The Delhi High Court expounded that the exercise of the Police regarding adding sections based on the investigation has to be done before the expiry of 60 days otherwise the Accused would always be left at the mercy of the Police who would have an opportunity to defeat the statutory right under Section 167(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”). The Police should bring to the knowledge of the Magistrate, additional offences/sections before the expiry of 60 days.
The Bench further ruled that unless any such knowledge reaches the Magistrate, it should be presumed that the investigation was required to be completed within a period of 60 days unless FIR itself was registered with offences attracting imprisonment up to life or more than 10 years.
Regarding Section 304 IPC, the High Court opined that if Part is not specified, then the Accused is liable to be detained for only 60 days without any demurer. If the Prosecution is unable to determine the Part, the Accused cannot be remanded for further custody. The benefit goes to the Accused in such a case.
Brief Facts:
The present petitions have been preferred seeking default bail in FIR registered under Sections 304/308/120B/34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”)
The Petitioners preferred an application under Section 167(2) of the Cr.P.C. seeking default bail on the ground that the charge sheet was not filed within 60 days from the detention date.
However, this application was rejected by the Metropolitan Magistrate. Against this, a revision petitioner was filed, but that was also dismissed on the ground that during the investigation, Sections 467 and 304 of IPC were added and hence, maximum imprisonment up to life got attracted. Therefore, it was ruled that default bail would be allowed only if the charge sheet is not filed within 90 days of detention.
Hence, the present bail applications.
Brief Background :
The Petitioners are the directors of Cole Impex Pvt. Ltd. (Accused Company), dealing in the business of CCTV cameras and 4G sim routers. It was asserted that a fire broke out in the building of the Accused Company because of which the building was damaged and 27 people died.
During the investigation, it was found that there was no appropriate fire system in the building and no precautionary measures were in place for preventing fire accidents. Hence, FIR was registered against the Petitioners, leading to their arrest.
Contentions of the Petitioners:
It was contended the FIR was silent on whether Part 1 or II is attracted under Section 304 of the IPC. Further, Section 467 of IPC was added only to refute the right of statutory bail.
It was also argued that even Petitioners were injured in the incident and hence, at best the case could be of death by negligence punishable by up to 2 years. There was no intention to kill anyone.
Contentions of the State:
It was submitted that Petitioners did foul play as damage to the wire was not because of a short circuit. Further, the names of some of the employees were removed from the Employees’ State Insurance Corporation account, hence, committing offences of forgery and cheating. It was further submitted that the demised premise was booked on account of unauthorized construction by the MCD zone as the building plan was unsanctioned.
Observations of the Court:
It was observed that the Police did not explicitly conclude that the fire broke out due to the gutting of the complete electrical cable installation. However, the cause of the fire not being the short circuit was also not ruled out.
Section 476, IPC was added as wrong information was provided by the Petitioner regarding the employees to the ESIC.
The Court noted that as per Section 167(2)(a) of Cr.P.C., the Accused has to be released on bail if the charge sheet is not filed within 90 or 60 days (as the case may be). This right of the Accused is a constitutional right and cannot be curtailed.
Further, it was ruled that Section 304 has 2 parts. The former part prescribes punishment for life or 10 years. This gives 90 days for filing the chargesheet. The latter part of Section 304 provides for 10 years imprisonment as punishment and hence, only 60 days are given to the investigating agency for filing the charge sheet.
The Bench opined that Cr.P.C. does not mention that when sections are added during the investigation, a supplementary chargesheet has to be filed. However, if the offences are added during the investigation, the Police record it in the case diary and bring it to the knowledge of the Magistrate.
In the present case, the application for default bail was filed 2 days before the addition of Section 467 IPC. Hence, the Petitioners at that time had already availed their statutory right of default bail which makes the addition of Section 467 IPC inconsequential and irrelevant.
It was propounded that the right of the Accused to default bail cannot be curtailed by any subsequent action of the investigating agency.
Further, regarding the addition of Section 304 IPC, it was noted that this was added without mentioning the Part.
The High Court held that the Magistrate has to decide the bail application when the application is filed. The Magistrate cannot wait for the filing of the chargesheet to determine whether 60 days or 90 days are given to the agency for filing the charge sheet.
Noting that the Police must investigate and add offences based on investigation, however, the same cannot be left to the whims of the Police, leaving the Court and the Accused guessing as to the period when the statutory right under Section 167(2) can be availed.
The exercise of the Police regarding adding sections based on the investigation has to be done before the expiry of 60 days otherwise the Accused would always be left at the mercy of the Police who would have an opportunity to defeat the statutory right. The Police should bring to the knowledge of the Magistrate, additional offences/sections before the expiry of 60 days.
The Bench further ruled that unless any such knowledge reaches the Magistrate, it should be presumed that the investigation was required to be completed within a period of 60 days unless FIR itself was registered with offences attracting imprisonment up to life or more than 10 years.
Regarding Section 304 IPC, the High Court opined that if Part is not specified, then the Accused is liable to be detained for only 60 days without any demurer. If the Prosecution is unable to determine the Part, the Accused cannot be remanded for further custody. The benefit goes to the Accused in such a case.
In the present case, the sections were added without informing the Magistrate and that too after the application for default bail was filed. Therefore, the High Court deemed it fit to grant default bail to the Petitioners.
The decision of the Court:
Based on the aforementioned reasons, the Delhi High Court granted bail to the Petitioners and accordingly, allowed the Petitions.
Case Title:Varun Goyal v. The State NCT of Delhi and other connected matters
Coram:Hon’ble Mr. Justice Amit Mahajan
Case No.:Bail Appln. 2710/2022 and other connected matters
Advocates for Petitioner: Advs. Mr. Vikas Pahwa, Mr. Prashant Mehta, Mr. Varun Gupta, Ms. Simran Wason, Mr. Arun, Mr. Shubham, Ms. Soumya, Mr. Angad
Advocates for Respondents:Advs. Ms. Richa Dhawan, Mr. Raghuvinder Varma, Mr. Daviendamer Hora
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