These two bail petitions have been filed under S. 439, Cr.P.C. The petitioners are the accused in Crime No. 81/92 of Darsi Police Station of Prakasam District. They are accused of having committed offences punishable under sections 147, 148, 324, 307, 302 read with Sections 149 and 435, IPC and Sections 3 and 5 of Explosive Substances Act.

2. In the two cases referred to above, which arise out of the same crime, the bail is sought for on the ground that the proviso to S. 167(2) Cr.P.C. is violated. The case of the petitioners is that from the date of their remand, more than 90 days expired and as such, their detention became illegal and as they are ready to furnish sureties, the court of Magistrate was bound to release them on bail. The Additional Public Prosecutor appearing for the State contends otherwise. He argues that the charge-sheet was submitted within the stipulated time of 90 days and as there was some deficiency, the same was returned by the Court of Magistrate after perusal of the charge-sheet and that as such, the requirement of S. 167(2), Cr.P.C. was met perfectly and that there is no ground for enlargement of the petitioners on bail. The learned Additional Public Prosecutor relies upon a judgment of this Court in C. Varla Krishna & Chinna Krishna v. State of A.P., (1989) 1 Andh LT 16. In the said case, similar contention was raised and the same was found favour with the learned single Judge. The learned single Judge has accepted the contention advanced by the Public Prosecutor that inasmuch as police report was filed before the Magistrate on 18-7-1988 and even though it was returned for compliance of certain omissions on 20-7-1988 and again resubmitted on 1-8-1988 and again returned, but ultimately filed on 17-8-1988 in complete shape, it was held by the learned single Judge that the date to construe that police report as filed was only 20-7-1988, when the same was returned by the Magistrate and that is a sufficient compliance of the requirements of S. 167(2) Cr.P.C. and that the said date should be reckoned as the date of cognizance by the Magistrate. The reasoning given by the learned Judge is that mere submission of a report is a sufficient compliance of S. 167(2), even with defects and omissions, and it is of no consequence if the said report was returned and later on resubmitted, that too after the period of 90 days. In para 8 of the judgment, the learned Judge observes "In this case, the police report was filed on 18-7-1988 and the provisions of S. 173(2), Cr.P.C. have been complied with. Since the requirements under S. 173(5) have not been complied with, it was returned for compliance. Simply because the Magistrate has mentioned that a skeleton charge sheet has been filed, it does not mean that it prevented him from taking cognizance of the case, basing on the report that has already been filed." The learned Judge also observed "In this case, we are not concerned with preliminary or final charge-sheet. With regard to filing of preliminary and final charge-sheets, we are having number of decisions. But on facts, in this case, the report is only one and that report has been returned for complying with certain omissions as required under S. 173(5), Cr.P.C. The filing of the report and the return of the same for complying with certain omissions under section 173(5) shall be deemed that the Magistrate has applied his mind judiciously. In case where the party wants to claim the benefit on the ground that 90 days period was been expired during remand, they have to establish that the report as defined in the Code and as contemplated under S. 173(2) of the Code has not been filed within the time. The crucial date in this case is the date of the police report for compliance i.e. 20-7-1988." Concisely speaking, what the learned Judge held was that mere filing of charge-sheet, even with defects and omissions, is a sufficient compliance of the requirement of filing the same within 90 days, no matter whether it forms record of the court or not. The purport of the above decision is that as the police report is submitted, even though with defects and omissions and the very fact that Magistrate has returned the same shows that he has applied his mind judiciously and that amounts to taking cognizance of the offence.

3. Mr. T. Niranjan Reddy, the learned counsel for the petitioners submits that the judgment rendered by the learned single Judge did not take not of the other judicial precedents holding the field and cites several judgments in support of his contention which are discussed below :

4. Now, the question for consideration is as to what is meant by taking cognizance of. Again this cannot be read in isolation and has to be read together with the other concerned statutory provisions like Sections 154, 157, 167, 173, 190, 203, 204, 207 and 209, Cr.P.C. vis-a-vis the most precious and cherished fundamental right to life guaranteed under Art. 21 of the Constitution of India.

5. Section 173(1) Cr.P.C. mandates that every investigation shall be completed without unnecessary delay. The fundamental right to life and liberty is guaranteed under Art. 21 of the Constitution of India which says that no person shall be deprived of his life or personal liberty except according to procedure established by law. A doubt may arise whether this fundamental right takes in its fold, even the investigation part of a crime. That doubt to more stands in view of the authoritative pronouncement of the Supreme Court in C. Abdul Rahman Antulay v. R. S. Nayak, AIR 1992 SC 1701 [LQ/SC/1991/691] : (1992 Cri LJ 2717) holding that Art. 21 ensures speedy justice that fair, just and reasonable procedure implicit in Art. 21 of the Constitution creates a right in the accused to be tried speedily; that right to speedy trial is the right of the accused to be tried speedily; that right to speedy trial is the right of the accused. The above Constitutional Bench of the Supreme Court further held that right to speedy trial flowing from Art. 21 encompasses all the stages, namely, the state of investigation, enquiry, trial, appeal revision and retrial and that, that is how the said court has understood this right and there is no reason to take a restricted view. The Supreme Court further ruled that the period of remand and pre-conviction detention should be as short as possible and concisely speaking, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction and that the worry, anxiety and expense and disturbance to his vocation and peace resulting from an unduly prolonged investigation, enquiry or trial should be minimal.

6. In Aslam Babalal Desai v. State of Maharashtra, 1992 AIR SCW 2621 : 1992 (3) CCR 292 is was held that the provisions of the Code of Criminal Procedure, in particular, Sections 57 and 167, manifest the legislative anxiety that once a persons liberty has been interfered with by the police arresting him without a courts order or warrant, the investigation must be carried out with utmost urgency and completed within the maximum period allowed by the proviso (a) to S. 167(2); that it must be realised that the said proviso was introduced by the Code by way of enlargement of time for which the arrested-accused could be kept in custody. It was also held that prosecuting agency must realise that if it fails to see a sense of urgency in the investigation of case or omits or defaults to file a charge-sheet within the time prescribed, the accused would be entitled to be released on bail and the order passed to that effect under S. 167(2) would be an order under S. 437(1) or (2) 439(1). The said decision further held that even if two views are possible, release under proviso (a) to S. 167(2) being a matter pertaining to the field of criminal justice involved liberty of an independent, the provision must be construed strictly in favour of individual liberty since even the law expects early completion of the investigation. The Court further held that the delay in completion of the investigation can be on pain of the accused being released on bail and that the prosecution cannot be allowed to trifle with individual liberty if it does not take its task seriously and does not complete it within the time allowed by law. It was held in N. Satyanarayana In Re (1975) 2 APLJ (HC) 133 [LQ/TelHC/1975/144] that if the charge-sheet is not filed within the time stipulated under Section 167(2), the Magistrate is bound to release the accused on bail and the word custody employed in S. 309(2), Cr.P.C. means a lawful custody and not unlawful custody and that detention of accused without there being a charge-sheet within 90 days of his remand makes his detention unlawful and not lawful.

7. In a cognizable case, the investigation commences upon a report under S. 154, Cr.P.C. and concludes when a final report is filed by the police under S. 173(2) Cr.P.C. In between, when the accused are produced before the court, an interim report is to be filed by the police under S. 157, Cr.P.C. Upto the stage of filing of a police report popularly called charge-sheet under S. 173, any report in between is not a final report. It was held in Bandi Kotayya v. State, AIR 1966 Andh Pra 377 : (1966 Cri LJ 1377) that a preliminary report filed by police cannot be called cognizance and that Magistrate takes cognizance only on a final report, may be, even after filing a final report under S. 173, upon further disclosure of facts, a supplementary charge-sheet may be filed. It was held in Tara Singh v. The State, AIR 1951 SC 441 [LQ/SC/1951/45] : (1951 (52) Cri LJ 1491) that S. 173(1) Cr.P.C. requires the completion of investigation and forwarding the same to the Magistrate and that additional evidence always can be given later. Thus, the court cannot anticipate and need not wait for the supplemental report as the original final report under S. 173(2), Cr.P.C. gives a cause for the Magistrate to take cognizance of the offence with entitlement of furnishing of copies of all such material to the accused under S. 173(5) Cr.P.C. Further, until the stage of application of mind under S. 190(1)(b) Cr.P.C. it cannot be said that the action of the Magistrate in remanding the accused and performing various acts including that of receiving charge-sheet and returning the same because of defects, are judicial acts. It was held in R. R. Chari v. State, AIR 1950 All 626 [LQ/AllHC/1950/140] that the expression "taking cognizance of an offence" means the court deciding the proceed against the offender with a view to determine his guilt. It was also held in the said case, that in cognizable cases, the stage for taking cognizance comes when the police submits the charge-sheet and that an order for investigation by a Magistrate, be it in connection with a non-cognizable or cognizable offence, does not amount to taking cognizance of the case so also the order of the Magistrate for arrest and jail custody or order granting bail does not amount to taking cognizance. It was held in Gopal Das v. State of Assam, AIR 1961 SC 986 [LQ/SC/1961/27] : (1961 (2) Cri LJ 39) that when a Magistrate applies his mind not for proceeding in various sections of Chapter XVI, but for taking action of some other kind like ordering investigation under S. 156(3) or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence. In State v. Siba Prasad, AIR 1953 Orissa 84 : (1953 Cri LJ 672) it was held that until the charge-sheet has been filed, a Magistrate cannot be said to have taken cognizance of any offence and that the Magistrate can take the cognizance of the offence and direct the issue of process only on receipt of a police report and that till that stage is reached, he is said to be acting only as a Magistrate controlling the investigation made by the police. In D. Lakshminarayana v. Narayana, AIR 1976 SC 1672 [LQ/SC/1976/214] : (1976 Cri LJ 1361), it was held that cognizance can be said to be taken when Magistrate applies his mind for proceeding further with the case. It was held in Mowu v. Suptd. Special Jail, Nowgong, Assam, 1972 SCC (Cri) 184 [LQ/SC/1970/478] that taking cognizance of an offence under S. 190, Cr.P.C. is a judicial act and not administrative and as such, application of mind is necessary. It was held in Gandi Satyanarayana v. J. Hansli, 1970 Cri LJ 778 (Andh Pra) that Magistrate takes cognizance of an offence and not of an offender. It was held by Justice Kondaiah rendering the said judgment that "once cognizance has been taken by the Magistrate, he takes cognizance of an offence, it is his duty to find out who the offenders really are. It was held in State v. Pukhia, AIR 1963 Rajasthan 48 : (1963 (1) Cri LJ 318) and followed in In Re Raju Thevan, AIR 1966 Madras 349 : (1966 Cri LJ 1141) and State of Bihar v. Sakaldip Singh, AIR 1966 Patna 473 : (1967 Cri LJ 111) that the term taking cognizance means any judicial action permitted by the Code taken with a view to eventual prosecution preliminary to the commencement of the enquiry or trial. It was held in H. S. Bains v. State, AIR 1980 SC 1883 [LQ/SC/1980/427] : (1980 Cri LJ 1308) by the Supreme Court that the Magistrate after receipt of police report under S. 173(1) Cr.P.C. may decide that there is no sufficient ground for proceeding further and drop action or he may take cognizance of the offence under section 190(1)(b) on the basis of the police report and issue process and the Supreme Court further held that the Magistrate is not bound in any manner by the conclusion arrived at by the police in their report implying that the Magistrate has to apply his mind judiciously and arrive at independent decision of his own. In a decision reported in Punjab National Bank v. Surender Prasad, AIR 1992 SC 1815 [LQ/SC/1992/324] : (1992 Cri LJ 2916), it was held that before issuing of process, relevant facts and circumstances should be considered and that process issued mechanically is bad. It was held in Frank Dalton Larkins v. State, 1985 Cri LJ 377 (Delhi) that taking cognizance means judicial application of mind by the Magistrate to the facts mentioned either in the complaint or the police report as the case may be, for taking further action.

8. As seen from the above, it is clear that taking cognizance is not an administrative act, but is a judicial act and that judicial act is first exercised only after the police report (charge-sheet) is filed and it conforms to the provisions of S. 173(2) with details enumerated therein. Again the crucial question is as to whether compliance of S. 173(2) itself is sufficient and whether the mandate under sub-sec. (5) of S. 173, Cr.P.C. should be followed or not. Sub-sec. (5) of S. 173, Cr.P.C. was not there in the statute book prior to the amendment of Cr.P.C. in the year 1973. The pre-amended Code of Criminal Procedure did not ensure the service of copy of the charge-sheet containing all the material papers relied upon by the prosecution, but only left the same to be done by the investigation police officer. As the same was visited in breach very often causing prejudice to the accused, with an avowed object of apprising the accused of accusation against him by service of those papers, constituting a charge-sheet, sub-section (5) was introduced into S. 173, Cr.P.C. Its requirement of accompaniment of the copies of the charge-sheet along with the original charge-sheet under section 173(2) Cr.P.C. to be submitted to the court, is mandatory and not directory. This mandatory requirement of service of copies of the charge-sheet and accompaniment of the same along with the original police report under S. 173(2) Cr.P.C. is a procedure established under law having genesis in the fundamental right of life and liberty under Art. 21 of the Constitution of India and if there is an infraction of the same, it will be an infringement of the said fundamental right. It was held in Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167 [LQ/SC/1967/14 ;] ">AIR 1967 SC 1167 [LQ/SC/1967/14 ;] [LQ/SC/1967/14 ;] : (1967 Cri LJ 1081) that police report mentioned under section 207(a) is a report mentioned in S. 191(b) of Cr.P.C. and once cognizance is taken under S. 190(1)(b), proceeding is instituted under S. 207(a). The Supreme Court dealing with the filing of a police report in Satya Narain Musadi v. State of Bihar, (AIR 1980 SC 506 [LQ/SC/1979/378] : 1980 Cri LJ 227), has held that the report as envisaged by S. 173(2), Cr.P.C. has to be accompanied as required by S. 173(5) thereof by all documents and statements of the witnesses therein mentioned and that one cannot divorce the details which the details must contain as required by S. 173(2) from its accompaniments which are required to be submitted under S. 173(5) and that whole of it is submitted as a report to the court and that it follows that the court can look at the report in prescribed form along with its accompaniments for taking cognizance of offence. Thus, it is made so clear from the above verdict of the Supreme Court which is still holding the field and which is the law of the land under Art. 141 of the Constitution of India that police report (charge-sheet) is one accompanied by the copies thereof to be served on the accused and that mere filing of a police report under S. 173(2) Cr.P.C. without its accompaniments under S. 173(5) Cr.P.C. is not a police report at all. In view of this verdict of the Supreme Court, the view learned single Judge of this Court in C. Varla Krishna alias Chinna Krishna v. State of A.P. (1989 (1) Andh LT 16) supra, that "In this case, the police report was filed on 18-7-1988 and the provisions of S. 173(2), Cr.P.C. have been complied with. Since the requirements under S. 173(5) have not been complied with, it was returned for compliance. Simply because the Magistrate has mentioned that a skeleton charge sheet has been filed, it does not mean that it prevented him from taking cognizance of the case, basing on the report that has already been filed," cannot be followed. In normal course, I would have referred the matter to the Bench, but I feel it unnecessary to do so in view of the fact that the law laid down by the Supreme Court on this subject is of the year 1980 and the same was holding field when the learned single Judge expressed the above view.

9. Fairness and reasonable procedure is what is contemplated by the expression "procedure established by law" in Art. 21 of the Constitution. S. 167(2), Cr.P.C. was not there in the old Code. It was introduced in 1973 amendment. The effect of the new proviso is to entitle an accused person to be released on bail if the investigating agency fails to complete the investigation within 60 days or 90 days as the case may be. An order for release of bail made under proviso to S. 167(2) is not defeated by lapse of time, the filing of the charge sheet or by remand to custody under S. 309(2). The order of bail can only be cancelled under S. 437(5) or 439(2). The duty of the police is to forward the police report after completion of investigation under section 173(2) Cr.P.C. The forwarding is done for the purpose of taking the same on record and file of the court and then only, the same is perused by the court to take cognizance of the offence. Mere forwarding without meaning it to be taken on file is not contemplated under law. If the police report is forwarded to the Magistrate for taking it on file, but if the Magistrate finds that the said report is not in consonance with S. 173(2) read with S. 173(5) Cr.P.C., he declines to take it on record and that act is only administrative and not judicial. The judicial act commences only when the charge-sheet is in order and the Magistrate proceeds further under Chapter XVI. Unless the charge-sheet is in the official custody of the court together with its accompaniments to be furnished to the accused, it cannot be construed that there is a filing of charge-sheet. Chapter XVI relates to commencement of proceedings before Magistrates, process to be issued when Magistrate takes cognizance of the offence. The next stage is framing of charges under Chapter XVII. Next stage is trial and the eventual being the judgment.

10. In the instant cases, while the petitioners in Crl. P. 341/93 are remanded to judicial custody on 30-9-1992 and the period of 90 days expired on 28-12-1992, the petitioner in Crl. P. No. 559/93 was remanded to judicial custody on 29-10-1992 and the period of 90 days expired on 26-1-1993. The application was filed by the accused to release them on bail since the period of 90 days expired and there is no police report before the Court and the Magistrate has failed to take cognizance of the cases. The same was rejected by the Magistrate on the ground that the petitioners are not entitled for bail under Section 167(2) Cr.P.C. because the SHO (Station House Officer), filed the charge-sheet already within 90 days on 28-12-1992 and that the same was returned to comply the objections. From this, it is crystal clear that there was no police report on record of the court and even on its own showing, the prosecution has not filed the report conforming to the requirements of Sections 173(2) and 173(5) and as such the same was returned. Inasmuch as the charge-sheet was not in conformity with the procedure established by law and as the same was returned, the action of the Magistrate in returning the same was only administrative in nature and not judicial and the Magistrate was not competent to take cognizance of the offence as the charge-sheet was not filed as contemplated under law and was not there on record within the stipulated time of 90 days. It is not sufficient for the prosecution to just file some sort of police report not conforming to the provisions of Sections 173(2) and 173(5) Cr.P.C. and then play fraud not only on the statute but also on the Constitution. This kind of tactics by the police to water down and nullify the constitutional and statutory guarantees cannot be countenanced and in fact, the courts should keep a strict vigil on this kind of unscrupulous acts of officers to get over the constitutional and statutory mandate of filing a charge-sheet within the stipulated time under the guise of filing defective charge-sheet and then knowing fully well that it will be returned. Until a charge-sheet with all specifications enumerated Sec. 173(2) Cr.P.C. and accompaniments under Section 173(5) Cr.P.C. is filed into the court and the court scrutinises it on its administrative side to satisfy that all such documents are in order and unless the court takes it on record and keeps it on its file for examination for taking cognizance or not, it cannot be said that a police report (charge-sheet) is filed as contemplated under section 173(2) Cr.P.C. Once the police report is filed, it should be capable of examination for the purpose of judicial determination to take cognizance of the offence and to proceed further into Chapter XVI Cr.P.C. and any act short of that cannot be construed as taking cognizance.

11. In view of what is stated supra, I hold as follows :

(1) That the police report (charge-sheet) under section 173(2) Cr.P.C. is not complete unless it is accompanied by the material papers (statements etc.) as contemplated under section 173(5) Cr.P.C.

(2) That a perusal of police report (charge-sheet) as to whether the same is inconsonance with sub-sections 173(2) and 173(5) Cr.P.C. is only an administrative act and not a judicial act.

(3) That judicial act commences when the police report (charge-sheet) is filed in complete form, both complying with the provisions contained under sections 173(2) and 173(5) Cr.P.C. and it is taken on the file of the court and perused by the court for taking a decision under Section 190(1)(b) Cr.P.C.

(4) That if the investigation is not completed either within 90 days of 60 days, as the case may be, and if the police report (charge-sheet) is not filed in complete form as mentioned supra within the stipulated periods, the accused shall have absolute right for being released on bail subject to their readiness for furnishing sureties; and

(5) As the provisions of Section 167(2), have not been complied with in the instant cases, the petitioners in both the Criminal Petitions shall be released on bail on each of their furnishing personal bonds for the sum of Rs. 10,000/- (Rupees ten thousand only) with one surety each for Rs. 10,000/- (Rupees ten thousand only) to the satisfaction of the Judicial First Class Magistrate, Darsi, Prakasam District.

12. The Criminal petitions are allowed to the extent indicated above.

Petitions allowed.