Madras High Court
Michale Raj vs State Rep By on 7 July, 2023
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.R.C.Nos.1351 and 1832 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 20.12.2023
DELIVERED ON : 01.03.2024
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
Crl.R.C.Nos.1351 and 1832 of 2023
Michale Raj ... Petitioner in Crl.R.C.No.1351/2023
S.Sathish ... Petitioner in Crl.R.C.No.1832/2023
Versus
State Rep by
The Additional Superintendent of Police,
Economic Offence Wing-II, CID,
Ashok Nagar, Chennai.
Crime No.7 of 2022. ... Respondent in both Crl.R.Cs.
PRAYER in Crl.R.C.No.1351 of 2023: Criminal Revision petitions filed
under Sections 397 r/w.401 Cr.P.C. praying to enlarge the petitioner on bail
by setting aside the impugned order in Crl.M.P.No.2487 of 2023 dated
07.07.2023 passed by the Special Judge, TNPID, Chennai, considering the
submissions made in the bail petition as well as this petition raising
additional grounds.
PRAYER in Crl.R.C.No.1832 of 2023: Criminal Revision petitions filed
under Sections 397 r/w.401 Cr.P.C. praying to set aside the order dated
1/37
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.1351 and 1832 of 2023
06.10.2023 passed in Crl.M.P.No.3687 of 2023 by the Special Court under
Tamil Nadu Protection of Interest of Depositors Act, 1997 and consequently
enlarge the petitioner on bail.
For Petitioner : Mr.R.John Sathyan,
in Crl.R.C.No.1351/2023 Senior Counsel for
Mr.Durai Kannan
For Petitioner : Mr.Nithyaesh Natraj,
in Crl.R.C.No.1832/2023 for Mr.Anirudh A.Sriram
For Respondent : Mr.A.Damodaran
` in both Crl.R.Cs. Additional Public Prosecutor
COMMON ORDER
Crl.R.C.No.1351 of 2023 is filed by Accused No.14 and Crl.R.C.No.1832 of 2023 is filed by Accused No.26 in Crime No.7 of 2022 seeking to set aside the order passed in Crl.M.P.No.2487 of 2023 dated 07.07.2023 and Crl.M.P.No.3687 of 2023 dated 06.10.2023, respectively.
2.The petitioners herein had filed a petition under Section 167(2) Cr.P.C. seeking to enlarge the petitioners on statutory bail. Both the petitions were dismissed, against which, the present revisions have been filed. 2/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023
3.A brief facts of the case is that A1 is M/s.Aarudhra Gold Trading Private Limited, A2 is M/s.Aarudhra Garments Private Limited, A3 is M/s.Aarudhra Jewellery Private Limited, A4 is M/s.Aarudhra Housing and Properties Private Limited, A5 is M/s.Aarudhra Super Market Private Limited, A6 is M/s.Aarudhra Restaurents Private Limited, A7 is M/s.Aarudhra Events and Entertainment Private Limited and A8 is M/s.Aarudhra Technoisys.
3.1. The petitioner/A14 in Crl.R.C.No.1351 of 2023 is one of the Directors of Arudra Gold Trading Private Limited and he also associated with four companies of the group and closely associated with A9/Rajasekar Veeraragavan, who dealt with bank transaction of the companies and also assigned the work of collection of deposits through online from the public and settlement of payouts and actively involved in diversion of funds running to crores in connivance with other accused. He escaped to Dubai on 23.05.2022 and stayed along with A9/Rajasekar Veeraragavan, A12/Senthil 3/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023 Kumar and A15/Usha Vetrivel until his arrest on 28.03.2023. He was arrested based on the Look Out Circular issued.
3.2. The petitioner/A26 in Crl.R.C.No.1832 of 2023, who was incharge of Nemili Branch of A1 company, had directly collected unregulated deposits around Rs.73 crores from 5077 depositors under the false promise that A1-company would offer 30% interest with gift of gold coins and defaulted to the tune of Rs.73,69,16,200/-. The petitioner/A26 was arrested on 25.05.2023. There was a cognation of public in front of branches of A1 company at Arani, Katpadi, Nemili, which was widely covered in News Media and Print Media questioning the credentials of A1 company. The respondent police enquired and found that the accused companies related to collection of unregulated deposits and a case was registered on 20.05.2022. The principal conspirator A9/Rajasekar Veeraragavan, A12/Senthil Kumar and A15/Usha Vetrivel absconded to Dubai on 23.05.2022. A35/Chandrakkannan destroyed some crucial information stored in the 4/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023 computer used in the head quarters of A1 company. The absconding accused have also diverted huge sums of cash to Dubai through Hawala transaction with the help of Pechimuthuraj @ Rafeeq/A38 from the month of March, 2022. They also tried to dilute the case against them along with his friend R.K.Suresh.
3.3. This Court had given a chance for them to settle the amount to depositors on 23.06.2022 and also given interim protection. But contrary to the submissions and undertaking given they failed to cooperate with the competent authority and the board of directors failed to appear before District Revenue Officer, Chennai, despite specific directions of the High Court. A16/Harish used the period of interim protection to transfer properties in the name of his friend and Binami and concealed money collected from depositors. During the period 316 complaints were received by the respondent. All were enquired, statements recorded. In addition, 138 witnesses enquired and their statement also recorded. Conspiracy has been 5/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023 urged by the accused, a large scale siphoning out of public money was found not only within the borders but beyond.
3.4. On the premise of the accused, suspects and related persons were searched and several incriminating documents have been seized like computer, mobile phone, digital laptop and other electronic devices, software solutions owned by Ramesh and mobile phones of A11/Mohan babu and A38/Pechimuthuraj have been sent to forensic sciences lab for Cyber Crime analysis. Major documents seized in the premises of A1 to A8 such as Customer Registration Forms, receipt, cash voucher, investment agreement and evidence were collected. Confession statement of the accused were taken as lead and efforts have been made to recover properties of A12/Senthil Kumar. Property from A12/Senthil Kumar to the tune of Rs.2,72,77,100/- was recovered. 123 bank accounts freezed, money traders analysed. So far 133 properties of the accused identified. Some suspicious transactions of the bank accounts studied. The properties both movable and immovable, which 6/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023 were purchased using the defrauded public money, have been identified. So far the study shows that Rs.1,762 crores have been transacted and only Rs.83 crores could be freezed in the bank accounts. Further it revealed that totally 1,04,433/- depositors and an amount of Rs.14,04,87,73,900/- is defaulted. Hence, an investigation was found that A1 to A40 had committed the offence under Section 406, 409, 420, 120B, 109, 34, 201 and 204 of IPC and Section 5 of TNPID Act and Sections 3, 5, 21(1), 21(2), 21(3), 23 and 25 of the Banning of Unregulated Deposit Scheme Act, 2019 (the BUDS Act). Further in view of the offence involved in several persons and using all modes and technologies, collection and diversion in the public funds which is spread through out to many places which needs sustained follow up to reach the diverted accounts following the leads. Further investigation under Section 173(8) of Cr.P.C. invoked after filing of the charge sheet.
4.The contention of the learned Senior Counsel for the petitioner Michale Raj/A14 is that the impugned order is erroneous and perverse, 7/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023 reflects non application of mind and the order is a non speaking order with regard to the points raised by the petitioner before the trial Court. Further submitted that the trial Court in its judgment in paragraph 7 states that final report is complete but in paragraph 8 it reads that charge sheet is retained by the Court and it is under consideration. Further submitted that the respondent police failed to comply with the directions given by this Court in Crl.O.P.Nos.13061, 13568, 13626, 13928, 15409, 15938, 15941, 16018 and 16037 of 2022 on 29.07.2022. Further the trial Court failed to consider the reading of the Apex Court in the case of Central Bureau of Investigation vs. Kapil Wadhavan and another reported in Manu/SC/3720/23, wherein the Apex Court had observed that taking of cognizance on the charge sheet is not a ground to reject the statutory bail application, when on the face of it is found incomplete and number of other offences which alleged to have been committed on the face of it are not clear. In the present case there has been lakhs of complaints, thousands of crores involved which was also questioned 8/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023 as to whether investigation is proper, genuine, true and fair on the facts and circumstances. Further in ordinary parlance a human being of prudent nature may accomplish investigation within a short period of 90 days and file a charge sheet but the trial Judge had come to a conclusion that charge sheet filed by the respondent police is taken on file and no consideration given. In such circumstances, the petitioner's statutory bail ought to have been granted, since the statutory bail under Section 167(2) Cr.P.C. is manifestation of protection given to the accused persons under Article 21 of the Constitution of India.
5.The learned counsel for petitioner/A26 in Crl.R.C.No.1832 of 2023 submitted that the petitioner is only a staff in M/s.Aarudhra Gold Trading Company, Nemili Branch, Ranipet District. He is not a Director of A1 company as alleged in the charge sheet. He submitted that the petitioner was neither connected with the offence nor played any title role in the administration and management of the A1 company. After registration of 9/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023 F.I.R. the petitioner was summoned under Section 91 r/w 160 Cr.P.C. for enquiry for almost 11 times on various dates i.e., on 14.09.2023, 20.09.2023, 27.09.2023, 03.10.2023, 10.10.2023, 12.10.2023, 17.10.2023, 26.10.2023, 31.10.2023 and 07.11.2023. He had produced whatever materials available with him and had given explanation for the queries made with him. In this case, the respondent police on 24.05.2022 raided the Nemili branch of A1 company, no recovery could be made. Thereafter, petitioner’s house was raided, there was no recovery. The respondent police proceeded against the petitioner without any materials. The petitioner was arrested on 25.05.2023. Prior to the date of his arrest, he participated in enquiry whenver he was summoned and called. From September, 2022 to May, 2023 he had been regularly appearing. Now a false case has been projected against the petitioner as though he is a Nemili Branch Director of A1 company, who said to have collected Rs.73 crores from 5077 depositors directly and through agent on the false promise that A1 company would offer exorbitant monthly 10/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023 interest of 30% with gold coins for 10/12/15 months. In the F.I.R the petitioner was not shown as an accused.
5.1. The learned counsel further submitted that to curtail petitioner’s right for statutory bail under Section 167(2) Cr.P.C. the respondent police had filed incomplete charge sheet showing him as an accused. The trial Court taking the incomplete/defective charge sheet on file is only for the purpose of defeating petitioner’s right of statutory bail and it would only show denial of statutory bail to the petitioner, which is the fundamental right under Article 21 of the Constitution of India, which cannot be denied. This principle had been reiterated by this Court as well as by the Hon'ble Apex Court in number of cases. Despite the same, the trial Court entertained such incomplete/defective charge sheet and denied the petitioner’s statutory right of bail.
5.2. Further he had also relied upon the judgment of this Court in the case of Gnanasekaran Vs. State rep by the Deputy Superintendent of 11/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023 Police, EOW in Crl.O.P.No.16024 of 2023, in which, it has been held that it is trite law that while considering the statutory bail, the Court does not go into the merits of the case and the Court merely takes into consideration the fact as to whether the accused is in detention for 60 days or 90 days, as the case may be, and the final report has not been filed, and the Court recognizes the indefeasible right given to the accused person and release him on bail, if the accused person is prepared to and does furnish bail. In this case, the filing of incomplete/defective charge sheet by the respondent cannot scuttled petitioner’s right of statutory bail. He further submitted that the Court had committed a blatant mistake by taking cognizance based on the defective/incomplete charge sheet.
5.3. Further the Apex Court in the case of Rakesh Kumar Paul vs. State of Assam reported in (2017) 15 SCC 67, held that statutory right under Section 167(2) Cr.P.C. cannot be curtailed by mere filing of defective charge sheet. He further submitted that the respondent police had filed further 12/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023 investigation petition under Section 173(8) Cr.P.C. to retrieve huge amount of cash concealed by the petitioner and other accused, to secure the absconding accused and to interrogate them, to obtain real facts of the case, to identify the properties of the accused and proceed for attachment by Government, which would clearly show that so called charge sheet filed before the trial Court is incomplete and defective charge sheet.
6.In support of the petitioner’s contention both the learned counsel for petitioners relied upon the following decisions:
(i)C.Parthasarathy vs.Directorate of Enforcement in Crl. Petition No.3786 of 2023
(ii)PMC Mercantile Pvt. Ltd.
(iii)Ritu Chabria vs. Union of India in W.P(Crl.) No.60 of 2023
(iv)Central Bureau of Investigation vs. Kapil Wadhwan and Others in Crl.M.C.No.6544 of 2022.
(v)Directorate of Enforcement vs. Manpreet Singh Talwar in SLPR 5724/2023
(vi)Rakesh Kumar Paul vs. State of Assam reported in 2017 15 SCC 67 13/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023
(vii)Gnanasekaran vs. State in Crl.O.P.No.16024 of 2023
(viii)KSJ Kumar vs. State in Crl.R.C.No.638 of 2006
(ix)Vimala Devi vs. State in Crl.O.P.No.20387 of 2023
(x)Ashok Munilal Jain and another vs. Assistant Director of Enforcement reported in 2018 16 SCC 158
(xi)Union of India vs. Tamizharasi and another reported in (1995) 4 SCC 190
(xii)M.Ravindhran vs. Intelligence Officer, Directorate of Revenue Intelligence reported in (2021) 2 SCC 485
(xiii)Satendra Kumar Antil vs. Central Bureau of Investigation and another reported in 2022 SCC OnLine SC 825
(xiv)Divya Barweda vs. Narcotics Control Bureau in SLP (Crl.) No.11628 of 2023
(xv)Directorate of Enforcement vs. Manpreet Singh Talwar in SLP (Crl.) No.5724 of 2023 (xvi)Mohd Arbaz Etc. vs. State of NCT Delhi in SLP (Crl.) No.8164-8166 of 2021 (xvii)Arif Khan vs. State in SLP (Crl.) No.8610 of 2023 for the point that Section 167(2) Cr.P.C. obligates the investigation agency to complete investigation in a time bound manner. Further for the point that 14/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023 time limit for complete investigation was incorporated in order to ensure that the accused does not languish in jail for investigating authority failure to complete investigation. Further for the point that charge sheet can be filed only after completion of investigation. If investigation said to be completed and sufficient material is collected by the investigating officer, based on which, cognizance can be taken under Section 167 Cr.P.C. Further for the point that for filing of incomplete charge sheet, State cannot circumvent Section 167(2) Cr.P.C. Further for the point that report under Section 173 Cr.P.C. is an intimation to the Magistrate and the said report purports to be an opinion of the investigating officer. The said report is complete, if accompanied with all documents and statements, nothing more is required to be mentioned in the said report. Further, for the point that filing of defective charge sheet and returning the same to rectify the defects, amounts to non filing of charge sheet and will not defeat right of the accused to be released on bail after statutory period.
15/37
https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023 6.1.Further he referred to the judgment of the Delhi High Court in the case of Chitra Ramkrishna vs. Central Bureau of Investigation reported in 2022 SCC OnLine Del 3124, paragraph 113 more particular, which is extracted hereunder:
“113. The legal position pertaining to scope of section 167(2) of the Code emanating from above referred decisions can be summarised as under:-
i)The object of the section 167(2) of the Code is to ensure an expeditious investigation and a fair trial and is another limb of Article 21.
ii) The accused has indefeasible right in his favour for being released on bail on account of default by the investigating agency to complete investigation within the prescribed period.
iii) It is duty of the courts to ensure that benefit of Section 167(2) of the Code be given to the accused and detention beyond statutory period would be illegal being opposed to the liberty of the accused.
iv) Section 173 of the Code does not stipulate a piece-meal investigation and filing of incomplete charge sheet before Court and contemplates filing of a final report after completion of the entire 16/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023 investigation of the case in respect of all offences and where several offences are involved in a case. The practice of filing preliminary charge sheets to seek extension of remand beyond the statutory period should be deprecated.
v) The charge report can be filed before the court only after the investigation is over and formation of an opinion regarding all the offences alleged against the accused.
vi) There is a distinction between completion of investigation and further investigation. The further investigation can be resorted to only after the completion of investigation and filing of charge sheet.
vii) The investigating agency cannot circumvent section 167(2) of the Code by filing incomplete charge sheets. The police report or charge sheet cannot be send within the meaning of Section 173 (2) till the investigation is completed and any report sent before the investigation is completed will not be a police report within the meaning of section 173(2) of the Code.
viii) The incomplete charge sheet filed without completing the investigation cannot be used to defeat the right of statutory bail under Section 167(2) of the Code.
17/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023
ix) The right of the accused to statutory bail came to an end once the charge sheet is filed within the stipulated period. The filing of charge sheet is sufficient compliance with the provisions of Section 167(2) of the Code and taking of cognizance is not material to Section 167.
x) There can only be one charge sheet but there is no restriction on filing of number of supplementary charge sheets.
xi) The charge-sheet can be said to be complete when it enable the court to take or not to take cognizance of the offence after application of mind and if certain facets called for further investigation does not render such report anything other than a final report.
xii) The power of Magistrate report is termed as incomplete by the investigating officer.
xiii) If the charge-sheet is not filed then right for default bail has ripened into status of indefeasibility which cannot be frustrated by the prosecution and the courts on any pretext.
xiv) Economic offences having deep rooted conspiracies and involving huge loss of public funds, constitute a class apart and need to be viewed seriously.” 18/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023 6.2. Further submitted that investigation within the ambit of Section 173(8) Cr.P.C. can be restored only after completion of investigation and filing of complete charge sheet. The Delhi High Court considering all these aspects had granted statutory bail to the petitioner, which was assailed to the Apex Court by CBI and the Hon'ble Apex Court negatived the contention of CBI in the case of Central Bureau of Investigation vs. Chitra Ramkrishna etc. reported in 2023 SCC OnLine SC 1168.
7.The learned Government Advocate (Crl. Side) filed his counter in both petitions. He objects to the contentions of the petitioner/A14 in Crl.R.C.No.1351 of 2023 stating that the chargesheet in this case was filed on 20.06.2023, well ahead before the completion of 90 days. As the investigation Officer filed the chargesheet before the completion of 90 days from the arrest of the Petitioner/Accused-14, he is not entitled for bail under Section 167(2) of Cr.P.C. Further submitted that the learned Judge of Special Court under TNPID court has rightly dismissed the bail petition of the 19/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023 petitioner in Crl.M.P.2487 of 2023, dated 07.07.2023 by noting that the chargesheet is complete and filed for all the offences committed by the petitioner and other accused. Moreover, the trial court has not returned the final report as per Criminal Rules of Practice and obtained records by issuing memorandum to the concerned Investigation Officer. Accordingly, the documents have also been furnished.
7.1. He further submitted that though there were manyfold number of depositors, the nature of the complaints revealed the same offences that the accused induced the depositors under the false promises that they would offer exorbitant monthly interest with gift of gold coins and allured the collection of deposits without obtaining mandatory permission of RBI or any other competent authority and thereby defaulted the repayment to the depositors. Hence, the Investigation Officer was able to come to a conclusion and filed the chargesheet. However, there were diversion of huge amount of money to their personal gain, the recovery process of those properties of accused and 20/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023 related persons are underway and required for further investigation under Section 173 of Cr.P.C.
7.2. Further submitted that this Court had dismissed the anticipatory bail petitions of the accused on 27.09.2022 in Crl.O.P No. 13061, 13568, 13626, 13928, 15409, 15935, 15938, 15941, 16018 & 16037 of 2023 by cancelling interim protection given on 23.06.2022. The said final verdict was passed against the accused due to their noncompliance to the previous order of this Court and allowed the police to proceed criminal actions. The Investigation Officer has filed complete chargesheet and the trial court accepted the chargesheet and assigned CC.No.09/2023 on the file of Special Court under TNPID Act on 25.09.2023.
7.3.Further submitted that all the complaints received by the Police revealed the similar kind of offences, filing the chargesheet within a period of 90 days from the arrest of the petitioner/A14 requires no further time and the chargesheet was filed on 20.06.2023 well ahead of 90 days. The bail 21/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023 application of the petitioner/A14 under Section 167(2) is liable to be dismissed as the chargesheet has been filed well before the default bail application is filed by the Petitioner/Accused-14 and the Hon'ble TNPID court has taken on file for taking cognizance of the offences committed by the accused including petitioner and posted for further proceedings.
7.4. Further submitted that the investigation of this case has been completed against accused including the petitioner/A26 on 20.06.2023 with the requisition of further investigation under Section 173(8) Cr.P.C and the investigation is now pending to retrieve the huge amount of cash concealed by the petitioner/A14 and other accused, to secure the absconding accused Rajasekar Veeraragavan-A9 and Usha Vetrivel-A15 and to interrogate them and obtain other facts of this case and to identify the properties of the accused and to proceed for attachment by the Government.
7.5.He objects to the contentions of the petitioner/A26 in Crl.R.C.No.1832 of 2023 stating that the investigation reveals that A26. 22/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023 Satheesh was one of the Branch Directors for the collection of deposits in Nemili of Aarudhra Gold Trading Private Ltd (A1). For which, the petitioner/ A26/Satheesh had been secured and remanded on 25.05.2023 and police custody of the said accused had also been taken. Persistent Interrogation with the accused and the statements of witnesses recorded under 161 Cr.P.C. which revealed several information that the petitioner/A26, Satheesh involved in the collection of illegal deposits in Nemili and diverted huge amounts to his personal gains.
7.6. Further submitted that petitioner/A26 had acted as the director of Nemili branch of Al Company and defaulted the repayment of around 73 crores of 5077 depositors. The aggrieved depositors have lodged complaint directly against the A26/petitioner at the Economic Wing offence, Chennai. The Special Court under TNPID Act, 1997 had dismissed the bail petition of the petitioner/A26 under Section 167(2) Cr.P.C vide Crl.M.P.No.3687/2023 dated 06.10.2023. The Special Court had rightly dismissed the bail petition 23/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023 by noting that filing of chargesheet is sufficient compliance with the provision of section 167(2) and that the accused cannot claim any indefensible right of the release on statutory/defaulted bail under Section 167(2) Cr.P.C. on the ground that cognizance was not taken before expiry of the statutory time period of filing chargesheet.
7.7.The Investigation Officer collected ample proof that petitioner/A26 was the director for Nemili branch of the said company. As he wants to escape from the clutches of law, he is now trying to disown his status in the company. The Investigation Officer took sufficient time to examine and verify the role of the petitioner/A26 by issuing summons. In due course, the investigation revealed that the petitioner/A26 played responsible role in Al company but he was reluctant to divulge the information of diversion of huge amount to his personal gains. Hence, the Petitioner/A26 was included as accused as per the legal procedure and remanded to judicial custody. During the search on 17.06.2022, cash Rs.68,150/-, rubber stamp-3, 24/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023 seals in the name of Al company-8, pendrive-1, building agreement copy and some other evidences were recovered under proper mahazar.
7.8.Further submitted that several aggrieved depositors have filed claim petitions in respect of Nemili Branch of Al company where the petitioner/A26 had acted as the Branch Director. Police complaints have also been lodged against the accused. Based on which, chargesheet has been filed against the accused on 20.06.2023 and the same has been taken on file on 25.09.2023 in CC No.09/2023 of the Special Court under TNPID Act. The TNPID court dismissed the bail petition in Crl.M.P.No.3687 of 2023 dated 06.10.2023 on the ground that the petitioner is neither entitled to grant statutory bail under Section167(2) Cr.P.C nor entitled to bail on merits.
7.9.Further submitted that the chargesheet has been filed on 20.06.2023 only after the competition of investigation and the TNPID Court accepted the same and assigned CC No. 09/2023 on 25.09.2023. Further submitted that the bail application of the petitioner/A26 under section 167(2) 25/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023 is liable to be dismissed as the chargesheet has been filed well before the default bail application is filed by the petitioner/A26 and the TNPID court has taken on file for taking cognizance of the offences committed by the accused including petitioner and posted for further proceedings. Further submitted that if the petitioners/A14 and A26 are enlarged under bail, they will try to destroy the evidence, tamper the witnesses, dispose the illegal money, and hamper further investigation which would adversely affect the investment of the gullible depositors and the country's economy.
7.10. He further submitted that the charge sheet filed on 20.06.2023 is not in dispute. He further produced a copy of the Official Memorandum in Dis.No.547/2023 dated 26.06.2023 to show that the charge sheet was very much retained by the trial Court and it had sought for some clarification, which was also later submitted to the trial Court and hence C.C.No.9 of 2023 was assigned on 25.09.2023. In any event filing of charge sheet is sufficient as upheld in the case of Judgebir Singh @ Jasbir and Suresh Bikamchand 26/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023 Jain. He further submitted that one Soundararajan filed a revision before this Court in Crl.R.C.No.1008 of 2023 challenging the dismissal of the statutory bail application. This Court, dismissed the said revision finding that on the date of deciding the bail petition, the charge sheet has been fully filed. Aggrieved over the incomplete investigation and dismissal of bail by both trial Court as well as High Court, the said Soundararajan approached the Apex Court in SLP No.11611 of 2023. The Hon'ble Apex Court by order dated 14.12.2023 had observed in paragraph 4 and 5 as follows:
“4. On the other hand, Mr. Aristotle, learned counsel would firstly submit that notwithstanding the massive investigation required to be carried out on Complaints filed by around 14,500 persons and in a case where the accused had floated 27 Companies to dupe investors, the Police was able to file the chargesheet on time i.e. on 90th day. On the incomplete chargesheet argued by the petitioner, the State counsel would submit that further investigation is always permissible under Section 173(8) of the CrPC. Insofar as the rectification which was carried out in the chargsheet, the Government counsel would submit that once the charge-sheet was 27/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023 filed on 17.05.2023, it always remained in the Court's custody and only certain typographical corrections were made with due permission and that too within the Court's premises. The orders passed by the learned Special Judge are referred to by the counsel on this aspect. accused in this case are absconding. It is also seen that multiple accused in this case are absconding.
5. The main issue about entitlement of bail on the ground of incomplete chargesheet, is pending consideration before a larger Bench. Although the senior counsel for the petitioner has cited various decision where the Court has exercised discretion to grant bail in such matters, looking at the magnitude of the investigation that was required to be carried out and the huge number of complaints which the Police needed to investigate, we feel that bail should not be granted to the petitioner. The Special Leave Petition is accordingly dismissed.” 7.11.He further submitted that filing of charge sheet is requirement and not taking cognizance of the same. Further submitted that the police officer is required to forward to the Magistrate all the documents and the relevant extracts thereto, of which, prosecution proposes to rely the words 28/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023 used in Section 173(5) of the Act, cannot be interpreted as mandatory. Filing of police report containing particulars as mentioned under Section 173(2) of Cr.P.C. amount to completion of filing of the report before the concerned Magistrate.
8.Considering the submissions made and on perusal of the materials available on record, it seen that both the petitioners have claimed statutory bail, though the charge sheet had been filed well within the statutory period.
In this case it is not in dispute that well within the statutory period charge sheet had been filed. It is seen that the charge sheet not returned, it was retained by the trial Court and had sought for certain of the clarifications by way of Office Memorandum in Dis.No.547 of 2023 and pursuant to the Memorandum, the respondent police had given clarification for the queries raised.
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9.The Hon'ble Apex Court recently on 24.01.2024 in Kapil Wadhawan's case referring to various earlier judgments held that once charge sheet has been filed against the accused within prescribed time, the accused cannot claim his statutory right of default bail under Section 167(2) of Cr.P.C. on the ground that investigation qua other accused was pending. It would be apposite to extract the following relevant paragraphs:
“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 30/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023 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. Theparagraphs relevant for the purpose of this appeal are reproduced hereinbelow: -
"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 31/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023 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 charge- sheet 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.
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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 sub- section (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] SubramaniumSethuraman 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.
33/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023 31 to 37....................
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." 34/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023
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 Section 167(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.”
10.It referred to the judgment of Constitution Bench in K.Veeraswami vs. Union of Undia and others reported in (1991) 3 SCC 655, wherein it was held that statutory requirement of report under Section 173(2) Cr.P.C. would be complied with, if various details prescribed therein are included in the report. In this case, charge sheet had been filed with all details complying with the requirement under Section 173(2) Cr.P.C. as regards A1 to A40 and the same was taken on file in C.C.No.9 of 2023.
35/37 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1351 and 1832 of 2023
11.In view of the same, this Court finds no merits in the contentions of the petitioners. Accordingly, these Criminal Revision Cases are dismissed.
01.03.2024
Index : Yes / No
Internet : Yes/No
Speaking / Non-speaking order
Neutral Citation : Yes/No
rsi
To
1.The Additional Superintendent of Police,
Economic Offence Wing-II, CID,
Ashok Nagar, Chennai.
2.The Special Judge,
Special Court under TNPID Act Cases,
Chennai.
3.The Public Prosecutor,
High Court, Madras.
36/37
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Crl.R.C.Nos.1351 and 1832 of 2023
M.NIRMAL KUMAR, J.
rsi
Pre-delivery Order in
Crl.R.C.Nos.1351 and 1832 of 2023
01.03.2024
37/37
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