TMI Blog2007 (9) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... reof would be entitled to apply for bail, subject to fulfilling the conditions prescribed therefor. Such a right of bail although is a valuable right but the same is a conditional one; the condition precedent being pendency of the investigation. It is a well-settled principle of interpretation of statute that it is to be read in its entirety. Construction of a statute should be made in a manner so as to give effect to all the provisions thereof. Remand of an accused is contemplated by the Parliament at two stages; pre-cognizance and post cognizance. Even in the same case depending upon the nature of charge sheet filed by the investigating officer in terms of Section 173 of the Code, a cognizance may be taken as against the person against whom an offence is said to have been made out and against whom no such offence has been made out even when investigation is pending. So long a charge sheet is not filed within the meaning of Sub-section (2) of Section 173 of the Code, investigation remains pending. It, however, does not preclude an investigating officer, as noticed hereinbefore, to carry on further investigation despite filing of a police report, in terms of Sub-section (8) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrate in terms of Sub-section (2) of Section 173 of the Code. In the said charge sheet, name of the appellant appeared in Column No. 1 along with the said three companies. Name of one of the companies named in the first information report, viz., M/s. DSQ Software Ltd., has been shown in Column No. 2. In the said charge sheet, it was stated: Investigation has revealed that Sh. Dinesh Dalmia, the then Managing Director Custodian of properties, including shares, of M/s. DSQ Software Ltd., fraudulently got dematerialized un-allotted and unlisted share of DSQ Software Ltd. In the name of three entities namely New Vision Investment Ltd., UK; Dinesh Dalmia Technology Trust and Dr. Suryanil Ghosh, Trustee Softec Corporation and thereafter these shares were sold in the market and the proceeds of sale of said shares were credited in the accounts of M/s. DSQ Holdings Ltd., M/s. Hulda Properties and Trade Ltd. and M/s. Powerflow Holding and Trading Pvt. Ltd. and thereby dishonestly misappropriated and cheated investors including existing share holders and obtained undue gain to the tune of ₹ 5,94,88,37,999/-. Thus, Sh. Dinesh Dalmia has committed fraudulent acts prima facie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secure the presence of the accused and they may be tried according to law. 5. Although statements made by the witnesses under Section 161 of the Code accompanied the charge sheet, the relevant documents could not be filed as they were sent for examination before the Government Examiner of Questioned Documents (GEQD). Cognizance was taken by the Magistrate on the said charge sheet by an order dated 25.10.2005. It was specifically noted that non-bailable warrant as against the appellant was still pending. The CBI contended that the appellant entered into India illegally as no endorsement had been made in his passport showing a valid travel undertaken by him. He was produced before a Magistrate in Delhi for transit remand to Chennai. An order to that effect was passed. On 14.02.2006, when he was produced before the concerned Magistrate at Chennai, an order for police custody was prayed for and was granted till 24.02.2006. Another application was filed for further police custody for four days on 21.02.2006. An application was also filed seeking permission to conduct brain mapping, polygraph test, on the appellant which was allowed. 6. Appellant had been handed over to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awood Ibrahim Kaskar and Others [(2000) 10 SCC 438] stating: 23. Taking into consideration of all these facts and circumstances of the case and principle of law laid down by the Hon'ble Apex Court I feel that in view of the positive conduct of the respondent in relying upon Section 167(2) Cr. P.C. in all their applications (up to the filing of the bail application), the petitioner can also rely upon it and seek necessary orders thereunder, that the respondent is now estopped from pleading opposite to their own previous conduct and that Section 309(2) cannot be applied to a person like the petitioner, who was arrested in the course of further investigation. 9. The CBI moved the High Court thereagainst. Its application was registered as Crl. R.C. No. 1173 of 2006. The decision of the learned Sessions Judge was over-turned by the High Court by reason of the impugned judgment stating: Because of this interpretation the learned Magistrate is empowered to give Police custody . Once police custody is completed the accused reverts back to judicial custody of post cognizance stage. Even if further investigation continues as far as such accused are concerned scope of sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e may be delay to receive opinion from experts and such delay cannot be taken advantage of by invoking the proviso to section 167 Cr.P.C. 10. Appellant is, thus, before us. 11. Mr. Mukul Rohatgi, learned senior counsel appearing on behalf of the appellant, has raised two contentions before us: (i) The charge sheet filed against the appellant and cognizance taken thereupon is illegal and invalid and by reason thereof, a valuable right of the appellant to be released on bail has been taken away. (ii) Even if the charge sheet is legal, the right of the appellant under Sub-section (2) of Section 167 of the Code continued to remain available in the facts and circumstances of the case. Elaborating his submission, Mr. Rohatgi urged that a police report must strictly conform to the requirements laid down under Section 173 of the Code and the prescribed form for submission of the final form where from it would be evident that no charge sheet can be filed upon purported completion of investigation against the appellant as he had been absconding. As the CBI kept investigation as against the appellant open, as would appear from the charge sheet itself as also the prayers made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the form prescribed therefor. One of the requirements for submission of a police report is whether any offence appears to have been committed and, if so, by whom. In some cases, the accused having not been arrested, the investigation against him may not be complete. There may not be sufficient material for arriving at a decision that the absconding accused is also a person by whom the offence appears to have been committed. If the investigating officer finds sufficient evidence even against such an accused who had been absconding, in our opinion, law does not require that filing of the charge sheet must await the arrest of the accused. 16. Indisputably, the power of the investigating officer to make a prayer for making further investigation in terms of Sub-section (8) of Section 173 is not taken away only because a charge sheet under Sub-section (2) thereof has been filed. A further investigation is permissible even if order of cognizance of offence has been taken by the Magistrate. 17. We may notice that a Constitution Bench of this Court in K. Veeraswami v. Union of India and Others [(1991) 3 SCC 655] stated the law in the following terms : 76. As observed by this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cally possible to do so. The Parliament, therefore, thought it fit that remand of the accused can be sought for in the event investigation is not completed within 60 or 90 days, as the case may be. But, if the same is not done with the stipulated period, the same would not be detrimental to the accused and, thus, he, on the expiry thereof would be entitled to apply for bail, subject to fulfilling the conditions prescribed therefor. Such a right of bail although is a valuable right but the same is a conditional one; the condition precedent being pendency of the investigation. Whether an investigation in fact has remained pending and the investigating officer has submitted the charge sheet only with a view to curtail the right of the accused would essentially be a question of fact. Such a question strictly does not arise in this case inasmuch as, according to the CBI, sufficient materials are already available for prosecution of the appellant. According to it, further investigation would be inter alia necessary on certain vital points including end use of the funds. 20. Apart from the appellant, three companies, registered and incorporated under the Companies Act, have been sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the matter. We, however, are proceeding on the basis that irrespective of the stand taken by the CBI, law will prevail. We may notice the law operating in the field in this behalf. 25. In support of the submission in regard to interpretation of Sub-section (2) of Section 167 and Sub-section (2) of Section 309 of the Code, strong reliance has been placed by Mr. Rohatgi on Central Bureau of Investigation, Special Investigation Cell I, New Delhi v. Anupam J. Kulkarni [(1992) 3 SCC 141] and Dawood Ibrahim Kaskar (supra). In Anupam J. Kulkarni (supra), the question which inter alia arose for consideration of this Court was as to whether the period of remand ordered by an Executive Magistrate in terms of Section 57 of the Code should be computed for the purpose of Sub-section (2) of Section 167 thereof. This Court, keeping in view the provisions of Clause (2) of Article 22 of the Constitution of India, answered the question in the affirmative. It was held that a total period of remand during investigation is fifteen days. In that context, this Court observed: However, taking into account the difficulties which may arise in completion of the investigation of cases of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in Section 309(2) refer and relate to an accused who was before the Court when cognizance was taken or when enquiry or trial was being held in respect of him and not to an accused who is subsequently arrested in course of further investigation. So far as the accused in the first category is concerned he can be remanded to judicial custody only in view of Section 309(2), but he who comes under the second category will be governed by Section 167 so long as further investigation continues. That necessarily means that in respect of the latter the Court which had taken cognizance of the offence may exercise its power to detain him in police custody, subject to the fulfilment of the requirements and the limitation of Section 167. 27. We had noticed the dicta of the Constitution Bench judgment of this Court. At this juncture, we may notice the dicta laid down by this Court in Sanjay Dutt v. State Through C.B.I. Bombay (II) [(1994) 5 SCC 410] wherein it was held: 53(2)(b) The 'indefeasible right' of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the CrPC in default of completion of the investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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