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High Court Of Delhi
S. RAVINDRA BHAT
TUNDE GBAJA - Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION - Respondents
BAIL APPLN 215 Of 2007
Decided On : 03/19/2007
Held: It is, therefore, settled, that an accused must be held to have availed of his right flowing from the legislative mandate engrafted in the proviso to sub-section (2) of Section 167 of the Code if he has filed an application after the expiry of the stipulated period alleging that no challan has been filed and he is prepared to offer the bail, if ordered, and it is found as a fact that no challan has been filed within the period prescribed from the date of the arrest of the accused. The Supreme Court held that even if the application for bail is listed after some length of time, or even if the Magistrate refuses the application erroneously and the accused moves the higher forum for getting formal order of being released on bail in enforcement of his indefeasible right, then too, filing of challan at that stage would not deprive him of the right, as such course struck a balance between the ‘indefeasible right’ of the accused on failure on the part of the prosecution to file challan within the specified period and the interest of the society, at large in lawfully preventing an accused for being released on bail on account of inaction on the part of the prosecuting agency. (Para 18)
It is well known that the Court takes cognizance of the crime, not the offender. The argument that the respondent filed a charge-sheet, within time, when it did, is not correct. The charge-sheet pertains only to the offence under the Foreigners Act, for which, as per Proviso to Section 167(2) had to be filed within 60 days. But for the other offences, in respect of which the period prescribed, for filing the charge-sheet is 90 days, no charges were indicated. Though the right of the investigating agency to file a supplementary charge-sheet, or a further report (under Section 173(8) pursuant to order of the Court) cannot be disputed, yet the fact remains that there cannot be part charge-sheet, as has been contended in the present case. Therefore, following the decision in S. M. Purtado’s case, as well as the Supreme Court ruling in Uday Mohanlal Acharya, it has to be concluded that the petitioner is entitled to be enlarged on bail. This is without prejudice to such other rights the respondents may have in law, to place further materials in support of the case, before the trial Court.
In view of the above discussion, the petitioner is directed to be enlarged on bail. (Paras 20 and 21)
Result: Application allowed.
S. RAVINDRA BHAT, J.
( 1 ) THE present petitioner/accused is a Nigerian national claiming to be in possession of a valid International passport issued by the Federal Republic of nigeria. He claims bail, and asserts that he has to be released in terms of sections 167 (1) and (2) of the Code of Criminal Procedure (Cr. PC. ).
( 2 ) THE brief facts necessary to decide this application are that the petitioner was apprehended by the Central Bureau of Investigation ( "cbi," hereafter referred to as "the Respondent") on 25. 9. 2006, based on a complaint of one Sh. Vivek Ahlawat intimating it that a consignment of counterfeit bank drafts and postal orders of foreign currency were received by him.
( 3 ) THE Respondent, on receiving the complaint registered the First information Report (FIR) against the accused, namely, M/s Joshua, Eubuoniwa and joseph for offences punishable under section 120 B read with Sec. 489-A to 489-E of IPC. The Respondent raided premises of the Petitioner on suspicion that accused persons were in hiding, but none of them were found there. The petitioner alleged that he and his three other friends, found at the premises were apprehended by the C. B. I and taken into custody for interrogation.
( 4 ) THE Petitioner alleges that he was produced before the concerned magistrate after expiry of 24 hours of his arrest i. e. on 27. 09. 06 and the magistrate sent him to judicial custody and since then he is in custody. He further alleges that even after the expiry of 90 days the Respondent failed to file a charge sheet or a challan against him in respect of the alleged offence for which he was arrested. It is alleged that a part charge sheet was filed against him for his over staying in India, after the expiry of his visa. The visa was valid up to 08. 06. 2006.
( 5 ) THE Petitioner states that on 10. 10. 2006, he applied for bail before the ACMM, which was rejected. The extracts of the order dated 13. 10. 2006 are as follows;
"in so far as the allegations against the accused are concerned, the record reveals that the accused is not a suspect but is an accused in the present case. The accused is a Nigerian national and has been residing in India without a valid passport and visa. His address is yet to be verified. The allegations are of preparation and circulation of fake instruments of foreign currency which has been wide spread international ramification and the accused is reported to be a part of this conspiracy. Keeping in view the allegations involved, no ground for bail is made out. The application is hereby dismissed"
( 6 ) THE petitioner moved the learned Additional Sessions Judge, which too, rejected his bail application on 10. 01. 2007. The extracts of the order dated 10. 01. 2007 are as follows;
"allegations against the applicant are that the applicant has no authority to remain in India accordingly he was charge sheeted under section 14 of arms act. Learned counsel for the applicant has not shown any reasonable ground as to why the applicant who is a foreign national was present in India. Accordingly, I do not find any ground to grant bail to the applicant. Application is hereby dismissed"
( 7 ) THE Respondent in its reply has stated that a complaint by the Senior security Specialist of Federal Express (Fed Ex) alleging that fake postal orders, drafts of foreign countries were being sent to various places through federal Express, by Mr. Joshua and Mr. Eubouwman Nosa Victor was received by it. Thereafter a search was conducted on 25. 9. 2006 at 10. 30 pm and it concluded on 26. 9. 2006 at 01. 30 hrs. The raid was conducted at 120 D, Gokul Apartment, krishna Nagar, Gali No. 5, Safdarjung Enclave, N. Delhi. At that time Mr. Josha was not present at the premises but Mr. Nosa Victor was present along with four other Nigerian Nationals. It is alleged by the Respondent that the Petitioner was one amongst them. The Respondent states that during the raid some incriminating materials were seized. It is also alleged tha
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