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TMI Blog2022 (11) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... ake a world of difference between the conclusions to be reached in two cases. Observations of the courts are neither to be read as Euclid s Theorems nor as provisions of the statute, and are never to be taken out of contexts. Courts primarily interpret statutes, they do not interpret judgments. Each case depends on its own facts and a close similarity between one case and another may not be enough. In the case of Harshad S. Mehta v. CBI [ 1992 (10) TMI 271 - DELHI HIGH COURT] decided by this court, the question whether remand under Section 167(2) of Cr.P.C. has to be taken after every 15 days or not and whether after the initial remand of 15 days the accused can be remanded in perpetuity subject of course to the outer limit of 60/90 days was one of the issues. This Court in paragraph No. 22 of the said decision has held that in no case the Magistrate can authorise the detention beyond 90 days or 60 days as the case may be. But even beyond 15 days and up to the period of 60 days, the remand has to be taken of the accused 15 days each time. In the case in hand the applicants were taken into custody on 21.03.2022. The Status Report indicates that the investigation with respect to othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the applicants that they were directed to join the investigation on numerous occasions. They had been cooperative during the investigation, with the investigating agency. However, on 21.03.2022, the SFIO arrested the present applicants and produced them before the learned Special Court, Dwarka. The SFIO was granted two days' custody remand. On 24.02.2022, they were again produced before the learned Special Court and were remanded for 14 days judicial custody i.e., till 07.04.2022. Further period of judicial custody was extended from time to time. Lastly, on 18.05.2022 on an application filed by SFIO, the further judicial remand of the applicants was extended up to 31.05.2022. 4. On 19.05.2022 the SFIO has filed a Complaint against the present applicants and others for offences punishable under Section 447 along with other offences of the Companies Act, 2013 and offences under the IPC. It is stated that on 31.05.2022 there was no application for extension of remand of judicial custody, the applicants were produced through video conferencing and that without there being any speaking order their remand was extended upto 17.08.2022. The applicants, therefore, on 23.07.2022, filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led for bail on account of their illegal custody submitted two broad arguments firstly, that notwithstanding filing of the complaint in the instant case on 19.05.2022, the custody of the applicants still is in the hands of the Magistrate and is to be governed by Section 167 of Cr.P.C. and, therefore, the Magistrate cannot breach the maximum time limit for remand i.e. 15 days; and secondly he has to pass a reasoned order for each remand, the same being absent in the present case. In nutshell, he highlights that filing of the charge sheet or a complaint as the case may be would not absolve the Magistrate from the rigour of Section 167 that provides the strict compliance with the following two conditions precedents; (i) No remand order should exceed more than 15 days and; (ii) each remand order has to be by a reasoned order. It is highlighted that under the Cr.P.C. there can be three distinct stages of a case, when a prisoner is required to be remanded; (i) Stage 1: precomplaint/charge sheet; (ii) Stage 2: post filing of a complaint/charge sheet but pre cognizance; (iii) Stage 3: post cognizance. 6. It is thus argued that the period between the filing of the charge sheet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D (2018) 248 DLT 630, Raj Pal Singh v. State of U.P. CRL.REV. 1098/1994, Rajesh Mishra v. State of U.P., CRL.REV. 1891/1994, K.K. Girdhar v. M.S. Kathuria ILR 1988 2 Del. 197 Tunde Gbaja v. Central Bureau of Investigation 2007 (1995) DRJ 429. 8. Learned counsel appearing on behalf of the respondent opposed the instant bail applications. He submits that the instant bail applications do not have any substance and deserve to be outrightly rejected. According to him, the interpretation propounded by the applicants is contrary to the scheme of Section 167 of the Cr.P.C. He submits that if the provision of Section 167 of Cr.P.C. is perused carefully and in its entirety, the same would clearly reveal that the condition for remand of maximum 15 days and passing of a speaking order only applies till the complaint or charge sheet as the case may be is filed as mandated in Section 167(2)(a)(i)(ii) of Cr.P.C. He has further referred to sub-Section (3) of Section 167 to indicate that a Magistrate authorizing under Section 167 of Cr.P.C. any detention in the custody of the police has to record the reasons for doing so. According to him, the detention in the custody of "police" requires reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he applicants now cannot take the ground of any defect in the said order. He submitted that on 06.08.2022 by a specific remand order passed by the Magistrate, the judicial custody was extended upto 17.08.2022. He submitted that, as on date, the applicants are in the judicial custody under a valid order and if at all there was any illegality in the order of remand dated 31.05.2022, the same would not enure in favour of accused for grant of bail under Section 167(2) of Cr.P.C. The scope of Section 167(2) of Cr.P.C. comes to an end once the compliant or the charge sheet as the case may be is filed. The custody if at all defective for a limited period of time may not entitle the applicant for grant of bail. The applicants could have filed a petition for habeas corpus. It is further stated that the act of the applicants falls within the purview of Section 447, 448, 36-I, 229 & 129 of the Companies Act, 2013, Section 211, 628 of the Companies Act, 1956 and Sections 120(B), 417 read with Section 420 of IPC. It is for this reason, it is stated that the case of the applicants falls under Section 212(c) of the Companies Act, 2013, which starts with a non-obstante clause and the provisions st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e public money to the tune of Rs.5,435/- Crores. The role assigned to the applicant Amarjeet Sharma is that he was the head of the Accounts Department of BPSL. All the financials statements of the BPSL and various accused companies were prepared by him, which were not reflecting the true and fair view of the affairs of the company. He had signed the balance sheets of BPSL for financial year 2010-11 & 2017-18. He was allegedly aware that BPSL used to make the payments in the form of capital advances to various companies based at Kolkata which further invested in the accused companies by rotation of these funds. The further allegations are that the issues were reflagged in the forensic report conducted by EY for the period Financial Year 2013-2014 to 2015-2016. According to the allegations, the applicant-Amarjeet Sharma was well aware that the advances to suppliers were in fact not genuine business. Instances of larger fraud committed by various individuals including the applicants have been highlighted while showing that there were instances of siphoning off materials from BPSL Plant, Sambalpur Orissa. The diversion of funds from BPSL in the form of bogus capital advances and routin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould reveal that in the instant case the applicants were arrested on 21.03.2022 and the investigation report/complaint has been filed on 19.05.2022, i.e. within 60 days. It is thus seen that the provisions under Section 167(2) (a) (ii) would not have any application and the applicants are not entitled for grant of default bail under the aforesaid provision. Apparently, the investigation with respect to present applicants are concerned, is complete in all respects and the complaint/prosecution has been filed to substantiate the charges. 15. The Hon'ble Supreme Court in the case of Rahul Modi (supra) has considered the law in great detail with respect to the scope of application of Section 167(2) of Cr.P.C. The issue therein was whether an accused is entitled for statutory bail under Section 167(2) of Cr.P.C. on the ground that cognizance was not taken before the expiry of 60 days or 90 days as the case may be from the date of remand. The Hon'ble Supreme Court in paragraph No. 11 while placing reliance on earlier decision Suresh Kumar Bhikamchand Jain (supra) has held that filing of a charge sheet is sufficient compliance with the provision of Section 167 of Cr.P.C. While analyzing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 21 of the Constitution. It is also contended that even sub-Section (2) of Section 309 of Cr.P.C. requires that if the court after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considered reasonable, and may by a warrant remand the accused if in custody provided that no Magistrate shall remand an accused persons to custody under this Section for a term exceeding 15 days at a time. It is thus stated that the law requires at each stage i.e. Pre 309 or post 309 of Cr.P.C., to pass a reasoned order of remand and the same not exceeding 15 days at a time are the statutory principles to be strictly followed. It is, therefore, submitted that in the instant case remand order dated 31.05.2022 which although cannot be termed to be a legal remand order, but even if it is considered to be valid, the same cannot breach the period of remand beyond 15 days. 19. For the purposes of clarity of the facts, communication dated 03.08.2022 of the office of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on next date ofhearing i.e. 17.08.2022. Be put up for consideration on 17.08.2022, date already fixed. --SD- (Dr. JagminderSingh) ASJ-03 & Special Judge (Companies Act) Dwarka Courts (SW)/ New Delhi/ 06.08.2022 22. The aforesaid facts and the orders would clearly show that there is no order on 31.05.2022, except an endorsement on production warrant which directs for production of the applicants on 17.08.2022. Any order remanding the applicants if at all, is considered to have been passed after 31.05.2022 is only on 06.08.2022, which says that the applicants be further remanded to judicial custody till 17.08.2022. 23. In view of the aforesaid, the question which emerges for immediate consideration is whether on 31.05.2022 a speaking order was required to be passed and further the remand period beyond more than 15 days can be accepted to be legal. The answer to the aforesaid question would depend upon the interpretation of the relevant provisions applicable in the instant case. 24. Section 167 of Cr.P.C. is reproduced as under:- "167. Procedure when investigation cannot be completed in twenty four hours. (1) Whenever any person is arrested and detained in custody and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... graph (a), the accused shall be detained in custody so long as he does not furnish bail;]. Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention.] 25. This court also finds it appropriate to reproduce Section 212(6) and Section 212(7) of the Companies Act, 2013. The same is reproduced as under:- "(6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, 1[offence covered under section 447] of this Act shall be cognizable and no person accused of any offence under those sections shall be released on bail or on his own bond unless- (i) The Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) Where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years or is a woman or is sick or infirm, may be release ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question which the Hon'ble Supreme Court was dealing with was whether the arrest on 06.11.1968 was illegal inasmuch as the same was effected by police officers for offences which were non-cognizable and whether there was violation of the mandatory provision of Article 22(1) of the Constitution. The other questions which were dealt with by the Hon'ble Supreme Court in that case was whether the arrest was effected for extraneous consideration and were actuated by malafides. The Hon'ble Supreme Court in paragraph No. 8 has noted that the arrest of Madhu Limaye (supra) and his companions was effected by the police officers concerned without any specific orders or directions from the Magistrate on 06.11.1968. In that case the remand orders were passed on 6th November and on 20th November, 1968 on the basis that the accused persons had been arrested and forwarded under custody under Section 151, 107 & 117 of Cr.P.C. It is thus seen that the Hon'ble Supreme Court was considering the submissions in a petition under Article 32 of the Constitution and the issue involved in the present case does not have any relevance to the facts and situation existing in the case of Madhu Limaye (supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 012. The police prayed for remand which was granted upto 19.07.2012. The application for regular bail was filed which was rejected by the concerned court. The accused prayed for interim bail which was also rejected by the court of sessions. He, therefore, filed habeas corpus petition before the High Court contending therein that the Magistrate could not have exercised its power under Section 167(2) of Cr.P.C. remanding the accused either to police or judicial custody in view of the stay order passed by the High Court and therefore, the detention of the accused was argued to be absolutely illegal and non est in law. The Hon'ble Supreme Court in paragraph No. 31 of the said decision has held that the order of remand cannot be regarded as untenable in law. It is for this reason the decision in the case of Manubhai Ratilal Patel (supra) also would not have any application in the facts and situation of the present case. The facts in the case of Raj Pal Singh (supra) cited by learned Senior Counsel appearing for the applicant do not indicate as to whether the consideration was after filing of the charge sheet/complaint. In the absence of the aforementioned fact, no ratio decidendi can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be read as Euclid's Theorems nor as provisions of the statute, and are never to be taken out of contexts. Courts primarily interpret statutes, they do not interpret judgments. Each case depends on its own facts and a close similarity between one case and another may not be enough. It is because even a single significant detail may alter the entire factual matrix, in deciding such cases. One should avoid the temptation to decide cases by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not decisive. A decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. According to well settled theory of precedents, every decision contains three basic postulates: (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgments based on the combined effect of the above. A decision is only an authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for bail in case of illegal detention. On the contrary, the Coordinate bench of this Court in the case of Harshad S. Mehta v. CBI DRJ 1992 (24) recognized the principle that illegal detention may not be the ground for release on bail but can factor as one of the reasons. Thus, the decision in the case of Yogesh Mittal (supra) is distinguishable on facts and would not have bearing under the facts of the present case. 31. In the case of Harshad S. Mehta v. CBI (supra) decided by this court, the question whether remand under Section 167(2) of Cr.P.C. has to be taken after every 15 days or not and whether after the initial remand of 15 days the accused can be remanded in perpetuity subject of course to the outer limit of 60/90 days was one of the issues. This Court in paragraph No. 22 of the said decision has held that in no case the Magistrate can authorise the detention beyond 90 days or 60 days as the case may be. But even beyond 15 days and up to the period of 60 days, the remand has to be taken of the accused 15 days each time. The said principle has been laid down relying on the decision of the Hon'ble Supreme Court in the case of Raj Narain v. Superintendent Central Jail, New ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is illegal the remedy is not the bail but a petition for habeas corpus. A reliance was also placed by this Court on a decision of the Full Bench of Rajasthan High Court in Mahesh Chand (supra). This Court, however, noted that there is no quarrel with the proposition that illegal detention can also be a factor while considering for the grant of bail. Thus, the position of law as noted in the said case does not recognize a principle to say that the illegal detention can alone be the ground to grant bail to an accused. 33. In the case of Abdul Azeez (supra) the Hon'ble Supreme Court declined to accept the prayer for grant of bail under Section 167(2) of Cr.P.C. on the ground that the Investigating Agency failed to file the final report within 180 days as according to the accused in that case the charge sheet which was filed was not a final report as contemplated under Section 173(2) of Cr.P.C. The requisite sanction as required under Section 18 & 18(A) of UAPA Act, and so also under Section 7 of Explosive Substances Act were obtained therein and merely because certain facets of the matter called for further investigation it has been held that the same does not deem such final report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 309 CrPC, it cannot be said that the accused is entitled to grant of statutory bail, as envisaged in Section 167 CrPC. The scheme of CrPC is such that once the investigation stage is completed, the court proceeds to the next stage, which is the taking of cognizance and trial. An accused has to remain in custody of some court. During the period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced. During that stage, under Section 167(2) CrPC, the Magistrate is vested with authority to remand the accused to custody, both police custody and/or judicial custody, for 15 days at a time, up to a maximum period of 60 days in cases of offences punishable for less than 10 years and 90 days where the offences are punishable for over 10 years or even death sentence. In the event, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other reason then stipulated under the proviso (a) of sub-Section (2) of Section 167 of Cr.P.C. The right of default bail is finished/extinguished, the moment charge sheet is filed within the period prescribed therein. Any irregularity or illegality in the remand order is not a statutorily sanctioned reason for grant of default bail. Evidently, endorsement dated 31.05.2022 has not been challenged. The bail can only be granted under the Cr.P.C. when either there is breach of the provision of Section 167 of Cr.P.C. or the accused is able to make out his case for grant of bail in Chapter XXXIII (Sections 436 to 439 of Cr.P.C.). Even for the sake of argument if the argument of the applicants is accepted that they remained in illegal custody between 31.05.2022 to 06.08.2022, the fact remains that they have not filed any petition for habeas corpus or taken any other steps in accordance with law. Filing of the bail application, subsequent to filing of the complaint/charge sheet, will have to be considered on its own merits. The applicants may be entitled for any other legal remedy like the filing of petition under Article 226 of the Constitution of India or a petition under Section 482 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciples of the right to liberty. Once a charge sheet/complaint is filed the further course envisaged under the Cr.P.C. will have to take place and the mode available for the accused for bail is only on merits. Any other interpretation of Section 167 of Cr.P.C. would lead to the creation of another mode for grant of bail which is not envisaged under the Code of Criminal Procedure and, therefore, the same is not acceptable. The 15 days' time limit and reasoned order are the requirement to be followed under Section 167 of Cr.P.C. only during pendency of investigation. 38. Besides, the aforesaid, the Full Bench decision of the Patna High Court in the matter of Rabindra Rai v. State of Bihar 1983 SCC OnLine Pat 155 also takes almost a similar view. Thus, the argument of the applicants is not acceptable that in the absence of a reasoned order and on breach of 15 days time limit, they are entitled for bail under Section 167 of the Cr.P.C. 39. So far as the argument on merits are concerned, it must be stated that as per Section 212(7) of the Companies Act, the limitation under Section 212(6) with respect to grant of bail is in addition to those already provided in Cr.P.C. A reference can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused in all. The Hon'ble Supreme Court being mindful of the need to protect the personal liberty of the accused and in the absence of fair likelihood of the trial being completed within reasonable period granted bail. The Hon'ble Supreme Court had taken note of its earlier decision in the case of Nitin Johari (supra) and has held that while the provisions of Section 212(6) of the Companies Act, 2013 must be borne in mind, equally, it is necessary to protect the constitutional right to an expeditious trial in a situation where a large of number of accused implicated in a criminal trial, the same would necessarily result in delay in its conclusion. The role of the other accused must be distinguished from the role of the main accused. 41. In the case of Sujay U. Desai (supra), the Hon'ble Supreme Court has taken into consideration that the accused in that case was in custody since 19.03.2020 on the ground that the right to an expeditious trial is protected under Article 21 of the Constitution. 42. In the case in hand the applicants were taken into custody on 21.03.2022. The Status Report indicates that the investigation with respect to other accused persons is not complete in all r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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