Jitubhai Shanabhai Bhatt Vs. State of Gujarat

Decided On : Feb-26-1992

Court : Gujarat

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			'casenote' => ' -  -  Reading that section it is clear that if investigation cannot be completed within a period of 24 hours as fixed by Section 57 of the Code and there are grounds for believing that accusation or information is well founded, the officer-in-charge of the Police Station or the Police officer making the investigation, if he is not below the rank of Sub-Inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of entries in the diary prescribed relating to the case and shall at the same time forward the accused to such Magistrate. It is, however, legitimate to suppose that the High Court or the Court of Sessions will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Therefore, it is clear that once the investigation is complete and the charge-sheet is filed, then certainly the accused will be better armed with the documents or statements to make out his case as to whether he is entitled to bail or not. otherwise it should be no procedure at all and the requirement of Article 21 would not be satisfied. ..First part of Article 39A clearly provides for the operation of legal system which must promote justice on the basis of equal opportunity. If there is a denial of a right of submitting bail application or considering the same on the ground that earlier bail application was submitted, would be clearly violative of principles of natural justice and will also be violative of Article 21 as well as Article 39A of the Constitution. If the accused had all the material on which the prosecution relies and having that material with the accused if the application is heard and decided, then it can be said that prosecution as well as the accused both had all materials available to them to make their submissions. In order to follow Article 39A in true spirit, opportunity must be equal to the accused as well as to the prosecution. Therefore, to comply with Article 39A, the accused as well as the prosecution should be armed with the same material. However, in a case like this on hand, when the application is based only on the First Information Report and the order passed by the Court of Sessions, it cannot be said that the accused has equal opportunity to argue his application for bail and had equal opportunity as contemplated under the legal system.',
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			'judgement' => '<p style="text-align: justify;">B.C. Patel, J.</p><p style="text-align: justify;">1. Mr. Anandjiwala, learned Counsel has preferred this bail application. He has relied upon First Information Report (Annexure 'A') and the order passed by learned Additional Sessions Judge in bail application No. 86 of 1992 for enlarging the petitioner on bail (Annexure 'B'). After perusing the said documents, as this Court was not inclined to admit the matter, the learned Counsel requested the Court to permit him to withdraw the application on the ground that if permission is not granted, he will not be in a position to file another bail application.</p><p style="text-align: justify;">2. Section 156 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') empowers the Police officer to investigate any cognizable case. Section 157 of the Code contemplates procedure for investigation. Sections 158, 159, 160 and 161 of the Code empower the Police officer to forward his report, hold investigation or preliminary inquiry and it also empowers him to call upon any person being acquainted with the facts and circumstances of the case and to examine such persons. Section 162 of the Code contemplates recording and use of statements. Section 164 of the Code provides for recording of confessions and statements. Section 165 of the Code authorises the officers to make search. Section 167 comes into play when investigation cannot be completed within twenty-four hours. Reading that section it is clear that if investigation cannot be completed within a period of 24 hours as fixed by Section 57 of the Code and there are grounds for believing that accusation or information is well founded, the officer-in-charge of the Police Station or the Police officer making the investigation, if he is not below the rank of Sub-Inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of entries in the diary prescribed relating to the case and shall at the same time forward the accused to such Magistrate. That section also authorises the Magistrate either to grant remand or forward the accused to judicial custody, or looking to the facts and circumstances of the case and in accordance with law, the Court may enlarge the accused on bail as per Section 437 of the Criminal Procedure Code. That section also provides that when an accused person is forwarded, then in any case the Magistrate shall not authorise detention in any custody under the said section for a total period exceeding 90 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, and for a period of 60 days where the investigation relates to any other offence. On the expiry of the said period of 90 days or 60 days as the case may be, the accused person shall be released on bail if he is prepared to and does furnish the bail, and every person released on bail under that section shall be deemed to be so released under the provisions of Chapter XXXIII for the purpose of that Chapter. Section 169 of the Code provides that if it appears to the officer-in-chargi of the Police Station that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him for trial. Section 172 of the Criminal Procedure Code contemplates that every Police officer making an investigation shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed the investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.</p><p style="text-align: justify;">3. Section 173 of the Code contemplates that investigation shall be completed without unnecessary delay and as soon as it is completed, the officer-in-charge of the Police Station shall forward to a Magistrate empowered to take cognizance of the offence a police report, a report in the form prescribed by the State Government, giving details as required in this section. Therefore it is clear that till this stage is reached, the investigation is not complete. When the charge-sheet is submitted, the Magistrate shall have to proceed under Section 190 of the Code and thereafter Sections 204, 207 and 209 of the Code will come into picture, as the case may be. It is only at this stage that the accused will know as to what are the charges, what are the documents to be used against him in evidence and who are witnesses likely to give evidence before the Court. Till this stage, the accused is not made aware of these.</p><p style="text-align: justify;">4. When ordinarily accused should approach the Court for bail is observed in the case of Gurucharansing v. State, reported in AIR 1978 SC 1979, as under:</p><p style="text-align: justify;">If a Police officer arrests a person on a reasonable suspicion of commission of an offence punishable with death or imprisonment of life and forwards him to a Magistrate, the Magistrate at that stage will have no reasons to hold that there are no reasonable grounds for believing that he has not been guilty of such an offence. At that stage, unless the Magistrate is able to act under the proviso to Section 437(1), bail appears to be out of question. The only limited inquiry may then relate to the materials for the suspicion. The position will naturally change as the investigation progresses and more facts and circumstances come to light. Section 439(1) on the other hand confers special powers on the High Court or the Court of Sessions in respect of bail. Unlike under Section 437(1), there is no ban imposed under Section 439(1) against granting of bail by the High Court or the Court of Sessions to the persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Sessions will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused.</p><p style="text-align: justify;">However, prior to completion of investigation if the accused has approached the Court, then normally from the material available to the Court only the Court has to decide the application for bail.</p><p style="text-align: justify;">5. Mr. Anandjiwala, learned Counsel submitted that the present bail application is preferred relying on the grounds of arrest communicated to him or on First Information Report filed at the Police Station and the judgment rendered by the Court of Sessions. It was submitted that the learned Additional Public Prosecutor who is opposing the bail application has an opportunity to go through the record of the investigating officer, i.e., material collected by police, but so far as the Counsel for the applicant is concerned, be has no such opportunity. It is further submitted at this stage that if the application is rejected and if liberty is not reserved permitting him to file another bail application after the charge-sheet is filed, the petitioner will have serious prejudice. On the other hand, it was submitted by the learned Additional Public Prosecutor that the learned Additional Sessions Judge has decided the matter considering the evidence collected by the investigating officer till that date. May it be, but the Counsel for the applicant has no access to the papers and was not in a position to make submissions on the basis of the statements recorded by the police. Even while considering the application for bail, it is necessary that at particular stage, fair opportunity must be given to the accused to make out his case for bail.</p><p style="text-align: justify;">6. During the pendency of investigation, it can be legitimately argued that the accused has no access to the investigation papers. If may be noted that the legislature in enacting the New Criminal Procedure Code has not made a departure from the provisions of the Old Act as regards the stage at which copies of statements recorded under Section 161 of the Code are to be supplied to the accused. That stage will arise after forwarding a report under Section 173(1) of the Code. Reading the scheme it is obvious that the accused persons will not be entitled to copies recorded under Section 161 of the Code at an earlier stage. This is more so because while making provision for releasing the accused on bail, the Code does not make specific provision for supply of copies. Article 22(1) of the Constitution of India provides that the person who is arrested and detained in custody shall be informed as soon as possible the grounds for such arrest. There is no provision for supply of material except the ground for such arrest. Therefore supply of copies of statements recorded during the course of investigation before forwarding the report under Section 173(1) of the Code could be said to be impliedly prohibited in view of the fact that provision has been made by the Code as to the stage at which the copies are to be supplied. Even Section 167 of the Code mandates that the officer shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary. Even there, there is no provision of forwarding the statements recorded by the Investigating Officer. Section 172 of the Code mandates the Police officer making an investigation to enter the proceedings of the investigation in a diary day by day setting forth the time...place.. However, it is not necessary to forward this diary every day and so far as its use is concerned, it is very limited in view of Section 172 of the Code. Neither the accused nor his agents are entitled to call for such diary, neither the accused nor his agents are entitled to see them. In view of this, the accused has no material whatsoever when the bail application is preferred before the charge-sheet is submitted. Investigating agency while opposing the bail application is bound to disclose the material collected during the course of investigation and on which it wants to rely for the purpose of opposing the bail application of the accused. But this material is disclosed to the Court and not to the accused. Even when called upon, affidavit is filed by Investigating Officer indicating material collected against accused without source. Therefore, it is clear that once the investigation is complete and the charge-sheet is filed, then certainly the accused will be better armed with the documents or statements to make out his case as to whether he is entitled to bail or not. The basic principle of criminal jurispudence is fair trial. There must be guarantee of fair hearing of a bail application and that would be only after the charge-sheet is filed. That stage will come only after investigation is over and report (charge-sheet) is supplied to the accused and not prior thereto.</p><p style="text-align: justify;">7. Article 22(1) and (2) ensure four things: (a) Right to be informed regarding grounds of arrest; (b) Right to consult and to be defended by a legal practitioner of choice; (c) Right to be produced before a Magistrate within 24 hours; (d) Freedom from detention beyond the said period except by order of the Magistrate. The procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be right, just, fair and not arbitrary, funciful or oppressive; otherwise it should be no procedure at all and the requirement of Article 21 would not be satisfied. Article 21 of the Constitution of India protects the life and personal liberty of an individual by providing that no person, shall be deprived of his life or personal liberty except according to procedure established by law. So the importance of procedure established by law is also enshrined in Article 21 of the Constitution. The Criminal Procedure Code has provided Chapter XXXIII for bail. In that Chapter the procedure is prescribed but so far as the ground of arrest or material collected by the Investigating Officer is concerned, the same is found in earlier Chapters. So far as the accused is concerned, he will be entitled to have the documents only after completion of investigation and not prior to that. When the accused is detained and his bail application is heard prior to filing the charge-sheet, the same is opposed by the prosecution and that too with the aid of the material collected during the investigation. If the prosecution can have this right, denial of the same right to the accused would be denial of a fair opportunity and there will be violation of Article 21 if opportunity is not given to the accused after the charge-sheet is filed. Accused will be able to make an application to the Court pointing out that his detention is not required looking to the facts and circumstances of the case or that the allegation pointing out that he has committed particular offence has not been committed by him and therefore he should be enlarged on bail or looking to the peculiar facts and circumstances of the case, he should be enlarged on bail and likewise. Thus, if proper opportunity at that stage is not given to the accused to make representation for bail it would amount to denial of a right and that is not permissible. Section 167 of the Code authorizes the Magistrate to detain the accused for a period of 90 days or 60 days as the case may be. Looking to the scheme of the Code it is clear that till the stage of submitting report by Investigating Officer under Section 173 of the Code there is no material before the Magistrate except a report under Section 157 of the Code and the copy of the diary relating to the case. With a view to protect the liberty of a person, provision is made under Section 167(2) of the Code. If a report (charge-sheet) is not submitted within a period of 60 or 90 days as the case may be, the accused is entitled to bail. If a report is submitted then the Magistrate will have to follow the procedure laid down under Section 190 of the Code.</p><p style="text-align: justify;">8. The procedure which is reasonable, fair and just for a person accused f an offence must be held implicit in the guarantee of Article 21. Article 39A of the Constitution is in Part IV of the Constitution pertaining to directive principles of State policy, which is an important Article. According to that the State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity...First part of Article 39A clearly provides for the operation of legal system which must promote justice on the basis of equal opportunity. In case where a bail application is submitted, the prosecution has all materials available to it to make the submissions before the Court pointing out that the accused is involved in an offence of grave nature and should not enlarge on bail while the accused is not equipped by the State with any material, as the same is under its custody. That material is provided only after the charge-sheet is filed. If there is a denial of a right of submitting bail application or considering the same on the ground that earlier bail application was submitted, would be clearly violative of principles of natural justice and will also be violative of Article 21 as well as Article 39A of the Constitution. If the accused had all the material on which the prosecution relies and having that material with the accused if the application is heard and decided, then it can be said that prosecution as well as the accused both had all materials available to them to make their submissions. In order to follow Article 39A in true spirit, opportunity must be equal to the accused as well as to the prosecution. The accused had to make submissions without relevant materials earlier because he had no materials with him when the previous order was passed, while the prosecution with all materials in their possession objected the bail application. Therefore, to comply with Article 39A, the accused as well as the prosecution should be armed with the same material. Therefore, after filing charge-sheet, an opportunity must be given to the accused to make out a case for bail.</p><p style="text-align: justify;">9. Only after a report is submitted, the Magistrate shall decide to take cognizance or not. Prior to this stage of submitting report, the Magistrate has no record with him except report under Section 157 of the Code. On submission of charge-sheet, the Magistrate shall have to decide, whether to take cognizance or not. Now, if the basis of taking cognizance is charge-sheet, i.e., report, then on the same report accused should be permitted to make put bis case for hail. Detention of the accused continues after the statutory period, if report is submitted within the period stipulated under Section 167 of the Code. Documents used for continuous detention must be permitted to be used for pointing out that detention is not required looking to the facts and circumstances of the case.</p><p style="text-align: justify;">10. It may be that when the bail application is submitted before filing of the charge-sheet and at that stage if the Advocate for the accused has chosen to refer to the statements tendered by the prosecution before the Court and relying on police papers including statements if the Court has passed an order, then it may not be open for the accused to contend at a future date that he had no fair opportunity to make out a case for bail. However, in a case like this on hand, when the application is based only on the First Information Report and the order passed by the Court of Sessions, it cannot be said that the accused has equal opportunity to argue his application for bail and had equal opportunity as contemplated under the legal system. Under the circumstances, submission made by the learned Advocate that he should be permitted to file application fresh requires to be rejected as it is open for him to prefer bail application after charge-sheet is submitted and as there is no prohibition. There is no prohibition as such for making such fresh application after the charge-sheet is filed provided that on earlier occasions the same is decided on the basis of First Information Report and without an opportunity of perusing other materials. As the investigation progresses, the position will naturally change. It would be proper to give an opportunity to the accused to submit his bail application after the charge-sheet is received by him so that the bail application can be decided on merits and both the parlies can make their submissions on the basis of police papers. Under the circumstances, when earlier application which is based on copy of F.I.R. and no other statements or documents is rejected, it is not proper to say that the accused is not entitled to make a fresh application for bail. If the initial bail application which is not based on the charge-sheet is rejected and if another bail application is submitted after the charge-sheet is filed relying on that charge-sheet, it cannot be said that it is successive bail application based on same material on which earlier application was based, but it is a successive application with entire material which was not available to the accused earlier. According to settled legal position, accused should be given fair opportunity. In view of this, submission of the learned Advocate requires to be rejected and it is only to be observed that in view of the aforesaid observations, as this application is submitted only on the basis of F.I.R. and the decision rendered by learned Additional Sessions Judge and on the basis of no other documents or statements at the command of the Counsels, it goes without saying that in all fairness the bail application submitted after the charge-sheet is filed must be considered. Application stands rejected.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casename' => 'Jitubhai Shanabhai Bhatt Vs. State of Gujarat',
		'casenote' => ' -  -  Reading that section it is clear that if investigation cannot be completed within a period of 24 hours as fixed by Section 57 of the Code and there are grounds for believing that accusation or information is well founded, the officer-in-charge of the Police Station or the Police officer making the investigation, if he is not below the rank of Sub-Inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of entries in the diary prescribed relating to the case and shall at the same time forward the accused to such Magistrate. It is, however, legitimate to suppose that the High Court or the Court of Sessions will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Therefore, it is clear that once the investigation is complete and the charge-sheet is filed, then certainly the accused will be better armed with the documents or statements to make out his case as to whether he is entitled to bail or not. otherwise it should be no procedure at all and the requirement of Article 21 would not be satisfied. ..First part of Article 39A clearly provides for the operation of legal system which must promote justice on the basis of equal opportunity. If there is a denial of a right of submitting bail application or considering the same on the ground that earlier bail application was submitted, would be clearly violative of principles of natural justice and will also be violative of Article 21 as well as Article 39A of the Constitution. If the accused had all the material on which the prosecution relies and having that material with the accused if the application is heard and decided, then it can be said that prosecution as well as the accused both had all materials available to them to make their submissions. In order to follow Article 39A in true spirit, opportunity must be equal to the accused as well as to the prosecution. Therefore, to comply with Article 39A, the accused as well as the prosecution should be armed with the same material. However, in a case like this on hand, when the application is based only on the First Information Report and the order passed by the Court of Sessions, it cannot be said that the accused has equal opportunity to argue his application for bail and had equal opportunity as contemplated under the legal system.',
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		'court' => 'Gujarat',
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		'judge' => ' B.C. Patel, J.',
		'judgement' => '<p style="text-align: justify;">B.C. Patel, J.</p><p style="text-align: justify;">1. Mr. Anandjiwala, learned Counsel has preferred this bail application. He has relied upon First Information Report (Annexure 'A') and the order passed by learned Additional Sessions Judge in bail application No. 86 of 1992 for enlarging the petitioner on bail (Annexure 'B'). After perusing the said documents, as this Court was not inclined to admit the matter, the learned Counsel requested the Court to permit him to withdraw the application on the ground that if permission is not granted, he will not be in a position to file another bail application.</p><p style="text-align: justify;">2. Section 156 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') empowers the Police officer to investigate any cognizable case. Section 157 of the Code contemplates procedure for investigation. Sections 158, 159, 160 and 161 of the Code empower the Police officer to forward his report, hold investigation or preliminary inquiry and it also empowers him to call upon any person being acquainted with the facts and circumstances of the case and to examine such persons. Section 162 of the Code contemplates recording and use of statements. Section 164 of the Code provides for recording of confessions and statements. Section 165 of the Code authorises the officers to make search. Section 167 comes into play when investigation cannot be completed within twenty-four hours. Reading that section it is clear that if investigation cannot be completed within a period of 24 hours as fixed by Section 57 of the Code and there are grounds for believing that accusation or information is well founded, the officer-in-charge of the Police Station or the Police officer making the investigation, if he is not below the rank of Sub-Inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of entries in the diary prescribed relating to the case and shall at the same time forward the accused to such Magistrate. That section also authorises the Magistrate either to grant remand or forward the accused to judicial custody, or looking to the facts and circumstances of the case and in accordance with law, the Court may enlarge the accused on bail as per Section 437 of the Criminal Procedure Code. That section also provides that when an accused person is forwarded, then in any case the Magistrate shall not authorise detention in any custody under the said section for a total period exceeding 90 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, and for a period of 60 days where the investigation relates to any other offence. On the expiry of the said period of 90 days or 60 days as the case may be, the accused person shall be released on bail if he is prepared to and does furnish the bail, and every person released on bail under that section shall be deemed to be so released under the provisions of Chapter XXXIII for the purpose of that Chapter. Section 169 of the Code provides that if it appears to the officer-in-chargi of the Police Station that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him for trial. Section 172 of the Criminal Procedure Code contemplates that every Police officer making an investigation shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed the investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.</p><p style="text-align: justify;">3. Section 173 of the Code contemplates that investigation shall be completed without unnecessary delay and as soon as it is completed, the officer-in-charge of the Police Station shall forward to a Magistrate empowered to take cognizance of the offence a police report, a report in the form prescribed by the State Government, giving details as required in this section. Therefore it is clear that till this stage is reached, the investigation is not complete. When the charge-sheet is submitted, the Magistrate shall have to proceed under Section 190 of the Code and thereafter Sections 204, 207 and 209 of the Code will come into picture, as the case may be. It is only at this stage that the accused will know as to what are the charges, what are the documents to be used against him in evidence and who are witnesses likely to give evidence before the Court. Till this stage, the accused is not made aware of these.</p><p style="text-align: justify;">4. When ordinarily accused should approach the Court for bail is observed in the case of Gurucharansing v. State, reported in AIR 1978 SC 1979, as under:</p><p style="text-align: justify;">If a Police officer arrests a person on a reasonable suspicion of commission of an offence punishable with death or imprisonment of life and forwards him to a Magistrate, the Magistrate at that stage will have no reasons to hold that there are no reasonable grounds for believing that he has not been guilty of such an offence. At that stage, unless the Magistrate is able to act under the proviso to Section 437(1), bail appears to be out of question. The only limited inquiry may then relate to the materials for the suspicion. The position will naturally change as the investigation progresses and more facts and circumstances come to light. Section 439(1) on the other hand confers special powers on the High Court or the Court of Sessions in respect of bail. Unlike under Section 437(1), there is no ban imposed under Section 439(1) against granting of bail by the High Court or the Court of Sessions to the persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Sessions will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused.</p><p style="text-align: justify;">However, prior to completion of investigation if the accused has approached the Court, then normally from the material available to the Court only the Court has to decide the application for bail.</p><p style="text-align: justify;">5. Mr. Anandjiwala, learned Counsel submitted that the present bail application is preferred relying on the grounds of arrest communicated to him or on First Information Report filed at the Police Station and the judgment rendered by the Court of Sessions. It was submitted that the learned Additional Public Prosecutor who is opposing the bail application has an opportunity to go through the record of the investigating officer, i.e., material collected by police, but so far as the Counsel for the applicant is concerned, be has no such opportunity. It is further submitted at this stage that if the application is rejected and if liberty is not reserved permitting him to file another bail application after the charge-sheet is filed, the petitioner will have serious prejudice. On the other hand, it was submitted by the learned Additional Public Prosecutor that the learned Additional Sessions Judge has decided the matter considering the evidence collected by the investigating officer till that date. May it be, but the Counsel for the applicant has no access to the papers and was not in a position to make submissions on the basis of the statements recorded by the police. Even while considering the application for bail, it is necessary that at particular stage, fair opportunity must be given to the accused to make out his case for bail.</p><p style="text-align: justify;">6. During the pendency of investigation, it can be legitimately argued that the accused has no access to the investigation papers. If may be noted that the legislature in enacting the New Criminal Procedure Code has not made a departure from the provisions of the Old Act as regards the stage at which copies of statements recorded under Section 161 of the Code are to be supplied to the accused. That stage will arise after forwarding a report under Section 173(1) of the Code. Reading the scheme it is obvious that the accused persons will not be entitled to copies recorded under Section 161 of the Code at an earlier stage. This is more so because while making provision for releasing the accused on bail, the Code does not make specific provision for supply of copies. Article 22(1) of the Constitution of India provides that the person who is arrested and detained in custody shall be informed as soon as possible the grounds for such arrest. There is no provision for supply of material except the ground for such arrest. Therefore supply of copies of statements recorded during the course of investigation before forwarding the report under Section 173(1) of the Code could be said to be impliedly prohibited in view of the fact that provision has been made by the Code as to the stage at which the copies are to be supplied. Even Section 167 of the Code mandates that the officer shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary. Even there, there is no provision of forwarding the statements recorded by the Investigating Officer. Section 172 of the Code mandates the Police officer making an investigation to enter the proceedings of the investigation in a diary day by day setting forth the time...place.. However, it is not necessary to forward this diary every day and so far as its use is concerned, it is very limited in view of Section 172 of the Code. Neither the accused nor his agents are entitled to call for such diary, neither the accused nor his agents are entitled to see them. In view of this, the accused has no material whatsoever when the bail application is preferred before the charge-sheet is submitted. Investigating agency while opposing the bail application is bound to disclose the material collected during the course of investigation and on which it wants to rely for the purpose of opposing the bail application of the accused. But this material is disclosed to the Court and not to the accused. Even when called upon, affidavit is filed by Investigating Officer indicating material collected against accused without source. Therefore, it is clear that once the investigation is complete and the charge-sheet is filed, then certainly the accused will be better armed with the documents or statements to make out his case as to whether he is entitled to bail or not. The basic principle of criminal jurispudence is fair trial. There must be guarantee of fair hearing of a bail application and that would be only after the charge-sheet is filed. That stage will come only after investigation is over and report (charge-sheet) is supplied to the accused and not prior thereto.</p><p style="text-align: justify;">7. Article 22(1) and (2) ensure four things: (a) Right to be informed regarding grounds of arrest; (b) Right to consult and to be defended by a legal practitioner of choice; (c) Right to be produced before a Magistrate within 24 hours; (d) Freedom from detention beyond the said period except by order of the Magistrate. The procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be right, just, fair and not arbitrary, funciful or oppressive; otherwise it should be no procedure at all and the requirement of Article 21 would not be satisfied. Article 21 of the Constitution of India protects the life and personal liberty of an individual by providing that no person, shall be deprived of his life or personal liberty except according to procedure established by law. So the importance of procedure established by law is also enshrined in Article 21 of the Constitution. The Criminal Procedure Code has provided Chapter XXXIII for bail. In that Chapter the procedure is prescribed but so far as the ground of arrest or material collected by the Investigating Officer is concerned, the same is found in earlier Chapters. So far as the accused is concerned, he will be entitled to have the documents only after completion of investigation and not prior to that. When the accused is detained and his bail application is heard prior to filing the charge-sheet, the same is opposed by the prosecution and that too with the aid of the material collected during the investigation. If the prosecution can have this right, denial of the same right to the accused would be denial of a fair opportunity and there will be violation of Article 21 if opportunity is not given to the accused after the charge-sheet is filed. Accused will be able to make an application to the Court pointing out that his detention is not required looking to the facts and circumstances of the case or that the allegation pointing out that he has committed particular offence has not been committed by him and therefore he should be enlarged on bail or looking to the peculiar facts and circumstances of the case, he should be enlarged on bail and likewise. Thus, if proper opportunity at that stage is not given to the accused to make representation for bail it would amount to denial of a right and that is not permissible. Section 167 of the Code authorizes the Magistrate to detain the accused for a period of 90 days or 60 days as the case may be. Looking to the scheme of the Code it is clear that till the stage of submitting report by Investigating Officer under Section 173 of the Code there is no material before the Magistrate except a report under Section 157 of the Code and the copy of the diary relating to the case. With a view to protect the liberty of a person, provision is made under Section 167(2) of the Code. If a report (charge-sheet) is not submitted within a period of 60 or 90 days as the case may be, the accused is entitled to bail. If a report is submitted then the Magistrate will have to follow the procedure laid down under Section 190 of the Code.</p><p style="text-align: justify;">8. The procedure which is reasonable, fair and just for a person accused f an offence must be held implicit in the guarantee of Article 21. Article 39A of the Constitution is in Part IV of the Constitution pertaining to directive principles of State policy, which is an important Article. According to that the State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity...First part of Article 39A clearly provides for the operation of legal system which must promote justice on the basis of equal opportunity. In case where a bail application is submitted, the prosecution has all materials available to it to make the submissions before the Court pointing out that the accused is involved in an offence of grave nature and should not enlarge on bail while the accused is not equipped by the State with any material, as the same is under its custody. That material is provided only after the charge-sheet is filed. If there is a denial of a right of submitting bail application or considering the same on the ground that earlier bail application was submitted, would be clearly violative of principles of natural justice and will also be violative of Article 21 as well as Article 39A of the Constitution. If the accused had all the material on which the prosecution relies and having that material with the accused if the application is heard and decided, then it can be said that prosecution as well as the accused both had all materials available to them to make their submissions. In order to follow Article 39A in true spirit, opportunity must be equal to the accused as well as to the prosecution. The accused had to make submissions without relevant materials earlier because he had no materials with him when the previous order was passed, while the prosecution with all materials in their possession objected the bail application. Therefore, to comply with Article 39A, the accused as well as the prosecution should be armed with the same material. Therefore, after filing charge-sheet, an opportunity must be given to the accused to make out a case for bail.</p><p style="text-align: justify;">9. Only after a report is submitted, the Magistrate shall decide to take cognizance or not. Prior to this stage of submitting report, the Magistrate has no record with him except report under Section 157 of the Code. On submission of charge-sheet, the Magistrate shall have to decide, whether to take cognizance or not. Now, if the basis of taking cognizance is charge-sheet, i.e., report, then on the same report accused should be permitted to make put bis case for hail. Detention of the accused continues after the statutory period, if report is submitted within the period stipulated under Section 167 of the Code. Documents used for continuous detention must be permitted to be used for pointing out that detention is not required looking to the facts and circumstances of the case.</p><p style="text-align: justify;">10. It may be that when the bail application is submitted before filing of the charge-sheet and at that stage if the Advocate for the accused has chosen to refer to the statements tendered by the prosecution before the Court and relying on police papers including statements if the Court has passed an order, then it may not be open for the accused to contend at a future date that he had no fair opportunity to make out a case for bail. However, in a case like this on hand, when the application is based only on the First Information Report and the order passed by the Court of Sessions, it cannot be said that the accused has equal opportunity to argue his application for bail and had equal opportunity as contemplated under the legal system. Under the circumstances, submission made by the learned Advocate that he should be permitted to file application fresh requires to be rejected as it is open for him to prefer bail application after charge-sheet is submitted and as there is no prohibition. There is no prohibition as such for making such fresh application after the charge-sheet is filed provided that on earlier occasions the same is decided on the basis of First Information Report and without an opportunity of perusing other materials. As the investigation progresses, the position will naturally change. It would be proper to give an opportunity to the accused to submit his bail application after the charge-sheet is received by him so that the bail application can be decided on merits and both the parlies can make their submissions on the basis of police papers. Under the circumstances, when earlier application which is based on copy of F.I.R. and no other statements or documents is rejected, it is not proper to say that the accused is not entitled to make a fresh application for bail. If the initial bail application which is not based on the charge-sheet is rejected and if another bail application is submitted after the charge-sheet is filed relying on that charge-sheet, it cannot be said that it is successive bail application based on same material on which earlier application was based, but it is a successive application with entire material which was not available to the accused earlier. According to settled legal position, accused should be given fair opportunity. In view of this, submission of the learned Advocate requires to be rejected and it is only to be observed that in view of the aforesaid observations, as this application is submitted only on the basis of F.I.R. and the decision rendered by learned Additional Sessions Judge and on the basis of no other documents or statements at the command of the Counsels, it goes without saying that in all fairness the bail application submitted after the charge-sheet is filed must be considered. Application stands rejected.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'Judgement' => array(
			'id' => '742640',
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			'appealno' => '',
			'appellant' => 'Jitubhai Shanabhai Bhatt',
			'authreffered' => '',
			'casename' => 'Jitubhai Shanabhai Bhatt Vs. State of Gujarat',
			'casenote' => ' -  -  Reading that section it is clear that if investigation cannot be completed within a period of 24 hours as fixed by Section 57 of the Code and there are grounds for believing that accusation or information is well founded, the officer-in-charge of the Police Station or the Police officer making the investigation, if he is not below the rank of Sub-Inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of entries in the diary prescribed relating to the case and shall at the same time forward the accused to such Magistrate. It is, however, legitimate to suppose that the High Court or the Court of Sessions will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Therefore, it is clear that once the investigation is complete and the charge-sheet is filed, then certainly the accused will be better armed with the documents or statements to make out his case as to whether he is entitled to bail or not. otherwise it should be no procedure at all and the requirement of Article 21 would not be satisfied. ..First part of Article 39A clearly provides for the operation of legal system which must promote justice on the basis of equal opportunity. If there is a denial of a right of submitting bail application or considering the same on the ground that earlier bail application was submitted, would be clearly violative of principles of natural justice and will also be violative of Article 21 as well as Article 39A of the Constitution. If the accused had all the material on which the prosecution relies and having that material with the accused if the application is heard and decided, then it can be said that prosecution as well as the accused both had all materials available to them to make their submissions. In order to follow Article 39A in true spirit, opportunity must be equal to the accused as well as to the prosecution. Therefore, to comply with Article 39A, the accused as well as the prosecution should be armed with the same material. However, in a case like this on hand, when the application is based only on the First Information Report and the order passed by the Court of Sessions, it cannot be said that the accused has equal opportunity to argue his application for bail and had equal opportunity as contemplated under the legal system.',
			'caseanalysis' => null,
			'casesref' => 'Gurucharansing v. State;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Gujarat',
			'court_type' => 'HC',
			'decidedon' => '1992-02-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' B.C. Patel, J.',
			'judgement' => '<p style="text-align: justify;">B.C. Patel, J.</p><p style="text-align: justify;">1. Mr. Anandjiwala, learned Counsel has preferred this bail application. He has relied upon First Information Report (Annexure 'A') and the order passed by learned Additional Sessions Judge in bail application No. 86 of 1992 for enlarging the petitioner on bail (Annexure 'B'). After perusing the said documents, as this Court was not inclined to admit the matter, the learned Counsel requested the Court to permit him to withdraw the application on the ground that if permission is not granted, he will not be in a position to file another bail application.</p><p style="text-align: justify;">2. Section 156 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') empowers the Police officer to investigate any cognizable case. Section 157 of the Code contemplates procedure for investigation. Sections 158, 159, 160 and 161 of the Code empower the Police officer to forward his report, hold investigation or preliminary inquiry and it also empowers him to call upon any person being acquainted with the facts and circumstances of the case and to examine such persons. Section 162 of the Code contemplates recording and use of statements. Section 164 of the Code provides for recording of confessions and statements. Section 165 of the Code authorises the officers to make search. Section 167 comes into play when investigation cannot be completed within twenty-four hours. Reading that section it is clear that if investigation cannot be completed within a period of 24 hours as fixed by Section 57 of the Code and there are grounds for believing that accusation or information is well founded, the officer-in-charge of the Police Station or the Police officer making the investigation, if he is not below the rank of Sub-Inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of entries in the diary prescribed relating to the case and shall at the same time forward the accused to such Magistrate. That section also authorises the Magistrate either to grant remand or forward the accused to judicial custody, or looking to the facts and circumstances of the case and in accordance with law, the Court may enlarge the accused on bail as per Section 437 of the Criminal Procedure Code. That section also provides that when an accused person is forwarded, then in any case the Magistrate shall not authorise detention in any custody under the said section for a total period exceeding 90 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, and for a period of 60 days where the investigation relates to any other offence. On the expiry of the said period of 90 days or 60 days as the case may be, the accused person shall be released on bail if he is prepared to and does furnish the bail, and every person released on bail under that section shall be deemed to be so released under the provisions of Chapter XXXIII for the purpose of that Chapter. Section 169 of the Code provides that if it appears to the officer-in-chargi of the Police Station that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him for trial. Section 172 of the Criminal Procedure Code contemplates that every Police officer making an investigation shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed the investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.</p><p style="text-align: justify;">3. Section 173 of the Code contemplates that investigation shall be completed without unnecessary delay and as soon as it is completed, the officer-in-charge of the Police Station shall forward to a Magistrate empowered to take cognizance of the offence a police report, a report in the form prescribed by the State Government, giving details as required in this section. Therefore it is clear that till this stage is reached, the investigation is not complete. When the charge-sheet is submitted, the Magistrate shall have to proceed under Section 190 of the Code and thereafter Sections 204, 207 and 209 of the Code will come into picture, as the case may be. It is only at this stage that the accused will know as to what are the charges, what are the documents to be used against him in evidence and who are witnesses likely to give evidence before the Court. Till this stage, the accused is not made aware of these.</p><p style="text-align: justify;">4. When ordinarily accused should approach the Court for bail is observed in the case of Gurucharansing v. State, reported in AIR 1978 SC 1979, as under:</p><p style="text-align: justify;">If a Police officer arrests a person on a reasonable suspicion of commission of an offence punishable with death or imprisonment of life and forwards him to a Magistrate, the Magistrate at that stage will have no reasons to hold that there are no reasonable grounds for believing that he has not been guilty of such an offence. At that stage, unless the Magistrate is able to act under the proviso to Section 437(1), bail appears to be out of question. The only limited inquiry may then relate to the materials for the suspicion. The position will naturally change as the investigation progresses and more facts and circumstances come to light. Section 439(1) on the other hand confers special powers on the High Court or the Court of Sessions in respect of bail. Unlike under Section 437(1), there is no ban imposed under Section 439(1) against granting of bail by the High Court or the Court of Sessions to the persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Sessions will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused.</p><p style="text-align: justify;">However, prior to completion of investigation if the accused has approached the Court, then normally from the material available to the Court only the Court has to decide the application for bail.</p><p style="text-align: justify;">5. Mr. Anandjiwala, learned Counsel submitted that the present bail application is preferred relying on the grounds of arrest communicated to him or on First Information Report filed at the Police Station and the judgment rendered by the Court of Sessions. It was submitted that the learned Additional Public Prosecutor who is opposing the bail application has an opportunity to go through the record of the investigating officer, i.e., material collected by police, but so far as the Counsel for the applicant is concerned, be has no such opportunity. It is further submitted at this stage that if the application is rejected and if liberty is not reserved permitting him to file another bail application after the charge-sheet is filed, the petitioner will have serious prejudice. On the other hand, it was submitted by the learned Additional Public Prosecutor that the learned Additional Sessions Judge has decided the matter considering the evidence collected by the investigating officer till that date. May it be, but the Counsel for the applicant has no access to the papers and was not in a position to make submissions on the basis of the statements recorded by the police. Even while considering the application for bail, it is necessary that at particular stage, fair opportunity must be given to the accused to make out his case for bail.</p><p style="text-align: justify;">6. During the pendency of investigation, it can be legitimately argued that the accused has no access to the investigation papers. If may be noted that the legislature in enacting the New Criminal Procedure Code has not made a departure from the provisions of the Old Act as regards the stage at which copies of statements recorded under Section 161 of the Code are to be supplied to the accused. That stage will arise after forwarding a report under Section 173(1) of the Code. Reading the scheme it is obvious that the accused persons will not be entitled to copies recorded under Section 161 of the Code at an earlier stage. This is more so because while making provision for releasing the accused on bail, the Code does not make specific provision for supply of copies. Article 22(1) of the Constitution of India provides that the person who is arrested and detained in custody shall be informed as soon as possible the grounds for such arrest. There is no provision for supply of material except the ground for such arrest. Therefore supply of copies of statements recorded during the course of investigation before forwarding the report under Section 173(1) of the Code could be said to be impliedly prohibited in view of the fact that provision has been made by the Code as to the stage at which the copies are to be supplied. Even Section 167 of the Code mandates that the officer shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary. Even there, there is no provision of forwarding the statements recorded by the Investigating Officer. Section 172 of the Code mandates the Police officer making an investigation to enter the proceedings of the investigation in a diary day by day setting forth the time...place.. However, it is not necessary to forward this diary every day and so far as its use is concerned, it is very limited in view of Section 172 of the Code. Neither the accused nor his agents are entitled to call for such diary, neither the accused nor his agents are entitled to see them. In view of this, the accused has no material whatsoever when the bail application is preferred before the charge-sheet is submitted. Investigating agency while opposing the bail application is bound to disclose the material collected during the course of investigation and on which it wants to rely for the purpose of opposing the bail application of the accused. But this material is disclosed to the Court and not to the accused. Even when called upon, affidavit is filed by Investigating Officer indicating material collected against accused without source. Therefore, it is clear that once the investigation is complete and the charge-sheet is filed, then certainly the accused will be better armed with the documents or statements to make out his case as to whether he is entitled to bail or not. The basic principle of criminal jurispudence is fair trial. There must be guarantee of fair hearing of a bail application and that would be only after the charge-sheet is filed. That stage will come only after investigation is over and report (charge-sheet) is supplied to the accused and not prior thereto.</p><p style="text-align: justify;">7. Article 22(1) and (2) ensure four things: (a) Right to be informed regarding grounds of arrest; (b) Right to consult and to be defended by a legal practitioner of choice; (c) Right to be produced before a Magistrate within 24 hours; (d) Freedom from detention beyond the said period except by order of the Magistrate. The procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be right, just, fair and not arbitrary, funciful or oppressive; otherwise it should be no procedure at all and the requirement of Article 21 would not be satisfied. Article 21 of the Constitution of India protects the life and personal liberty of an individual by providing that no person, shall be deprived of his life or personal liberty except according to procedure established by law. So the importance of procedure established by law is also enshrined in Article 21 of the Constitution. The Criminal Procedure Code has provided Chapter XXXIII for bail. In that Chapter the procedure is prescribed but so far as the ground of arrest or material collected by the Investigating Officer is concerned, the same is found in earlier Chapters. So far as the accused is concerned, he will be entitled to have the documents only after completion of investigation and not prior to that. When the accused is detained and his bail application is heard prior to filing the charge-sheet, the same is opposed by the prosecution and that too with the aid of the material collected during the investigation. If the prosecution can have this right, denial of the same right to the accused would be denial of a fair opportunity and there will be violation of Article 21 if opportunity is not given to the accused after the charge-sheet is filed. Accused will be able to make an application to the Court pointing out that his detention is not required looking to the facts and circumstances of the case or that the allegation pointing out that he has committed particular offence has not been committed by him and therefore he should be enlarged on bail or looking to the peculiar facts and circumstances of the case, he should be enlarged on bail and likewise. Thus, if proper opportunity at that stage is not given to the accused to make representation for bail it would amount to denial of a right and that is not permissible. Section 167 of the Code authorizes the Magistrate to detain the accused for a period of 90 days or 60 days as the case may be. Looking to the scheme of the Code it is clear that till the stage of submitting report by Investigating Officer under Section 173 of the Code there is no material before the Magistrate except a report under Section 157 of the Code and the copy of the diary relating to the case. With a view to protect the liberty of a person, provision is made under Section 167(2) of the Code. If a report (charge-sheet) is not submitted within a period of 60 or 90 days as the case may be, the accused is entitled to bail. If a report is submitted then the Magistrate will have to follow the procedure laid down under Section 190 of the Code.</p><p style="text-align: justify;">8. The procedure which is reasonable, fair and just for a person accused f an offence must be held implicit in the guarantee of Article 21. Article 39A of the Constitution is in Part IV of the Constitution pertaining to directive principles of State policy, which is an important Article. According to that the State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity...First part of Article 39A clearly provides for the operation of legal system which must promote justice on the basis of equal opportunity. In case where a bail application is submitted, the prosecution has all materials available to it to make the submissions before the Court pointing out that the accused is involved in an offence of grave nature and should not enlarge on bail while the accused is not equipped by the State with any material, as the same is under its custody. That material is provided only after the charge-sheet is filed. If there is a denial of a right of submitting bail application or considering the same on the ground that earlier bail application was submitted, would be clearly violative of principles of natural justice and will also be violative of Article 21 as well as Article 39A of the Constitution. If the accused had all the material on which the prosecution relies and having that material with the accused if the application is heard and decided, then it can be said that prosecution as well as the accused both had all materials available to them to make their submissions. In order to follow Article 39A in true spirit, opportunity must be equal to the accused as well as to the prosecution. The accused had to make submissions without relevant materials earlier because he had no materials with him when the previous order was passed, while the prosecution with all materials in their possession objected the bail application. Therefore, to comply with Article 39A, the accused as well as the prosecution should be armed with the same material. Therefore, after filing charge-sheet, an opportunity must be given to the accused to make out a case for bail.</p><p style="text-align: justify;">9. Only after a report is submitted, the Magistrate shall decide to take cognizance or not. Prior to this stage of submitting report, the Magistrate has no record with him except report under Section 157 of the Code. On submission of charge-sheet, the Magistrate shall have to decide, whether to take cognizance or not. Now, if the basis of taking cognizance is charge-sheet, i.e., report, then on the same report accused should be permitted to make put bis case for hail. Detention of the accused continues after the statutory period, if report is submitted within the period stipulated under Section 167 of the Code. Documents used for continuous detention must be permitted to be used for pointing out that detention is not required looking to the facts and circumstances of the case.</p><p style="text-align: justify;">10. It may be that when the bail application is submitted before filing of the charge-sheet and at that stage if the Advocate for the accused has chosen to refer to the statements tendered by the prosecution before the Court and relying on police papers including statements if the Court has passed an order, then it may not be open for the accused to contend at a future date that he had no fair opportunity to make out a case for bail. However, in a case like this on hand, when the application is based only on the First Information Report and the order passed by the Court of Sessions, it cannot be said that the accused has equal opportunity to argue his application for bail and had equal opportunity as contemplated under the legal system. Under the circumstances, submission made by the learned Advocate that he should be permitted to file application fresh requires to be rejected as it is open for him to prefer bail application after charge-sheet is submitted and as there is no prohibition. There is no prohibition as such for making such fresh application after the charge-sheet is filed provided that on earlier occasions the same is decided on the basis of First Information Report and without an opportunity of perusing other materials. As the investigation progresses, the position will naturally change. It would be proper to give an opportunity to the accused to submit his bail application after the charge-sheet is received by him so that the bail application can be decided on merits and both the parlies can make their submissions on the basis of police papers. Under the circumstances, when earlier application which is based on copy of F.I.R. and no other statements or documents is rejected, it is not proper to say that the accused is not entitled to make a fresh application for bail. If the initial bail application which is not based on the charge-sheet is rejected and if another bail application is submitted after the charge-sheet is filed relying on that charge-sheet, it cannot be said that it is successive bail application based on same material on which earlier application was based, but it is a successive application with entire material which was not available to the accused earlier. According to settled legal position, accused should be given fair opportunity. In view of this, submission of the learned Advocate requires to be rejected and it is only to be observed that in view of the aforesaid observations, as this application is submitted only on the basis of F.I.R. and the decision rendered by learned Additional Sessions Judge and on the basis of no other documents or statements at the command of the Counsels, it goes without saying that in all fairness the bail application submitted after the charge-sheet is filed must be considered. Application stands rejected.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '(1992)2GLR832',
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$title_for_layout = 'Jitubhai Shanabhai Bhatt Vs. State of Gujarat Semantic Analysis'
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		'appellant' => 'Jitubhai Shanabhai Bhatt',
		'authreffered' => '',
		'casename' => 'Jitubhai Shanabhai Bhatt Vs. State of Gujarat',
		'casenote' => ' -  -  Reading that section it is clear that if investigation cannot be completed within a period of 24 hours as fixed by Section 57 of the Code and there are grounds for believing that accusation or information is well founded, the officer-in-charge of the Police Station or the Police officer making the investigation, if he is not below the rank of Sub-Inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of entries in the diary prescribed relating to the case and shall at the same time forward the accused to such Magistrate. It is, however, legitimate to suppose that the High Court or the Court of Sessions will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Therefore, it is clear that once the investigation is complete and the charge-sheet is filed, then certainly the accused will be better armed with the documents or statements to make out his case as to whether he is entitled to bail or not. otherwise it should be no procedure at all and the requirement of Article 21 would not be satisfied. ..First part of Article 39A clearly provides for the operation of legal system which must promote justice on the basis of equal opportunity. If there is a denial of a right of submitting bail application or considering the same on the ground that earlier bail application was submitted, would be clearly violative of principles of natural justice and will also be violative of Article 21 as well as Article 39A of the Constitution. If the accused had all the material on which the prosecution relies and having that material with the accused if the application is heard and decided, then it can be said that prosecution as well as the accused both had all materials available to them to make their submissions. In order to follow Article 39A in true spirit, opportunity must be equal to the accused as well as to the prosecution. Therefore, to comply with Article 39A, the accused as well as the prosecution should be armed with the same material. However, in a case like this on hand, when the application is based only on the First Information Report and the order passed by the Court of Sessions, it cannot be said that the accused has equal opportunity to argue his application for bail and had equal opportunity as contemplated under the legal system.',
		'caseanalysis' => null,
		'casesref' => 'Gurucharansing v. State;',
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		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Gujarat',
		'court_type' => 'HC',
		'decidedon' => '1992-02-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' B.C. Patel, J.',
		'judgement' => '<p style="text-align: justify;">B.C. Patel, J.</p><p style="text-align: justify;">1. Mr. Anandjiwala, learned Counsel has preferred this bail application. He has relied upon First Information Report (Annexure 'A') and the order passed by learned Additional Sessions Judge in bail application No. 86 of 1992 for enlarging the petitioner on bail (Annexure 'B'). After perusing the said documents, as this Court was not inclined to admit the matter, the learned Counsel requested the Court to permit him to withdraw the application on the ground that if permission is not granted, he will not be in a position to file another bail application.</p><p style="text-align: justify;">2. Section 156 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') empowers the Police officer to investigate any cognizable case. Section 157 of the Code contemplates procedure for investigation. Sections 158, 159, 160 and 161 of the Code empower the Police officer to forward his report, hold investigation or preliminary inquiry and it also empowers him to call upon any person being acquainted with the facts and circumstances of the case and to examine such persons. Section 162 of the Code contemplates recording and use of statements. Section 164 of the Code provides for recording of confessions and statements. Section 165 of the Code authorises the officers to make search. Section 167 comes into play when investigation cannot be completed within twenty-four hours. Reading that section it is clear that if investigation cannot be completed within a period of 24 hours as fixed by Section 57 of the Code and there are grounds for believing that accusation or information is well founded, the officer-in-charge of the Police Station or the Police officer making the investigation, if he is not below the rank of Sub-Inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of entries in the diary prescribed relating to the case and shall at the same time forward the accused to such Magistrate. That section also authorises the Magistrate either to grant remand or forward the accused to judicial custody, or looking to the facts and circumstances of the case and in accordance with law, the Court may enlarge the accused on bail as per Section 437 of the Criminal Procedure Code. That section also provides that when an accused person is forwarded, then in any case the Magistrate shall not authorise detention in any custody under the said section for a total period exceeding 90 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, and for a period of 60 days where the investigation relates to any other offence. On the expiry of the said period of 90 days or 60 days as the case may be, the accused person shall be released on bail if he is prepared to and does furnish the bail, and every person released on bail under that section shall be deemed to be so released under the provisions of Chapter XXXIII for the purpose of that Chapter. Section 169 of the Code provides that if it appears to the officer-in-chargi of the Police Station that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him for trial. Section 172 of the Criminal Procedure Code contemplates that every Police officer making an investigation shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed the investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.</p><p style="text-align: justify;">3. Section 173 of the Code contemplates that investigation shall be completed without unnecessary delay and as soon as it is completed, the officer-in-charge of the Police Station shall forward to a Magistrate empowered to take cognizance of the offence a police report, a report in the form prescribed by the State Government, giving details as required in this section. Therefore it is clear that till this stage is reached, the investigation is not complete. When the charge-sheet is submitted, the Magistrate shall have to proceed under Section 190 of the Code and thereafter Sections 204, 207 and 209 of the Code will come into picture, as the case may be. It is only at this stage that the accused will know as to what are the charges, what are the documents to be used against him in evidence and who are witnesses likely to give evidence before the Court. Till this stage, the accused is not made aware of these.</p><p style="text-align: justify;">4. When ordinarily accused should approach the Court for bail is observed in the case of Gurucharansing v. State, reported in AIR 1978 SC 1979, as under:</p><p style="text-align: justify;">If a Police officer arrests a person on a reasonable suspicion of commission of an offence punishable with death or imprisonment of life and forwards him to a Magistrate, the Magistrate at that stage will have no reasons to hold that there are no reasonable grounds for believing that he has not been guilty of such an offence. At that stage, unless the Magistrate is able to act under the proviso to Section 437(1), bail appears to be out of question. The only limited inquiry may then relate to the materials for the suspicion. The position will naturally change as the investigation progresses and more facts and circumstances come to light. Section 439(1) on the other hand confers special powers on the High Court or the Court of Sessions in respect of bail. Unlike under Section 437(1), there is no ban imposed under Section 439(1) against granting of bail by the High Court or the Court of Sessions to the persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Sessions will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused.</p><p style="text-align: justify;">However, prior to completion of investigation if the accused has approached the Court, then normally from the material available to the Court only the Court has to decide the application for bail.</p><p style="text-align: justify;">5. Mr. Anandjiwala, learned Counsel submitted that the present bail application is preferred relying on the grounds of arrest communicated to him or on First Information Report filed at the Police Station and the judgment rendered by the Court of Sessions. It was submitted that the learned Additional Public Prosecutor who is opposing the bail application has an opportunity to go through the record of the investigating officer, i.e., material collected by police, but so far as the Counsel for the applicant is concerned, be has no such opportunity. It is further submitted at this stage that if the application is rejected and if liberty is not reserved permitting him to file another bail application after the charge-sheet is filed, the petitioner will have serious prejudice. On the other hand, it was submitted by the learned Additional Public Prosecutor that the learned Additional Sessions Judge has decided the matter considering the evidence collected by the investigating officer till that date. May it be, but the Counsel for the applicant has no access to the papers and was not in a position to make submissions on the basis of the statements recorded by the police. Even while considering the application for bail, it is necessary that at particular stage, fair opportunity must be given to the accused to make out his case for bail.</p><p style="text-align: justify;">6. During the pendency of investigation, it can be legitimately argued that the accused has no access to the investigation papers. If may be noted that the legislature in enacting the New Criminal Procedure Code has not made a departure from the provisions of the Old Act as regards the stage at which copies of statements recorded under Section 161 of the Code are to be supplied to the accused. That stage will arise after forwarding a report under Section 173(1) of the Code. Reading the scheme it is obvious that the accused persons will not be entitled to copies recorded under Section 161 of the Code at an earlier stage. This is more so because while making provision for releasing the accused on bail, the Code does not make specific provision for supply of copies. Article 22(1) of the Constitution of India provides that the person who is arrested and detained in custody shall be informed as soon as possible the grounds for such arrest. There is no provision for supply of material except the ground for such arrest. Therefore supply of copies of statements recorded during the course of investigation before forwarding the report under Section 173(1) of the Code could be said to be impliedly prohibited in view of the fact that provision has been made by the Code as to the stage at which the copies are to be supplied. Even Section 167 of the Code mandates that the officer shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary. Even there, there is no provision of forwarding the statements recorded by the Investigating Officer. Section 172 of the Code mandates the Police officer making an investigation to enter the proceedings of the investigation in a diary day by day setting forth the time...place.. However, it is not necessary to forward this diary every day and so far as its use is concerned, it is very limited in view of Section 172 of the Code. Neither the accused nor his agents are entitled to call for such diary, neither the accused nor his agents are entitled to see them. In view of this, the accused has no material whatsoever when the bail application is preferred before the charge-sheet is submitted. Investigating agency while opposing the bail application is bound to disclose the material collected during the course of investigation and on which it wants to rely for the purpose of opposing the bail application of the accused. But this material is disclosed to the Court and not to the accused. Even when called upon, affidavit is filed by Investigating Officer indicating material collected against accused without source. Therefore, it is clear that once the investigation is complete and the charge-sheet is filed, then certainly the accused will be better armed with the documents or statements to make out his case as to whether he is entitled to bail or not. The basic principle of criminal jurispudence is fair trial. There must be guarantee of fair hearing of a bail application and that would be only after the charge-sheet is filed. That stage will come only after investigation is over and report (charge-sheet) is supplied to the accused and not prior thereto.</p><p style="text-align: justify;">7. Article 22(1) and (2) ensure four things: (a) Right to be informed regarding grounds of arrest; (b) Right to consult and to be defended by a legal practitioner of choice; (c) Right to be produced before a Magistrate within 24 hours; (d) Freedom from detention beyond the said period except by order of the Magistrate. The procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be right, just, fair and not arbitrary, funciful or oppressive; otherwise it should be no procedure at all and the requirement of Article 21 would not be satisfied. Article 21 of the Constitution of India protects the life and personal liberty of an individual by providing that no person, shall be deprived of his life or personal liberty except according to procedure established by law. So the importance of procedure established by law is also enshrined in Article 21 of the Constitution. The Criminal Procedure Code has provided Chapter XXXIII for bail. In that Chapter the procedure is prescribed but so far as the ground of arrest or material collected by the Investigating Officer is concerned, the same is found in earlier Chapters. So far as the accused is concerned, he will be entitled to have the documents only after completion of investigation and not prior to that. When the accused is detained and his bail application is heard prior to filing the charge-sheet, the same is opposed by the prosecution and that too with the aid of the material collected during the investigation. If the prosecution can have this right, denial of the same right to the accused would be denial of a fair opportunity and there will be violation of Article 21 if opportunity is not given to the accused after the charge-sheet is filed. Accused will be able to make an application to the Court pointing out that his detention is not required looking to the facts and circumstances of the case or that the allegation pointing out that he has committed particular offence has not been committed by him and therefore he should be enlarged on bail or looking to the peculiar facts and circumstances of the case, he should be enlarged on bail and likewise. Thus, if proper opportunity at that stage is not given to the accused to make representation for bail it would amount to denial of a right and that is not permissible. Section 167 of the Code authorizes the Magistrate to detain the accused for a period of 90 days or 60 days as the case may be. Looking to the scheme of the Code it is clear that till the stage of submitting report by Investigating Officer under Section 173 of the Code there is no material before the Magistrate except a report under Section 157 of the Code and the copy of the diary relating to the case. With a view to protect the liberty of a person, provision is made under Section 167(2) of the Code. If a report (charge-sheet) is not submitted within a period of 60 or 90 days as the case may be, the accused is entitled to bail. If a report is submitted then the Magistrate will have to follow the procedure laid down under Section 190 of the Code.</p><p style="text-align: justify;">8. The procedure which is reasonable, fair and just for a person accused f an offence must be held implicit in the guarantee of Article 21. Article 39A of the Constitution is in Part IV of the Constitution pertaining to directive principles of State policy, which is an important Article. According to that the State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity...First part of Article 39A clearly provides for the operation of legal system which must promote justice on the basis of equal opportunity. In case where a bail application is submitted, the prosecution has all materials available to it to make the submissions before the Court pointing out that the accused is involved in an offence of grave nature and should not enlarge on bail while the accused is not equipped by the State with any material, as the same is under its custody. That material is provided only after the charge-sheet is filed. If there is a denial of a right of submitting bail application or considering the same on the ground that earlier bail application was submitted, would be clearly violative of principles of natural justice and will also be violative of Article 21 as well as Article 39A of the Constitution. If the accused had all the material on which the prosecution relies and having that material with the accused if the application is heard and decided, then it can be said that prosecution as well as the accused both had all materials available to them to make their submissions. In order to follow Article 39A in true spirit, opportunity must be equal to the accused as well as to the prosecution. The accused had to make submissions without relevant materials earlier because he had no materials with him when the previous order was passed, while the prosecution with all materials in their possession objected the bail application. Therefore, to comply with Article 39A, the accused as well as the prosecution should be armed with the same material. Therefore, after filing charge-sheet, an opportunity must be given to the accused to make out a case for bail.</p><p style="text-align: justify;">9. Only after a report is submitted, the Magistrate shall decide to take cognizance or not. Prior to this stage of submitting report, the Magistrate has no record with him except report under Section 157 of the Code. On submission of charge-sheet, the Magistrate shall have to decide, whether to take cognizance or not. Now, if the basis of taking cognizance is charge-sheet, i.e., report, then on the same report accused should be permitted to make put bis case for hail. Detention of the accused continues after the statutory period, if report is submitted within the period stipulated under Section 167 of the Code. Documents used for continuous detention must be permitted to be used for pointing out that detention is not required looking to the facts and circumstances of the case.</p><p style="text-align: justify;">10. It may be that when the bail application is submitted before filing of the charge-sheet and at that stage if the Advocate for the accused has chosen to refer to the statements tendered by the prosecution before the Court and relying on police papers including statements if the Court has passed an order, then it may not be open for the accused to contend at a future date that he had no fair opportunity to make out a case for bail. However, in a case like this on hand, when the application is based only on the First Information Report and the order passed by the Court of Sessions, it cannot be said that the accused has equal opportunity to argue his application for bail and had equal opportunity as contemplated under the legal system. Under the circumstances, submission made by the learned Advocate that he should be permitted to file application fresh requires to be rejected as it is open for him to prefer bail application after charge-sheet is submitted and as there is no prohibition. There is no prohibition as such for making such fresh application after the charge-sheet is filed provided that on earlier occasions the same is decided on the basis of First Information Report and without an opportunity of perusing other materials. As the investigation progresses, the position will naturally change. It would be proper to give an opportunity to the accused to submit his bail application after the charge-sheet is received by him so that the bail application can be decided on merits and both the parlies can make their submissions on the basis of police papers. Under the circumstances, when earlier application which is based on copy of F.I.R. and no other statements or documents is rejected, it is not proper to say that the accused is not entitled to make a fresh application for bail. If the initial bail application which is not based on the charge-sheet is rejected and if another bail application is submitted after the charge-sheet is filed relying on that charge-sheet, it cannot be said that it is successive bail application based on same material on which earlier application was based, but it is a successive application with entire material which was not available to the accused earlier. According to settled legal position, accused should be given fair opportunity. In view of this, submission of the learned Advocate requires to be rejected and it is only to be observed that in view of the aforesaid observations, as this application is submitted only on the basis of F.I.R. and the decision rendered by learned Additional Sessions Judge and on the basis of no other documents or statements at the command of the Counsels, it goes without saying that in all fairness the bail application submitted after the charge-sheet is filed must be considered. Application stands rejected.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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LAW: Section 156 of the Code of Criminal Procedure, Section 157 of the Code, Section 167, Section 57 of the Code, Section 437 of the Criminal Procedure Code, Chapter, Section 169 of the Code, the Criminal Procedure Code, Section 173 of the Code, Section 190 of the Code, Section 437(1, Section 439(1, Section 437(1, Section 439(1, the Old Act, Section 161 of the Code, Section 173(1, Section 161 of the Code, Article 22(1, Section 173(1, Section 167 of the Code, Section 172 of the Code, Article 22(1, Article 21, Article 14, Article 21, Article 21 of the Constitution of India, Article 21 of the Constitution, The Criminal Procedure Code, Chapter XXXIII, Chapter the, Article 21, Section 167 of the Code authorizes, Section 173 of the Code, Section 157 of the Code, Section 167(2, Section 190, Article 21, Article 39A of the Constitution is in Part IV of the Constitution, Article 39A, Article 21, Article 39A of the Constitution, Article 39A, Article 39A, Section 157 of the Code, Section 167 of the Code

PERSON: B.C. Patel, J.1, Anandjiwala, Magistrate, these.4, Anandjiwala

ORG: Counsel, First Information Report, Additional Sessions, Court, Counsel, Court, the Police Station, Sub-Inspector, Judicial Magistrate, Magistrate, Court, Magistrate, the Police Station, Magistrate, Magistrate, Magistrate, the State Government, Magistrate, Court, Court, AIR 1978 SC 1979, Magistrate, Magistrate, Magistrate, the High Court, the Court of Sessions, the High Court, the Court of Sessions, the High Court, the Court of Sessions, Magistrate, Court, Court, Court, First Information Report, the Police Station, the Court of Sessions, Additional Public Prosecutor, Additional Public Prosecutor, Additional Sessions, the New Criminal Procedure Code, Judicial Magistrate, Court, Magistrate, Magistrate, the Investigating Officer, Court, Magistrate, Magistrate, Magistrate, State, State, Court, State, Magistrate, Magistrate, Magistrate, Court, Court, the First Information Report, the Court of Sessions, First Information Report, Additional Sessions

CARDINAL: 86, 158, 159, 160, 161, 204, 209, 2, four

DATE: 1992, 90 days, less than ten years, 60 days, 90 days, 60 days, 207, every day, a period of, 90 days, 60 days, 60 or 90 days

TIME: twenty-four hours, 24 hours, 24 hours

PRODUCT: Chapter XXXIII

NORP: investigation.3, Gurucharansing

GPE: India, case.10, F.I.R., Counsels

LANGUAGE: Chapters

ORDINAL: First