TMI Blog2024 (1) TMI 1153X X X X Extracts X X X X X X X X Extracts X X X X ..... eable only prior to the filing of the challan or the chargesheet, and does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to the accused after the filing of the challan. In SURESH KUMAR BHIKAMCHAND JAIN VERSUS STATE OF MAHARASHTRA ANR. [ 2013 (2) TMI 821 - SUPREME COURT] the appellant-accused had sought default bail under Section 167(2) on the ground that though the chargesheet was filed within the stipulated time, the cognizance was not taken by the court, for want of sanction to prosecute the accused. The court dispelling the claim of the accused held an investigating authority fails to file the charge-sheet within the stipulated period, the accused is entitled to be released on statutory bail. In such a situation, the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the court trying the offence, when the said court assumes custody of the accused for purposes of remand during the trial in term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7(2) on the ground that the investigation qua other accused was pending. Both, the Special Court as well as the High Court having committed serious error of law in disregarding the legal position enunciated and settled by this Court, the impugned orders deserve to be set aside and are accordingly set aside. Appeal allowed. - HON'BLE BELA M. TRIVEDI AND HON'BLE PANKAJ MITHAL, JJ. For the Petitioner(s) : Mr. S.V. Raju, A.S.G. Mr. Mukesh Kumar Maroria, AOR Mr. Zoheb Hussain, Adv. Mr. Annam Venkatesh, Adv. Mr. Akshay Nain, Adv. Mr. Vivek Gurnani, Adv. Mr. Hitarth Raja, Adv. Ms. Madhumita Kesavan, Adv. Mr. Samrat Goswami, Adv. Mr. Harsh Paul Singh, Adv. Ms. Sonali Sharma, Adv. Mr. Gaurav Sarkar, Adv. Bhavini Srivastavam, Adv. Mr. Baibav, Adv. Ms. Sairica Raju, Adv. For the Respondent(s) : Mr. Mahesh Agarwal, Adv. Mr. Ankur Saigal, Adv. Mr. Rohan Dakshini, Adv. Ms. Pooja Kothari, Adv. Ms. Kamakshi Sehgal, Adv. Ms. Kajal Dalal, Adv. Mr. Archit Jain, Adv. Mr. Rajesh Kumar, Adv. Mr. E. C. Agrawala, AOR JUDGMENT BELA M. TRIVEDI, J. 1. Leave granted. 2. The appellant-CBI has sought to challenge the impugned order dated 30.05.2023 passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plete and no final report as defined under Section 173(2) Cr.P.C. was filed within the statutory period provided under Section 167(2) Cr.P.C., or in the alternative seeking their release from judicial custody in view of lack of jurisdiction of the court as there was no approval under Section 17A of the PC Act as amended in 2018. 7. The Special Court vide the order dated 26.11.2022 held that the Special Court had the jurisdiction to deal with the matter and the bar under Section 17A of the PC Act was not applicable to the facts of the case. By a separate order dated 26.11.2022, the Special Court took the cognizance of the alleged offences against all the 75 accused and issued production warrants against the present respondent nos. 1 and 2 (A-1 and A-2) as also against accused no. 7. The Special Court also issued warrants/summons against the other accused. 8. Thereafter, the Special Court vide the order dated 03.12.2022 holding that the investigation was incomplete and the chargesheet filed was in piecemeal, further held that the respondent nos. 1 and 2 (A-1 and A-2) were entitled to the statutory bail under Section 167(2) Cr.P.C. 9. The appellant-CBI, being aggrieved by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplete chargesheet is not filed. According to him, the courts below have concluded that it was an incomplete chargesheet that was filed by the CBI, which entitled the respondents to the statutory right of getting the benefit of default bail under Section 167(2) of Cr.P.C. Mr. Mukul Rohatgi has relied upon the decision in Suresh Kumar Bhikamchand Jain Vs. State of Maharashtra Anr. (2013) 3 SCC 77 to buttress his submission that cognizance is not relevant basis for determining whether the investigation is complete or not for the purpose of default bail under Section 167(2) Cr.P.C. Reliance is also placed on the decision in case of Rakesh Kumar Paul vs. State of Assam (2017) 15 SCC 67, to submit that if the chargesheet is not filed and the right for default bail has ripened into the status of indefeasibility, it cannot be frustrated by the prosecution on any pretext. Mr. Rohatgi sought to distinguish the Dalmia s case (supra) relied upon by Ld. ASG Mr. S.V. Raju by submitting that in the said case, the accused was absconding and the chargesheet was already filed, whereas in the instant case, the chargesheet filed has been held to be incomplete. According to him, the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;] (b) (c) 173. Report of police officer on completion of investigation. (1) Every investigation under this Chapter shall be completed without unnecessary delay. 2 [(1A) The investigation in relation to 3 [an offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E] from the date on which the information was recorded by the officer in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtue of Section 20(4)(bb) is based on a correct reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 CrPC ceases to apply. The Division Bench also indicated that if there be such an application of the accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in Section 20(4)(bb), both of them sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indefeasible right to be granted bail, if he offers to furnish bail. Accordingly, if on either the 61st day or the 91st day, an accused makes an application for being released on bail in default of chargesheet having been filed, the court has no option but to release the accused on bail. The said provision has been considered and interpreted in various cases, such as the ones referred to hereinbefore. Both the decisions in Natabar Parida case [(1975) 2 SCC 220 : 1975 SCC (Cri) 484] and in Sanjay Dutt case [(1994) 5 SCC 410 : 1994 SCC (Cri) 1433] were instances where the charge-sheet was not filed within the period stipulated in Section 167(2) CrPC and an application having been made for grant of bail prior to the filing of the charge-sheet, this Court held that the accused enjoyed an indefeasible right to grant of bail, if such an application was made before the filing of the charge-sheet, but once the charge-sheet was filed, such right came to an end and the accused would be entitled to pray for regular bail on merits. 18. None of the said cases detract from the position that once a charge-sheet is filed within the stipulated time, the question of grant of default bail or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpiry of 60 days. The accused continues to be in the custody of the Magistrate till such time cognizance is taken by the court trying the offence, which assumes custody of the accused for the purpose of remand after cognizance is taken. The conclusion of the High Court that the accused cannot be remanded beyond the period of 60 days under Section 167 and that further remand could only be at the post-cognizance stage, is not correct in view of the judgment of this Court in Bhikamchand Jain (supra). 18. In the instant case as transpiring from the record, the respondents (A1 and A2) were arrested in connection with the FIR in question on 19.07.2022, and the report (the chargesheet) running into about 900 pages under Section 173(2) was filed by the CBI against the respondents along with other 73 accused on 15.10.2022. In the said report it was stated in Para no. 66 that: - 66. With regard to ascertaining roles of remaining FIR named accused persons namely Sh. Sudhakar Shetry, M/s Amaryllis Realtors M/s Gulmarg Realtors, remaining CAs (who had audited balance sheets of e-DHFL Shell companies and who had facilitated the promoters), ultimate beneficiaries/end use of diverte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigating into a cognizable offence shall submit a report. The report must be in the form prescribed by the State Government and stating therein- (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom (e) whether the accused has been arrested; (f) whether he had been released on his bond and, if so, whether with or without sureties; and (g) whether he has been forwarded in custody under Section 170. As observed by this Court in Satya Narain Musadi v. State of Bihar [(1980) 3 SCC 152, 157 : 1980 SCC (Cri) 660] that the statutory requirement of the report under Section 173(2) would be complied with if the various details prescribed therein are included in the report. This report is an intimation to the magistrate that upon investigation into a cognizable offence the Investigating Officer has been able to procure sufficient evidence for the court to inquire into the offence and the necessary information is being sent to the court. In fact, the report under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d takes cognizance of the offence allegedly committed by the accused, it is immaterial whether the further investigation in terms of Section 173(8) is pending or not. The pendency of the further investigation qua the other accused or for production of some documents not available at the time of filing of chargesheet would neither vitiate the chargesheet, nor would it entitle the accused to claim right to get default bail on the ground that the chargesheet was an incomplete chargesheet or that the chargesheet was not filed in terms of Section 173(2) of Cr.P.C. 24. In Dinesh Dalmia (supra), this Court has elaborately explained the scope of Section 167(2) vis- -vis Section 173(8) Cr.P.C. The paragraphs relevant for the purpose of this appeal are reproduced hereinbelow: - 19. A charge-sheet is a final report within the meaning of sub-section (2) of Section 173 of the Code. It is filed so as to enable the court concerned to apply its mind as to whether cognizance of the offence thereupon should be taken or not. The report is ordinarily filed in the form prescribed therefor. One of the requirements for submission of a police report is whether any offence appears to have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code would be attracted only after cognizance has been taken. 30. If submission of Mr Rohatgi is to be accepted, the Magistrate was not only required to declare the charge-sheet illegal, he was also required to recall his own order of taking cognizance. Ordinarily, he could not have done so. ( See Adalat Prasad v. Rooplal Jindal [(2004) 7 SCC 338 : 2004 SCC (Cri) 1927] , Subramanium Sethuraman v. State of Maharashtra [(2004) 13 SCC 324 : 2005 SCC (Cri) 242 : (2004) 7 Scale 733] and Everest Advertising (P) Ltd. v. State, Govt. of NCT of Delhi [(2007) 5 SCC 54 : (2007) 2 SCC (Cri) 444 : JT (2007) 5 SC 529].) It is also well settled that if a thing cannot be done directly, the same cannot be permitted to be done indirectly. If the order taking cognizance exists, irrespective of the conduct of CBI in treating the investigation to be open or filing applications for remand of the accused to police custody or judicial remand under sub-section (2) of Section 167 of the Code stating that the further investigation was pending, would be of no consequence if in effect and substance such orders were being passed by the court in exercise of its power under sub-section (2) of Section 309 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
