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GAHC030003522024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./57/2024
Yogesh Sarda
House No. 21, Bye-Lane No. 9, Lalchitnagar, Guwahati, Assam
VERSUS
State of Mizoram
Aizawl
Advocate for the Petitioner : Mr. T Lalnunsiama
Advocate for the Respondent : P.P./Addl.PP, Mizoram (Assisted by Mr. Lalfakawma)
BEFORE
HON’BLE MRS. JUSTICE MALASRI NANDI
O R D E R
31.07.2024
1. Heard Mr. M. Phukan, learned counsel appearing for the accused petitioner.
Also heard Mr. N. Kaushik, learned Senior counsel representing the informant as
well as Ms. Linda Fambawl, learned P.P., Mizoram appearing for the State
respondent.
2. By filing this petition under Section 439 Cr.P.C., the accused-petitioner,
namely, Yogesh Sarda, has prayed for grant of bail in connection with Aizawl
P.S. Case No.96/2024 under Sections 408/467/468/34 of IPC.
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3. The brief fact of the case is that an FIR has been lodged at Aizwal police by
one Ankit Bagree, an authorized signatory of Mahindra and Mahindra Financial
Services Ltd.(hereinafter referred to as company) stating inter alia that during
routine verification conducted by the company, the area business manager Mr.
Zakir Habibur Hussain submitted B-Extracts of registration certificate for several
vehicles upon instructions. Purportedly, the B-Extracts displayed the same QR code
but different numbers suggesting forgery. The informant alleged that Mr. Zakir
Habibur Hussain along with some car dealers, borrowers, employees and unknown
others cheated the company by fabricating RTO records to secure loans. The
informant’s company has identified nine cases and initiated in-house investigation
on the overall live portfolio done under Zakir Hussain. The FIR further reveals that
Mr. Zakir Hussain along with his subordinates Mr. Joseph Vel Ralte and Mr. Eden
Thara as the prime suspects in the case.
4. The case of the petitioner is that he was arrested on the statement of the
prime accused Zakir Hussain. The only allegation against the petitioner is that he
had purportedly received some money from the prime accused of this case.
Though the search operation was conducted in the residence of the petitioner but
no any incriminating material was recovered from his residence.
5. A plain reading of the FIR reveals that the allegations primarily are not
limited to forgery but the use of forged seals and documents of the company,
impersonation, criminal breach of trust and the opening of unauthorized bank
accounts.
6. It was urged by the learned counsel for the petitioner that the accused
petitioner has been languishing in judicial custody for last 94 days. During
investigation involvement of 20 accused persons has been established and charge
sheet has been laid on 10.07.2024 but it is written in the charge-sheet that more
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such complaints would be received by Mizoram police from innocent persons whose
documents were used by the accused for preparing loan files. And investigation is
still under progress as such part charge-sheet has been submitted. Hence,
petitioner is entitled for default bail.
7. It is also the submission of learned counsel for the petitioner that there is no
any criminal offence as alleged, just because they are liable to repay certain
amount of money, this instant case is a clear case of repayment of loan for which
the complainant ought to have approached a civil court for recovery of such
money.
8. Learned counsel for the petitioner has also contended that the only
allegation against the petitioner is the transfer of money from fraud fund and
whether such transfer is reflected of crime or not has to be considered at the time
of trial and cannot be taken into consideration at this juncture. In a criminal trial a
person is always presumed innocent until proven guilty. In view of the presumption
of innocence and co-operation by the petitioner to the police in further
investigation of the case, bail should be granted to the petitioner.
9. It is further submitted by the learned counsel for the petitioner that the
petitioner joined the company as an Employee on 01.12.2010, serving in Guwahati
and at Siliguri for a shorter period. He has been under suspension since May, 2022
and was terminated in January, 2023. The petitioner was holding the post of Senior
Manager, Accounts and was responsible for approving and disbursing files after
issuing the Delivery Order (DO). According to company policy, loan proposals are
first approved by the Branch Accountant, then by the Territory Accountant, before
the DO is issued. Once the DO is issued, the file is transferred to the petitioner for
disbursement. However, since 2019-20, he had delegated his responsibilities to one
Shivaji Sengupta. It is unlikely that someone in his position would engage in such a
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conspiracy to defraud the company.
10. By referring the judgment of Ritu Chabaria vs Union of India and others
reported in (2023) SCC online SC 502, the learned counsel for the petitioner has
pointed out that in the said case Hon’ble Supreme Court has held that incomplete
charge-sheet cannot be used to deny the rights of the accused to ‘default bail’
under Section 167 (2) of Cr.P.C. and Article 21 of the Constitution of India.
11. The further submission of learned counsel for the petitioner is that the
purpose of bail is to ensure the presence of the accused at the time of trial. This
object is thus neither punitive nor preventive. Furthermore, a person who has not
been convicted should only be kept in custody if there are reason to believe that
they might flee from justice or tamper with the evidence or threaten the witnesses.
In the instant case, the question of tampering of the evidence does not arise
because all the evidence available is documentary in nature and in the custody of
the investigating agency.
The learned counsel has also relied on some other case laws-
(i) Arup Deka vs state of Assam in BA 2258/2023
(ii) Dataram vs State of Uttar Pradesh and another
(2018) 3 SCC 22.
(iii) Nira Radia vs Dheeraj Singh and another reported in
(2006) 9 SCC 760.
(iv) Runu Ghosh vs State (CBI) 1996 SCC online Delhi
620.
(v) Nikesh Tarachand Shah vs Union of India and
another (2018)11 SCC 1.
12. Ms. Linda Fambawl, learned Public Prosecutor, Mizoram submits that charge-
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sheet has been laid in connection with this case as such the petitioner may
approach before the trial court seeking regular bail.
13. The learned counsel for the informant has submitted that the accused
persons including the accused petitioner have created fictitious KYC records by
creating false and forged documents. The accused petitioner was employed in the
informant company as area Branch Manager and was later transferred to the
regional office of the company. The accused petitioner along with other co-accused
acted in connivance with each other, have committed the crime which involves the
loss of crores of rupees to the company.
14. The last limb of argument of the learned counsel for the informant is that in
connection with this case, charge-sheet has already been laid. Three/ four FIRs
have been lodged in connection with the alleged fraud in the company. Multiple
investigations involving many conspirators. In connection with the alleged offence
in which the petitioner has prayed for default bail i.e. Aizwal PS Case No. 96/2024
charge-sheet has been laid. But in some other cases on different FIRs the
investigation is still going on. As the charge-sheet has been submitted, the
petitioner cannot claim default bail. The right of the petitioner is to seek regular
bail before the trial court.
15. By relying on the judgment of Y.S. Jaganmohan Reddy vs CBI (2013) 7
SCC 439, the learned counsel for the informant has submitted that this is an
economic offence and Hon’ble Supreme Court in the said case pointed out that
economic offences constitute a class apart and need to be visited with a different
approach in the matter of bail. The economic offence has been deep rooted
conspiracy and involving huge loss of public funds need to be viewed seriously and
considered as grave offences effecting the economy of the country as a whole and
thereby posing serious threat to the financial loss of the country.
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16. Though the learned counsel for the petitioner raised objection by stating that
the offence committed by the petitioner cannot be stated to be economic offence
as because the financial loss is not caused to the state exchequer but to the private
financial institution. The instant case is a case of financial irregularities alleged to
be committed by the accused petitioner along with other co-accused.
In support of his submission, the learned counsel for the informant has placed
reliance on the following case laws:
(i) (1987) 2 SCC 364 (State of Gujrat vs Mohan Lal
Jitamalji Porwal and another).
(ii) (2023) SCC online SC 1486 (Tarun Kr. Vs Assistant
Directorate of Enforcement).
(iii) (2017) 5 SCC 406 (Virupakshappa Gouda and another
vs. State of Karnataka and another).
(iv) (2021) 6 SCC 191 (Naveen Singh vs State of Uttar
Pradesh).
17. Having heard the submission of learned counsel for the parties the main
issue in this case is whether the accused/petitioner would avail the statutory
remedy of default bail when the investigation is pending against the other accused
or charge-sheet is incomplete!
18. Admittedly, the accused petitioner has been detained in custody for last 94
days. The accused petitioner has filed this application seeking bail under Section
439 Cr.P.C. in connection with Aizwal PS Case No. 96/2024. From the charge-sheet,
it reveals that during the investigation, involvement of 20 accused persons has
been established and charge-sheet in C & EO PS Case No. 3/2024 containing 182
pages and charge-sheet for Aizwal PS Case No. 96/2024 containing 114 pages
have been submitted on 25.06.2024 and 10.07.2024 respectively. Investigation is
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still going on and further arrest, seizure may be made as there are other suspects
involved in the case. Supplementary charge-sheet would be submitted as and when
investigation is completed.
19. It is further stated in the charge-sheet that one more case was registered on
the complaint of Dr. Lalneinga on the same subject matter and the case was
registered vide Crime and Economic Offences PS Case No. 05/2024 and is under
investigation. It is expected that more such complaints would be received by
Mizoram police from innocent persons whose documents were used by the accused
for preparing fake loan files.
20. In the instant bail application, the main question that falls for consideration is
whether the petitioner was entitled to the benefit of statutory right conferred under
the proviso II sub Section 2 of Section 167 Cr.P.C. on the ground that the
investigation against some of the accused named in the FIR was pending, though
the report under Sub Section 2 of Section 173 (charge-sheet) against the present
petitioner along with other co-accused was filed within the prescribed time limit. As
such whether the accused petitioner is entitled for ‘default bail’.
21. For better appreciation of the submission made by the learned counsel for
the parties, the relevant part of Section 167(2) and Section 173 are reproduced as
under -
Section 167(2)
“
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 satisfied that adequate grounds exist for doing so, but no
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Magistrate shall authorise the detention of the accused person in custody
under this paragraph for a total period exceeding, -
(i)ninety days, where the investigation relates to an offence punishable
with death, imprisonment for life or imprisonment for a term of not less
than ten years;
(ii)sixty days, where the investigation relates to any other offence, and, on
the expiry of the said period of ninety days, or sixty days, as the case may
be, the accused person shall be released on bail if he is prepared to and
does furnish bail, and every person released on bail under this sub-section
shall be deemed to be so released under the provisions of Chapter XXXIII
for the purposes of that Chapter;]……”
Section 173 Cr.P.C.
Report of police officer on completion of investigation-
“
(1) Every investigation under this Chapter shall be completed without
unnecessary delay.
1A. The investigation in relation to an offence under sections 376, 376A,
376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of the Indian Penal
1
Code shall be completed within two months from the date on which the
information was recorded by the officer in charge of the police station.
(2)(i) As soon as it is completed, the officer in charge of 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 170.
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(h) whether the report of medical examination of the woman has
been attached where investigation relates to an offence under
sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, or
376Eof the Indian Penal Code.
(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 whom the information relating to the commission of the
offence was first given……..”
22. There cannot be any disagreement with the well settled legal position that
the right of default bail under Section 167(2) Cr.P.C. is not only a statutory right but
is a right that flows from Article 21 of the Constitution of India. It is an indefeasible
right, nonetheless it is enforceable only prior to the filing of the charge-sheet and
does not survive or remain enforceable on the charge-sheet being filed, if already
not availed of. Once, charge-sheet has been filed, the question of grant of bail has
to be considered and decided only with reference to the merits of the case under
the provisions relating to the grant of bail to the accused after filing of the charge-
sheet.
22. The constitution Bench in the case of Sanjay Dutt vs State through CBI
(1994) 5 SCC 410 while considering the provisions of Section 20(4)(bb) of the
Terrorist and Disrupted (Prevention) Activities Act, 1987 read with Section 167(2)
Cr.P.C. had very pertinently held that -
48. We have no doubt that the common stance before us of the nature of
“
indefeasible right of the accused to be released on bail by virtue of Section 20(4)
(bb) is based on a correct reading of the principle indicated in that decision. The
indefeasible right accruing to the accused in such a situation is enforceable only
prior to the filing of the challan and it does not survive or remain enforceable on
the challan being filed, if already not availed of. Once the challan has been filed,
the question of grant of bail has to be considered and decided only with reference
to the merits of the case under the provisions relating to grant of bail to an
accused after the filing of the challan. The custody of the accused after the challan
has been filed is not governed by Section 167 but different provisions of the Code
of Criminal Procedure. If that right had accrued to the accused but it remained
unenforced till the filing of the challan, then there is no question of its enforcement
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thereafter since it is extinguished the moment challan is filed because Section 167
CrPC ceases to apply. The Division Bench also indicated that if there be such an
application of the accused for release on bail and also a prayer for extension of
time to complete the investigation according to the proviso in Section 20(4)(bb),
both of them should be considered together. It is obvious that no bail can be given
even in such a case unless 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 Singh v. State of Delhi [1953 SCR
652 : 1952 Cri LJ 656] ; Ram Narayan : AIR 1953 SC 277 Gopalan v. Government
of India [(1966) 2 SCR 427 : 1953 Cri LJ 1113] and A.K. : AIR 1966 SC 816 : 1966
Cri LJ 602].)”
23. In Suresh Kumar Bhikamchand Jain Vs. State of Maharashtra & Anr.
Reported in (2013) 3 SCC 77, the appellant accused had sought default bail under
Section 167(2) on the ground that though the charge-sheet was filed within the
stipulated time, the cognizance was not taken by the court, for want of sanction to
prosecute the accused. The court dispelling the claim of the accused held :
17. In our view, grant of sanction is nowhere contemplated under Section
“
167 CrPC. What the said section contemplates is the completion of
investigation in respect of different types of cases within a stipulated
period and the right of an accused to be released on bail on the failure of
the investigating authorities to do so. The scheme of the provisions
relating to remand of an accused, first during the stage of investigation
and, thereafter, after cognizance is taken, indicates that the legislature
intended investigation of certain crimes to be completed within 60 days
and offences punishable with death, imprisonment for life or imprisonment
for a term of not less than 10 years, within 90 days. In the event, the
investigation is not completed by the investigating authorities, the accused
acquires an indefeasible right to be granted bail, if he offers to furnish
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bail. Accordingly, if on either the 61st day or the 91st day, an accused
makes an application for being released on bail in default of charge-sheet
having been filed, the court has no option but to release the accused on
bail. The said provision has been considered and interpreted in various
cases, such as the ones referred to hereinbefore. Both the decisions in
Natabar Parida case [(1975) 2 SCC 220 : 1975 SCC (Cri) 484] and in
Sanjay Dutt case [(1994) 5 SCC 410 : 1994 SCC (Cri) 1433] were
instances where the charge-sheet was not filed within the period
stipulated in Section 167(2) CrPC and an application having been made for
grant of bail prior to the filing of the charge-sheet, this Court held that the
accused enjoyed an indefeasible right to grant of bail, if such an
application was made before the filing of the charge-sheet, but once the
charge-sheet was filed, such right came to an end and the accused would
be entitled to pray for regular bail on merits.”
24. None of the aforesaid cases detract from the position that once a charge-
sheet is filed within a stipulated time, the question of grant of default bail or
statutory bail does not arise. As indicated hereinabove, the filing of charge-sheet is
sufficient compliance with the provisions of Section 167(2)(a)(ii) in this case. The
right which may have accrued to the petitioner, had charge-sheet not been filed, is
not attracted to the facts of this case. The scheme of Cr.P.C. 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) Cr.P.C. the Magistrate is vested with authority to remand the
accused to custody, both police custody 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 whether 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 custody of
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the Magistrate till such time as cognizance is taken by the court trying the offence,
when the said court assumes custody of the accused for purpose of remand during
the trial in terms of Section 309 Cr.P.C. The two stages are different but one follows
the other so as to maintain continuity of the custody of the accused with the court.
25. Again, in Serious Fraud Investigation Office vs. Rahul Modi & Ors., 2022
SCC Online SC 153, Hon’ble Supreme Court following the case of Suresh Kumar
Bhikamchand Jain (supra) observed:
11. It is clear from the judgment of this Court in Bhikamchand Jain (supra)
“
that filing of a charge-sheet is sufficient compliance with the provisions of
Section 167, CrPC and that an accused cannot demand release on default
bail under Section 167(2) on the ground that cognizance has not been taken
before the expiry of 60 days. The accused continues to be in the custody of
the Magistrate till such time cognizance is taken by the court trying the
offence, which assumes custody of the accused for the purpose of remand
after cognizance is taken. The conclusion of the High Court that the accused
cannot be remanded beyond the period of 60 days under Section 167 and
that further remand could only be at the post-cognizance stage, is not
correct in view of the judgment of this Court in Bhikamchand Jain (supra).”
26. In the instant case, the main contention raised by the learned counsel for the
petitioner is that the investigating agency having kept the investigation open in
connection with other cases as stated in the charge-sheet as such the ingredient of
Section 173 Cr.P.C. could not be said to have been complied with and therefore the
charge-sheet under Section 173 could not be said to be a complete charge-sheet.
According to the learned counsel for the petitioner, the charge-sheet filed against
the accused petitioner and other was a subterfuge or ruse to defeat the
indefeasible right of the accused petitioner conferred under Section 167(2) Cr.P.C.
27. In the case of K. Veeraswami vs. Union of India and Others, (1991) 3
SCC 655 has aptly explained the scope of Section 173(2).
76. The charge-sheet is nothing but a final report of police officer under
“
Section 173(2) of the CrPC. The Section 173(2) provides that on completion
of the investigation the police officer investigating into a cognizable offence
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shall submit a report. The report must be in the form prescribed by the State
Government and stating therein (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 had been released on his bond
and, if so, whether with or without sureties; and (g) whether he has been
forwarded in custody under Section 170. As observed by this Court in Satya
Narain Musadi v. State of Bihar [(1980) 3 SCC 152 , 157 : 1980 SCC (Cri)
660] 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. This report is an intimation to the magistrate that upon
investigation into a 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. In fact, the report
under Section 173(2) purports to be an opinion of the Investigating Officer
that as far as he is concerned he has been able to procure sufficient material
for the trial of the accused 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.”
28. 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 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 173 (5). As settled
in the afore-stated case, it is not necessary that all the details of the offence must
be stated.
29. The benefit of proviso appended to sub-section (2) of Section 167 of the
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Code would be available to the offender only when a charge-sheet is not filed and
the investigation is kept pending against him. Once however, a charge-sheet is
filed, the said right ceases. It may be noted that the right of the investigating
officer to pray for further investigation in terms of subsection (8) of Section 173 is
not taken away only because a charge-sheet is filed under subsection (2) thereof
against the accused. Though ordinarily all documents relied upon by the
prosecution should accompany the charge-sheet, nonetheless for some reasons, if
all the documents are not filed along with the charge-sheet, that reason by itself
would not invalidate or vitiate the charge-sheet. It is also well settled that the court
takes cognizance of the offence and not the offender. Once from the material
produced along with the charge-sheet, the court is satisfied about the commission
of an offence and takes cognizance of the offence allegedly committed by the
accused, it is immaterial whether the further investigation in terms of Section
173(8) is pending or not. The pendency of the further investigation against the
other accused or for production of some documents not available at the time of
filing of charge-sheet would neither vitiate the charge-sheet, nor would it entitle
the accused to claim right to get default bail on the ground that the charge-sheet
was an incomplete charge-sheet or that the charge-sheet was not filed in terms of
Section 173(2) of Cr.P.C.
30. In Dinesh Dalmia vs CBI reported in 2007 (8) SCC 770, Hon’ble Supreme
Court has elaborately explained the scope of Section 167(2) vis-à-vis Section
173(8) Cr.P.C. The relevant paragraphs are reproduced herein below:
19. A charge-sheet is a final report within the meaning of subsection (2) of
“
Section 173 of the Code. It is filed so as to enable the court concerned to
apply its mind as to whether cognizance of the offence thereupon should be
taken or not. The report is ordinarily filed in the form prescribed therefore.
One of the requirements for submission of a police report is whether any
offence appears to have been committed and, if so, by whom. In some
cases, the accused having not been arrested, the investigation against him
may not be complete. There may not be sufficient material for arriving at a
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decision that 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 charge-sheet under sub-section (2) thereof
has been filed. A further investigation is also permissible even if order of
cognizance of offence has been taken by the Magistrate………21-
37……………….
38. It is a well-settled principle of interpretation of statute that it 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 subsection (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 kept
pending, benefit of proviso appended to sub-section (2) of Section 167 of
the Code would be available to an offender; once, however, a charge-sheet
is filed, the said right ceases. Such a right does not revive only because a
further investigation remains pending within the meaning of subsection (8)
of Section 173 of the Code.”
31. In view of the aforesaid legal proposition, this Court is of the opinion that the
charge-sheet having been filed against the accused petitioner within the prescribed
time limit. Hence, the accused petitioner is not entitled to claim the statutory right
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of default bail under Section 167(2) on the ground that the investigation against
some other accused and in some more cases are pending. However, the accused
petitioner would be at liberty to approach before the trial court/Jurisdictional
Magistrate seeking regular bail and in the event of filing any bail application, the
prayer will be considered in accordance with law.
32. Bail application is disposed of accordingly.
JUDGE
Comparing Assistant