Law Web: Whether accused can claim benefit of default bail if investigation regarding other accused is going on?

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 subsection

(8) of Section 173 of the Code.”{Para 38}

25. In view of the afore-stated legal position, we have no hesitation in holding that the chargesheet having been filed against the respondents-accused within the prescribed time limit and the cognizance having been taken by the Special Court of the offences allegedly committed by them, the respondents could not have claimed the statutory right of default bail under Section167(2) on the ground that the investigation qua other accused was pending. Both, the Special Court as well as the High Court having committed serious error of law in disregarding the legal position enunciated and settled by this Court, the impugned orders deserve to be set aside and are accordingly set aside.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 391 OF 2024

( @ SPECIAL LEAVE PETITION (Crl.) No. 11775 OF 2023)

CENTRAL BUREAU OF INVESTIGATION Vs

KAPIL WADHAWAN & ANR

Author: BELA M. TRIVEDI, J.

Dated: JANUARY, 24TH 2024.

Citation: 2024 INSC 58.

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. 2-

Dheeraj 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 03.12.2022 passed by the Special Court.

SUBMISSIONS:

10. The learned ASG, Mr. S.V. Raju for the appellant vehemently

submitted that the chargesheet was filed by the appellant-CBI on

the completion of the investigation qua 75 accused including the

present respondents stating that further investigation qua some

other accused was pending, which did not mean that an

incomplete chargesheet was filed against the respondents.

Learned ASG submitted that report under Section 173 Cr.P.C. filed

by the CBI was complete containing all the details as required by

law. In the instant case, the statutory bail under Section 167(2)

Cr.P.C. has been granted by the courts below after the Special

Court took the cognizance of the alleged offences against the

respondents, which is against the statutory scheme of the Code.

According to him, it is only when a chargesheet is not filed and

investigation is kept pending, the benefit of the proviso appended

to sub-section (2) of Section 167 of the Code would be available to

the offender, however once the chargesheet is filed, the said right

of the accused ceases, and such a right does not revive merely

because a further investigation remains pending within the

meaning of Section 173(8) of the Code. To buttress his

submissions, Mr. S.V. Raju has placed heavy reliance on the

decision in case of Dinesh Dalmia vs. CBI1. He also relied upon

the judgment in M. Ravindran v. Intelligence Officer, Directorate

of Revenue Intelligence2, to submit that where the accused fails

to apply for default bail when his right accrues, and subsequently a

chargesheet, additional complaint or a report seeking extension of

time is preferred before the Magistrate, the right to default bail

would be extinguished.

11. Per contra, the learned Senior Advocate Mr. Mukul Rohatgi for the

respondent no. 1 submitted that the issue of cognizance had

nothing to do with the default bail, in as much as the right under

Section 167(2) is a statutory right, when the chargesheet is not

filed within the prescribed time limit and even if filed, a complete

chargesheet is not filed. According to him, the courts below have

concluded that it was an incomplete chargesheet that was filed by

the CBI, which entitled the respondents to the statutory right of

getting the benefit of default bail under Section 167(2) of Cr.P.C.

Mr. Mukul Rohatgi has relied upon the decision in Suresh Kumar

Bhikamchand Jain Vs. State of Maharashtra & Anr.3 to buttress

his submission that cognizance is not relevant basis for

1 (2007) 8 SCC 770

2 (2021) 2 SCC 485

3 (2013) 3 SCC 77

determining whether the investigation is complete or not for the

purpose of default bail under Section 167(2) Cr.P.C. Reliance is

also placed on the decision in case of Rakesh Kumar Paul vs.

State of Assam4, to submit that if the chargesheet is not filed and

the right for default bail has ripened into the status of

indefeasibility, it cannot be frustrated by the prosecution on any

pretext. Mr. Rohatgi sought to distinguish the Dalmia’s case

(supra) relied upon by Ld. ASG Mr. S.V. Raju by submitting that in

the said case, the accused was absconding and the chargesheet

was already filed, whereas in the instant case, the chargesheet

filed has been held to be incomplete. According to him, the

concurrent findings recorded by two courts, unless perverse

should not be interfered with, even if there was an error of law. He

further submitted that once the bail is granted and interim order

staying the operation of such order passed by the High Court is

not passed by the Supreme Court, the proceeding partakes the

colour of cancellation of bail for which the criteria are absolutely

different.

12. Learned Senior Advocate Mr. Amit Desai appearing for the

respondent no. 2 adopted the arguments made by the Ld. Senior

4 (2017) 15 SCC 67

Advocate Mr. Mukul Rohatgi for the respondent no. 1, and further

submitted that the filing of chargesheet was a subterfuge or ruse to

defeat the indefeasible right of the respondents conferred under

Section 167(2) Cr.P.C.

ANALYSIS:

13. In the instant appeal, the main question that falls for our

consideration is, whether the respondents were entitled to the

benefit of the statutory right conferred under the proviso to sub

section 2 of Section 167 Cr.P.C, on the ground that the

investigation qua some of the accused named in the FIR was

pending, though the report under sub-section (2) of Section 173

(Chargesheet) against respondents along with the other accused

was filed within the prescribed time limit and though the

cognizance of the offence was taken by the special court before

the consideration of the application of the respondents seeking

default bail under Section 167 (2) Cr.P.C.?

14. For better appreciation of the submissions made by the learned

Counsels for the parties, the relevant parts of Section 167 and

Section 173 are reproduced as under: -

“167. Procedure when investigation cannot be completed

in twenty-four hours. –

1. ………………………………..

2. The Magistrate to whom an accused person is forwarded

under this section may, whether he has or has not jurisdiction to

try the case, from time to time, authorise the detention of the

accused in such custody as such Magistrate thinks fit, for a term

not exceeding fifteen days in the whole; and if he has no

jurisdiction to try the case or commit it for trial, and considers

further detention unnecessary, he may order the accused to be

forwarded to a Magistrate having such jurisdiction:

Provided that—

5[(a) the Magistrate may authorise the detention of the

accused person, otherwise than in custody of the police,

beyond the period of fifteen days, if he is satisfied that

adequate grounds exist for doing so, but no Magistrate shall

authorise the detention of the accused person in custody under

this paragraph for a total period exceeding—

(i) ninety days, where the investigation relates to an

offence punishable with death, imprisonment for life or

imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any

other offence, and, on the expiry of the said period of ninety

days, or sixty days, as the case may be, the accused person

shall be released on bail if he is prepared to and does furnish

bail, and every person released on bail under this sub-section

shall be deemed to be so released under the provisions of

Chapter XXXIII for the purposes of that Chapter;]

(b)……………………………………

(c)……………………………………

173. Report of police officer on completion of investigation.

—

(1) Every investigation under this Chapter shall be completed

without unnecessary delay.

6[(1A) The investigation in relation to 3 [an offence under

sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB

or 376E] from the date on which the information was recorded

by the officer in charge of the police station.]

5 Subs. by Act 45 of 1978, sec. 13(a), for paragraph (a) (w.e.f. 18-12-1978).

6 Inst. By Act 5 of 2009, sec. 16(a) (w.e.f. 31-12-2009).

(2) (i) As soon as it is completed, the officer in charge of the

police station shall forward to a Magistrate empowered to take

cognizance of the offence on a police report, a report in the

form prescribed by the State Government, stating—

(a) the names of the parties;

(b) the nature of the information;

the circumstances of the case;

(d) whether any offence appears to have been committed and, if

so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so,

whether with or without sureties;

(g) whether he has been forwarded in custody under section

170.

7[(h) whether the report of medical examination of the woman

has been attached where investigation relates to an offence

under 2 [ sections 376, 376A, 376AB, 376B, 376C, 376D,

376DA, 376DB] or section 376E of the Indian Penal Code (45 of

1860)].]

(ii) The officer shall also communicate, in such manner as may

be prescribed by the State Government, the action taken by

him, to the person, if any, by whom the information relating to

the commission of the offence was first given.

(3)……………………………..

(4)……………………………..”

15. There cannot be any disagreement with the well settled legal

position that the 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

7 Ins. By Act 5 of 2009, sec. 16(b) (w.e.f. 31-12-2009).

of the Constitution of India. It is an indefeasible right, nonetheless

it is enforceable only prior to the filing of the challan or the

chargesheet, and does not survive or remain enforceable on the

challan being filed, if already not availed of. Once the challan has

been filed, the question of grant of bail has to be considered and

decided only with reference to the merits of the case under the

provisions relating to grant of bail to the accused after the filing of

the challan. The Constitution Bench in Sanjay Dutt vs. State

through CBI, Bombay (II)8, while considering the provisions of

Section 20(4)(bb) of the Terrorist and Disruptive Activities

(Prevention) Act, 1987 read with Section 167 (2) Cr.P.C. had very

pertinently held that:-

“48. We have no doubt that the common stance before us of the

nature of indefeasible right of the accused to be released on

bail by virtue of Section 20(4)(bb) is based on a correct reading

of the principle indicated in that decision. The indefeasible right

accruing to the accused in such a situation is enforceable only

prior to the filing of the challan and it does not survive or remain

enforceable on the challan being filed, if already not availed of.

Once the challan has been filed, the question of grant of bail

has to be considered and decided only with reference to the

merits of the case under the provisions relating to grant of bail

to an accused after the filing of the challan. The custody of the

accused after the challan has been filed is not governed by

Section 167 but different provisions of the Code of Criminal

Procedure. If that right had accrued to the accused but it

8 (1994) 5 SCC 410

remained unenforced till the filing of the challan, then there is

no question of its enforcement thereafter since it is extinguished

the moment challan is filed because Section 167 CrPC ceases

to apply. The Division Bench also indicated that if there be such

an application of the accused for release on bail and also a

prayer for extension of time to complete the investigation

according to the proviso in Section 20(4)(bb), both of them

should be considered together. It is obvious that no bail can be

given even in such a case unless the prayer for extension of the

period is rejected. In short, the grant of bail in such a situation is

also subject to refusal of the prayer for extension of time, if such

a prayer is made. 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. It is settled by Constitution Bench

decisions that a petition seeking the writ of habeas corpus on

the ground of absence of a valid order of remand or detention of

the accused, has to be dismissed, if on the date of return of the

rule, the custody or detention is on the basis of a valid order.

(See Naranjan Singh Nathawan v. State of Punjab [(1952) 1

SCC 118 : 1952 SCR 395 : AIR 1952 SC 106 : 1952 Cri LJ 656]

; Ram Narayan Singh v. State of Delhi [1953 SCR 652 : AIR

1953 SC 277 : 1953 Cri LJ 1113] and A.K.

Gopalan v. Government of India [(1966) 2 SCR 427 : AIR 1966

SC 816 : 1966 Cri LJ 602] .)

16. In Suresh Kumar Bhikamchand Jain Vs. State of Maharashtra

& Anr. (supra), the appellant-accused had sought default bail

under Section 167(2) on the ground that though the chargesheet

was filed within the stipulated time, the cognizance was not taken

by the court, for want of sanction to prosecute the accused. The

court dispelling the claim of the accused held: -

“17.In our view, grant of sanction is nowhere contemplated

under Section 167 CrPC. What the said section

contemplates is the completion of investigation in respect of

different types of cases within a stipulated period and the

right of an accused to be released on bail on the failure of the

investigating authorities to do so. The scheme of the

provisions relating to remand of an accused, first during the

stage of investigation and, thereafter, after cognizance is

taken, indicates that the legislature intended investigation of

certain crimes to be completed within 60 days and offences

punishable with death, imprisonment for life or imprisonment

for a term of not less than 10 years, within 90 days. In the

event, the investigation is not completed by the investigating

authorities, the accused acquires an indefeasible right to be

granted bail, if he offers to furnish bail. Accordingly, if on

either the 61st day or the 91st day, an accused makes an

application for being released on bail in default of chargesheet

having been filed, the court has no option but to

release the accused on bail. The said provision has been

considered and interpreted in various cases, such as the

ones referred to hereinbefore. Both the decisions in Natabar

Parida case [(1975) 2 SCC 220 : 1975 SCC (Cri) 484] and

in Sanjay Dutt case [(1994) 5 SCC 410 : 1994 SCC (Cri)

1433] were instances where the charge-sheet was not filed

within the period stipulated in Section 167(2) CrPC and an

application having been made for grant of bail prior to the

filing of the charge-sheet, this Court held that the accused

enjoyed an indefeasible right to grant of bail, if such an

application was made before the filing of the charge-sheet,

but once the charge-sheet was filed, such right came to an

end and the accused would be entitled to pray for regular bail

on merits.

18. None of the said cases detract from the position that

once a charge-sheet is filed within the stipulated time, the

question of grant of default bail or statutory bail does not

arise. As indicated hereinabove, in our view, the filing of

charge-sheet is sufficient compliance with the provisions of

Section 167(2)( a )( i i) in this case. Whether cognizance is

taken or not is not material as far as Section 167 CrPC is

concerned. The right which may have accrued to the

petitioner, had charge-sheet not been filed, is not attracted to

the facts of this case. Merely because sanction had not been

obtained to prosecute the accused and to proceed to the

stage of Section 309 CrPC, it cannot be said that the

accused is entitled to grant of statutory bail, as envisaged in

Section 167 CrPC. The scheme of CrPC is such that once

the investigation stage is completed, the court proceeds to

the next stage, which is the taking of cognizance and trial. An

accused has to remain in custody of some court. During the

period of investigation, the accused is under the custody of

the Magistrate before whom he or she is first produced.

During that stage, under Section 167(2) CrPC, the Magistrate

is vested with authority to remand the accused to custody,

both police custody and/or judicial custody, for 15 days at a

time, up to a maximum period of 60 days in cases of offences

punishable for less than 10 years and 90 days where the

offences are punishable for over 10 years or even death

sentence. In the event, an investigating authority fails to file

the charge-sheet within the stipulated period, the accused is

entitled to be released on statutory bail. In such a situation,

the accused continues to remain in the custody of the

Magistrate till such time as cognizance is taken by the court

trying the offence, when the said court assumes custody of

the accused for purposes of remand during the trial in terms

of Section 309 CrPC. The two stages are different, but one

follows the other so as to maintain a continuity of the custody

of the accused with a court.”

17. Again, in Serious Fraud Investigation Office vs. Rahul Modi &

Ors.9, this Court following Suresh Kumar Bhikamchand Jain

(supra) observed: -

“11. It is clear from the judgment of this Court in Bhikamchand

Jain (supra) that filing of a charge-sheet is sufficient compliance

with the provisions of Section 167, CrPC and that an accused

cannot demand release on default bail under Section 167(2) on

the ground that cognizance has not been taken before the

expiry of 60 days. The accused continues to be in the custody

of the Magistrate till such time cognizance is taken by the court

trying the offence, which assumes custody of the accused for

the purpose of remand after cognizance is taken. The

conclusion of the High Court that the accused cannot be

remanded beyond the period of 60 days under Section 167 and

that further remand could only be at the post-cognizance stage,

is not correct in view of the judgment of this Court

in Bhikamchand Jain (supra).”

9 2022 SCC OnLine SC 153

18. In the instant case as transpiring from the record, the respondents

(A1 and A2) were arrested in connection with the FIR in question

on 19.07.2022, and the report (the chargesheet) running into

about 900 pages under Section 173(2) was filed by the CBI

against the respondents along with other 73 accused on

15.10.2022. In the said report it was stated in Para no. 66 that: -

“66. With regard to ascertaining roles of remaining FIR named

accused persons namely Sh. Sudhakar Shetry, M/s Amaryllis

Realtors & M/s Gulmarg Realtors, remaining CAs (who had

audited balance sheets of e-DHFL & Shell companies and who

had facilitated the promoters), ultimate beneficiaries/end use of

diverted funds through shell companies & other Wadhawan

Group Companies, the DHFL officials, insider share trading of

DHFL shares, bank officials, NHB officials and other connected

issues, further investigation u/s 173 (8) of Cr. PC is continuing.

List of additional witnesses and additional documents will be

filed as and when required.

It is, therefore, humbly prayed that the aforesaid accused

persons may be summoned and be tried in accordance with the

provisions of law.”

19. The Special Court thereafter had taken cognizance of the alleged

offences as per the order dated 26.11.2022. It appears that earlier

the Special Court had rejected the application of the respondents

(accused) seeking statutory bail under Section 167(2) Cr.P.C.,

however at that time the issue was whether qua the offences

against the respondents, period of sixty days or ninety days was

applicable for grant of mandatory bail due to non-filing of

chargesheet by the investigating agency, and it was held by the

Special Court that the period of ninety days was applicable in

case of the respondents, in which the chargesheet could be filed

by the CBI. The respondents thereafter filed another application

under Section167(2) after the cognizance of the offences was

taken by the Special Court, on the ground that the chargesheet

filed against them was an incomplete chargesheet.

20. The bone of contention raised by the learned Senior Counsels for

the Respondents in this appeal is that the appellant – CBI having

kept the investigation open qua other respondents as stated in

Para 66 of the chargesheet, the ingredients of Section 173 Cr.P.C.

could not be said to have been complied with and therefore the

report/ chargesheet under Section 173 could not be said to be a

complete chargesheet. It is immaterial whether cognizance has

been taken by the court or not. According to them the chargesheet

filed against the respondents and others was a subterfuge or ruse

to defeat the indefeasible right of the respondents conferred under

Section 167(2) Cr.P.C.

21. In our opinion, the Constitution Bench in K. Veeraswami vs.

Union of India and Others10 has aptly explained the scope of

Section 173(2).

“76. The charge-sheet is nothing but a final report of police

officer under Section 173(2) of the CrPC. The Section 173(2)

provides that on completion of the investigation the police

officer investigating into a cognizable offence shall submit a

report. The report must be in the form prescribed by the State

Government and stating therein (a) the names of the parties; (b)

the nature of the information; (c) the names of the persons who

appear to be acquainted with the circumstances of the case; (d)

whether any offence appears to have been committed and, if

so, by whom (e) whether the accused has been arrested; (f)

whether he had been released on his bond and, if so, whether

with or without sureties; and (g) whether he has been forwarded

in custody under Section 170. As observed by this Court

in Satya Narain Musadi v. State of Bihar [(1980) 3 SCC 152,

157 : 1980 SCC (Cri) 660] that the statutory requirement of the

report under Section 173(2) would be complied with if the

various details prescribed therein are included in the report.

This report is an intimation to the magistrate that upon

investigation into a cognizable offence the Investigating Officer

has been able to procure sufficient evidence for the court to

inquire into the offence and the necessary information is being

sent to the court. In fact, the report under Section 173(2)

purports to be an opinion of the Investigating Officer that as far

as he is concerned he has been able to procure sufficient

material for the trial of the accused by the court. The report is

complete if it is accompanied with all the documents and

statements of witnesses as required by Section 175(5). Nothing

more need be stated in the report of the Investigating Officer. It

is also not necessary that all the details of the offence must be

stated. The details of the offence are required to be proved to

bring home the guilt to the accused at a later stage i.e. in the

course of the trial of the case by adducing acceptable

evidence.”

10 (1991) 3 SCC 655

22. In view of the above settled legal position, there remains no

shadow of doubt that the statutory requirement of the report under

Section 173 (2) would be complied with if the various details

prescribed therein are included in the report. The report under

Section 173 is an intimation to the court that upon investigation

into the cognizable offence, the investigating officer has been able

to procure sufficient evidence for the court to inquire into the

offence and the necessary information is being sent to the court.

The report is complete if it is accompanied with all the documents

and statements of witnesses as required by Section 175 (5). As

settled in the afore-stated case, it is not necessary that all the

details of the offence must be stated.

23. The benefit of proviso appended to sub-section (2) of Section 167

of the Code would be available to the offender only when a

chargesheet is not filed and the investigation is kept pending

against him. Once however, a chargesheet is filed, the said right

ceases. It may be noted that the right of the investigating officer to

pray for further investigation in terms of sub-section (8) of Section

173 is not taken away only because a chargesheet is filed under

sub-section (2) thereof against the accused. Though ordinarily all

documents relied upon by the prosecution should accompany the

chargesheet, nonetheless for some reasons, if all the documents

are not filed along with the chargesheet, that reason by itself

would not invalidate or vitiate the chargesheet. It is also well

settled that the court takes cognizance of the offence and not the

offender. Once from the material produced along with the

chargesheet, the court is satisfied about the commission of an

offence and takes cognizance of the offence allegedly committed

by the accused, it is immaterial whether the further investigation in

terms of Section 173(8) is pending or not. The pendency of the

further investigation qua the other accused or for production of

some documents not available at the time of filing of chargesheet

would neither vitiate the chargesheet, nor would it entitle the

accused to claim right to get default bail on the ground that the

chargesheet was an incomplete chargesheet or that the

chargesheet was not filed in terms of Section 173(2) of Cr.P.C.

24. In Dinesh Dalmia (supra), this Court has elaborately explained

the scope of Section 167(2) vis-à-vis Section 173(8) Cr.P.C. The

paragraphs relevant for the purpose of this appeal are reproduced

hereinbelow: -

“19. A charge-sheet is a final report within the meaning of subsection

(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.

20. Indisputably, the power of the investigating officer to make a

prayer for making further investigation in terms of sub-section

(8) of Section 173 is not taken away only because a chargesheet

under sub-section (2) thereof has been filed. A further

investigation is permissible even if order of cognizance of

offence has been taken by the Magistrate.

21. …………………………………….

22. It is true that ordinarily all documents accompany the

charge-sheet. But, in this case, some documents could not be

filed which were not in the possession of CBI and the same

were with GEQD. As indicated hereinbefore, the said

documents are said to have been filed on 20-1-2006 whereas

the appellant was arrested on 12-2-2006. The appellant does

not contend that he has been prejudiced by not filing of such

documents with the charge-sheet. No such plea in fact had

been taken. Even if all the documents had not been filed, by

reason thereof submission of charge-sheet itself does not

become vitiated in law. The charge-sheet has been acted upon

as an order of cognizance had been passed on the basis

thereof. The appellant has not questioned the said order taking

cognizance of the offence. Validity of the said charge-sheet is

also not in question.

23 to 27.………………………………….

28. It is now well settled that the court takes cognizance of an

offence and not the offender. (See Anil Saran v. State of

Bihar [(1995) 6 SCC 142 : 1995 SCC (Cri) 1051] and Popular

Muthiah v. State [(2006) 7 SCC 296 : (2006) 3 SCC (Cri) 245] .)

29. The power of a court to direct remand of an accused either

in terms of sub-section (2) of Section 167 of the Code or subsection

(2) of Section 309 thereof will depend on the stages of

the trial. Whereas sub-section (2) of Section 167 of the Code

would be attracted in a case where cognizance has not been

taken, sub-section (2) of Section 309 of the Code would be

attracted only after cognizance has been taken.

30. If submission of Mr Rohatgi is to be accepted, the

Magistrate was not only required to declare the charge-sheet

illegal, he was also required to recall his own order of taking

cognizance. Ordinarily, he could not have done so. (See Adalat

Prasad v. Rooplal Jindal [(2004) 7 SCC 338 : 2004 SCC (Cri)

1927] , Subramanium Sethuraman v. State of

Maharashtra [(2004) 13 SCC 324 : 2005 SCC (Cri) 242 : (2004)

7 Scale 733] and Everest Advertising (P) Ltd. v. State, Govt. of

NCT of Delhi [(2007) 5 SCC 54 : (2007) 2 SCC (Cri) 444 : JT

(2007) 5 SC 529] .) It is also well settled that if a thing cannot

be done directly, the same cannot be permitted to be done

indirectly. If the order taking cognizance exists, irrespective of

the conduct of CBI in treating the investigation to be open or

filing applications for remand of the accused to police custody

or judicial remand under sub-section (2) of Section 167 of the

Code stating that the further investigation was pending, would

be of no consequence if in effect and substance such orders

were being passed by the court in exercise of its power under

sub-section (2) of Section 309 of the Code.

31 to 37……………………………………….

38. It is a well-settled principle of interpretation of statute that it