LexVIPUL SHITAL PRASAD AGARWAL versus STATE OF GUJARAT & ANR.
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[2012] 9 S.C.R. 987 VIPUL SHITAL PRASAD AGARWAL v. STATE OF GUJARAT & ANR. (Special Leave Petition (Crl.) No. 3672 of 2012 etc.) NOVEMBER 6, 2012 [ALTAMAS KABIR, CJI, SURINDER SINGH NIJJAR AND J. CHELAMESWAR, JJ.] CODE OF CRIMINAL PROCEDURE, 1973: ss. 439, 167(2), 173(2) and (8) - FIR -Charge-sheet submitted - Direction by Court for further investigation by CBI A B c - CBI registering another FIR - Application for bail on default ground - Held: Since the prayer for default bail was made in connection with the initial F. I. R. in which charge-sheet had 0 been ft1ed within the stipulated period of 90 days, the plea with regard to the default bail was not available to the petitioner - The mere undertaking of a further investigation either by the Investigating Officer on his own or upon the directions of the superior police officer or pursuant to a direction by the E Magistrate concerned to whom the report is forwarded does not mean that the report submitted u/s 173(2) is abandoned or rejected - Notwithstanding the practice of the CBI to register a "fresh FIR", the investigation undertaken by the CBI is in the nature of further investigation u/s 173 (8) pursuant to the direction of the court - Further, the delay including the trial has F not been caused by the prosecuting authorities, but by a co- accused and advantage thereof cannot be taken by the petitioner. The petitioner, a Superintendent of Police, was G arrested by the C.l.D. Crime on 3.5.2010 consequent upon an FIR registered as ICR No. 115 of 2006, in respect of an alleged fake encounter in which one 'TP' was killed. Charge-sheet in the case was filed on 30.7.2010 against 987 H 988 SUPREME COURT REPORTS [2012] 9 S.C.R. A 12 Police Officers including the petitioner. In the writ petition filed by the mother of the deceased, the Supreme Court by its order dated 8.4.2011 directed the State Police authorities to hand over all the records to the CBI, and the latter was directed to investigate all aspects of the B case relating to the killing of the deceased and to file a report in the court concerned. The CBI, on 29.4.2011, registered a separate FIR No. RC 3(5)/2011 and applied before the Court of Session for release of certain documents including the charge-sheet, and c supplementary charge-sheet in FIR No. 115/2006, and to handover the same to it for fresh investigation. The prayer was allowed. The petitioner, after unsuccessfully approaching the Judicial Magistrate and the Court of Session for bail on the grounds of investigation not being 0 completed and delay in trial and the petitioner being in custody for a long time, challenged the order of the Sessions Judge before the High Court in a petition under Arts. 226 and 227 of the Constitution read with s.482 CrPC, which was dismissed. E Dismissing the petition, the Court HELD: Per Altamas Kabir, CJI (for himself and for Surinder Singh Nijjar, J) 1.1 One of the most significant features of this case F is that the prayer for default bail was made on behalf of the petitioner in F.l.R.No.115 of 2006, lodged by the local police, though the submissions in respect thereof have been made in connection with the subsequent F.l.R. lodged by the C.B.I. It is obvious that the petitioner was G fully aware of the situation while making the application for grant of bail, knowing that he was under arrest in connection with the first F.l.R. and not under the second F.l.R. lodged by the C.B.I. Since the prayer for default bail was made in connection with F.l.R.No.115 of 2006, in H which charge-sheet had been filed within the stipulated VIPUL SHITAL PRASAD AGARWAL v. STATE OF 989 GUJARAT period of 90 days, the plea with regard to the default bail A was not available to the petitioner. It can also not be said that since a fresh investigation was directed to be conducted by the Court, the earlier charge-sheet must be deemed to have been quashed. (para 18) [996-F-H; 997- A] B 1.2 Even on the question of delay in concluding the trial, such delay has not been caused by the prosecuting authorities, but by a co-accused and advantage thereof cannot be taken by the petitioner. [para 19) (997-B] Per Chelameswar, J. (Concurring) : c 1.1 Section 173 of the Code of Criminal Procedure, 1973 obligates the police investigating a case to make a report to the Magistrate to take cognizance of the offence o which is subject matter of the investigation. Su
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