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TMI Blog2024 (1) TMI 1153X X X X Extracts X X X X X X X X Extracts X X X X ..... upholding the order dated 03.12.2022 passed by the Special Judge (PC Act), CBI-08, New Delhi (hereinafter referred to as the Special Court), by which respondent nos. 1 and 2 have been granted default bail under Section 167(2) Cr.P.C. 3. The short facts giving rise to the present appeal are that an FIR bearing no. RC2242022A0001 came to be registered in CBI, ACVI / SIT, New Delhi on 20.06.2022, on the basis of the complaint lodged by Sh. Vipin Kumar Shukla, DGM, Union Bank of India, Nariman Point, Mumbai, for the offences punishable under Section 120-B r/w Section 409, 420 and 477A of IPC and Section 13(2) r/w Section 13(1)(d) of PC Act, 1988 (hereinafter referred to as the PC Act), against Dewan Housing Finance Corporation Ltd. (DHFL) and 12 other accused persons/companies. It was alleged in the said FIR inter alia that the DHFL, Sh. Kapil Wadhawan, the then Chairman and Managing Director, DHFL, along with 12 other accused persons entered into a criminal conspiracy to cheat the consortium of 17 banks led by Union Bank of India, and in pursuance to the said criminal conspiracy, the said accused persons/entities induced the consortium banks to sanction huge loans aggregating to Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Crl.M.C. No. 6544 of 2022 before the High Court under Section 482 r/w Section 439(2) of Cr.P.C. The High Court vide the impugned order dated 30.05.2023 dismissed the said petition and upheld the order dated 03.12.2022 passed by the Special Court. SUBMISSIONS: 10. The learned ASG, Mr. S.V. Raju for the appellant vehemently submitted that the chargesheet was filed by the appellant-CBI on the completion of the investigation qua 75 accused including the present respondents stating that further investigation qua some other accused was pending, which did not mean that an incomplete chargesheet was filed against the respondents. Learned ASG submitted that report under Section 173 Cr.P.C. filed by the CBI was complete containing all the details as required by law. In the instant case, the statutory bail under Section 167(2) Cr.P.C. has been granted by the courts below after the Special Court took the cognizance of the alleged offences against the respondents, which is against the statutory scheme of the Code. According to him, it is only when a chargesheet is not filed and investigation is kept pending, the benefit of the proviso appended to sub-section (2) of Section 167 of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... error of law. He further submitted that once the bail is granted and interim order staying the operation of such order passed by the High Court is not passed by the Supreme Court, the proceeding partakes the colour of cancellation of bail for which the criteria are absolutely different. 12. Learned Senior Advocate Mr. Amit Desai appearing for the respondent no. 2 adopted the arguments made by the Ld. Senior Advocate Mr. Mukul Rohatgi for the respondent no. 1, and further submitted that the filing of chargesheet was a subterfuge or ruse to defeat the indefeasible right of the respondents conferred under Section 167(2) Cr.P.C. ANALYSIS: 13. In the instant appeal, the main question that falls for our consideration is, whether the respondents were entitled to the benefit of the statutory right conferred under the proviso to sub section 2 of Section 167 Cr.P.C, on the ground that the 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 and though the cognizance of the offence was taken by the special court bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under section 3[(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under 2 [ sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB] or section 376E of the Indian Penal Code (45 of 1860)].] (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. (3)................................... (4)..................................." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. (See Naranjan Singh Nathawan v. State of Punjab [(1952) 1 SCC 118 : 1952 SCR 395 : AIR 1952 SC 106 : 1952 Cri LJ 656] ; Ram Narayan Singh v. State of Delhi [1953 SCR 652 : AIR 1953 SC 277 : 1953 Cri LJ 1113] and A.K. Gopalan v. Government of India [(1966) 2 SCR 427 : AIR 1966 SC 816 : 1966 Cri LJ 602] .) 16. In Suresh Kumar Bhikamchand Jain Vs. State of Maharashtra & Anr. (supra), the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compliance with the provisions of Section 167(2)(a)(ii) in this case. Whether cognizance is taken or not is not material as far as Section 167 CrPC is concerned. The right which may have accrued to the petitioner, had charge-sheet not been filed, is not attracted to the facts of this case. Merely because sanction had not been obtained to prosecute the accused and to proceed to the stage of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficials, NHB officials and other connected issues, further investigation u/s 173 (8) of Cr. PC is continuing. List of additional witnesses and additional documents will be filed as and when required. It is, therefore, humbly prayed that the aforesaid accused persons may be summoned and be tried in accordance with the provisions of law." 19. The Special Court thereafter had taken cognizance of the alleged offences as per the order dated 26.11.2022. It appears that earlier the Special Court had rejected the application of the respondents (accused) seeking statutory bail under Section 167(2) Cr.P.C., however at that time the issue was whether qua the offences against the respondents, period of sixty days or ninety days was applicable for grant of mandatory bail due to non-filing of chargesheet by the investigating agency, and it was held by the Special Court that the period of ninety days was applicable in case of the respondents, in which the chargesheet could be filed by the CBI. The respondents thereafter filed another application under Section 167(2) after the cognizance of the offences was taken by the Special Court, on the ground that the chargesheet filed against them was an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the court. The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 175(5). Nothing more need be stated in the report of the Investigating Officer. It is also not necessary that all the details of the offence must be stated. The details of the offence are required to be proved to bring home the guilt to the accused at a later stage i.e. in the course of the trial of the case by adducing acceptable evidence." 22. In view of the above settled legal position, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 had been absconding, in our opinion, law does not require that filing of the charge-sheet must await the arrest of the accused. 20. Indisputably, the power of the investigating officer to make a prayer for making further investigation in terms of sub-section (8) of Section 173 is not taken away only because a chargesheet under sub-section (2) thereof has been filed. A further investigation is permissible even if order of cognizance of offence has been taken by the Magistrate. 21. ........................................... 22. It is true that ordinarily all documents accompany the charge-sheet. But, in this case, some documents could not be filed which were not in the possession of CBI and the same were with GEQD. As indicated hereinbefore, the said documents are said to have been filed on 20-1-2006 whereas the appellant was arrested on 12-2-2006. The appellant does not contend that he has been prejudiced by not filing of such documents with the charge-sheet. No such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to be read in its entirety. Construction of a statute should be made in a manner so as to give effect to all the provisions thereof. Remand of an accused is contemplated by Parliament at two stages; pre-cognizance and post-cognizance. Even in the same case, depending upon the nature of charge-sheet filed by the investigating officer in terms of Section 173 of the Code, a cognizance may be taken as against the person against whom an offence is said to have been made out and against whom no such offence has been made out even when investigation is pending. So long a charge-sheet is not filed within the meaning of sub-section (2) of Section 173 of the Code, investigation remains pending. It, however, does not preclude an investigating officer, as noticed hereinbefore, to carry on further investigation despite filing of a police report, in terms of sub-section (8) of Section 173 of the Code. 39. The statutory scheme does not lead to a conclusion in regard to an investigation leading to filing of final form under sub-section (2) of Section 173 and further investigation contemplated under sub-section (8) thereof. Whereas only when a charge-sheet is not filed and investigation is ke ..... X X X X Extracts X X X X X X X X Extracts X X X X
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