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TMI Blog2023 (10) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... s official position and helped them in transferring of the land. The property with regard to ECIR/ RNZO/18/2022 was the subject matter of the lands which has been noted in the submission of the learned A.S.G.I. appearing on behalf of the respondent Enforcement Directorate (E.D)(supra). It further appears that FIR bearing No. 399 of 2022 was registered by Ranchi police and on the basis of which a separate ECIR/RNZO/10/2023 dated 07.03.2023 was also recorded by the Enforcement Directorate (E.D). As the charge sheet is not filed within the meaning of section 173(2) of the Cr.P.C., the investigation remains pending. Filing of final report or charge sheet, however, does not preclude the investigating officer to carry on further investigation in terms of Section 173(8) Cr.P.C. Indisputably, the power of the investigating officer to make a prayer for making further investigation in terms of section 173(8) of the Cr.P.C., is not taken away only because a charge sheet has been filed under section 173(2) Cr.P.C. - There is no doubt that such right of bail although is a valuable right, but the same is a conditional one. The condition precedent being pendency of the investigation. Whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of ECIR 18/2022), pursuant to that the petitioner was remanded under section 167 Cr.P.C. He submits that the allegations are there that the petitioner was connected to transactions relating to five separate landed properties, such as, Morabadi property, Cheshire Home property, Pugru property, Bajra property and the property in Khata No. 256. He further submits that ECIR Case No. 01/2023 (arising out of ECIR Case No. 18/2022) was filed by the Opposite party subsequently on 12.06.2023 and by way of referring this he submits that the balance investigation with regard to the property in question was going on. He submits that incomplete prosecution complaint on 12.06.2023 prior to lapse of statutory period of 60 days on 03.07.2023 was filed by the Enforcement Directorate. He draws the attention of the Court to the remand order dated 05.05.2023 contained in Annexure-13 and submits that the paragraph no. 7 to 17 of ECIR Case No. 18/2022 was considered by the learned Special Judge for remand of the petitioner. By way of referring to paragraph no. 11 of the ECIR Case No. 01/2023 in ECIR Case No. 18/2022. He submits that one Bishnu Kumar Agarwal case was further being investigated and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/court must dispose of it forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the investigating agency. Such prompt action on the part of the Magistrate/court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated. 5. If the accused is unable to furnish the bail as directed by the Magistrate, then on a conjoint reading of Explanation I and the proviso to sub-section (2) of Section 167, the continued custody of the accused even beyond the specified period in para (a) will not be unauthorised, and therefore, if during that period the investigation is complete and the charge-sheet is filed then the so-called indefeasible right of the accused would stand extinguished. 6. The expression if not already availed of used by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hna v. Central Bureau of Investigation, reported in 2022 SCC OnLine Del.3123 and he relied in paragraph nos.113, 116, 117 and 120 of the said judgment which are quoted below: 113. The legal position pertaining to scope of section 167(2) of the Code emanating from above referred decisions can be summarised as under: i) The object of the section 167(2) of the Code is to ensure an expeditious investigation and a fair trial and is another limb of Article 21. ii) The accused has indefeasible right in his favour for being released on bail on account of default by the investigating agency to complete investigation within the prescribed period. iii) It is duty of the courts to ensure that benefit of Section 167(2) of the Code be given to the accused and detention beyond statutory period would be illegal being opposed to the liberty of the accused. iv) Section 173 of the Code does not stipulate a piece-meal investigation and filing of incomplete charge sheet before Court and contemplates filing of a final report after completion of the entire investigation of the case in respect of all offences and where several offences are involved in a case. The practice o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 Anand Subramanian 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. 5. Referring the aforesaid judgment of the Delhi High Court, Mr. Sinha, the learned counsel appearing on behalf of the petitioner submits that once the investigate is not completed, the default bail under Sub-Section (2) of Section 167 Cr.P.C. is the right of the petitioner. He submits that this judgment has been affirmed by the Hon ble Supreme Court by judgment dated 13.02.2023 in Special Leave to Appeal (Cr.) No.001550-001552/2023 . He further relied on another judgment of Delhi High Court in the case of Central Bureau of Investigation v. Kapil Wadhawan [Crl. Miscellaneous No. 6544 of 2022] and he refers to paragraph no.25, 30 and 34 of the said judgment which are quoted below: 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to ensure that there is strict compliance of the provisions. The investigating agency in its anxiety of keeping the accused persons in custody may take a plea that investigation is complete. However, the best judge in this regard should be the trial Court. 34. It is pertinent to mention here that neither of the parties have discussed the merits of the case. It is also important to mention that the learned ASJ has passed a detailed and reasoned order inter alia holding that the charge sheet so filed was incomplete. I consider that there is no ground to interfere with or alter this opinion. It is a settled proposition that it is the jurisdiction of the Magistrate/learned Special Judge alone to decide that whether the material placed by the prosecution along with the report (charge sheet) was having sufficient evidence or not. Since the learned Special Judge has recorded a reasoned and conscious view that the charge sheet so filed on the face of it was incomplete, therefore this Court finds it difficult to interfere with the same. It is also pertinent to mention that though the cognizance has been taken in this case, which to the mind of this Court will not make any difference, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offences under section 3 of the PMLA, 2002 and during his remand the data of mobile phone seized from his possession during searches dated 13.04.2023 was examined in his presence along with digital devices of his accomplishes which were seized during the searches conducted in the investigation. He submits that in details the property in all the ECIR/18/2022, the role of the petitioner surfaced in addition to the ongoing investigation such as, (A) illegal acquisition of land admeasuring 7.16 acres situated at Plot No. 1323, 1337/1349, 1333, 1334, 1338, 1324, Khata No. 140, Hehal, Ranchi; (B) Property admeasuring 1 acre, situated at Plot No. 28, Khata No.37, Village Gari, Cheshire Home Road, Ranchi, having deed value of Rs. 1,80,00,000/-; (C) Property situated at Khata No. 93, Plot No. 543, 544, 546 and 547, total area 9.30 acres having deed value of Rs. 22,01,49,000/-; and (D) Property admeasuring 5.883 acres, situated at M.S. Plot No. 908, 851(P) and 910(P), Ward No.VI of Ranchi Municipality, Ranchi having deed value of Rs. 24,37,72,780/-. He submits that the property with regard to (B) and (D) have been acquired by one Bishnu Kumar Agarwal who is a close accomplice of the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigate into the offence of money-laundering, but more importantly to prevent money-laundering and to provide for confiscation of property related to money-laundering and matters connected therewith and incidental thereto. 314. The process of searches and seizures under the 2002 Act are, therefore, not only for the purposes of inquiring into the offence of money-laundering, but also for the purposes of prevention of money-laundering. This is markedly distinct from the process of investigating into a scheduled offence. 457. Suffice it to observe that being a special legislation providing for special mechanism regarding inquiry/investigation of offence of money-laundering, analogy cannot be drawn from the provisions of 1973 Code, in regard to registration of offence of money-laundering and more so being a complaint procedure prescribed under the 2002 Act. Further, the authorities referred to in Section 48 of the 2002 Act alone are competent to file such complaint. It is a different matter that the materials/evidence collected by the same authorities for the purpose of civil action of attachment of proceeds of crime and confiscation thereof may be used to prosecute the pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2023. If the contention of the learned counsel for the petitioner is accepted, the 60 days period came to an end on 03.07.2023 and the petitioner filed a petition for default bail on 04.07.2023 which has been rejected by the learned court by the impugned order dated 10.07.2023. It appears that FIR bearing No. 141/ 2022 dated 04.06.2021 was registered by Bariyatu police station, Ranchi under section 420, 467, 471 of the I.P.C against one Pradip Bagchi. The said sections are scheduled offences under Part-A of the Schedule of PMLA Act, 2002 and pursuant to that, the ECIR/RNZO/18/ 2022 was registered on 21.10.2022 by the Enforcement Directorate (E.D.) under the provisions of PMLA, 2002. In the investigation, it has come that the petitioner as well as Amit Kumar Agarwal and Prem Prakash were aware that Pradip Bagchi was a fake owner of property and the deed was false and they acquired the property worth several crores of rupees by paying only Rs.25 lacs. Amit Kumar Agarwal was the beneficial owner of M/s Jagatbandhu Tea Estates Pvt. Ltd who acquired the said property in the name of said tea estate. The petitioner being the then Deputy Commissioner of Ranchi utilized his official positi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all continue to try such scheduled offence; or] (b) a Special Court may, [* * *] upon a complaint made by an authority authorised in this behalf under this Act take [cognizance of offence under Section 3, without the accused being committed to it for trial]: [Provided that after conclusion of investigation, if no offence of money laundering is made out requiring filing of such complaint, the said authority shall submit a closure report before the Special Court; or] [(c) if the court which has taken cognizance of the scheduled offence is other than the Special Court which has taken cognizance of the complaint of the offence of money-laundering under sub-clause (b), it shall, on an application by the authority authorised to file a complaint under this Act, commit the case relating to the scheduled offence to the Special Court and the Special Court shall, on receipt of such case proceed to deal with it from the stage at which it is committed. (d) a Special Court while trying the scheduled offence or the offence of money-laundering shall hold trial in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), as it applies to a trial bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and if so by whom. In some cases, the accused having not been arrested, the investigation against him may not be complete. Therefore, may not be sufficient material for arriving at a decision that the absconding accused is also a person by whom the offence appears to have been committed. If the investigating officer finds sufficient evidence even against such an accused who has been absconding, the law does not require that filing of the charge sheet must await the arrest of the accused as has been held in paragraph no. 19 in the case of Dinesh Dalmia v. C.B.I, reported in, (2007) 8 SCC 770. Further, so long as the charge sheet is not filed within the meaning of section 173(2) of the Cr.P.C., the investigation remains pending. Filing of final report or charge sheet, however, does not preclude the investigating officer to carry on further investigation in terms of Section 173(8) Cr.P.C. Indisputably, the power of the investigating officer to make a prayer for making further investigation in terms of section 173(8) of the Cr.P.C., is not taken away only because a charge sheet has been filed under section 173(2) Cr.P.C. The further investigation is permissible even if an order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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