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TMI Blog2022 (10) TMI 634X X X X Extracts X X X X X X X X Extracts X X X X ..... indefeasible right to default bail under Section 167(2) Cr.P.C. is an integral part of right to personal liberty under Article 21 of the Constitution of India. It is clear that in a case, which relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years, the investigation is required to be completed within 90 days, and in all other offences within 60 days. It is specifically mentioned that on expiry of the said period i.e., 90 days or 60 days as the case may be, the accused shall be released on bail - There is no provision in the entire Code of Criminal Procedure authorizing any of the Courts to extend such period. The above provisions in the Code of Criminal Procedure are aimed at ensuring expeditious investigation, fair trial and more so, to safeguard the life and personal liberty of the citizens against whom accusation is made. This Court is of the view that the investigating agency has not completed its investigation within the statutory period i.e., within 60 days as required under Section 167(2) Cr.P.C. Filing of some set of papers by giving a title charge sheet does not mean that the same is filed as a fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsactions were made with companies floated by the employees as shareholders/directors. Funds were diverted without actual trade/sales. Thus, M/s Servomax India Private Limited used the LC facilities through the said companies and thereby, involved in diverting/siphoning of funds. 4. The specific allegations that are directed against the petitioner/accused No.1 are that he was a key person holding the position of Managing Director and C.E.O. of M/s Servomax India Private Limited and is responsible for divergence of the proceeds of crime. He committed the offence of money laundering by being actively involved in the process of acquiring, using, possessing and claiming the same to be untainted property. On his instructions, bogus invoices were issued and related entries were fraudulently used for encashment of funds through LC discounting. The petitioner got indulged in creation and concealment of the proceeds of crime by creating a web of entities by floating them in the name of his employees and rotated funds between them on the basis of bogus transactions to layer and concealed the floated amounts to claim the same as untainted property. 5. Placing much reliance on the afores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pliance of Section 167 Cr.P.C. by filing the charge sheet within time is done and therefore, the petitioner is not entitled for statutory bail. However, the submission of the learned counsel for the petitioner is otherwise. 7. Learned counsel for the petitioner brought to the notice of this Court the following pertinent dates, which are not disputed by the learned Standing Counsel. Petitioner/accused No.1 was arrested on 18.01.2022. Charge sheet was filed on 17.3.2022 (58th day). Charge sheet was returned on the same day. Bail petition was filed on 19.3.2022 (60th day). Bail petition was disposed of on 30.5.2022. Charge sheet was re-presented on 31.5.2022. 8. Basing on the above said crucial dates, the learned counsel for the petitioner contended that as on the date of filing of the bail application, the final report is not before the Court concerned and therefore, the Court below ought to have granted statutory bail to the petitioner, but it did not do so. Hence, aggrieved by the defective order of the Court below the petitioner approached this Court. 9. Learned counsel for the petitioner also contended that when the charge sheet was returned, there was every obligation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused is entitled to default bail, the learned counsel for the petitioner relied upon the decision of Hon ble Apex Court in the case between Achpal @ Ramswaroop and another Vs. State of Rajasthan (2019) 14 SCC 599. 12. In the above case, a report under Section 173 Cr.P.C. was filed by the Police. However, the said report was filed by a Police officer lower in rank than that of A.S.P which is contrary to the order passed by the High Court. The Magistrate having noted the infirmity, returned the charge sheet to the Police for due compliance. Thus, as on the date of expiry of 90th day, no report under Section 173 Cr.P.C. was on record with the Magistrate. On expiry of 90 days, the accused filed an application for bail invoking Section 167(2) Cr.P.C. The Judicial Magistrate rejected to extend the benefit under Section 167(2) Cr.P.C. The said order was challenged before the High Court. The High Court confirmed the order of the Judicial Magistrate. Ultimately, the matter reached the Hon ble Supreme Court. The Hon ble Supreme Court while dealing at length with regard to the applicability of Section 167(2) Cr.P.C. to the facts and circumstances of the case, at para 13 of the order h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-72018, the papers were returned to the investigating officer. Perhaps it would have been better if the Public Prosecutor had informed the High Court on 3-7-2018 itself that the period for completing the investigation was coming to a close. He could also have submitted that the papers relating to investigation be filed within the time prescribed and a call could thereafter be taken by the Superior Gazetted Officer whether the matter required further investigation in terms of Section 173(8) of the Code or not. That would have been an ideal situation. But we have to consider the actual effect of the circumstances that got unfolded. The fact of the matter is that as on completion of 90 days of prescribed period under Section 167 of the Code there were no papers of investigation before the Magistrate concerned. The accused were thus denied of protection established by law. The issue of their custody had to be considered on merits by the Magistrate concerned and they could not be simply remanded to custody dehors such consideration. In our considered view the submission advanced by Mr Dave, learned advocate therefore has to be accepted. 20. We now turn to the subsidiary issue, nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not dispose of such application before the charge-sheet is filed or disposes of such application wrongly before such charge-sheet is filed. So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted. This decision in Bikramjit Singh v. State of Punjab, {(2020) 10 SCC 616} ensures that the rigorous powers conferred under special statutes for curtailing liberty of the accused are not exercised in an arbitrary manner. 23. At the cost of repetition, it must be emphasised that the paramount consideration of the legislature while enacting Section 167(2) and the proviso thereto was that the investigation must be completed expeditiously, and that the accused should not be detained for an unreasonably long period as was the situation prevailing under the 1898 Code. This would be in consonance with the obligation cast upon the State under Article 21 to follow a fair, just and reasonable procedure prior to depriving any person of his personal liberty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is registered, it has to be investigated into and in case, the investigation is in progress, narrating the circumstances of the case in writing and the grounds for believing that the accusation or information is well founded, the officer incharge of the Police Station or the investigating Officer is under obligation to transmit to the nearest Judicial Magistrate a copy of the entries in the relevant diary and at the same time has to forward the accused. 18. Coming to Section 167(2) Cr.P.C., it reads as under:- The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that- (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d more so, to safeguard the life and personal liberty of the citizens against whom accusation is made. 20. In the case on hand, it is clearly brought on record that the petitioner/accused No.1 was arrested on 18.01.2022, the charge sheet was filed on 17.3.2022 and it was returned on the same day. It is also brought on record that on the 60th day (19.3.2022), the petitioner moved an application for grant of bail invoking Section 167(2) Cr.P.C. The said application stood dismissed on 30.5.2022. It is also clearly brought to the notice of this Court that the charge sheet was re-presented on 31.5.2022. 21. As rightly pointed out by the learned counsel for the petitioner, in case the charge sheet was returned with a formal defect of non-submission of the relevant documents along with it, there is no requirement on part of the investigating agency to take so much time to re-submit the same, that too, for a period of more than two months. Further, as rightly submitted by the learned counsel for the petitioner, even the charge sheet that was subsequently filed makes a clear mention that further investigation is still pending. 22. Having regard to all these factors, this Court is o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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