Delhi High Court
Amarjeet Singh Dhillon vs State Nct Of Delhi on 28 May, 2024
Author: Navin Chawla
Bench: Navin Chawla
$~48
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 28.05.2024
+ CRL.M.C. 3814/2022 & CRL.M.A. 14335/2024
AMARJEET SINGH DHILLON ..... Petitioner
Through: Mr.Abhishek Paruthi,
Mr.Harshit Thareja and
Ms.Vijaya Rathi, Advs.
versus
STATE NCT OF DELHI ..... Respondent
Through: Mr. Shoaib Haider, APP with
SI Ravi Yadav
Ms.Richa Kapoor, Mr.Kunal
Anand, Mr.Deepak Singh,
Mr.Jai Batra, Ms.Atika Singh
and Ms.Kriti Gera, Advs. for
Complainant
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (ORAL)
1. This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (in short, 'Cr.P.C.'), challenging the Order dated 04.07.2022 (hereinafter referred to as the 'Impugned Order') passed by the Court of the learned Principal District and Sessions Judge, South-East District, Saket Courts, New Delhi (hereinafter referred to as the 'PD&SJ') in Criminal Revision No.259/2022, titled State v. Amarjit Singh Dhillon, whereby the revision petition filed by the State has been allowed and the Order dated 10.06.2022 passed by the learned Metropolitan Magistrate-09, South-East District, Saket Signature Not Verified Digitally Signed CRL.M.C. 3814/2022 Page 1 of 21 By:SUNIL Signing Date:31.05.2024 20:56:07 Courts, New Delhi (hereinafter referred to as the 'Metropolitan Magistrate') granting statutory bail under Section 167(2) of the Cr.P.C. to the petitioner has been set aside.
Factual Background:
2. Briefly stated, the facts of the case are that an FIR No.306/2020 was registered at Police Station: Lajpat Nagar, South-East District, Delhi under Sections 420/468/471/120B of the Indian Penal Code, 1860 (in short, 'IPC') on the complaint made by the Compainant- Mr.Sanjay Syal. The said complaint has been filed alleging that in the month of September 2018, the complainant had approached one Mr.Anil Seth, who was well known to him being his neighbour and running the business of property dealing in South Delhi, for purchasing a property. It is alleged that in the month of October 2018, Mr.Anil Seth introduced the complainant to Mr.Suresh Kumar Sharma @ Sham Sharma as a leading property dealer/broker. It is stated that Mr.Suresh Kumar Sharma @ Sham Sharma, in turn, mentioned about a property bearing No.50, Hemkunt Colony, New Delhi owned by one Mr.Jagdev Singh Dhillon, aged about 86 years and a resident of Canada, stating that Mr.Jagdev Singh Dhillon was desirous of selling the said property. Mr. Sharma also stated that Mr.Jagdev Singh Dhillon had executed a power of attorney dated 21.11.2018 in favour of his brother-in-law, namely, Mr.Amarjeet Singh Dhillon, the petitioner herein, for the purpose of selling the said property and further assured that Mr.Jagdev Singh Dhillon has also authorized Mr.Amarjeet Singh Dhillon to enter into an Agreement to Sell in Signature Not Verified Digitally Signed CRL.M.C. 3814/2022 Page 2 of 21 By:SUNIL Signing Date:31.05.2024 20:56:07 respect of the aforesaid property and also to receive consideration for the sale of said property. The Complainant further stated that he was, thereafter, introduced to Mr.Paramjeet Singh Sandhu, Mr.Mandeep Singh Sandhu, and Mr.Jaswer Garewal, who all stated that they all know Mr.Jagdev Singh Dhillon and have close family relations with him. It is stated that they also assured the complainant that they were close friends of Mr.Amarjeet Singh Dhillon, Attorney of Mr.Jagdev Singh Dhillon. The Complainant states that believing the said representations, he agreed to purchase the abovementioned property for a total sale consideration of Rs.5,25,00,000/- by entering into an Agreement to Sell dated 03.12.2018. The Complainant claims to have paid an amount of Rs.84,50,000/- (Rs.82,50,000/- through RTGS/DD/Cheque and Rs.2,00,000/- in cash) for the purchase of the said property. The Complainant states that thereafter, he requested the petitioner herein to furnish the contact details of the owner Mr.Jagdev Singh Dhillon for confirming the receipt of the part payment as also to expedite the execution of the Sale Deed and for handing over the possession of the property. The petitioner is alleged to have provided him with an Email ID of Mr.Jagdev Singh Dhillon, on which the Complainant sent an email seeking confirmation of the receipt of the first instalment of part payment of the same consideration. It is stated that a reply was also received by the Complainant from the said Email ID. This Email ID was however, later found to be not belonging to Mr.Jagdev Singh Dhillon. The Complainant, thereafter, made requests for the execution of the Sale Deed, however, the accused assured him that this would be done in the near future as soon as Mr. Jagdev Singh Signature Not Verified Digitally Signed CRL.M.C. 3814/2022 Page 3 of 21 By:SUNIL Signing Date:31.05.2024 20:56:07 Dhillon visits India. It is stated that on 26.11.2019, however, the Complainant came across a Public Notice in the Nav Bharat Times, Delhi Edition, issued on behalf of Mr.Jagdev Singh Dhillon stating that he had neither sold the said property to anyone nor had entered into an Agreement to Sell with anyone. The said Public Notice further stated that Mr. Jagdev Singh Dhillon had not issued any power attorney in respect of the said property nor has he authorized any person to enter into an agreement of sale in relation to the said property on his behalf.
3. On the basis of the above accusations, the subject complaint was filed by the complainant, claiming that Offence under Sections 419/420/465/467/468/471/474/120B/34 of the IPC were made out against the accused persons. An endorsement was, however, made by the SHO, stating that the case be registered under Sections 420/468/471/120B of the IPC. The above FIR was, therefore, registered for Offence under Sections 420/468/471/120B of the IPC on 19.08.2020.
4. The petitioner was arrested on 30.03.2022 in relation to the abovementioned FIR.
5. On 09.06.2022, the petitioner filed an application under Section 437 read with Section 167(2) of the Cr.P.C. claiming Statutory Bail, by contending that the 60 days' period had expired and the investigation had not been completed.
Signature Not Verified Digitally Signed CRL.M.C. 3814/2022 Page 4 of 21 By:SUNIL Signing Date:31.05.2024 20:56:076. However, the prosecution contended before the learned Metropolitan Magistrate that, in the course of the investigation, Offence under Section 467 of the IPC had also been added against the petitioner in the Case Diary on 15.05.2022 on the statement of the Owner of the property stating that he had not executed the alleged Power of Attorney. The prosecution submitted that, therefore, in terms of Proviso (a)(i) to Section 167(2) of the Cr.P.C., Statutory Bail can be granted only on expiry of 90 days from the date of the arrest of the petitioner.
7. The learned Metropolitan Magistrate, however, on considering the Case Diary observed that, prima facie, the offence under Section 467 of the IPC is not made out against the petitioner and, therefore, proceeded to grant Statutory Bail to the petitioner.
8. The State/prosecution challenged the said Order by way of the abovementioned revision petition, which has been allowed by the learned PD&SJ by the Impugned Order, observing therein that at the stage of consideration of an application seeking Statutory Bail, the learned Metropolitan Magistrate should not have come to the conclusion that, prima facie, the offence under Section 467 of the IPC is not made out and, thereafter, proceeded to grant Default/Statutory Bail to the petitioner.
9. The petitioner has challenged the Impugned Order in form of the present petition.
Signature Not Verified Digitally Signed CRL.M.C. 3814/2022 Page 5 of 21 By:SUNIL Signing Date:31.05.2024 20:56:0710. This Court by its Order dated 12.07.2023, granted Interim Bail to the petitioner during the pendency of the present petition.
Submissions of the Learned Counsel for the Petitioner:
11. The learned counsel for the petitioner, placing reliance on the judgments of the Bombay High Court in Alnesh Akil Somji v. The State of Maharashtra, 2022 SCC OnLine Bom 11566, and Irfan Moiuddeen Saiyyed & Ors. v. The State of Maharashtra, 2023 SCC OnLine Bom 983; and of this Court in Sanjay More v. State of NCT of Delhi & Anr., 2024 SCC OnLine Del 824, and Avinash Jain v. Central Bureau of Investigation 2023 SCC OnLine Del 2946, submits that at the stage of considering an application under Section 167(2) of the Cr.P.C., the learned Metropolitan Magistrate was competent to look into whether the charge under Section 467 of the IPC, which would allow the accused to be detained for up to 90 days, was at all made out or not. He also places reliance on the judgment of the Supreme Court in Achpal @ Ramswaroop & Anr. v. The State of Rajasthan, (2019) 14 SCC 599, to submit that charges cannot be framed only on mere suspicion and without collecting any material.
12. Placing reliance on the judgment of the Supreme Court in Amar Nath & Ors. v. State of Haryana & Ors., (1977) 4 SCC 137; and the Order dated 03.03.2022 of the Punjab and Haryana High Court in Lakhwinder Singh v. Lovepreet & Anr. passed in CRR No. 364 of 2022, the learned counsel for the petitioner submits that, in any case, the revision petition filed before the learned Revisional Court was not Signature Not Verified Digitally Signed CRL.M.C. 3814/2022 Page 6 of 21 By:SUNIL Signing Date:31.05.2024 20:56:07 maintainable as the Order granting the petitioner Statutory Bail passed by the learned Metropolitan Magistrate is interlocutory in nature.
13. He further submits that even the first Charge Sheet that was filed before the learned Trial Court on 11.06.2022 was incomplete as it did not accompany the report from the Embassy of India in Canada or the statement of the witnesses pointing out that the alleged Power of Attorney was forged and that no such officers who have been alleged to have notarised the alleged POA, were at all posted in the said Embassy. He submits that, therefore, even the said Charge Sheet could not have been used for denying Statutory Bail to the petitioner. He places reliance on the judgment of this Court in Avinash Jain (Supra) in support of his submission.
Submissions of the Learned APP and the Learned Counsel for the Complainant:
14. On the other hand, the learned APP and the learned counsel for the Complainant submit that the learned Metropolitan Magistrate could not have embarked upon an inquiry as to whether a case under Section 467 of the IPC had been made out against the petitioner at the stage of considering an application seeking Statutory Bail. They submit that the investigation was going on and the statement of the owner of the said property, that is, Mr.Jagdev Singh Dhillon had been recorded, who had denied having executed the alleged Power of Attorney. They submit that public notice had also been issued on behalf of the owner of the property, denying any such Power of Attorney having been executed.
Signature Not Verified Digitally Signed CRL.M.C. 3814/2022 Page 7 of 21 By:SUNIL Signing Date:31.05.2024 20:56:0715. They submit that the Investigating Officer was in the process of writing a letter to the Embassy, seeking information on the genuineness of the said Power of Attorney and, therefore, it was premature for the learned Metropolitan Magistrate to observe that no charge under Section 467 of the IPC has been made out.
16. They further submit that, in fact, while considering an application for grant of Bail filed by the co-accused, namely, Mr.Mandeep Singh, the same learned Metropolitan Magistrate, in the Order dated 28.05.2022, had stated that, prima facie, a charge under Section 467 of the IPC is also made out and, therefore, denied Bail to the said co-accused.
17. They further submit that, in fact, subsequently, a charge under Section 467 of the IPC has been framed against the petitioner by the learned Metropolitan Magistrate and he is facing trial on the said charge.
18. They submit that, therefore, the learned Revisional Court has rightly set aside the Order of the learned Metropolitan Magistrate granting statutory Bail to the petitioner.
19. They further submit that the plea of the petitioner that the Order granting Statutory Bail is merely interlocutory in nature, has rightly been rejected by the learned PD&SJ.
Analysis & Findings:
Signature Not Verified Digitally Signed CRL.M.C. 3814/2022 Page 8 of 21 By:SUNIL Signing Date:31.05.2024 20:56:0720. I have considered the submissions made by the learned counsels for the parties.
21. Section 167 (2) of the Cr.P.C. reads as under:
"167. Procedure when investigation cannot be completed in twenty-four hours.--
xxxxx (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that--
(a) the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding--
(i) ninety days, where the
investigation relates to an
offence punishable with death,
imprisonment for life or
imprisonment for a term of not
less than ten years;
(ii) sixty days, where the
investigation relates to any other
offence,
Signature Not Verified
Digitally Signed CRL.M.C. 3814/2022 Page 9 of 21
By:SUNIL
Signing Date:31.05.2024
20:56:07
and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;
(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.
Explanation I.--For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.
Explanation II.--If any question arises whether an accused person was produced before the Magistrate as required under clause
(b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.
Provided further that in case of a woman under eighteen years of age, the Signature Not Verified Digitally Signed CRL.M.C. 3814/2022 Page 10 of 21 By:SUNIL Signing Date:31.05.2024 20:56:07 detention shall be authorised to be in the custody of a remand home or recognised social institution."
22. A reading of the above provision would show that the Magistrate before whom the accused is forwarded, may authorize the detention of such accused in custody for such period not exceeding fifteen days in the whole pending the completion of the investigation, and for such other further period if he is satisfied that adequate grounds exist for doing so, however, no Magistrate shall authorize the detention of the accused person in custody for a total period exceeding ninety days (where the investigation relates to an Offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years), and for sixty days (where the investigation relates to any other Offence). It further states that on expiry of the said period of ninety days or sixty days, as the case may be, the accused person shall be released on Bail if he is prepared to and does furnish bail. This is commonly called a Statutory or a Default Bail. It has been elevated to the status of a Constitutional Right guaranteed and protected under Article 21 of the Constitution of India.
22. What is, therefore, necessary for considering a case of a Default Bail, is the Offence to which the investigation relates. In the present case, the prosecution had started investigating a case in relation to an Offence under Section 467 of the IPC, on 15.05.2022. The Offence under Section 467 of the IPC is punishable with imprisonment for life or with imprisonment of either description for a term which may Signature Not Verified Digitally Signed CRL.M.C. 3814/2022 Page 11 of 21 By:SUNIL Signing Date:31.05.2024 20:56:07 extend up to ten years. Therefore, the period of ninety days becomes applicable for the accused to be eligible for Default Bail in case the investigation is not completed within the said period.
23. In the present case, the petitioner had filed an application seeking default bail, on 09.06.2022, that is, prior to the expiry of the period of 90 days from the date of his arrest. Therefore, the right to seek Default/Statutory Bail had not accrued to the petitioner as on the date of the application and, in fact, not even on the date when the learned Metropolitan Magistrate granted him Statutory Bail, that is, on 10.06.2022, the period of 90 days having not expired.
24. The learned Metropolitan Magistrate, however, embarked upon an exercise to find out if the material so far collected in the investigation could make out an Offence under Section 467 of the IPC against the petitioner. In my view, this was an exercise not permitted at that stage. It is settled law that the Magistrate while considering an application seeking Statutory Bail, is not to consider the merits of the case. It is also to be kept in mind that the petitioner was not seeking Bail under Section 437 of the Cr.P.C. but was seeking a Default Bail under Section 167(2) of the Cr.P.C..
25. There is no doubt that while extending the period of remand/custody, the Magistrate before whom the accused is produced, has to also consider if further custody of the accused is required, however, this would be different from considering whether the accused, due to the investigation having not been completed within the Signature Not Verified Digitally Signed CRL.M.C. 3814/2022 Page 12 of 21 By:SUNIL Signing Date:31.05.2024 20:56:07 period stipulated in the Proviso (a) to Section 167(2) of the Cr.P.C., is entitled, as a Statutory and a Constitutional Right, to a Statutory Bail.
26. As noted hereinabove, the grant of Statutory Bail is a Statutory Right and is elevated to the position of a Constitutional Right, to which if the accused is entitled to under Proviso (a) to Section 167(2) of the Cr.P.C., it must be granted to the accused, if he applies for the same, irrespective of the nature of the severity of the offence alleged against him. The other considerations for grant of Bail under Section 437 or Section 439 of the Cr.P.C., are not relevant to be considered at the stage of granting a statutory bail to an accused under Proviso (a) to Section 167(2) of the Cr.P.C.. The two rights are distinct. Reference in this regard can be made to the judgment of the Supreme Court in Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616.
27. The petitioner herein was claiming a statutory bail under Section 167 of the Cr.P.C. and, therefore, in my opinion, the learned Metropolitan Magistrate erred in applying the test that may be relevant for considering an application for Bail under Section 437 of the Cr.P.C., that is, of whether a prima facie case against the Applicant had been made out or not. This error has rightly been corrected by the learned PD&SJ in the Impugned Order passed on the Revision Petition filed by the State.
28. As far as the maintainability of the Revision Petition is concerned, the grant of Statutory Bail cannot be considered as an Interlocutory Order. It is a final order releasing the Applicant on Bail Signature Not Verified Digitally Signed CRL.M.C. 3814/2022 Page 13 of 21 By:SUNIL Signing Date:31.05.2024 20:56:07 as the investigation could not be completed and the final report could not be filed within the period of 60/90 days by the prosecution. The learned PD&SJ has also rejected the said argument by placing reliance on the judgment of the High Court of Jharkhand in Ratan Mandai v. State of Jharkhand 2005 SCC OnLine Jhar 460, and on the judgment of the High Court of Madhya Pradesh in Raja Bhaiya Singh v. State of Madhya Pradesh 2021 SCC OnLine MP 27.
29. In Gnanasekaran Thiyagaraj v. State, 2023 SCC OnLine Mad 5427, the Madras High Court, being in agreement with the view of several other High Courts, has appositely explained as to how an Order deciding an application for grant of Statutory Bail is not to be considered as an Interlocutory Order and, therefore, can be challenged by way of filing a Revision Petition under Section 397(2) of the Cr.P.C.. The Court held as under:
"18. If a statutory bail application is dismissed, it certainly involves the determination of an indefeasible right given to the accused person and such an order cannot be considered to be an interlocutory order and such order is more than a purely interlocutory order and less than a final disposal. The reason for rendering such a finding is that the accused person loses his right of being let out on a statutory bail and that right is lost by virtue of the dismissal of the application. However, that does not mean that the accused person is going to be kept under detention forever. The accused person can always file an application seeking for a regular bail and the same will be considered on merits and the Court may be satisfied that the accused can be enlarged on bail pending the main case. In such a scenario, the dismissal of the statutory Signature Not Verified Digitally Signed CRL.M.C. 3814/2022 Page 14 of 21 By:SUNIL Signing Date:31.05.2024 20:56:07 bail application does not completely bring to an end the right of an accused person to be enlarged on bail, but such enlargement on bail at a later point of time happens on consideration of the merits of the case. Therefore, the dismissal of a statutory bail application under Section 167(2) of Cr.P.C., can be considered only as an intermediate order and not as an interlocutory order. Such order can be challenged by way of filing a revision petition and the bar under Section 397(2) of Cr.P.C., will not apply to such an order. In view of the same, this Court is in agreement with the judgment of the High Courts of Madhya Pradesh, Jharkhand and Andhra Pradesh on this issue."
30. Reference in this regard can also be made to the judgment of the Andhra Pradesh High Court in Anantha Sathya Udaya Bhaskara Rao v. State of Andhra Pradesh, (2022) SCC Online AP 2166.
31. In Amar Nath (Supra) and Lakhwinder Singh (Supra), the Courts were not considering the maintainability of a revision petition challenging an Order granting/rejecting Statutory Bail under the provisions of Section 167(2) of the Cr.P.C. and, therefore, the said judgments cannot come to the aid of the petitioner.
32. The plea of the petitioner that a Section/Offence cannot be invoked on mere suspicion and without having any material, in my opinion, cannot be disputed, however, at the stage of considering an application seeking Statutory Bail under Section 167 of the Cr.P.C., the Court has to give fair opportunity to the prosecution to collect evidence in support of its claim that a particular offence may be made out against the accused. The threshold for determining the prima facie Signature Not Verified Digitally Signed CRL.M.C. 3814/2022 Page 15 of 21 By:SUNIL Signing Date:31.05.2024 20:56:07 case against the accused is, therefore, even more liberally to be applied against the accused while considering the claim of the accused to a Statutory or Default Bail. It is to be remembered that the accused always has a right to apply for bail under Section 437 of the Cr.P.C., however, what the accused claims under Proviso (a) to Section 167(2) of the Cr.P.C. is that irrespective of the material and allegation against the accused, the accused be released on bail if the Final Report has not been filed within the period prescribed therein.
33. In the present case, as pointed out by the learned APP and the learned counsel for the complainant, there was a Public Notice by which the owner had denied having executed any Power of Attorney in favour of any person for selling his property. Statement of the Owner in this regard had been recorded.
34. Though not relevant, eventually a Charge under Section 467 of the IPC, in fact, came to be invoked and charges, including under Section 467 of the IPC, have already been framed against the petitioner based on a report from the Indian Embassy in Canada which, according to the learned counsel for the Complainant, showed that the said Power of Attorney was a forged document and bearing forged notarisation from the said Embassy.
35. In Anlesh Akil Somji (Supra) and Irfan Mouiddeen Saiyyed (Supra), the Courts have held that even though there is no requirement for the investigating officer to obtain permission from the magistrate to any addition of section/offence, the Court is not precluded from Signature Not Verified Digitally Signed CRL.M.C. 3814/2022 Page 16 of 21 By:SUNIL Signing Date:31.05.2024 20:56:07 looking into the facts and the material collected. The Courts, therefore, in the peculiar facts of the said cases, and considering the fact that the material on record was not sufficient, held that the accused therein were entitled to be released on Statutory Bail.
36. In Sanjay More (Supra), this Court has held that a perusal of the allegations made in the FIR, supplemented by the CCTV Footage and the MLC, does not prima facie show that the petitioner had an 'intention of causing death' of the deceased, and because there has to be a presumption, until proven to the contrary, that the accused therein was being investigated under Section 304 Part I of the IPC and not Section 304 Part II of the IPC, therefore, the chargesheet was needed to be filed within 60 days. It was in those facts that this Court has released the accused therein on Bail.
37. In Avinash Jain (Supra), this Court was dealing with a set of facts where the Charge Sheet was filed by the investigating agency therein before the expiry of the stipulated term of sixty days, while keeping the investigation for the Offence under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 open. The Court held that the investigating agency had not completed the investigation with respect to the abovementioned Offence for which the accused therein had been arrested and, therefore, granted Default Bail to the accused therein. However, in the present case, the application has been filed by the petitioner before the expiry of the period of ninety days while investigating agency has already started Signature Not Verified Digitally Signed CRL.M.C. 3814/2022 Page 17 of 21 By:SUNIL Signing Date:31.05.2024 20:56:07 investigating offence under Section 467 of the IPC against him basis some material that had already come to its possession.
38. In Achpal @ Ramswaroop (Supra), the Supreme Court observed that there were no papers or the Charge Sheet in terms of Section 173 of the Cr.P.C. for the Magistrate concerned to assess the situation whether on merits the accused was required to be remanded to further custody; the Charge Sheet was filed but such filing not being in terms of the Order passed by the Rajasthan High Court, the said papers were returned to the investigating officer therein. It was in those circumstances that the Supreme Court held that the accused therein was entitled to be released on Bail and held that further custody of such a person ought not to be guided by mere suspicion that he may have committed an offence or for that matter, to facilitate the pending investigation. However, in the present case, as noted hereinabove, there was some material available with the Investigating Agency to initiate investigation under Section 467 of the IPC against the petitioner.
39. It is also important to note that by its order dated 28.05.2022, the learned Metropolitan Magistrate, on a Bail application filed by the co-accused in the same FIR, had observed that there is a prima facie case under Section 467 of the IPC also made out. No reason was supplied by the learned Magistrate to reach a contrary finding in the order passed barely around 13 days thereafter.
Signature Not Verified Digitally Signed CRL.M.C. 3814/2022 Page 18 of 21 By:SUNIL Signing Date:31.05.2024 20:56:0740. In fact, as noted hereinabove, though not of much relevance, by an Order dated 29.11.2022, the learned Trial Court has proceeded to frame charges, inter alia, under Section 467 of the IPC against the accused persons in the present FIR.
41. I am also not in agreement with the submission of the learned counsel for the petitioner that the first Charge Sheet that was filed before the learned Trial Court on 11.06.2022 was incomplete as it did not accompany the report from the Embassy of India in Canada or the statement of the witnesses pointing out that the alleged Power of Attorney was forged. Merely because some of the documents are not filed with the First/Initial Charge Sheet, as the investigation is still going on, would not vitiate the said Charge Sheet and, therefore, would not entitle the accused to a grant of Statutory Bail. Reference in this regard can be made to the recent judgment of the Supreme Court in Central Bureau of Investigation v. Kapil Wadhawan & Anr., (2024) 3 SCC 734, wherein it was held as under:
"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 charge-sheet is not filed and the investigation is kept pending against him. Once however, a charge-sheet 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 charge-sheet is filed under sub-section (2) thereof against the accused. Though ordinarily all documents relied upon by the prosecution should accompany the charge-sheet, nonetheless for some reasons, if all the documents are not Signature Not Verified Digitally Signed CRL.M.C. 3814/2022 Page 19 of 21 By:SUNIL Signing Date:31.05.2024 20:56:07 filed along with the charge-sheet, that reason by itself would not invalidate or vitiate the charge-sheet. It is also well settled that the court takes cognizance of the offence and not the offender. Once from the material produced along with the charge-sheet, 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 charge-sheet would neither vitiate the charge- sheet, nor would it entitle the accused to claim right to get default bail on the ground that the charge-sheet was an incomplete charge-sheet or that the charge-sheet was not filed in terms of Section 173(2)CrPC."
(Emphasis Supplied) Conclusion:
42. For the reasons recorded hereinabove, I find no error in the Impugned Order passed by the learned PD&SJ. The petition is, accordingly, dismissed.
43. There shall be no order as to costs.
44. The petitioner shall surrender before the learned Trial Court or to the Investigating Officer/SHO Concerned within a period of two weeks from today.
45. This order shall, however, not preclude the petitioner from filing an application seeking regular bail from the learned Trial Court. Any such application filed by the petitioner shall be decided by the Signature Not Verified Digitally Signed CRL.M.C. 3814/2022 Page 20 of 21 By:SUNIL Signing Date:31.05.2024 20:56:07 learned Trial Court expeditiously and on its own merits, remaining uninfluenced by any observation made in the present judgment, and in accordance with law.
46. The pending application is also disposed of being rendered infructuous.
NAVIN CHAWLA, J MAY 28, 2024/ns/AS Click here to check corrigendum, if any Signature Not Verified Digitally Signed CRL.M.C. 3814/2022 Page 21 of 21 By:SUNIL Signing Date:31.05.2024 20:56:07