2007 Supreme(SC) 1215

2007(6) Supreme 417
Supreme Court of india
S.B. Sinha & Harjit Singh Bedi, JJ.
(From Madras High Court)
Dinesh Dalmia — Petitioner
versus
C.B.I. — Respondent
Appeal (crl.) 1249 of 2007
[Arising out of SLP (Crl.) No. 513 of 2007]
Decided on : 18-09-2007

important pointS
If sufficient evidence is found even against an absconding accused, filing of the charge sheet may not await the arrest of the absconding accused.
Prayer for further investigation can be made even after filing of charge sheet and taking cognizance.
When an order is in fact passed u/s 309(2); it is of no consequence if the prayer was u/s 167(2).
Once a charge sheet is filed, the right of the accused u/s 167(2) Proviso ceases and it does not revive merely because further investigation remains pending within the meaning of Sub-section (8) of Section 173 of the Code.

Headnote:(a)Code of Civil Procedure, 1973 – Section 167 (2) – A charge sheet is a final report 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 – One of the requirements for submission of a police report is whether any offence appears to have been committed and, if so, by whom – If sufficient evidence is found even against such an accused who had been absconding, filing of the charge sheet may not await the arrest of the absconding accused. (Para 15)

       (b)Code of Criminal Procedure, 1973 – Section 173(8) – The I.O. can make a prayer for further investigation even after filing of charge sheet and taking cognizance. (Para 16)

       (1991) 3 SCC 655 – Relied upon.

       (c)Code of Criminal Procedure, 1973 – Section 309(2) – Although ordinarily all documents accompany the charge sheet and the documents were filed belatedly, as the same was done before arrest of the accused, no prejudice was caused to him on this account. (Para 18)

       (d)Code of Criminal Procedure, 1973 – Section 167(2), Proviso – 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 – Inasmuch as sufficient materials were already available for prosecution of the appellant and further investigation was necessary on certain vital points including end use of the funds; such question did not arise in instant case. (Para 19)

       (e)Code of Criminal Procedure, 1973 – Section 309(2) – Appellant arrested after issue of warrant of arrest and not during further investigation – Conscious of this, the Magistrate taking cognizance of the offence – When an order is in fact passed u/s 309(2); it is of no consequence if the prayer was u/s 167(2) – If the investigation was to be treated as open as contended, the Magistrate would not only be required to declare the charge sheet illegal, but also to recall his own order of taking cognizance which could not ordinarily be done.(Paras 21 to 23)

       (1995) 6 SCC 142; (2006) 7 SCC 296; (2004) 7 SCC 338; 2004 (8) SCALE 733; JT 2007 (5) SC529 – Relied upon.

       (f)Code of Criminal Procedure, 1973 – Sections 167(2), Proviso and 173(8) – 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 and it does not revive merely because a further investigation remains pending within the meaning of Sub-section (8) of Section 173 of the Code. (Para 30)

       (2000) 10 SCC 438; (1994) 5 SCC 410 – Relied upon.

       Facts of the case:

       Appellant was proceeded against for commission of offences under Sections 409, 420 and 120B of the Indian Penal Code.

        The Central 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.

       Appellant, on expiry of 60 days from the date of his arrest, filed an application for statutory bail purported to be in terms of the proviso appended to Sub-section (2) of Section 167 of the Code on the premise that no further charge sheet in respect of the investigation under Sub-section (8) of Section 173 of the Code has been filed. When the said application was pending consideration, the CBI sought for his remand in judicial custody under Sub-section (2) of Section 309 thereof.

       The said application for statutory bail was rejected by the learned Magistrate.

       A revision application filed by the appellant herein before the learned Sessions Judge was allowed.

       The decision of the learned Sessions Judge was over-turned by the High Court by reason of the impugned judgment.

       Findings of the Court:

       There is no infirmity in the judgment of the High Court.

       Result: Appeal dismissed.