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SUPREME COURT OF INDIA
BELA M. TRIVEDI, PANKAJ MITHAL, JJ.
Central Bureau of Investigation - Appellant
Versus
Kapil Wadhawan & Anr. - Respondents
Criminal Appeal No. 391 of 2024 (@ Special Leave Petition (Crl.) No. 11775 of 2023)
Decided On : 24-01-2024
(A) Criminal Procedure Code, 1973 – Section 167(2) – Default bail – Right of default bail under Section 167(2) Cr.P.C. is not only a statutory right but is a right that flows from Article 21 of Constitution of India – It is an indefeasible right, nonetheless it is enforceable only prior to filing of challan or charge-sheet, and does not survive or remain enforceable on challan being filed, if already not availed of – Once challan has been filed, question of grant of bail has to be considered and decided only with reference to merits of case under provisions relating to grant of bail to accused after filing of challan. (Para 15)
(B) Criminal Procedure Code, 1973 – Sections 167(2) and 173 – Default bail – Statutory requirement of report under Section 173 (2) would be complied with if various details prescribed therein are included in report – Report is complete if it is accompanied with all documents and statements of witnesses as required by Section 175 (5) – It is not necessary that all details of offence must be stated – Benefit of proviso appended to sub-section (2) of Section 167 of Code would be available to offender only when a charge-sheet is not filed and investigation is kept pending against him – Once charge-sheet is filed, said right ceases – Right of investigating officer to pray for further investigation in terms of sub-section (8) of Section 173 is not taken away only because a charge-sheet is filed under sub-section (2) thereof against accused – Court takes cognizance of offence and not offender – Once from material produced along with charge-sheet, court is satisfied about commission of an offence and takes cognizance of offence allegedly committed by accused, it is immaterial whether further investigation in terms of Section 173(8) is pending or not – Pendency of further investigation qua other accused or for production of some documents not available at the time of filing of charge-sheet would neither vitiate charge-sheet, nor would it entitle accused to claim right to get default bail on the ground that charge-sheet was an incomplete charge-sheet or that charge-sheet was not filed in terms of Section 173(2) of Cr.P.C. (Paras 22 and 23)
(C) Criminal Procedure Code, 1973 – Sections 167(2) and 173 – Grant of default bail – Challenge as to – Complaint lodged for offences punishable under Section 120-B r/w Sections 409, 420 and 477A of IPC and Section 13(2) r/w Section 13(1)(d) of P.C. Act, 1988 – Charge-sheet having been filed against respondents-accused within prescribed time limit and cognizance having been taken by Special Court of offences allegedly committed by them, respondents could not have claimed statutory right of default bail under Section 167(2) on the ground that investigation qua other accused was pending – Both, Special Court as well as High Court having committed serious error of law in disregarding legal position enunciated and settled by this Court, impugned orders deserve to be set aside and accordingly set aside. (Para 25)
Facts of the case:
Appellant-CBI has sought to challenge impugned order dated 30.05.2023 passed by High Court of Delhi upholding order dated 03.12.2022 passed by Special Judge (PC Act), CBI, by which respondent nos. 1 and 2 have been granted default bail under Section 167(2) Cr.P.C.
Findings of Court:
Respondents-accused shall be taken into custody in this case, if released on default bail pursuant to impugned orders. However, observations made in this judgment shall not influence Special Court or High Court while deciding the other proceedings, if any pending before them, on merits.
Result : Appeal allowed.
The legal document primarily addresses the issue of default bail under Section 167(2) of the Criminal Procedure Code (Cr.P.C.) in the context of filing a charge sheet following investigation. The key points are as follows:
Right to Default Bail: The right to default bail is a statutory right that also flows from the constitutional guarantee under Article 21. It is considered an indefeasible right, which means it cannot be taken away once it accrues. However, this right is only enforceable prior to the filing of the charge sheet (challan). Once the charge sheet is filed, the right to claim default bail ceases to exist (!) (!) .
Filing of Charge Sheet and Completeness: A charge sheet is deemed complete if it includes all the details and documents required under the law. The filing of a complete charge sheet within the statutory period is sufficient to extinguish the right to default bail, regardless of whether further investigation on some aspects or against other accused persons is pending (!) (!) .
Effect of Pending Further Investigation: The pendency of further investigation concerning other accused or additional documents not available at the time of filing the charge sheet does not invalidate the charge sheet nor does it entitle the accused to claim default bail. The court's focus is on whether a valid, complete charge sheet has been filed and whether cognizance has been taken (!) (!) .
Timing of Cognizance and Filing of Charge Sheet: The filing of the charge sheet within the prescribed period and the court taking cognizance of the offence are critical. Once these steps are completed, the accused's statutory right to default bail is extinguished, even if investigation remains ongoing against other accused persons or for additional evidence (!) (!) .
Jurisdiction and Legal Procedure: The legal procedure emphasizes that the court's role is to take cognizance of the offence based on the material before it, not the completeness of investigation against all accused. The filing of a charge sheet and the court’s cognizance mark the transition from investigation to trial, and the right to default bail is lost at this point (!) (!) .
Conclusion: If a charge sheet is filed within the statutory period and cognizance is taken, the accused cannot claim the right to default bail on the grounds that the investigation is incomplete or ongoing against other accused. Both the courts below erred by disregarding this legal position, and the orders granting default bail were set aside accordingly (!) (!) .
These points collectively clarify that the filing of a complete charge sheet within the statutory timeline and the subsequent cognizance by the court effectively terminate the right to claim default bail, regardless of ongoing investigations against other accused persons or pending additional documents.
JUDGMENT :
Bela M. Trivedi, J.
1. Leave granted.
2. The appellant-CBI has sought to challenge the impugned order dated 30.05.2023 passed by the High Court of Delhi at New Delhi in CRL. M.C. No. 6544 of 2022 upholding the order dated 03.12.2022 passed by the Special Judge (PC Act), CBI-08, New Delhi (hereinafter referred to as the Special Court), by which respondent nos. 1 and 2 have been granted default bail under Section 167(2) Cr.P.C.
3. The short facts giving rise to the present appeal are that an FIR bearing no. RC2242022A0001 came to be registered in CBI, ACVI / SIT, New Delhi on 20.06.2022, on the basis of the complaint lodged by Sh. Vipin Kumar Shukla, DGM, Union Bank of India, Nariman Point, Mumbai, for the offences punishable under Section 120-B r/w Section 409, 420 and 477A of IPC and Section 13(2) r/w Section 13(1)(d) of PC Act, 1988 (hereinafter referred to as the PC Act), against Dewan Housing Finance Corporation Ltd. (DHFL) and 12 other accused persons/companies. It was alleged in the said FIR inter alia that the DHFL, Sh. Kapil Wadhawan, the then Chairman and Managing Director, DHFL, along with 12 other accused persons entered into a criminal conspiracy to cheat the consortium of 17 banks led by Union Bank of India, and in pursuance to the said criminal conspiracy, the said accused persons/entities induced the consortium banks to sanction huge loans aggregating to Rs. 42,000 crores approx. and thereafter they siphoned off and misappropriated a significant portion of the said funds by falsifying the books of account of DHFL and deliberately and dishonestly defaulted on repayment of the legitimate dues of the said consortium banks, and thereby caused a wrongful loss of Rs. 34,000 crores to the consortium lenders during the period January, 2010 to December, 2019.
4. The respondent no. 1-Kapil Wadhawan and respondent no. 2Dheeraj Wadhawan came to be arrested by the appellant-CBI in connection with the said FIR on 19.07.2022 and were remanded to judicial custody on 30.07.2022.
5. After carrying out the investigation, a chargesheet for the offences under Section 120B r/w Section 206, 409, 411, 420, 424, 465, 468 and 477A of IPC and Section 13(2) r/w 13(1)(d) of PC Act came to be filed by the CBI against 75 persons/entities including the respondent nos. 1 and 2 on 15.10.2022.
6. Respondent nos. 1 and 2 filed an application under Section 167(2) of Cr.P.C. on 29.10.2022 before the Special Court seeking statutory bail on the ground that the chargesheet filed by the CBI was incomplete and no final report as defined under Section 173(2) Cr.P.C. was filed within the statutory period provided under Section 167(2) Cr.P.C., or in the alternative seeking their release from judicial custody in view of lack of jurisdiction of the court as there was no approval under Section 17A of the PC Act as amended in 2018.
7. The Special Court vide the order dated 26.11.2022 held that the Special Court had the jurisdiction to deal with the matter and the bar under Section 17A of the PC Act was not applicable to the facts of the case. By a separate order dated 26.11.2022, the Special Court took the cognizance of the alleged offences against all the 75 accused and issued production warrants against the present respondent nos. 1 and 2 (A-1 and A-2) as also against accused no. 7. The Special Court also issued warrants/summons against the other accused.
8. Thereafter, the Special Court vide the order dated 03.12.2022 holding that the investigation was incomplete and the chargesheet filed was in piecemeal, further held that the respondent nos. 1 and 2 (A-1 and A-2) were entitled to the statutory bail under Section 167(2) Cr.P.C.
9. The appellant-CBI, being aggrieved by the said order dated 03.12.2022 passed by the Special Court filed a petition being Crl.M.C. No. 6544 of 2022 before the High Court under Section 482 r/w Section 439(2) of Cr.P.C. The High Court vide the impugned order dated 30.05.2023 dismissed the said petition and upheld the order dated 03.1
Once chargesheet has been filed within the stipulated time, the question of grant of statutory bail or default does not arise.
(1) Default bail – An incomplete charge-sheet filed without completing investigation cannot be used to defeat right of statutory bail under Section 167(2) of Cr.P.C.(2) Default bail – Investigative a....
The main legal principle established is that the accused is entitled to default bail if the investigation is not completed within the mandated period, as per the legislative intent of section 167(2) ....
The right to default bail under Section 167(2) Cr.P.C. is an indefeasible right that cannot be extinguished by the mere filing of an incomplete chargesheet.
The right to default bail under Section 167(2) of the Cr.P.C. ceases once a charge-sheet is filed, even if MCOCA is invoked subsequently.
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