Magistrate Is Empowered To Take Cognizance Of Offence On Police Report Which Does Not Include Expert's Opinion: Reiterates Delhi High Court

While considering a case as to whether a charge sheet filed without the FSL report can be considered an 'incomplete charge sheet' and if the petitioners are entitled to statutory default bail because of same, the Delhi High Court has rejected the default bail pleas of petitioners who were arrested in cases where the charge sheet was filed without the FSL report.

The counsel for the petitioners referred to the decision of the Apex Court in the case of Mohd. Arbaz vs. State of NCT of Delhi [SLP (Crl.)8164-8166/2021], to argue that the court has granted bail to accused individuals and has raised the issue of the completeness of a charge sheet when it is filed without the CFSL report.

The petitioners' counsel additionally pointed out that the Punjab and Haryana High Court in the case of Joginder Singh vs. State of Haryana [Crl.Misc.No.M-48705 of 2021], has held that the report of the FSL is a crucial document that goes to the heart of the case, and therefore, argued that filing of a charge sheet without the FSL report should not be considered a complete charge sheet.

A Single Judge Bench of Justice Dinesh Kumar Sharma referred to the case of Kishan Lal vs. State [Crl.W.P.No.622/1988], to reiterate that “although the police are not permitted to send an incomplete report under Section 173(2) of the Code, yet the investigation except for the report of an expert like the Serologist or Scientific Officer and Chemical Examiner is complete and, therefore, the Magistrate is empowered to take cognizance of the offence on a police report which does not include the expert's opinion”.

Advocate Alamgir appeared for the Petitioner, whereas Advocate Amit Sahni appeared for the Respondent.

After considering the submission, the Bench noted that in the case of Mohd. Arbaz, where the counsel for the petitioners argued that the Supreme Court had released the petitioners on bail, a careful examination of that order revealed that the Apex court granted bail to the petitioners without specifically addressing the issue of default bail, and considered the period of incarceration and left the question of default bail open for consideration.

The Bench stated that it is bound by judicial precedents and, therefore, must adhere to the law established in the Kishan Lal case unless it is set aside or altered in any manner.

Therefore, the High Court concluded that the petitioners were not entitled to a grant of bail.

Cause Title: Rahima and Ors v. The State GNCT of Delhi [Neutral Citation: 2023: DHC: 6071]

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