D.J.M. (P)
11.5.01. Later C.R. is put up today on the strength of advance petition. Advocate for the accd. Debendra Nath Singh files a petition under Section 167, Cr.P.C. Heard. The original case record was sent to the Court of Add). Sessions Judge, RKL. Put up on receipt of original case record.
Sd.
S.D.J.M. (P)'
6. Now, therefore, a question arises whether the date of completion of the period of 120 days is to be reckoned on the date the investigation was completed or the date on which cognizance was taken by the Magistrate.
7. From the language of Section 167(2) of the Cr.P.C. it clearly appears that a time limit is given to the Investigating Officer, for completion of the investigation. In the instant case, admittedly the charge-sheet was filed on 11.5.2001, i.e., on the 118th day, but cognizance was taken thereafter on 26.6.2001.
Learned counsel for the petitioners relying upon a decision of this Court in Ramanath Naik v. State of Orissa, reported in (1993) 6 OCR 237, submits that if the cognizance is not taken within the period of 90/60 days depending upon the nature of the offence as indicated therein, the accused gets available right to be released on bail. In this regard I may refer to a decision of the Apex Court in Hitendra Vishnu Thakur v. State of Maharashtra, reported in AIR 1994 SC 2623, wherein it was held as follows :
'...The law enjoins upon the investigating agency to carry out the investigation, in a case where a person has been arrested and detained, with utmost urgency and complete the investigation with great promptitude in the prescribed period. Sub-section (2) of Section 167 of the Code lays down that the Magistrate to whom the accused is forwarded may authorize his detention in such custody, as he may think fit, for a term specified in that Section. The proviso to Sub-section (2) fixes the outer limit within which the investigation must be completed and in case the same is not completed within the said prescribed period, the accused would acquire a right to seek to be released on bail and if he is prepared to and does furnish bail, the Magistrate shall release him on bail and such release shall be deemed to be grant of bail under Chapter XXXIII of the Code of Criminal Procedure....'
This Court in Bhikari Charan Awasti alias Bhiku v. State of Orissa, reported in (2000) 18 OCR 448, while interpreting the Proviso to Sub-section (2) of Section 167 of the Cr.P.C., held thus :
'As is evident from the said proviso, the object of incorporating the proviso is to see that a person arrested by police does not languish unnecessarily in prison awaiting completion of investigation. By this provision it is also intended to prevent possible abuse/by the police of their powers. The provisions contained in Section 167(2) are mandatory and failure of the Investigating Agency in completing the investigation within the prescribed period entitled the accused to be enlarged on bail.'
So, the date on which cognizance is taken is not absolutely material. It is the date on which investigation is completed and charge-sheet filed. In the present case, the order-sheet reveals that the charge-sheet was filed on 11.5.2001 and the case was directed to be placed after receipt of original case record from the Court of the Addl. Sessions Judge for taking cognizance and there is a mention of 'prayer for continuing investigation' in the said order. Taking a cue from the expression 'prayer for continuing investigation, learned counsel for the petitioners has submitted that an incomplete charge-sheet was filed in the case. As it appears, while filing charge-sheet, the Investigating Officer has indicated that still investigation is going on in order to probe whether any other persons are involved in this case. So, from the above, it cannot be said that the charge-sheet filed is an incomplete charge-sheet. Apart from that, the Magistrate has taken cognizance on the same charge-sheet on 26.6.2001. So, in my considered opinion, as the investigation was completed and charge-sheet filed within the period of 120 days, the question of enlarging the petitioners under the proviso to Sub-section (2) of Section 167 of the Cr.P.C. does not absolutely arise. Accordingly, I do not find any infirmity in the impugned order passed by the learned S.D.J.M.(P), Rourkela, in G.R. Case No. 70 of 2001 as well as in the revisional order passed by the Addl. Sessions Judge, Rourkela, in Criminal Revision No. 33 of 2001 rejecting the petitioners' application for bail.
8. For the reasons indicated above, the Criminal Misc. Case is dismissed. The L.C.R. be sent back forthwith so as to reach the concerned Court within ten days hence.