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Issue for Consideration: Whether the respondents were entitled to the benefit of the statutory right conferred under the proviso to s.167(2), Cr.P.C, on the ground that the investigation qua some of the accused named in the FIR was pending, though the report u/s.173(2) against respondents along with the other accused was filed within the prescribed time limit and the cognizance of the offence was taken by the special court before the consideration of the application of the respondents seeking default bail u/s.167(2). Code of Criminal Procedure, 1973 – Proviso to s.167(2), s.173 – Statutory right conferred under Proviso to s.167(2) – Benefit of – When entitled to – FIR was registered for the offences punishable u/s.120-B r/w s.409, 420 and 477A, IPC and s.13(2) r/w s.13(1)(d), PC Act, 1988 – Chargesheet for the offences u/s.120B r/w s.206, 409, 411, 420, 424, 465, 468 and 477A, IPC and s.13(2) r/w 13(1)(d), PC Act was filed against 75 persons/ entities including the respondents-accused – Special Court took the cognizance of the alleged offences against all the accused and issued warrants/summons – Subsequently, Special Court holding that the investigation was incomplete and the chargesheet filed was in piecemeal, respondents were granted default bail u/s.167(2) – Order upheld by High Court: Held: The statutory requirement of the report/chargesheet u/s.173(2) would be complied with if the various details prescribed therein are included in the report – It is complete if it is accompanied with all the documents and statements of witnesses as required by s.175(5) and it is not necessary that all the details of the offence must be stated – The benefit of proviso appended to sub-section (2) of s.167 would be available to the offender only when a chargesheet is not filed and the investigation is kept pending against him – However, once a chargesheet is filed, the said right ceases – Thus, 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 s.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 s.173(2) – In the present case, the chargesheet having been filed against the respondents 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 u/s.167(2) on the ground that the investigation qua other accused was pending – Special Court as well as High Court committed serious error of law – Impugned orders set aside. [Paras 22, 23 and 25] Code of Criminal Procedure, 1973 – s.167(2) – Right of default bail – Constitution of India – Article 21: Held: Right of default bail is not only a statutory right but is a right that flows from Article 21 – It is an indefeasible right, however, 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. [Para 15] Code of Criminal Procedure, 1973 – s.173 – Report/chargesheet under: Held: 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 – 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 by itself would not invalidate or vitiate the chargesheet. [Paras 22, 23]Code of Criminal Procedure, 1973 – ss. 173 (2), (8): Held: The right of the investigating officer to pray for further investigation in terms of s.173(8) is not taken away only because a chargesheet is filed under sub-section (2) thereof against the accused. [Para 23] |
