TMI Blog2022 (1) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... which investigation should be completed if accused is judicial custody and ED takes a plea of non-application of section 167(2) of Cr.P.C. - the provision of section 167(2) of Cr.P.C. probably has been meant for a situation like this. Therefore Explanation (ii) attached to section 44 of PMLA cannot be taken to defeat the very purpose of section 167(2) Cr.P.C. In the facts of the present case it is mentioned that further investigation in the matter is still in progress and remaining proceeds of crime amount is being traced. Para 9.2 of the complaint also mentions that complainant craves leave of the court to file further complaints to initiate necessary action as contemplated under PMLA with regard to other accused persons and also against accused Satender Singh Madhok and others, on the outcome of the investigation which is still in progress. No specific provision of PMLA has been pointed out to show non-application of section 167(2) Cr.P.C. laying down limits of 60/90 days as per the punishment prescribed for offences, for completing the investigation. Even if the investigation of money laundering involves tedious process of collecting evidence and analyzing the same but if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed/applicants remained in custody of ED and thereafter remanded to judicial custody on 15.09.2021 which stood extended from time to time. 3. In the present application it is stated that in the remand extension application dated 01.11.2021 it is stated that ED has filed the complaint on 30.10.2021, however in the same application in para no.2 it is also mentioned that investigation in the matter is still continuing and require gathering of additional evidence, examination and confrontation of voluminous data to various persons, who have been summoned during the investigation and investigation is still in progress. It is in the application that upon knowledge of above said facts, present application is being moved on the ground that since ED has admitted that its investigation is still continuing, despite filing of complaint on 30.11.2021. Therefore the said complaint is for incomplete investigation and accused are entitled for statutory bail u/s 167(2) Cr.P.C. as the investigation in the matter has not completed. 4. It appears from the record that the present application was moved on 01.11.2021 before the ld. Predecessor of this court. 5. Reply to this application was file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence, after filing of the report u/s 173(2) Cr.P.C. Ld. Senior counsel for the accused/applicants submits that provision of Section 44 Explanation (ii) of PMLA are pari materia to Section 173(8) Cr.P.C. He submits that therefore even in matter being investigated by the ED under PMLA, since the punishment for the offence u/s 3 of PMLA is upto 7 years, therefore investigation must be completed within 60 days from the date of the arrest of the accused. He submits that section 44(ii) of PMLA can be invoked only when the investigation is complete and further investigation is required, upon receiving of any new or further evidence. 10. Reliance has been placed on the observations of Madurai Bench of Madras High Court in PMC Mercantile Private Limited vs. State and others (Criminal RC No.231/2013 decided on 31.07.2014). He further relied upon the judgment of Rajasthan High Court in Kamlesh Chaudhary vs. State of Rajasthan 2020 (3) RLW 2507 . He submits that the said judgment was affirmed by Hon ble Supreme court on 05.01.2021. Ld. Senior counsel has also placed reliance on judgment of Kerala High Court in S.M. Purtado and others vs. Dy. SP CBI and others 1996 Crl.L.J. 3406. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Abdul Aziz PV vs. NIA (2014) 16 SCC 453, Suresh Kumar Dhikam Chand Jain vs. State of Maharashtra and others (2013) 3 SCC 77, CBI vs. R.S. Pai and others (2002) SCC 82, Uday Mohan Lal Acharya vs. State of Maharashtra (2001) 5 SCC 453, Suresh Mahata vs. State of West Bengal (1997) SCC OnLine Cal. 23, Narender Kumar Amin vs. CBI (2015) 3 SC C 417. 14. Having heard the rival submissions at bar and having gone through the judicial record. First of all it be noted that in common legal parlance right to bail under the proviso to Section 167(2) of Cr.P.C. is commonly referred as default bail or compulsive bail, as it is granted on account of default of investigating agency in not completing the investigation within the prescribed time, irrespective of merits of the case. Plain reading of the provisions of Section 167 of Cr.P.C. would show that once the maximum period provided for investigation prescribed under first proviso (a) to section 167(2) Cr.P.C., is over and no charge sheet is filed, accused becomes entitled to be released on bail. Right to seek bail u/s 167(2) Cr.P.C. has been considered to be a statutory right and even taken as a fundamental right, which flows from Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion further evidence used in sub section (8) has been matter of interpretation. There has been view that generally I. O. can conduct further investigation if he gets further or new evidence, after filing of charge sheet under sec. 173 (2) of Code. Then there has also been view that it is not necessary that there should be a discovery of new material for lodging an additional charge-sheet in the case. If the very material is misunderstood by the Police Station Officer or IO and if he has received proper light from his superiors, he can certainly file an additional charge-sheet. 19. However, it has been consistent view of Superior Courts that Section 173 (8) empowers investigating agency for further investigation, when once investigation was complete and report in terms of Sec. 173 (2) has been filed. In other words, further investigation is not continuation of investigation involving filing of series of different charge sheet/ report at different point of time, without demarcating any line of completion of investigation. 20. There may not be any provision in law empowering Courts of law, to direct investigating agency to complete investigation. Still when section 2 (r) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and taking cognizance of the offences based on such report shall be an error apparent on the face of the record. In case of such incomplete report, the police cannot fall back on Section 173 (8) Cr.P.C. to baptise their continuation of the investigation as a further investigation contemplated under Section 173 (8) Cr.P.C. On the other hand, Section 173 (8) Cr.P.C. comes into picture only after the completion of the investigation and submission of the final report. It presupposes that the Investigating Officer had collected all the materials which had been brought to his notice and submitted the final report based on such materials and that after the filing of such final report, new materials come to his knowledge, whereupon he embarks upon further investigation. On the other hand, for the purpose of denying the statutory right conferred on the accused persons under the proviso to Sub-section 2 of Section 167, the police cannot adopt the practice of filing interim reports or incomplete reports and the Magistrate or the Judge as the case may be, also cannot take cognizance of the offences based on such interim or incomplete reports. 23. Before I discuss the other judgments reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me frame. If no time frame is fixed and Explanation (ii) added to Section 44 is taken on the face of it, the primary question would arise that even if Directorate can file supplement complaint but what would be the maximum time line within which investigation should be completed if accused is judicial custody and ED takes a plea of non-application of section 167(2) of Cr.P.C. Even in cases investigated by ED there cannot be any uncertainty as to the time line for completion of investigation if accused has been kept in judicial custody. If ED is unable to complete the investigation within a particular time line on account of peculiar nature of the offence, obviously there cannot be insistence for keeping the accused in judicial custody. I am of the view that provision of section 167(2) of Cr.P.C. probably has been meant for a situation like this. Therefore I am of the view that Explanation (ii) attached to section 44 of PMLA cannot be taken to defeat the very purpose of section 167(2) Cr.P.C. 27. In the facts of the present case it is mentioned in para 6.7 of the complaint that further investigation in the matter is still in progress and remaining proceeds of crime amount is bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been filed within maximum period of 180 days, statutory bail us/ 167(2) Cr.P.C. was sought. Trial court and High Court found that the investigation was complete in all aspects and therefore denied application of section 167(2) Cr.P.C. Such findings were even upheld by Hon ble Supreme Court, holding in para 4 that the report filed int eh court was final report on the facets investigated into by the investigating agency, even requisite sanction required under UAPA and Explosives Substances Act was also obtained. Merely because that certain facets of matter called for further investigation, it was held that it does not deem that such report was not complete or investigation was incomplete. 31. Facts in the above said case were different than the present one, firstly because in this case admittedly ED has not stated that its investigation is complete with regard to the offence of laundering. It only states that evidence of laundering has been collected only for ₹ 611 cr but its investigation is still going on for tracing the remaining proceeds of crime. Complaint also mentions that its investigation is also going on qua accused/ applicants beside others. Therefore the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... custody for a prolonged or indefinite period. 36. It would be appropriate in this context to discuss the recent judgment of Hon ble Supreme Court in Fakre Alam vs. State of UP (supra) wherein accused was arrested for alleged offences under IPC, Arms Act and UAPA in 1967 under one FIR. Charge sheet in respect of offences of IPC and Arms Act was filed but not for offence under UAPA. Accused thereafter moved an application for default bail u/s 167(2) Cr.P.C. Two days thereafter charge sheet under UAPA was also filed. Trial court and Hon ble Allahabad rejected the default bail application, primarily on the ground that second charge sheet filed for offences of UAPA was in the form of a supplementary charge sheet. Hon ble Supreme Court however did not agree with such conclusion of High Court and held that State cannot take advantage of the fact that in one case there is one charge sheet and supplementary charge sheet to extend the time limit beyond the period specified in section 167(2) Cr.P.C. 37. Though even the facts of Fakre Alam vs. State (supra) were also different but the ratio laid down in the said judgment is very specific that law does not permit the State to exte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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