9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (9) TMI 1509 - HC - Indian LawsSeeking grant of bail - Criminal Conspiracy - co-location and passing of confidential information to M/s. OPG Securities by officials of NSE - wrongful gain to M/s. OPG Securities - tampering the evidence/influencing the witnesses without any material particulars. Whether filing of charge sheet by the respondent/CBI before concerned court on 21.04.2022 pertaining to offences punishable under sections 13(1)(d) and 13(2) of the PC Act and section 120B IPC is sufficient compliance of section 167(2) of the Code to deny statutory bail or default bail to the petitioner/accused as argued by the respondent/CBI or said charge sheet is incomplete or piece meal charge sheet and does not fall within ambit of section 167(2) of the Code as argued by the learned Senior Counsel for the petitioner/accused? HELD THAT - Pertaining to section 167(2) of the Code as discussed hereinabove, section 173 of the Code only permits filing of a final report after completion of the entire investigation in respect of all offences and does not permit a piece-meal investigation and filing of incomplete charge sheet before Court. The charge sheet filed by the respondent/CBI is a piece meal charge sheet and is not filed in respect all offences subject matter of present FIR. The respondent/CBI is not legally permitted to pick one portion of investigation and to complete it and thereafter file piece meal charge sheet in respect of few offences subject matter of FIR and to left open investigation in respect of other offences and subsequent filing of charge sheet in respect of left over offences. This would be complete negation of section 167(2) of the Code. The investigating agency cannot be permitted to fragment or break FIR for the purpose of different charge sheets and this will tantamount to negation of section 167(2) and would against mandate of Article of 21 of the Constitution. The practice of filing such types of charge sheets to seek extension of remand beyond the statutory period was deprecated by the Superior Courts in past. The investigating agency is required to form opinion regarding all offences subject matter of FIR after completion of entire investigation. There is no force in the arguments advanced by the Special Public Prosecutor for the respondent/CBI that the right of the applicant/accused under section 167(2) of the Code has come to an end immediately after filing of charge sheet on 21.04.2022 and said right under section 167(2) cannot be revived due to reason that further investigation is pending within the meaning of sub-section 8 of Section 173 of the Code. In Dinesh Dalmia V. C.B.I. 2007 (9) TMI 686 - SUPREME COURT , the Supreme Court observed that a charge sheet is a final report within the meaning of Sub-section (2) of Section 173 of the Code and is filed if it enables the court to apply its mind as to whether cognizance of the offence thereupon should be taken or not and the power of the investigating officer for making further investigation in terms of section 178(8) of the Code 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. The investigation arising out of present FIR is incomplete investigation as only one part of investigation regarding alleged appointment of the petitioner/accused is completed and pending investigation qua other offences for which charge sheet is not filed is still pending. It is not a case of further investigation as argued by the Special Public Prosecutor. There cannot be any dispute to the legal proposition that the purpose of police report under section 173(2) of the Code is to enable the Magistrate to satisfy himself on issue of taking cognizance or not. The concerned Special Court can take cognisance only in respect of some of offences for which charge sheet was filed on 21.04.22 but cannot take cognizance in respect of offence for which investigation is still pending and charge sheet is not filed. It is not permissible within mandate of legal provisions as contained in sections 173(2) and 167(2) to take cognizance in piece meal or in parts. It would amount to negation of indefeasible right given to the accused under section 167(2) of the Code - In the present case, the respondent/CBI itself preferred to club investigation of issues arising out of SEBI order dated 11.02.2022 with investigation of offences subject matter of present FIR. The investigating agency cannot circumvent section 167(2) of the Code by filing incomplete charge sheet and cannot be filed within the meaning of section 173(2) till the investigation is completed and any report sent before the investigation is completed will not be a police report within the meaning of section 173(2) of the Code. The respondent/CBI cannot take shelter of filing charge sheet in respect of offences pertaining to alleged illegal appointment of the petitioner/accused by giving nomenclature of complete charge sheet or final report as per section 173(2) of the Code to defeat the right of statutory bail under Section 167(2) of the Code. The Special Judge while dismissing application for grant of statutory bail vide order dated 28.05.2022 did not appreciate legal provisions pertaining to section 167(2) in right perspective by holding that the charge sheet was complete containing all the details and was filed by mentioning therein the relevant sections. The Special Judge did not appreciate difference between incomplete investigation and further investigation and accepted both phrases as carrying same meaning. The Special Judge did not correctly observed and held that the charge-sheet filed on 21.04.2022 clearly describes details of all the material collected by the IO/Investigating agency during the investigation regarding role played by the co-accused and the petitioner/accused. The respondent/CBI has failed to complete investigation in respect of all the offences as mentioned in FIR and to file a Final Report under section 173 of the Code within stipulated time i.e. sixty days from the date of the arrest of the petitioner/accused and filed an incomplete/piece-meal charge sheet before the concerned court on 21.04.2022 i.e. 57th day from the date of arrest. The applicant is admitted to bail as per section 167(2) of the Code on furnishing a personal bond in the sum of Rs. 5,00,000/- with one surety of the like amount to the satisfaction of the concerned trial Court subject to the conditions imposed - application allowed.
Issues Involved:
1. Consideration of bail application as per Section 439 of the Code of Criminal Procedure. 2. Abuse of server architecture of NSE. 3. Appointment of Anand Subramanian with NSE. 4. Entitlement to bail under Section 167(2) of the Code. Detailed Analysis: 1. Consideration of Bail Application as per Section 439 of the Code: The court examined the bail application filed under Sections 439 and 167(2) of the Code of Criminal Procedure. The petitioner/accused was in custody since 24.02.2022, and the charge sheet was filed on 21.04.2022. The petitioner argued that he was not named in the FIR and had clean antecedents. The court noted that the co-accused and the petitioner were known to each other since 1999, and the co-accused had appointed the petitioner in NSE without following due process. The court emphasized that economic offences need to be viewed seriously as they affect the national economy and financial health of the country. The court cited several Supreme Court judgments to highlight the gravity of economic offences and the need for a different approach in bail matters related to such offences. 2. Abuse of Server Architecture of NSE: The FIR alleged that Sanjay Gupta, in conspiracy with unknown NSE officials, abused the server architecture of NSE to gain unfair access to market data. The petitioner/accused was not named in the FIR, and SEBI had exonerated him in its order dated 30.04.2019. The court noted that SEBI had also concluded that there was no conclusive evidence to prove that the petitioner/accused used the email id [email protected]. However, the court observed that the investigation regarding the petitioner's role in the abuse of server architecture was still ongoing and could not be ruled out at this stage. 3. Appointment of Anand Subramanian with NSE: The court examined the allegations regarding the illegal appointment of the petitioner/accused by the co-accused. The petitioner was appointed as Chief Strategic Advisor to MD in January 2013 and later re-designated as Group Operating Officer in April 2015. The court noted that the appointment and re-designation were done without following due process, and the co-accused had misused her official position. The court highlighted that the petitioner/accused was not designated as Key Managerial Person (KMP) as required under SECC Regulations, 2012, and his remuneration was not disclosed in the Annual Report of NSE. The court found that the allegations were serious and grave, directly related to the national economy and financial interests. 4. Entitlement to Bail under Section 167(2) of the Code: The court discussed the statutory right to bail under Section 167(2) of the Code, which mandates the completion of the investigation within a specific period (60/90 days). The court noted that the respondent/CBI had filed an incomplete charge sheet on 21.04.2022, and the investigation regarding other allegations was still pending. The court emphasized that the filing of a piece-meal charge sheet does not comply with Section 167(2) of the Code, and the investigating agency cannot circumvent the provision by filing an incomplete charge sheet. The court cited several judgments to support the view that the right to statutory bail is indefeasible and cannot be defeated by filing a preliminary charge sheet without completing the investigation. Conclusion: The court concluded that the respondent/CBI had failed to complete the investigation in respect of all the offences mentioned in the FIR and had filed an incomplete charge sheet. The court granted bail to the petitioner/accused under Section 167(2) of the Code, subject to certain conditions, including surrendering his passport, cooperating with the investigation, and not tampering with evidence or influencing witnesses. The court emphasized that the decision on bail does not affect the final merits of the case.
|
