9911796707
TMI Blog2022 (1) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... anks led by SBI also with the allegations of creating transactions with fictitious entities, fabricating and manipulating financial statements and stock statements and siphoning off the money on personal and family expenses etc. In that case while the investigation was going on by the CBI, Enforcement Directorate registered the ECIR in March 2021. Later search proceedings were conducted by the ED on 02.09.2021. Accused/applicants were called to join the investigation on 03.09.2021 and on the same day they were arrested by the ED. Accused/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 kn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t even if a complaint filed by the ED on 30.10.2021 but said complaint would not be considered to be complaint in the eyes of law when investigation has not been completed. He further submits that as per the provisions of Cr.P.C. report of investigation is to be filed u/s 173(2) Cr.P.C. as soon as the investigation is complete. Ld. Senior counsel submits that Section 173(8) Cr.P.C. though empowers the investigating agency to carry out further investigation but same to be carried out only upon obtaining of any further evidence, 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 ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in para 6.6 of the complaint that ED has collected the evidence of laundering of proceeds of crime, to the tune of Rs. 611.23 cr. He submits that investigation for offence of laundering to that extent is complete and therefore it cannot be stated that investigation is incomplete. He submits that it has been made clear in para 6.7 that further investigation is still in progress and remaining proceeds of crime is being traced. Ld. SPP for ED has relied upon the judgment of Apex Court in 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 investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear that further investigation is not prohibited, even after filing of report u/s 173(2), if SHO/IO obtains 'further evidence'. Therefore this provision appears to have been made to cover those situations where investigating agency has filed report under Sec. 173 (2) of Code, however thereafter some further evidence comes in its notice, then under that provision a supplementary charge-sheet can be submitted on further investigation when fresh evidence is available. 18. Expression '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 invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ognizance of the offences can be taken by the Judicial Magistrate or the Judge as the case may be. In this regard, this Court wants to make the distinction between an incomplete report followed by a final report and a final report which may be followed by a further final report on further investigation under Section 173 (8) Cr.P.C. In case of a report before completion of the investigation, it shall not be a police report as contemplated under the said provision 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r.P.C. in view of section 65 of the Act. 26. No doubt the investigation in the offence of money laundering involves tracing of different evidence of layering, padding, fabrication of documents etc. and this process requires unearthing of evidence and documents, analyzing the same and to ascertain the laundering of the proceeds of crime but once the accused has been arrested the onus lies on the Directorate to complete the investigation within the time 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and filing of incomplete charge sheet before the court. It contemplates filing of charge sheet/ report after the completion of entire investigation of the case in respect of all offences. 30. Ld. SPP for ED has relied upon judgment of Abdul Aziz PV vs. NIA (supra). That case was involving offences under IPC, Arms Act, Explosive Substances Act as well as under section 18 of UAPA. In that case contention was since the charge sheet has 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 pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basic legislative intent of completing the investigation within 24 hours and also within an otherwise time bound period remains unchanged, even though the period has been extended over the years. This is an indication that in addition to giving adequate time for investigation, the legislature has also put a premium on the personal liberty and has always felt that it would be unfair to an accused to remain in 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 H ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
