Delhi High Court
Habibbur Rahman vs State Of Nct Of Delhi on 29 October, 2024
Author: Subramonium Prasad
Bench: Subramonium Prasad
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 29th OCTOBER, 2024
IN THE MATTER OF:
+ CRL.M.C. 932/2022
HABIBBUR RAHMAN .....Petitioner
Through: Mr. Jayendra Sevada, Advocate.
versus
STATE OF NCT OF DELHI .....Respondent
Through: Mr. Aman Usman, APP for the State
with Mr. Vijay Singh, Mr. Vishal
Bhiduri, Mr. Prince Mishra, Mr.
Darpan Balyan, Mr. Gaurav Wadhwa,
Mr. Sarthak Mann and Mr. Rishabh
Sharma, Advocates.
SI Habib Khan, ER-I, Crime Branch
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
1. The Petitioner has approached this Court challenging the Order dated
20.01.2022 passed by Ld. Additional Sessions Judge-03 (Central), Tis
Hazari Court, Delhi in Criminal Revision No. 26/2022 by which the Ld. ASJ
has rejected the revision petition filed by the Petitioner under Section 397
Cr.P.C and has upheld the Order dated 11.01.2022 passed by the Ld. Chief
Metropolitan Magistrate (CMM), (Central), Tis Hazari Court, Delhi
rejecting the application filed by the Petitioner seeking default bail under
Section 167(2) of Cr.P.C.
2. Shorn of unnecessary details, facts leading to the filing of the present
petition are that secret inputs were received from Special Investigation Unit-
Signature Not Verified
Digitally Signed By:HARIOM
SINGH KIRMOLIYA
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1, Crime Branch, Delhi regarding involvement of some persons based at
Delhi, Rajasthan and Uttar Pradesh in anti-national activities, spying and
espionage. It was informed that some Army Officials were providing highly
classified/confidential information and documents to these persons for
monetary benefits and these activities were taking place in Pokhran,
Rajasthan. It is stated that as per specific secret intel received by SI
Lichhman on 11.07.2021, the Petitioner herein had visited Pakistan and
provided secret classified documents pertaining to Indian Army to Pakistan
through some individuals based in Delhi which is detrimental for the
national security and sovereingty of the country. It is stated that after
verification of the intel, information was reduced to writing and a team was
constituted which was headed by the Complainant. It is stated that the team
reached near the residence of the Petitioner at Pokhran, identity of the
suspect was verified and also cross-verified from the secret informer, and
the premises of the Petitoiner was checked in secret which was found to be
locked.
3. Materail on record indicates that the Petitioner’s location was
ascertained near Diatra, Bikaner-Jaisalmer Highway. It is stated that,
thereafter, the raiding party went there, identity of the suspect was
confirmed by the secret informer and the Petitioner was approached by the
raiding party. It is stated that the Petitioner was apprised of the facts, identity
of the raiding party and, thereafter, five-six passersby were asked to join the
proceedings but they all refused. It is stated that suspect disclosed his
identity as Habib-ur-Rehman (the Petitioner herein) and the polybag which
he was carrying was checked and one yellow coloured A-4 size envelop was
found containing some documents related to armed forces were found on
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SINGH KIRMOLIYA
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which “Confidential” and “Restricted” was found to be written in bold. The
brief description of the documents recovered from the Petitioner are as
under:
“(i) Color copy of Confidential documents related to
Military Training (2 PPs);
(ii) Color copy of Confidential document
Operationalisation of a sensitive Military unit namely
AFSOD;
(iii) Color copy of Confidential Intelligence Summary
May 2021 bearing No.A/10001/WIS/MI-3;
(iv) Color copies of Restricted – Int. Report, bearing
No.DIPAC/3014/AF/IAS dated 03 Jun 21 alongwith two
maps;
(v) Color copies of pages of a report from Confidential
Military Report.”
4. The Petitioner was asked about the documents but he did not give any
satisfactory reply as to how he was in possession of these documents. All the
above documents were taken into police possession and were got verified /
authenticated from the Army HQ, Sena Bhawan, Delhi which confirmed the
authenticity of these documents and informed that the seized documents are
genuine and exist in their record and are classified and sensitive in nature.
Since the documents are classified, any unauthorized disclosure of content
of these documents could be expected to cause damage to national security
or could be prejudicial to the national interest or would embarrass the
Government in its functioning. Consequently, the present FIR No.132/2021
dated 14.07.2021 was registered at Police Station Crime Branch, Delhi
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SINGH KIRMOLIYA
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against the Petitioner for offences punishable under Sections 3 and 9 of the
Official Secrets Act, 1923 (hereinafter referred to as “1923 Act”).
5. The Petitioner was arrested on 14.07.2021. Material on record
indicates that during interrogation, the Petitioner disclosed the name of one
Paramjeet Kumar, Naik Clerk, posted at a Military Establishment in Agra,
UP who was providing him with classified documents in lieu of money. The
Petitioner further disclosed the name of the Pakistan Handler i.e., Rana
Muhammad Qasim Zia @ Alvi @ Moti @ Kamal who was employed with
the Pakistan High Commission (PHC), Chanakya Puri, Delhi to whom the
Petitioner used to supply information so procured from Paramjeet Kumar,
Naik Clerk.
6. The investigation also revealed that the Petitioner was supplying
vegetables, fruits and other consumables to the Supply Platoon of Army
Service Corps located at Pokhran, Rajasthan on the basis of Power of
Attorneys given to him by the actual contractors to whom the contract was
awarded by the Army. The Petitioner was having access to the above Area
of Supply Platoon Army Service Corps, Pokhran. Accused Paramjeet Kumar
was also posted as Naik Clerk with the above Supply Platoon of Army
Service Corps, Pokhran, Rajasthan from 2017 to 2019 where he met the
Petitioner herein. In the year 2019, the Petitioner visited Pakistan along with
his family. Prior to his visit to Pakistan, the Petitioner visited Pakistan High
Commission, Delhi for procuring visa, where he came in contact with Rana
Muhammad Qasim Zia who allured the Petitioner to provide documents
related to Army unit stationed at Pokhran, Rajasthan as the Petitioner was
having access to the area of Army Supply Unit at Pokhran, Rajasthan. It was
on the allurement and inducement of Pakistan High Commission’s official,
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SINGH KIRMOLIYA
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the Petitioner started developing liaison with Naik Clerk Paramjeet Kumar.
It was in the knowledge of the Petitioner that Paramjeet Kumar was in dire
need of money. Taking advantage of the financial situation of Paramjeet
Kumar, the Petitioner induced him. It was on the allurement and inducement
of the Petitioner, the Naik Clerk Paramjeet Kumar started providing
confidential Army documents to the Petitioner. The Petitioner was further
handing over the above classified information / documents to his Pakistan
handler Rana Muhammad Oasim Zia either directly or through accused
Mohsin Khan and the Petitioner was being paid either directly by the said
Pakistan High Commission’s official or through Mohsin Khan. The
classified documents which were recovered from the possession of the
Petitioner were also found stored in the phone memory of accused Naik
Clerk Paramjeet Kumar. The accused Mohsin was being provided money by
Rana Muhammad Qasim Zia (Pakistan High Commission’s official) and
then the said money was being transferred to the Petitioner through his
friends and to the bank accounts of Naik Clerk Paramjeet Kumar and his
family members. In the year 2019, Naik Clerk Paramjeet Kumar was
transferred from the Pokhran Unit to one of the highly sensitive unit of
Indian Army, based in Agra, Uttar Pradesh. The Petitioner and Naik Clerk
Paramjeet Kumar, also remained in touch with each other during this
posting. Investigation further revealed that the Petitioner visited Agra to
meet Paramjeet Kumar where the accused Paramjeet Kumar provided him
with highly classified / confidential information and documents of Indian
Army. During the Petitioner’s visit to Agra to meet Naik Clerk Paramjeet
Kumar, the Petitioner stayed at Mannat Hotel, Sarai Khwaja, Opposite
Petrol Pump, Kheria Mod, VIP Road, Agra, Uttar Pradesh. On the directions
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SINGH KIRMOLIYA
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of accused Mohsin Khan, money forwarding Agent Bablu Patel forwarded
an amount of INR 1,10,000 through five transactions to one Care Chemist.
Care Chemist is located at Bikaner and owner of it is one Harun Rashid R/o
of Bikaner. The said person is the childhood friend of the Petitioner. The
said money was transferred in the above account by accused Mohsin Khan
as share of the Petitioner on the directions of the Petitioner himself on
account of providing classified documents to Pakistani Handler. The said
amount was received by Harun Rashid in his bank account maintained with
Kotak Bank, Ridmalsar Purohitan, Bikaner, Rajasthan. On receipt of the
above amount, Harun Rashid further transferred the money to the Petitioner.
Likewise, an amount of INR 70,000 (through three transactions) was also
transferred by Mohsin Khan into the account of one Sameer Khilji, one of
the meat suppliers from whom the Petitioner used to buy meat. The above
payments were settled towards outstanding payments of the Petitioner by
Sameer Khilji. The Petitioner also managed to transfer the money in the
account of Paramjeet Kumar, his sister Ms. Kavita Bhardwaj, father Shri
Rajesh Kumar and the wife Smt. Pooja through accused Mohsin Khan.
Money Forwarding Agents namely Bablu Patel, Sunny Gupta and Abid have
confirmed the transfer of money to the accounts of known persons of the
Petitioner, accused Paramjeet Kumar and his family members under the
directions of accused Mohsin Khan. Relevant details proving the said
transfer of money have been taken on record from the money transfer
agents, Paytm and concerned banks etc. and concerned persons have also
been examined. The transfer confirmations of money sent to the account of
accused persons and shared with accused Mohsin Khan by the Money
Forwarding Agent through WhatsApp have also been taken on record which
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SINGH KIRMOLIYA
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prove without any doubt that the money was being transferred by the money
forwarding agent to the accused persons on the direction of accused Mohsin
Khan. The investigation further revealed that mobile bearing
No.7881199805 was being used by Rana Muhammad Qasim Zia. On
scrutiny of CDR of mobile number 7881199805, it transpired that the same
was active on two different mobile handsets having IMEIs i.e.,
351632096679712 and 868502034468955 respectively. On search of IMEI
No.351632096679712 through Arjun mobile application on which mobile
SIM bearing calling number 7881199805 was used, is related to mobile
handset model Q MOBILE 181, Company-QMOBILE. Q Mobile is a
Pakistan based company having its Headquarter at Karachi, Pakistan.
Further details regarding mobile handset bearing IMEI number
351632096679712 were searched through Google, which revealed that the
manufacturer of Q MOBILE mobile phone is located at Pakistan. During
investigation further details of IMEI No.868502034468955 (2nd IMEI on
which mobile SIM bearing calling number 7881199805 was used) was
obtained, which on scrutiny revealed that mobile calling number
8905292448, was also used in the above IMEI/handset in which mobile
number 7881199805 was being used. It is pertinent to mention here that SIM
of mobile calling number 8905292448 was provided by the Petitioner to
Rana Muhammad Qasim Zia which the Petitioner procured on the identity of
one of his known Omparkash R/o Bikaner, Rajasthan but the alternate
number mentioned on CAF of mobile no.8905292448 is of the mobile No.
of the Petitioner i.e. 8239078368. During investigation it came on record
that mobile No.8905292448 of his Pakistan Handler Rana Muhammad
Oasim Zia was found saved in the contact list of mobile phone of the
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Digitally Signed By:HARIOM
SINGH KIRMOLIYA
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Petitioner. A chart depicting usage of both the abovementioned mobile
calling numbers being 8905292448 and 7881199805 which were being used
by Rana Muhammad Qasim Zia, Visa Officer, Pakistan High Commission,
has been prepared. A chart depicting connections / links between arrested
accused persons namely, the Petitioner, Naik Clerk Paramjeet Kumar and
Mohsin Khan – with each other with Rana Muhammad Qasim Zia, Visa
Officer, Pakistan High Commission and leakage and supply of classified
information / documents by the accused persons to Rana Muhammad Oasim
Zia, has also been prepared to have a better understanding of the present
episode. Investigation conducted in the matter has further proved that the
accused Paramjeet Kumar was in direct touch with Rana Muhammad Qasim
Zia, Pakistan High Commission’s official. Mobile numbers being used by
Rana Muhammad Qasim Zia found saved in the contacts list of recovered
and seized mobile phone of accused Paramjeet Kumar and also there are
WhatsApp chats between accused Paramjeet Kumar and Rana Muhammad
Qasim Zia found stored in the mobile phone of accused Paramjeet Kumar.
There are other chats with Rana Muhammad Qasim Zia found stored in his
mobile phone on which message / chats status is showing “Delivered”.
During investigation, in one of the mobile phones so recovered and seized
from the possession of accused Paramjeet Kumar, various incriminating,
Highly Confidential material containing top secret and classified
information relating to Indian Army, leakage of which is detrimental to
national security and sovereignty of the country have been found stored.
Accordingly, the printouts of all those documents were taken and were
referred to the office of the Directorate General of Military Intelligence/MI-
9, Army Head Quarter for the purpose of verification which in turn replied
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SINGH KIRMOLIYA
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that the documents are classified and sensitive in nature. Since the
documents are classified, any unauthorized disclosure of content of these
documents could be expected to cause damage to National security or could
be prejudicial to the National interest or would embarrass the Government in
its functioning. Disclosure statements of other arrested accused persons and
further investigation conducted in the present matter clearly prove active
involvement of the Petitioner in the present case. From the investigation
conducted in the matter, it is proved beyond doubt that Rana Muhammad
Qasim Zia in a well-orchestrated criminal conspiracy hatched by him and
acting hand-in-glove with the Petitioner, Naik Clerk Paramjeet Kumar and
Mohsin Khan had procured the highly sensitive / classified information and
documents pertaining to Indian Army from accused Paramjeet Kumar
through the Petitioner and the accused Mohsin Khan. The said confidential
documents were accessed by the accused Paramjeet by virtue of his official
duty and he got access to the same by stealing the same from the rooms of
different officers of AFSOD Unit by using the duplicate key which he got
prepared from a key maker. Accused Mohsin Khan destroyed the mobile
being used by him to contact Rana Muhammad Qasim Zia after the arrest of
the Petitioner and Paramjeet. Accordingly, on the basis of evidence available
on records, disclosure statements of arrested accused persons and the
examination of witnesses etc,. Sections 409/201/381/457/120B/380/457/34
IPC were also added in the present FIR.
7. Since the accused persons were under the judicial custody,
Chargesheet for offences punishable under Sections 3 and 9 of the 1923 Act
read with Sections 409/201/380/381/457/120B/34 IPC was filed on
12.10.2021 against accused persons, namely, the Petitioner, Paramjeet
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Kumar and Mohsin Khan. Supplementary chargesheet was also filed on
07.01.2022. Vide Order dated 17.12.2021, Ministry of Home Affairs, Govt
of India, IS-I Division, in pursuance of the provisions under Sub-Section (3)
of Section 13 of the 1923 Act has authorized DCP Crime, Delhi to lodge a
complaint against the accused persons including the Petitioner herein under
Sections 3 and 9 of the 1923 Act in the present FIR No.132/2021 in a Court
of competent jurisdiction.
8. The Petitioner, thereafter, filed an application under Section 167(2)
Cr.P.C before the Ld. CMM claiming grant of default bail, which was heard
on 11.01.2022, by contending that sanction had not been obtained under
Section 13 of the 1923 Act and, therefore, chargesheet was not a complete
chargesheet, hence, the Petitioner was entitled to default bail after a period
of 60 days from the date of his arrest. The Ld. CMM vide Order dated
11.01.2022 rejected the application of the Petitioner for default bail stating
that just because sanction was not filed it does not mean that investigation is
not complete or chargesheet is incomplete and the chargesheet has been filed
much prior to the filing of the application under Section 167(2) Cr.P.C and,
therefore, right of default bail does not arise. The Ld. CMM also held that
even on merit, the Petitioner does not deserve bail due to gravity and
alarming nature of the offence committed by him. The said Order dated
11.01.2022 passed by the Ld. CMM was challenged before the Revisional
Court under Section 397 Cr.P.C by filing a Criminal Revision No. 26/2022
which was rejected vide the Order dated 20.01.2022. The Ld. Revisional
Court placed reliance upon a Judgment passed by the Apex Court in Suresh
Kumar Bhikamchand Jain vs. State of Maharashtra, (2013) 3 SCC 77 and
held that the filing of the complaint under Section 13(3) of 1923 Act is not a
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sine qua non for filing of the chargesheet because chargesheet was filed
after completion of investigation whereas as the complaint is necessary for
only taking cognizance of the offence and both of them operates in different
fields. The Ld. Revisional Court held that the bar under Section 13(3) of the
1923 Act is only that cognizance cannot be taken without a complaint but
there is no bar in filing of the chargesheet. The Ld. Revisional Court held
that the Petitioner is not entitled to default bail, where Investigating Officer
filed the chargesheet within the stipulated period. The petitioner will not be
entitled to default bail as the Trial Court had not taken cognizance for want
of sanction. Filing of chargesheet is sufficient compliance of Section
167(2)(a)(ii) Cr.P.C. Sanction for the prosecution and filing of chargesheet
on conclusion of investigation are two different aspects. A chargesheet is
filed on conclusion of investigation whereas sanction is filed for prosecution
of the accused persons. They stand on separate footings. The Ld. Revisional
Court further held that the Petitioner cannot seek default bail on the ground
that the chargesheet was filed without sanction and the Court had not taken
cognizance of the offences on the basis of chargesheet within statutory
period of 90 days and the Petitioner filed the application for default bail
before filing of sanction and taking of cognizance of the offences by the trial
Court. Filing of chargesheet without sanction and not taking cognizance
thereof within stipulated period of 90 days did not confer any right upon the
Petitioner to seek default bail. The Ld. Revisional Court held that a mere
statement by Investigating Officer in the end of the chargesheet that further
investigation is pending would not make the chargesheet incomplete. Even
otherwise, an Investigating Officer is entitled to conduct further
investigation to collect further evidence.
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9. It is this Order dated 20.01.2022 passed by the Ld. Revisional Court
which is under challenge in the present petition.
10. Learned Counsel appearing for the Petitioner contends that sanction
under Section 13(3) of 1923 Act is sine qua non for filing of the chargesheet
and any chargesheet filed without sanction under Section 13(3) of 1923 Act
makes the chargesheet incomplete. He states that the maximum punishemnt
for the offences as alleged against the Petitoiner under 1923 Act is only
three years. He states that the Petitoiner was arrested on 14.07.2021 and the
incomplete chartgesheet was filed on 12.10.2021 and the complete
chargesheet was filed only on 07.01.2022 which is beyond the period
prescribed. He states that the chargesheet ought to have been filed within 60
days and, therefore, the Petitoiner ought to have been granted default bail.
He further states that the Investigating Officer and the Complainant in the
present case are same, thereby causing grave prejudice to the Petitioner.
11. Heared learned Counsel appearing for the Parties and perused the
material on record.
12. Section 13(3) of 1923 Act provides that no Court shall take
cognizance of any offence under this Act unless a complaint is made by
order of, or under the authority from the appropriate Government and a
complaint is lodged by an officer empowered by the appropriate
Government in this behalf.
13. Section 13 of the 1923 Act reads as under:
“Section 13. Restriction of trial of offences.
(1) No Court (other than that of a Magistrate of the
first class specially empowered in this behalf by the
[appropriate Government] which is inferior to that of aSignature Not Verified
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District or Presidency Magistrate shall try any offence
under this Act.
(2) If any person under trial before a Magistrate for an
offence under this Act at any time before a charge is
framed claims to be tried by the Court of Session, the
Magistrate shall, if he does not discharge the accused,
commit the case for trial by that Court, notwithstan
ding that it is not a case exclusively triable by that
Court.
(3) No Court shall take cognizance of any offence
under this Act unless upon complaint made by order of,
or under authority from, the [appropriate Government]
or some officer empowered by the [appropriate
Government] in this behalf.
(4) For the purposes of the trial of a person for an
offence under this Act, the offence may be deemed to
have been committed either at the place in which the
same actually was committed or at any place in [India]
in which the offender may be found.
(5) In this section, the “appropriate Government”
means–
(a) in relation to any offences under section 5 not
connected with a prohibited place or with a foreign
power, the State Government; and
(b) in relation to any other offence, the Central
Government.]”
14. A perusal of Section 13(3) of 1923 Act shows that no sanction is
required under the Act for filing of the chargesheet. Even for offences under
the IPC, no sanction is required for filing the charge-sheet.
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15. The contetion of the learned Counsel for the Petitoiner that a
charghsheet filed without a complaint is an incomplete chargesheet is not
tenable as correctly pointed out by the Courts below that the Petitoiner is
accused of offences punishable under Sections 3 and 9 of the 1923 Act read
with Sections 409/201/380/381/457/120B/34 IPC and the chargesheet can be
filed without a complaint and only cognizance cannot be taken without a
complaint and, therefore, it cannot be said that the chargesheet was
incomplete due to lack of complaint.
16. The issue as to whether sanction must be filed along with the
chargesheet has been decided by the Apex Court in Judgebir Singh alias
Jasbir Singh Samra alias Jasbir and Others vs. National Investigation
Agency, 2023 SCC OnLine SC 543, wherein the Apex Court while dealing
with the said case under the Unlawful Activities (Prevention) Act, 1967 and
the Explosive Substances Act, 1908 has observed as under:
“43. We find no merit in the principal argument
canvassed on behalf of the appellants that a
chargesheet filed without sanction is an incomplete
chargesheet which could be termed as not in
consonance with sub section (5) of Section 173 of
the CrPC. It was conceded by the learned counsel
appearing for the appellants that the chargesheet was
filed well within the statutory time period i.e., 180
days, however, the court concerned could not have
taken cognizance of such chargesheet in the absence of
the orders of sanction not being a part of such
chargesheet. Whether the sanction is required or not
under a statute, is a question that has to be considered
at the time of taking cognizance of the offence and not
during inquiry or investigation. There is a marked
distinction in the stage of investigation and
prosecution. The prosecution starts when theSignature Not Verified
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cognizance of offence is taken. It is also to be kept in
mind that cognizance is taken of the offence and not of
the offender. It cannot be said that obtaining sanction
from the competent authorities or the authorities
concerned is part of investigation. Sanction is required
only to enable the court to take cognizance of the
offence. The court may take cognizance of the offence
after the sanction order was produced before the court,
but the moment, the final report is filed along with the
documents that may be relied on by the prosecution,
then the investigation will be deemed to have been
completed. Taking cognizance is entirely different from
completing the investigation. To complete the
investigation and file a final report is a duty of the
investigating agency, but taking cognizance of the
offence is the power of the court. The court in a given
case, may not take cognizance of the offence for a
particular period of time even after filing of the final
report. In such circumstance, the accused concerned
cannot claim their indefeasible right under
Section 167(2) of the CrPC for being released on
default bail. What is contemplated under
Section 167(2) of the CrPC is that the Magistrate or
designated Court (as the case may be) has no powers
to order detention of the accused beyond the period of
180 days or 90 days or 60 days as the case may be. If
the investigation is concluded within the prescribed
period, no right accrues to the accused concerned to be
released on bail under the proviso to Section 167(2) of
the CrPC.
44. Once a final report has been filed with all the
documents on which the prosecution proposes to rely,
the investigation shall be deemed to have been
completed. After completing investigation and
submitting a final report to the Court, the investigating
officer can send a copy of the final report along with
the evidence collected and other materials to the
sanctioning authority to enable the sanctioningSignature Not Verified
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authority to apply his mind to accord sanction.
According sanction is the duty of the sanctioning
authority who is not connected with the investigation at
all. In case the sanctioning authority takes some time
to accord sanction, that does not vitiate the final report
filed by the investigating agency before the Court.
Section 173 of the CrPC does not speak about the
sanction order at all. Section 167 of the CrPC also
speaks only about investigation and not about
cognizance by the Magistrate. Therefore, once a final
report has been filed, that is the proof of completion of
investigation and if final report is filed within the
period of 180 days or 90 days or 60 days from the
initial date of remand of accused concerned, he cannot
claim that a right has accrued to him to be released on
bail for want of filing of sanction order.
xxx
47. From the aforesaid, it is evident that the order
of sanction passed by the competent authority can be
produced and placed on record even after the filing of
the chargesheet. It may happen that the inordinate
delay in placing the order of sanction before the
Special Court may lead to delay in trial because the
competent court will not be able to take cognizance of
the offence without a valid sanction on record. In such
an eventuality, at the most, it may be open for the
accused to argue that his right to have a speedy trial
could be said to have been infringed thereby violating
Article 21 of the Constitution. This may at the most
entitle the accused to pray for regular bail on the
ground of delay in trial. But the same cannot be a
ground to pray for statutory/default bail under the
provisions of Section 167(2) of the CrPC.
48. The chargesheet is nothing but a final report of
police officer under Section 173(2) of the CrPC.
Section 173(2) of the CrPC provides that onSignature Not Verified
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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, 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 reported in (1980) 3 SCC 152 at 157 that the
statutory requirement of the report under Section
173(2) of the CrPC 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) of
the CrPC 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) of the CrPC.
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.
(See K. Veeraswami v. Union of India, (1991) 3 SCC
655.)
xxxSignature Not Verified
Digitally Signed By:HARIOM
SINGH KIRMOLIYA
CRL.M.C. 932/2022 Page 17 of 22
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54. This Court in the case of Suresh Kumar
Bhikamchand Jain (supra) had the occasion to
consider in detail the question whether cognizance of
the chargesheet was necessary to prevent the accused
from seeking default bail or whether mere filing of the
chargesheet would suffice for the investigation to be
deemed complete. The petitioner in the said case was
arrested on 11.03.2012 on the allegation of
misappropriation of amounts meant for development of
slums in Jalgaon City. The petitioner therein was
accused of committing offences punishable under
Sections 120B, 409, 411, 406, 408, 465, 466, 468, 471,
177 and 109 read with Section 34, IPC and also under
Sections 13(1)(c), 13(1)(d) and 13(2) of the Prevention
of Corruption Act, 1988. The contention of the
petitioner therein was that he could not have been
remanded to custody in view of cognizance not being
taken for want of sanction within the statutory period
of 90 days. 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 the period
prescribed therein. This Court held that in the event of
investigation not being completed by the investigating
authorities within the prescribed period, the accused
acquires an indefeasible right to be granted bail, if he
offers to furnish bail. This Court was of the firm view
that 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.
However, once the chargesheet was filed within the
stipulated period, the right of the accused to
statutory/default bail came to an end and the accused
would be entitled to pray for regular bail on merits. It
was held by this Court that the filing of chargesheet is
sufficient compliance with the provisions of proviso (a)Signature Not Verified
Digitally Signed By:HARIOM
SINGH KIRMOLIYA
CRL.M.C. 932/2022 Page 18 of 22
Signing Date:08.11.2024
15:33:42
to Section 167(2) of the CrPC and that taking of
cognizance is not material to Section 167 of the CrPC.
The scheme of CrPC is such that once the stage of
investigation is completed, the court proceeds to the
next stage, which is the taking of cognizance and trial.
During the period of investigation, the accused is
under the custody of the Magistrate before whom he or
she is first produced, with such Magistrate being
vested with the power to remand the accused to police
custody and/or judicial custody, up to a maximum
period as prescribed under Section 167(2) of the
CrPC. Acknowledging the fact that an accused has to
remain in custody of some court, this Court concluded
that on filing of the chargesheet within the stipulated
period, 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 of the CrPC.
This Court clarified that the two stages are different,
with one following the other so as to maintain
continuity of the custody of the accused with a court.”
17. Further, the Apex Court in Suresh Kumar Bhikamchand Jain (supra)
has observed as under:
“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 punishableSignature Not Verified
Digitally Signed By:HARIOM
SINGH KIRMOLIYA
CRL.M.C. 932/2022 Page 19 of 22
Signing Date:08.11.2024
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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 charge-sheet
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)(ii) 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
Signature Not Verified
Digitally Signed By:HARIOM
SINGH KIRMOLIYA
CRL.M.C. 932/2022 Page 20 of 22
Signing Date:08.11.2024
15:33:42
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.”
18. In view of the above, the contention raised by the learned Counsel for
the Petitioner that the chargesheet filed without a complaint is an incomplete
chargesheet cannot be accepted. The second contention of the learned
Counsel for the Petitioner that the chargesheet has been filed beyond the
time prescribed also cannot be accepted for the reason that the Petitioner has
been charged with the offence punishable under Section 409 IPC which
attracts the penalty of life imprisonment and the chargesheet has been filed
Signature Not Verified
Digitally Signed By:HARIOM
SINGH KIRMOLIYA
CRL.M.C. 932/2022 Page 21 of 22
Signing Date:08.11.2024
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within 90 days which is within the time prescribed. The Petitioner is,
therefore, not entitled to default bail under Section 167 Cr.P.C.
19. In view of the above, this Court does not find any merit in the present
case and, therefore, is not inclined to interfere with the Impugned Order
passed by the Ld. Revisional Court.
20. Resultantly, the petition is dismissed, along with pending
application(s), if any.
SUBRAMONIUM PRASAD, J
OCTOBER 29, 2024
S. Zakir
Signature Not Verified
Digitally Signed By:HARIOM
SINGH KIRMOLIYA
CRL.M.C. 932/2022 Page 22 of 22
Signing Date:08.11.2024
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