TaxTMI 
TaxTMI 
TaxTMI 
2007 (9) TMI 686
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....ntral Bureau of Investigation (CBI) lodged a first information report against the appellant and three companies registered and incorporated under the Companies Act, 1956 on a complaint made by the Securities and Exchange Board of India. Indisputably, Appellant was named therein. He was, however, evading arrest. He had gone to the United States. The learned Magistrate by an order dated 14.02.2005, on a prayer made in that behalf by the CBI, issued a non-bailable warrant of arrest against him. Upon completion of investigation, a charge sheet was submitted before the Magistrate in terms of Sub-section (2) of Section 173 of the Code. In the said charge sheet, name of the appellant appeared in Column No. 1 along with the said three companies. Name of one of the companies named in the first information report, viz., M/s. DSQ Software Ltd., has been shown in Column No. 2. In the said charge sheet, it was stated: "Investigation has revealed that Sh. Dinesh Dalmia, the then Managing Director & Custodian of properties, including shares, of M/s. DSQ Software Ltd., fraudulently got dematerialized un-allotted and unlisted share of DSQ Software Ltd. In the name of three entities namely New Vis....
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....tion the report of the same will be filed under section 173(8) Cr. PC in due course. The questioned documents have been sent to GEQD for expert opinion, it is still awaited. After being obtained, the same will be submitted with additional list of documents. The list of witnesses and list of documents are enclosed herewith and additional list of documents & witnesses, if necessary, will be submitted in due course. It is, therefore, prayed that this Hon'ble court may be pleased to take cognizance of the offences, issue the process to secure the presence of the accused and they may be tried according to law." 5. Although statements made by the witnesses under Section 161 of the Code accompanied the charge sheet, the relevant documents could not be filed as they were sent for examination before the Government Examiner of Questioned Documents (GEQD). Cognizance was taken by the Magistrate on the said charge sheet by an order dated 25.10.2005. It was specifically noted that non-bailable warrant as against the appellant was still pending. The CBI contended that the appellant entered into India illegally as no endorsement had been made in his passport showing a valid travel und....
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....for remand is not required. Hence this court is inclined to state that the petitioner was remanded to police custody u/s 167(2) Cr.P.C. and thereafter was remanded to judicial custody u/s 309 Cr.P.C." The learned Magistrate further took note of the fact that two other cases have been registered against him by the Calcutta Police. 8. A revision application filed by the appellant herein before the learned Sessions Judge was allowed inter alia relying on or on the basis of the decision of this Court in State Through CBI v. Dawood Ibrahim Kaskar and Others [(2000) 10 SCC 438] stating: "23. Taking into consideration of all these facts and circumstances of the case and principle of law laid down by the Hon'ble Apex Court I feel that in view of the positive conduct of the respondent in relying upon Section 167(2) Cr. P.C. in all their applications (up to the filing of the bail application), the petitioner can also rely upon it and seek necessary orders thereunder, that the respondent is now estopped from pleading opposite to their own previous conduct and that Section 309(2) cannot be applied to a person like the petitioner, who was arrested in the course of further investigation.....
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....t claim the benefit of a benevolent proviso to section 167. Proviso to section 167 is available only to safeguard an innocent person or a person against whom no materials collected in spite of detaining him for 60/90 days. In the instant case abundant materials have been already collected and final report filed. Two years after the cognizance he was apprehended. He was entrusted with police custody only for custodial interrogation. Further investigation may be pending to comply with other formalities. There may be delay to receive opinion from experts and such delay cannot be taken advantage of by invoking the proviso to section 167 Cr.P.C." 10. Appellant is, thus, before us. 11. Mr. Mukul Rohatgi, learned senior counsel appearing on behalf of the appellant, has raised two contentions before us: (i) The charge sheet filed against the appellant and cognizance taken thereupon is illegal and invalid and by reason thereof, a valuable right of the appellant to be released on bail has been taken away. (ii) Even if the charge sheet is legal, the right of the appellant under Sub-section (2) of Section 167 of the Code continued to remain available in the facts and circumstances of t....
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....t of arrest had been issued against him. Whereas the charge sheet was submitted on 24.10.2005, the appellant was arrested only on 12.02.2006. According to Mr. Sharan, the additional documents were filed on 20.01.2006. 15. A charge sheet is a final report within the meaning of Sub-section (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 therefor. 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 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. 16. Indisputably, the power of the investigating officer t....
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....order taking cognizance of the offence. Validity of the said charge sheet is also not in question. Application of Sub-section (2) of Section 173 of the Code vis-`-vis Sub-section (2) of Section 309 must be considered having regard to the aforementioned factual and legal backdrop in mind. 19. Concededly, the investigating agency is required to complete investigation within a reasonable time. The ideal period therefor would be 24 hours, but, in some cases, it may not be practically possible to do so. The Parliament, therefore, thought it fit that remand of the accused can be sought for in the event investigation is not completed within 60 or 90 days, as the case may be. But, if the same is not done with the stipulated period, the same would not be detrimental to the accused and, thus, he, on the expiry thereof would be entitled to apply for bail, subject to fulfilling the conditions prescribed therefor. Such a right of bail although is a valuable right but the same is a conditional one; the condition precedent being pendency of the investigation. Whether an investigation in fact has remained pending and the investigating officer has submitted the charge sheet only with a view to c....
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....g applications for remand of the accused to police custody or judicial remand under Sub-section (2) of Section 167 of the Code stating that the further investigation was pending, would be of no consequence if in effect and substance such orders were being passed by the Court in exercise of its power under Sub-section (2) of Section 309 of the Code. 24. We, however, have no words to deprecate the stand of the CBI. It should have taken a clear and categorical stand in the matter. We, however, are proceeding on the basis that irrespective of the stand taken by the CBI, law will prevail. We may notice the law operating in the field in this behalf. 25. In support of the submission in regard to interpretation of Sub-section (2) of Section 167 and Sub-section (2) of Section 309 of the Code, strong reliance has been placed by Mr. Rohatgi on Central Bureau of Investigation, Special Investigation Cell I, New Delhi v. Anupam J. Kulkarni [(1992) 3 SCC 141] and Dawood Ibrahim Kaskar (supra). In Anupam J. Kulkarni (supra), the question which inter alia arose for consideration of this Court was as to whether the period of remand ordered by an Executive Magistrate in terms of Section 57 of the....
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.... an offence it cannot exercise its power of detention in police custody under Section 167 of the Code, the Investigating Agency would be deprived of an opportunity to interrogate a person arrested during further investigation, even if it can on production of sufficient materials, convince the Court that his detention in its (police) custody was essential for that purpose. We are therefore of the opinion that the words "accused if in custody" appearing in Section 309(2) refer and relate to an accused who was before the Court when cognizance was taken or when enquiry or trial was being held in respect of him and not to an accused who is subsequently arrested in course of further investigation. So far as the accused in the first category is concerned he can be remanded to judicial custody only in view of Section 309(2), but he who comes under the second category will be governed by Section 167 so long as further investigation continues. That necessarily means that in respect of the latter the Court which had taken cognizance of the offence may exercise its power to detain him in police custody, subject to the fulfilment of the requirements and the limitation of Section 167." 27. We h....