Ashok Malhotra vs Central Bureau Of Investigation
2007 Latest Caselaw 2296 Del

JUDGMENT

Reva Khetrapal, J.

1. The petitioner in the present petition prays for issuance of a writ of habeas corpus directing the respondents to release the petitioner from "the arbitrary and illegal confinement/custody" of the Central Bureau of Investigation.

2. The brief facts leading to the filing of the present petition as set out in the petition are as follows. On 03.07.2007, the Central Bureau of Investigation registered a case bearing No. R.C.DAI-2007-A-0025 Under Section 120B/420/468/471 Indian Penal Code r/w 13(2) 13(1)(d) of Prevention of Corruption Act, 1988. A search was conducted at the premises of the petitioner on 27.7.2007 in the presence of the petitioner. No summons for appearance were however served/issued to the present petitioner till 03.08.2007. On the said date, the petitioner was summoned by the CBI for appearance before them on 04.08.2007, after there were media reports about the case and the searches. The petitioner requested the CBI for another date for appearance to join the investigation, and moved an application before the CBI and also before the Court of Shri S.K. Kaushik, the Special Judge, CBI, Delhi, seeking time to appear before CBI since he was out of Delhi, and was willing to appear in the following week. Without adverting to the request of the petitioner for another possible date for joining investigation, the CBI rushed to the Court of the Special Judge, Delhi and obtained non-bailable warrants of arrest against the petitioner on 4th August, 2007 itself.

3. On 5.8.2007 another search was conducted by the CBI at the premises of the petitioner and on 06.08.2007 the petitioner of his own volition surrendered, whereupon he was arrested by the CBI on the same day. The petitioner was produced by the Central Bureau of Investigation before the Court of Shri S.K. Kaushik, Special Judge, Tis Hazari Courts, Delhi on 7.8.2007 and police custody remand for 14 days was granted. While the petitioner was in the custody of the CBI, they registered another case bearing No. RC DAI 0034/A/2007, Under Section 120B/420/468/471 IPC r/w Section 13(2), 13(1)(d) of Prevention of Corruption Act. After twelve days in custody the petitioner was produced from police custody and arrested in another case, being RC DAI 0034/A/2007, and CBI sought further police remand in the second case. The Court was pleased to grant three days police remand of the petitioner to the CBI. The petitioner was again produced in Court and further 10 days police custody remand was given in the second case. Thereafter petitioner was sent to judicial custody in RC DAI 2007-A 0034 Under Section 120B/420/468/471 IPC r/w Section 13(2), 13(1)(d) of Prevention of Corruption Act and remand was extended from time to time.

4. On 5.10.2007, when the period of judicial remand permissible under Section 167 of the Code of Criminal Procedure was expiring in the first case (RC DAI 0025/A/2007), the CBI moved an application for extension of the judicial remand by adding Section 467 of the Indian Penal Code. On 15.10.2007, when the sixty days of permissible remand under Section 167 of Cr.P.C. was expiring in the second case (RC DAI/0034/A/2007), the CBI moved an application for extension of the judicial remand by adding Section 467 Indian Penal Code in that case as well. On 5.11.2007, when the remand of aggregate 90 days in RC DAI-2007-A-0025 was expiring, the CBI filed six charge-sheets (for the alleged 17 instances) without forwarding any documents or statements of witnesses and sought further time to file the same.

5. In view of the fact that the CBI did not submit the statements of the witnesses and the documents, on which the CBI was relying in the case, the Special Judge did not take cognizance of offences in the said charge-sheets, however, on 5.11.2007, he further remanded the petitioner till 7.11.2007. The arguments on the bail application were also heard in part and the matter was adjourned for the next day. On 6.11.2007, the arguments on the bail application of the petitioner were heard by the Special Judge and interim bail was granted to the petitioner till 22.11.2007 with the direction that the petitioner shall surrender on 23.11.2007 before the Court. The petitioner, in compliance of the order dated 6.11.2007 appeared before the learned Special Judge on 23.11.2007 and was taken into custody.

6. On the above facts, the principal contention of Shri Dinesh Mathur, the learned senior counsel for the petitioner is that the order dated 23rd November, 2007 taking the petitioner into custody was not in consonance with the law, in view of the bar under Section 309 of the Code of Criminal Procedure, as the stage of inquiry and/or trial had not been reached. The learned senior counsel further contended that even cognizance of the offences had not been taken by the learned trial court as envisaged by Section 190(1)(b) of the Cr.P.C. in view of the fact that an incomplete charge-sheet had been filed, since the documents and the statements of the witnesses relating to the case had not been filed with the charge-sheet. Accordingly, the remand of the petitioner to custody was illegal and bad in law, being in direct conflict with the proviso to Section 167(2) and Section 309 of the Code. Reliance was placed by Mr. Dinesh Mathur, the learned senior counsel, on the judgment of a Single-Judge of this Court (Hon'ble Mr. Justice S. Ravindra Bhat) in Tunde G. Baja v. Central Bureau of Investigation 2007 (2) JCC 1306 to contend that the filing of a part charge-sheet in respect of some offences, without reference to others mentioned in the First Information Report, did not satisfy the requirement of filing the challan within the period prescribed and the petitioner, therefore, acquired the indefeasible right to be released on bail.

7. Mr. Mathur also contended that the proviso to Section 167(2) of the Code is the only provision in the Code of Criminal Procedure whereunder the power of remand to jail custody is conferred on the Magistrate during the pendency of the investigation, but the proviso specifically provides that the Magistrate shall not authorize the detention of an accused person for a period exceeding 90 days where the investigation relates to offences punishable with death, imprisonment for life or imprisonment for a term not less than 10 years; and 60 days where the investigation relates to any other offences, and, on the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right vests in the accused to be released on bail. Mr. Mathur further contended that the provisions of Section 309(2) of the Code could also not come to the aid of the investigating agency as Sub-section (2) of Section 309 comes into play only after cognizance of an offence is taken by the concerned Magistrate and upon commencement of the trial.

8. Countering the contentions of the learned senior counsel for the petitioner, Mr. R.M. Tewari, the learned Counsel for the Central Bureau of Investigation relied upon the provisions of Section 173(2) of the Code to contend that there was no substance in the arguments of Mr. Mathur. He submitted that the charge-sheet in this case was filed on 05.11.2007 and in the absence of an averment that the charge sheet was not compliant with Section 173(2) of the Code, there was no question of the petitioner having been vested with an indefeasible right to apply for and be released on bail. According to him, Section 167(2) and 190(1)(b) of the Code operate in their own respective fields. While the former Section, which is contained in Chapter XII of the Code, deals with the non-filing of the charge-sheet and the procedure to be followed when the investigation cannot be completed within the stipulated time-frame, Section 190 which is contained in Chapter XIV of the Code, deals with cognizance of offences by the Magistrate and is altogether an independent provision of law. In the instant case, a charge-sheet in compliance with Section 173(2) of the Code of Criminal Procedure having been filed within the stipulated period of 90 days, there was no question of any vested right of bail having devolved upon the petitioner.

9. Shri Tewari also placed reliance upon the provisions of Sub-section (8) of the Section 173 to contend that the filing of the charge-sheet in no manner precludes further investigation as is evident from a bare reading of Sub-section (8) of Section 173 itself. The power of the police to conduct further investigation, even after laying of the final report, he submitted, was legislatively recognized by the enactment of Section 173(8) of the Code. The police report is in the nature of the conclusion/s that an Investigating Officer draws on the basis of the material collected by him during the investigation, and such conclusion/s though can form the basis for a competent court to take cognizance thereupon under Section 190(1)(b) of the Code and to proceed with the trial of the case, in no manner debar or preclude further investigation in respect of offences after a report under Sub-section (2) has been forwarded to the Magistrate.

10. The learned Counsel for the respondent also relied upon the judgments of this Court reported in Taj Singh v. State (Delhi Admn.) 1988 Crl.L.J. 1634 and in Vinay Chandhiok v. the State 1989 Crl.L.J. 1490 to urge that the present petition was not maintainable in view of the judgments of this Court holding that once a charge-sheet had been filed, the accused was not entitled to bail by virtue of the provisions of Sub-section (2) of Section 167 of the Code.

11. Mr. Tewari, the learned Counsel for the respondent also assailed the maintainability of the petition on the ground that a writ of habeas corpus could not be issued by this Court in view of the alternative remedy available to the petitioner of filing a revision petition under Section 397 read with Section 401 of the Code. In this context, reference was made by the learned Counsel for the respondent to a judgment of the Hon'ble Supreme Court in Col. Dr. B. Ramachandra Rao (Dr.) v. The State of Orissa to contend that a writ of habeas corpus cannot be granted to a person committed to the jail custody by a competent court by an order which prima facie does not appear to be without jurisdiction or wholly illegal.

12. In our view, this may or may not be so. We, however, do not deem it expedient to go into the question of maintainability of a writ of habeas corpus in a case such as the present one for the reason that we are satisfied that in the present case what the petitioner, in fact, is seeking is an order of bail pending the trial, in the form of a habeas corpus writ petition, for the offences for which the petitioner has been charge-sheeted. The impugned order of the learned Addl. Sessions Judge dated 23.11.2007 taking the petitioner into custody and continuing his custody without the authority of law is in our view assailable before the learned Single Judge of this Court and no cause has been shown why a direct writ petition to this Court without any special and compelling circumstance ought to be entertained. The petitioner having been denied liberty by the learned trial court, indubitably has the right to seek relief in this Court, but he has to seek his relief in appropriate proceedings before the learned Single Judge.

13. We, therefore, express no opinion on the contentions raised by the learned senior counsel on behalf of the petitioner before this Court, as in our view, the said contentions would be more appropriately dealt with by the learned Single Judge and leave it open to the petitioner to move a petition before the appropriate forum for the grant of the relief claimed by him, making it clear that we have expressed no opinion either directly or indirectly on the merits of the contentions raised before us by both the parties and the learned Single Judge will naturally dispose of the same in accordance with the contentions raised above and the position of law cited by the counsel.

14. The writ petition is accordingly dismissed with the aforesaid observations.

Copy of this order be given dusty to counsel for the parties under the signatures of the Court Master as prayed.