2024 (1) TMI 1153 - SC - Indian Laws

Grant of default bail under Section 167(2) Cr.P.C. - criminal conspiracy to cheat the consortium of 17 banks led by Union Bank of India - induced the consortium banks to sanction huge loans - siphoning off of the funds - investigation qua some of the accused named in the FIR was pending, though the report under sub-section (2) of Section 173 (Chargesheet) against respondents along with the other accused was filed within the prescribed time limit - cognizance of the offence was taken by the special court before the consideration of the application of the respondents seeking default bail under Section 167 (2) Cr.P.C. HELD THAT - There cannot be any disagreement with the well settled legal position that the right of default bail under Section 167(2) Cr.P.C. is not only a statutory right but is a right that flows from Article 21 of the Constitution of India. It is an indefeasible right, nonetheless it is enforceable 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 terms of Section 309 CrPC. The two stages are different, but one follows the other so as to maintain a continuity of the custody of the accused with a court. There remains no shadow of doubt 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. The report under Section 173 is an intimation to the court that upon investigation into the 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. The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 175 (5). As settled in the afore-stated case, it is not necessary that all the details of the offence must be stated. The benefit of proviso appended to sub-section (2) of Section 167 of the Code would be available to the offender only when a chargesheet is not filed and the investigation is kept pending against him. Once however, a chargesheet is filed, the said right ceases. It may be noted that the right of the investigating officer to pray for further investigation in terms of sub-section (8) of Section 173 is not taken away only because a chargesheet is filed under sub-section (2) thereof against the accused - Once from the material produced along with the chargesheet, the court is satisfied about the commission of an offence and 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. There are no hesitation in holding that the chargesheet having been filed against the respondents-accused within the prescribed time limit and the cognizance having been taken by the Special Court of the offences allegedly committed by them, the respondents could not have claimed the statutory right of default bail under Section 167(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.

Summary

Issues Involved:
1. Validity of default bail under Section 167(2) Cr.P.C.
2. Completeness of the chargesheet under Section 173(2) Cr.P.C.
3. Impact of pending further investigation under Section 173(8) Cr.P.C. on default bail.

Summary:

1. Validity of Default Bail under Section 167(2) Cr.P.C.:
The Supreme Court examined whether the respondents were entitled to default bail under Section 167(2) Cr.P.C. despite a chargesheet being filed within the prescribed time limit. The Court reiterated that the right to default bail is an indefeasible right enforceable only prior to the filing of the chargesheet. Once the chargesheet is filed, the right to default bail ceases. The Court cited the Constitution Bench decision in *Sanjay Dutt vs. State through CBI, Bombay (II) (1994) 5 SCC 410*, which held that the right to default bail does not survive post the filing of the chargesheet.

2. Completeness of the Chargesheet under Section 173(2) Cr.P.C.:
The Court addressed whether the chargesheet filed by the CBI was complete under Section 173(2) Cr.P.C. The chargesheet included all necessary details as required by law, even though further investigation was pending against other accused. The Court emphasized that the statutory requirement of a report under Section 173(2) is met if it includes the prescribed details, as explained in *K. Veeraswami vs. Union of India and Others (1991) 3 SCC 655*. The Court concluded that the chargesheet was complete and valid, and the pendency of further investigation did not invalidate it.

3. Impact of Pending Further Investigation under Section 173(8) Cr.P.C. on Default Bail:
The Court clarified that the right to default bail under Section 167(2) Cr.P.C. ceases once a chargesheet is filed, even if further investigation under Section 173(8) is pending. The Court cited *Dinesh Dalmia vs. CBI (2007) 8 SCC 770*, which explained that the filing of a chargesheet does not preclude further investigation and that the right to default bail does not revive merely because further investigation is ongoing.

Conclusion:
The Supreme Court set aside the orders of the Special Court and the High Court, which had granted default bail to the respondents. The Court held that the respondents were not entitled to default bail as the chargesheet was filed within the prescribed time limit and was complete. The respondents were ordered to be taken into custody, and the observations made in this judgment were not to influence other pending proceedings. The appeal was allowed accordingly.