The main legal point established in the judgment is the entitlement to statutory bail under Section 167(2) of Cr.P.C. and the distinction between pre-cognizance and post-cognizance stages in determining the applicability of statutory bail.

JUDGMENT

(Prayer: Criminal Original petition filed under Section 482 of the Code of Criminal Procedure, to set aside the order dated 28.06.2023 passed in Crl.MP.No.2402 of 2023 in C.C.No.07 of 2022, on the file of Special Court under TNPID Act, 1997, Chennai and to release the petitioner on bail pending investigation.)

This petition has been filed challenging the order passed by the Special Judge under Tamil Nadu Protection of Interest of Depositors (in Financial Establishments) Act, 1997 (for brevity referred to as ‘special Judge-) in Criminal M.P.No.2402 of 2023, dated 28.06.2023, dismissing the application filed by the petitioner under Section 167(2) of Cr.P.C. seeking for statutory bail.

2. The respondent conducted an investigation in Crime No.16 of 2022 for various offences under the IPC, TANPID Act and Banning of Unregulated Deposit Schemes Act, 2019 (for brevity referred to as -BUDS Act-). The investigation was completed and the final report was filed on 29.12.2022 against 19 named accused persons and the final report was taken on file by the Special Judge in C.C.No.7 of 2022 as against 19 accused persons for various offences under IPC, TANPID Act and BUDS Act.

3. The respondent proceeded to conduct further investigation under Section 173(8) of Cr.P.C. It is to be noted that the petitioner was neither an accused in the FIR or in the final report. In the course of further investigation, the petitioner was arrested and remanded to judicial custody on 23.03.2023. Thus, the petitioner was made as an accused in the case for the first time in the course of further investigation and was remanded to judicial custody.

4. The petitioner continued to remain in detention for more than 90 days from the date of remand and the respondent did not file any further report / supplementary report and hence, the petitioner filed an application seeking for statutory bail under Section 167(2) of Cr.P.C., before the Court below.

5. The Special Judge dismissed the application by order dated 28.06.2023 on the ground that the final report has already been taken cognizance and the petitioner was arrested only in the course of further investigation and therefore, the petitioner cannot claim statutory bail under Section 167(2) of Cr.P.C and at the best, the petitioner can only file a regular bail application which will be considered on the merits of the case. Aggrieved by the same, the present Criminal O.P., has been filed under Section 482 of Cr.P.C.

6. When the matter came up for hearing on 01.08.2023, this Court heard the submissions of either side and passed the following order.

“Heard the learned Counsel appearing on either side and also carefully perused the judgments that were placed before this Court.

2. There are two main issues that emerged based on the submissions made on either side and they are :-

a) The dismissal order passed by the Court below while dismissing the application filed under Section 167(2) of Cr.P.C., cannot be construed as an interlocutory order and it should be taken to be a final order and hence only a Criminal Revision under Section 397 of Cr.P.C., is maintainable and the Criminal Original Petition under Section 482 of Cr.P.C., is not maintainable. This submission was made on the ground that Section 167(2) of Cr.P.C., gives an indefeasible right for an accused to be released on bail and if such an indefeasible right is taken away by virtue of the dismissal of the application, it substantially effects the rights of the accused and hence such an order cannot be construed to be an interlocutory order. In such a case, the order will not fall within the mischief of Section 397(2) of Cr.P.C. Hence a petition under Section 482 of Cr.P.C., is not maintainable.

(b) The Final Report was filed by the respondent Police before the concerned Court as against nineteen accused persons and the same was taken cognizance. Thereafter, a further investigation was taken up by the