Babloo Alias Arvind Dubey vs The State Of Madhya Pradesh

“19.

A charge-sheet is a final report within the meaning of sub-section (2) of Section 173 of the Code. It is 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. The report is ordinarily filed in the form prescribed therefor. One of the requirements for submission of a police report is whether any offence appears to have been committed and, if so, by whom. In some cases, the accused having not been arrested, the investigation against him may not be complete. There may not be sufficient material for arriving at a decision that the absconding accused is also a person by whom the offence appears to have been committed. If the investigating officer finds sufficient evidence even against such an accused who had been absconding, in our opinion, law does not require that filing of the charge-sheet must await the arrest of the accused. ….. ….. …... ….. ….. ….. ….. ….. ….. ……

36.

In Dawood Ibrahim Kaskar [(2000) 10 SCC 438 : 1997 SCC (Cri) 636] this Court held: (SCC p. 446, para 11)

“11.

There cannot be any manner of doubt that the remand and the custody referred to in the first proviso to the above sub-section are different from detention in custody under Section 167. While remand under the former relates to a stage after cognizance and can only be to judicial custody, detention under the latter relates to the stage of investigation and can initially be either in police custody or judicial custody. Since, however, even after cognizance is taken of an offence the police has a power to investigate into it further, which can be exercised only in accordance with Chapter XII, we see no reason whatsoever why the provisions of Section 167 thereof would not apply to a person who comes to be later arrested by the police in course of such investigation. If Section 309(2) is to be interpreted—as has been interpreted by the Bombay High Court in Mansuri [Mohd. Ahmed Yasin Mansuri v. State of Maharashtra, 1994 Cri LJ 1854 (Bom)] —to mean that after the court takes cognizance of an offence it cannot exercise its power of detention in police custody under Section 167 of the Code, the investigating agency would be deprived of an opportunity to interrogate a person arrested during further investigation, even if it can on production of sufficient materials, convince the court that his detention in its (police) custody was essential for that purpose. We are therefore of the opinion that the words ‘accused if in custody’ appearing in Section 309(2) refer and relate to an accused who was before the court when cognizance was taken or when enquiry or trial was being held in respect of him and not to an accused who is subsequently arrested in course of further investigation. So far as the accused in the first category is concerned he can be remanded to judicial custody only in view of Section 309(2), but he who comes under the second category will be governed by Section 167 so long as further investigation continues. That necessarily means that in respect of the latter the court which had taken cognizance of the offence may exercise its power to detain him in police custody, subject to the fulfilment of the requirements and the limitation of Section 167.”

37.

We had noticed the dicta of the Constitution Bench judgment of this Court. At this juncture, we may notice the dicta laid down by this Court in Sanjay Dutt v. State (II) [(1994) 5 SCC 410 : 1994 SCC (Cri) 1433] wherein it was held: [SCC p. 444, para 53(2)(b)]

“53.

(2)(b) The ‘indefeasible right’ of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur [Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri) 1087] is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage.”

38.

It is a well-settled principle of interpretation of statute that it is to be read in its entirety. Construction of a statute should be made in a manner so as to give effect to all the provisions thereof. Remand of an accused is contemplated by Parliament at two stages; pre-cognizance and post-cognizance. Even in the same case, depending upon the nature of charge-sheet filed by the investigating officer in terms of Section 173 of the Code, a cognizance may be taken as against the person against whom an offence is said to have been made out and against whom no such offence has been made out even when investigation is pending. So long a charge-sheet is not filed within the meaning of sub-section (2) of Section 173 of the Code, investigation remains pending. It, however, does not preclude an investigating officer, as noticed hereinbefore, to carry on further investigation despite filing of a police report, in terms of sub-section (8) of Section 173 of the Code.

39.

The statutory scheme does not lead to a conclusion in regard to an investigation leading to filing of final form under sub-section (2) of Section 173 and further investigation contemplated under sub-section (8) thereof. Whereas 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. Such a right does not revive only because a further investigation remains pending within the meaning of sub-section (8) of Section 173 of the Code.”

“33.

In Samaj Parivartan Samudaya [Samaj Parivartan Samudaya v. State of Karnataka, (2012) 7 SCC 407 : (2012) 3 SCC (Cri) 365] , a three-Judge Bench of this Court, while dealing with illegal mining in Andhra Pradesh and Karnataka, issued directions to CBI to investigate the entire matter (despite private complaints already pending and being investigated by one or other competent court or investigation agency), as a Central Empowered Committee Report disclosed fresh facts as to illegal mining in these States. In a review of the machinery of criminal investigations under CrPC, this Court held : (SCC pp. 421-23, paras 27, 29-31 & 37)

“27.

Once the investigation is conducted in accordance with the provisions of CrPC, a police officer is bound to file a report before the court of competent jurisdiction, as contemplated under Section 173 CrPC, upon which the Magistrate can proceed to try the offence, if the same were triable by such court or commit the case to the Court of Session. It is significant to note that the provisions of Section 173(8) CrPC open with non obstante language that nothing in the provisions of Sections 173(1) to 173(7) shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate. Thus, under Section 173(8), where charge-sheet has been filed, that court also enjoys the jurisdiction to direct further investigation into the offence. (Ref. Hemant Dhasmana v. CBI [Hemant Dhasmana v. CBI, (2001) 7 SCC 536 : 2001 SCC (Cri) 1280] .) This power cannot have any inhibition including such requirement as being obliged to hear the accused before any such direction is made. * * *

29.

While the trial court does not have inherent powers like those of the High Court under Section 482 CrPC or the Supreme Court under Article 136 of the Constitution of India, such that it may order for complete reinvestigation or fresh investigation of a case before it, however, it has substantial powers in exercise of discretionary jurisdiction under Sections 311 and 391 CrPC. In cases where cognizance has been taken and where a substantial portion of investigation/trial has already been completed and where a direction for further examination would have the effect of delaying the trial, if the trial court is of the opinion that the case has been made out for alteration of charge, etc. it may exercise such powers without directing further investigation. (Ref. Sasi Thomas v. State [Sasi Thomas v. State, (2006) 12 SCC 421 : (2007) 2 SCC (Cri) 72] .)

30.

Still in another case, taking the aid of the doctrine of implied power, this Court has also stated that an express grant of statutory power carries with it, by necessary implication, the authority to use all reasonable means to make such statutory power effective. Therefore, absence of statutory provision empowering the Magistrate to direct registration of an FIR would not be of any consequence and the Magistrate would nevertheless be competent to direct registration of an FIR. (Ref. Sakiri Vasu v. State of U.P. [Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 : (2008) 1 SCC (Cri) 440] )

31.

Thus, CrPC leaves clear scope for conducting of further inquiry and filing of a supplementary charge-sheet, if necessary, with such additional facts and evidence as may be collected by the investigating officer in terms of sub-sections (2) to (6) of Section 173 CrPC to the court. To put it aptly, further investigation by the investigating agency, after presentation of a challan (charge-sheet in terms of Section 173 CrPC) is permissible in any case impliedly but in no event is impermissible. * * *

37.

We may notice that the investigation of a case or filing of charge-sheet in a case does not by itself bring the absolute end to exercise of power by the investigating agency or by the court. Sometimes and particularly in the matters of the present kind, the investigating agency has to keep its options open to continue with the investigation, as certain other relevant facts, incriminating materials and even persons, other than the persons stated in the FIR as accused, might be involved in the commission of the crime. The basic purpose of an investigation is to bring out the truth by conducting fair and proper investigation, in accordance with law and ensure that the guilty are punished.”

“12.

The case of Dinesh Dalmia v. CBI [(2007) 8 SCC 770 : (2008) 1 SCC (Cri) 36] , which is relied upon by the High Court, relates to granting of bail under Section 167(2) CrPC. In the said case, the absconder-accused (Dinesh Dalmia) after his arrest was produced before the Magistrate, and on the request of CBI, police custody was granted on 14-2-2006 till 24-2-2006, whereafter on another application further police custody was granted till 8-3-2006. The said accused was remanded to judicial custody, and the accused sought statutory bail under sub-section (2) of Section 167 CrPC as no charge-sheet was filed against him by CBI within sixty days of his arrest. The Magistrate rejected the application for statutory bail on the ground that it was a case of further investigation after filing of the charge-sheet, and the remand of the accused to judicial custody was under Section 309 CrPC, after police remand came to an end, granted under Section 167(2) CrPC. The High Court upheld the said order and this Court also affirmed the view taken by the High Court.

13.

In view of the above facts, in the present case, in our opinion, the High Court is not justified on the basis of Dinesh Dalmia [(2007) 8 SCC 770 : (2008) 1 SCC (Cri) 36] in upholding the refusal of remand in police custody by the Magistrate, on the ground that the accused stood in custody after his arrest under Section 309 CrPC. We have already noted above the principle of law laid down by the three-Judge Bench of this Court in State v. Dawood Ibrahim Kaskar [(2000) 10 SCC 438 : 1997 SCC (Cri) 636] that police remand can be sought under Section 167(2) CrPC in respect of an accused arrested at the stage of further investigation, if the interrogation is needed by the investigating agency. This Court has further clarified in the said case that the expression “accused if in custody” in Section 309(2) CrPC does not include the accused who is arrested on further investigation before supplementary charge-sheet is filed.”

“7.

A reading of the above extracted paragraphs, do imminently reveal, that the filing of a charge-sheet, even against an absconding accused, does thereby tantamount to the investigation(s), in respect of the relevant FIR, thus becoming concluded, but it is also expostulated thereins that thereby, the investigating officer concerned, is not precluded, to carry further investigation(s), thus in terms of Sub Section (8) of Section 173 of the Cr.P.C.

8.

As a sequel to the above made conclusions, it became ultimately concluded in paragraph No. 29, of the verdict (supra), that only, when a charge-sheet is not filed, and the investigation(s), are pending, thereupon, only the benefit of the proviso appended, to Sub Section (2) of Section 167 Cr.P.C., thus would be available to an offender, but when a charge-sheet is filed rather the said right ceases.

9.

Furthermore, it is also expostulated thereins, that the said right, does not revive only because further investigation(s) remain pending, thus within the meaning of Sub Section (8) of Section 173 of the Cr.P.C.

10.

The result of the above made expostulations, in verdict (supra) rendered by the Hon’ble Apex Court, insofar as they relate, to the facts of the instant case, are that since on 16.12.2021, a charge-sheet became filed against the absconding accused, thus the availment of the statutory privilege of further investigation(s), by the investigating officer, did not enable the private respondent concerned, to claim the benefit of default bail, as contemplated in Section 167 (2) Cr.P.C., nor the learned trial Judge concerned, was thereby well enabled to grant, the said statutory benefit to the private respondent.

11.

Furthermore, the date of the filing of the charge-sheet i.e. 16.12.2021, thus is the relevant date for computing, whether the private respondent, is entitled to become endowed with the benefit of default bail rather in terms of Section 167(2) Cr.P.C., irrespective of his remaining under absconsion.

12.

Moreover, when he became arrested on 25.08.2022 Consequently, when the investigation(s) were closed on the filing of a charge-sheet against the absconding respondent. Therefore, from the said date, the period of 90 days is to be counted but irrespective of the accused being arrested subsequently, given his earlier to his becoming arrested, rather remaining under absconsion.

13.

Moreover, the availment of any statutory privilege by the investigating officer concerned, thus to carry further investigation(s), did not confer, upon the private respondent, any privilege, that thereby the investigation(s), had not ceased nor could he claim a benefit, that thereby there was revival of the investigation(s).”

“5.

It is not disputed at the Bar that charge sheet was filed against various co-accused including petitioner during period of his absconsion on 12.06.2019. The supplementary charge sheet filed after arrest of petitioner was solely based on evidence and material collected during custodial interrogation of petitioner.

5.1

Since charge sheet had originally been filed as early as on 12.06.2019 during state of absconsion of petitioner, it goes without saying that benefit of default bail cannot be made available to petitioner in the given facts and circumstances of the case.”