Challenge
2.The appellant-CBI has sought to challenge the impugned order dated 30.05.2023 passed by the High Court of Delhi at New Delhi in CRL. M.C. No. 6544 of 2022 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.
Facts
3.The short facts giving rise to the present appeal are that an FIR bearing no. RC2242022A0001 came to be registered in CBI, AC VI / 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. 42,000 crores approx. and thereafter they siphoned off and misappropriated a significant portion of the said funds by falsifying the books of account of DHFL and deliberately and dishonestly defaulted on repayment of the legitimate dues of the said consortium banks, and thereby caused a wrongful loss of Rs. 34,000 crores to the consortium lenders during the period January, 2010 to December, 2019.
Arrest & custody
4.The respondent no. 1- Kapil Wadhawan and respondent no. 2 Dheeraj Wadhawan came to be arrested by the appellant-CBI in connection with the said FIR on 19.07.2022 and were remanded to judicial custody on 30.07.2022.
5.After carrying out the investigation, a chargesheet for the offences under Section 120B r/w Section 206, 409, 411, 420, 424, 465, 468 and 477A of IPC and Section 13(2) r/w 13(1)(d) of PC Act came to be filed by the CBI against 75 persons/entities including the respondent nos. 1 and 2 on 15.10.2022.
Application filed under section 167(2) crpc on the ground chargesheet was incomplete
6.Respondent nos. 1 and 2 filed an application under Section 167(2) of Cr.P.C. on 29.10.2022 before the Special Court seeking statutory bail on the ground that the chargesheet filed by the CBI was incomplete and no final report as defined under Section 173(2) Cr.P.C. was filed within the statutory period provided under Section 167(2) Cr.P.C., or in the alternative seeking their release from judicial custody in view of lack of jurisdiction of the court as there was no approval under Section 17A of the PC Act as amended in 2018.
Special court by a separate order took cognizance on the offence
7.The Special Court vide the order dated 26.11.2022 held that the Special Court had the jurisdiction to deal with the matter and the bar under Section 17A of the PC Act was not applicable to the facts of the case. By a separate order dated 26.11.2022, the Special Court took the cognizance of the alleged offences against all the 75 accused and issued production warrants against the present respondent nos. 1 and 2 (A-1 and A-2) as also against accused no. 7. The Special Court also issued warrants/summons against the other accused.
Thereafter Special court granted bail under section 167(2) crpc
8.Thereafter, the Special Court vide the order dated 03.12.2022 holding that the investigation was incomplete and the chargesheet filed was in piecemeal, further held that the respondent nos. 1 and 2 (A-1 and A-2) were entitled to the statutory bail under Section 167(2) Cr.P.C.
Hon’ble High Court dismissed the petition filed by the appellant (CBI)
9.The appellant-CBI, being aggrieved by the said order dated 03.12.2022 passed by the Special Court filed a petition being 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.
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 before the consideration of the application of the respondents seeking default bail under Section 167 (2) Cr.P.C.?
15.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 challan or the chargesheet, and 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 the accused after the filing of the challan. The Constitution Bench in Sanjay Dutt vs. State through CBI, Bombay (II) [(1994) 5 SCC 410], while considering the provisions of Section 20(4) (bb) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 read with Section 167 (2) Cr.P.C. had very pertinently held that:-
“.48…………………………”
16.In Suresh Kumar Bhikamchand Jain Vs. State of Maharashtra & Anr. ((2013) 3 SCC 77), the appellant-accused had sought default bail under Section 167(2) on the ground that though the chargesheet 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…………………..”
18.In the instant case as transpiring from the record, the respondents (A1 and A2) were arrested in connection with the FIR in question on 19.07.2022, and the report (the chargesheet) running into about 900 pages under Section 173(2) was filed by the CBI against the respondents along with other 73 accused on 15.10.2022. In the said report it was stated in Para no. 66 that: –
“66. With regard to ascertaining roles of remaining FIR named accused persons namely Sh. Sudhakar Shetry, M/s Amaryllis Realtors & M/s Gulmarg Realtors, remaining CAs (who had audited balance sheets of e-DHFL & Shell companies and who had facilitated the promoters), ultimate beneficiaries/end use of diverted funds through shell companies & other Wadhawan Group Companies, the DHFL officials, insider share trading of DHFL shares, bank officials, 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.”
Two different standpoints of the Special court on deciding default bail
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 15 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 Section167(2) after the cognizance of the offences was taken by the Special Court, on the ground that the chargesheet filed against them was an incomplete chargesheet.
CBI having kept the investigation pending for other accused is to be considered the present chargesheet as incomplete
20.The bone of contention raised by the learned Senior Counsels for the Respondents in this appeal is that the appellant – CBI having kept the investigation open qua other respondents as stated in Para 66 of the chargesheet, the ingredients of Section 173 Cr.P.C. could not be said to have been complied with and therefore the report/ chargesheet under Section 173 could not be said to be a complete chargesheet. It is immaterial whether cognizance has been taken by the court or not. According to them the chargesheet filed against the respondents and others was a subterfuge or ruse to defeat the indefeasible right of the respondents conferred under Section 167(2) Cr.P.C.
Quoting K. Veeraswami vs. Union of India and Others [para.76 on the said judgment] reported in (1991) 3 SCC 655 the Hon’ble Supreme court has held as follows:
Final report explained: Final report is complete if it is accompanied with all the documents section 173(5) crpc
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 the details of the offence must be stated.
Further investigation pending against other accused and non-production of documents while filing charge sheet would not vitiate the chargesheet
23.The benefit of proviso appended to sub-section (2) of Section 167 of the Code would be available to the offender only when a chargesheet is not filed and the investigation is kept pending against him. Once however, a chargesheet 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 sub-section (8) of Section 173 is not taken away only because a chargesheet is filed under sub-section (2) thereof against the accused. Though ordinarily all documents relied upon by the prosecution should accompany the chargesheet, nonetheless for some reasons, if all the documents are not filed along with the chargesheet, that reason by itself would not invalidate or vitiate the chargesheet. 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 chargesheet, 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 qua the other accused or for production of some documents not available at the time of filing of chargesheet would neither vitiate the chargesheet, nor would it entitle the accused to claim right to get default bail on the ground that the chargesheet was an incomplete chargesheet or that the chargesheet was not filed in terms of Section 173(2) of Cr.P.C.
Placing reliance on the judgment Dinesh Dalmia vs. CBI reported in (2007) 8 SCC 770 for the scope of Section 167(2) vis-à-vis Section 173(8) Cr.P.C Apex court has held as follows:
Accused cannot claim default bail on the ground that the investigation against other accused is pending
25.In view of the afore-stated legal position, we have no hesitation in holding that the chargesheet having been filed against the respondents-accused within the prescribed time limit and the cognizance having been taken by the Special Court of the offences allegedly committed by them, the respondents could not have claimed the statutory right of default bail under Section 167(2) on the ground that the investigation qua other accused was pending. Both, the Special Court as well as the High Court having committed serious error of law in disregarding the legal position enunciated and settled by this Court, the impugned orders deserve to be set aside and are accordingly set aside.
Party
CENTRAL BUREAU OF INVESTIGATION VERSUS KAPIL WADHAWAN & ANR – CRIMINAL APPEAL NO. 391 OF 2024 (@ SPECIAL LEAVE PETITION (Crl.) No. 11775 OF 2023) – JANUARY, 24TH 2024 – 2024 INSC 58
https://main.sci.gov.in/supremecourt/2023/31214/31214_2023_13_1501_49727_Judgement_24-Jan-2024.pdf
Further study
SECTION 167 Cr.P.C – AN ORAL APPLICATION FOR GRANT OF DEFAULT BAIL WOULD SUFFICE
SECTION 167(2) Cr.P.C – DEFAULT BAIL SURETY CANNOT BE FURNISHED AFTER FINAL REPORT SUBMITTED
TIME LIMIT TO FURNISH BAIL BOND AND SURETIES IN DEFAULT/MANDATORY BAIL u/s. 167(2) Cr.P.C.
PMLA – ALL THE OFFENCES UNDER THE PMLA ARE COGNIZABLE AND NON-BAILABLE
BAIL REFUSED TILL RECORDING OF STATEMENTS OF PROTECTED WITNESSES
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