TaxTMI 
TaxTMI 
2023 (10) TMI 1295
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....with Section 13(1)(d) of the Prevention of Corruption Act, 1988, wherein the writ petitioner's husband was not named. 3. Subsequently, two supplementary chargesheets were filed, wherein the writ petitioner's husband (hereinafter referred to as "accused") was made a prosecution witness in the supplementary chargesheet dated 26-5-2020. Multiple other supplementary chargesheets were later filed, and the accused was not named in any of the said chargesheets. 4. The investigation was then transferred to another investigating officer, and the accused was then arrested by CBI and was remanded to custody on 28-4-2022. Multiple other supplementary chargesheets were then filed, wherein the accused herein was named as a suspect, and the remand of the accused under Section 309(2) of the Code of Criminal Procedure, 1973 (for short, 'Cr.PC') was renewed and was continued from time to time, and he was never released on default bail. 5. Subsequently, vide I.A No. 37424/2023, the petitioner sought to incorporate additional grounds and prayers for seeking bail in the writ petition, which was allowed by this Court vide order dated 20-2-2023, and interim bail was granted. 6. It....
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....unsel for the parties, the following three issues arise for our consideration :- (I) Can a chargesheet or a prosecution complaint be filed in piecemeal without first completing the investigation of the case? (II) Whether the filing of such a chargesheet without completing the investigation will extinguish the right of an accused for grant of default bail? (III) Whether the remand of an accused can be continued by the trial court during the pendency of investigation beyond the stipulated time as prescribed by the CrPC? PRELIMINARY OBJECTION 10. A preliminary objection has been raised by the Learned Counsel appearing on behalf of the respondent stating that the present writ is not maintainable before this court on grounds that no relief at such an early stage of the investigation can be granted. 11. We have considered the preliminary objection, however, we are not inclined to concur with the same. It must be remembered that our Constitution has entrusted the Supreme Court with the most important task of protecting civil liberties of individuals, and the society at large. These civil liberties, which manifest themselves in the form of f....
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....t in the case of K.K Kochunni, Moopil Nayar v. State of Madras & Ors. - 1959 Supp (2) SCR 316 as early as 1959, has observed that the Court must exercise its jurisdiction in matters where there is an abuse of fundamental rights. The relevant paragraphs of the said judgment are being extracted hereunder : "Further, even if the existence of other adequate legal remedy may be taken into consideration by the High Court in deciding whether it should issue any of the prerogative writs on an application under Article 226 of the Constitution, as to which we say nothing now - this Court cannot, on a similarground, decline to entertain a petition under Article 32, for the right to move this Court by appropriate proceedings for the enforcement of the rights conferred by Part I of the Constitution is itself a guaranteed right. It has accordingly been held by this Court in Romesh Thappar v. State of Madras [1950 SCC 436/1950 SCR 594] that under the Constitution this Court is constituted the protector and guarantor of fundamental rights and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking the protection of this Court against infringement....
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.... in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 61, and there are grounds for believing that the accusation or information is well-founded, the officer in-charge of the police station or the police officer in-charge of the police station or the police officer making the investigation if he is not below the rank of sub-inspector shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (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. If he has not 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 no Magistrate of the third class, and no Magistrate of the second class not spec....
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....ed within 15 days and the final report under section 173 sent to court by then. In actual practice, however, this has frequently been found unworkable. Quite often, a complicated investigation cannot be completed within 15 days, and if the offence is serious, the police naturally insist that the accused be kept in custody. A practice of doubtful legal validity has therefore grown up. The police file before a magistrate a preliminary or "incomplete" report, and the magistrate, purporting to act under Section 344, adjourns the proceedings and remands the accused to custody. In the Fourteenth Report, the Law Commission doubted if such an order could be made under Section 344, as that section is intended to operate only after a magistrate has taken cognizance of an offence, which can be properly done only after a final report under Section 173 has been received, and not while the investigation is still proceeding. We are of the same view, and to us also it appears proper that the law should be clarified in this respect. The use of Section 344 for a remand beyond the statutory period fixed under Section 167 can lead to serious abuse, as an arrested person can in this manner be kept in c....
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....ry detention. The Statement of Objects and Reasons of Cr.P.C., 1973 also refer to the 41st law Commission Report and inter alia reads as follows :- "(2) ..... A comprehensive report for the revision of the Code, namely, the Forty-first Report, was presented by the Law Commission in September, 1969. This report took into consideration the recommendations made in the earlier Reports of the Commission dealing with specific matters namely, the Fourteenth, Twenty-fifth, Thirty-second, Thirty-third, Thirty-sixth, Thirty-seventh and Fortieth Reports. (3) The recommendation of the Commission were examined carefully by the Government, keeping in view, among others, the following basic considerations- (i) an accused person should get a fair trial in accordance with the accepted principles of natural justice; (ii) every effort should be made to avoid delay in investigation and trial which is harmful not only to individuals involved but also to society; and (iii) the procedure should not be complicated and should, to the utmost extent possible, ensure fair deal to the poorer sections of the community. The occasion has been availed of to consider and ado....
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....nalised procedure that protects the interests of the indigent sections of society. This is also another limb of Article 21. Presumption of Innocence is also inbuilt in this provision. An investigating agency has to expedite the process of investigation as a suspect is languishing under incarceration. Thus, a duty is enjoined upon the agency to complete the investigation within the time prescribed and a failure would enable the release of the accused. The right enshrined is an absolute and indefeasible one, ensuring to the benefit of suspect. As a consequence of the right flowing from the said provision, courts will have to give due effect to it, and thus any detention beyond this period would certainly be illegal, being an affront to the liberty of the person concerned. Therefore, it is not only the duty of the investigating agency but also the Courts to see to it that an accused gets the benefit of Section 167(2)." 23. It is also to be noted that as per the scheme of Cr.PC, an investigation of a cognizable case commences with the recording of an FIR under Section 154 Cr.PC. If a person is arrested and the investigation of the case cannot be completed within 24 hours, he ha....
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....was held to be an indefeasible right of the accused even in matters under PMLA. 27. Therefore, in light of the abovementioned discussions, it can be seen that the practice of filing preliminary reports before the enactment of the present CrPC has now taken the form of filing chargesheets without actually completing the investigation, only to scuttle the right of default bail. If we were to hold that chargesheets can be filed without completing the investigation, and the same can be used for prolonging remand, it would in effect negate the purpose of introducing Section 167(2) of the CrPC and ensure that the fundamental rights guaranteed to accused persons is violated. 28. We have carefully perused the judgments relied upon by the Learned Counsel for the respondent, however, none of the judgments relied upon permit the abuse of remand under Section 309(2) of the CrPC by permitting the filing of incomplete chargesheets only to scuttle the right of statutory bail. 29. The judgment in State of West Bengal v. Salap Service Station & Ors. - 1994 Supp (3) SCC 318 relied upon by the respondent was rendered, not in the context of default bail, but only in the context of en....