Chattisgarh High Court
Sanjeev Guha vs State Of Chhattisgarh on 11 November, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRR No. 1115 of 2022
1. Sanjeev Guha S/o Shri Dulalchand Guha, Aged About 45 Years R/o
Jhalariya, 607/ B, Platine Paradise Lasuriya Indore, District Indore,
Madhya Pradesh.
2. Amit Sarkar S/o Shri Ashok Sarkar, Aged About 41 Years R/o C-94, G-
05, Shalimar Garden Extension-02 Gajiyabad, District Gajiyabad, Uttar
Pradesh.
3. Subhayan Banerjee, S/o Shri Siddharth Banerjee, Aged About 37
Years R/o A D-145 Terth Bhawan, Ravindrapall, Kestopur, Kolkata,
West Bengal. --- Applicants.
Versus
• State Of Chhattisgarh P.S. Janjgir, District Janjgir Champa
Chhattisgarh. --- Respondent.
WITH
CRR No. 1116 of 2022
1. Sanjeev Guha S/o Shri Dulachand Guha Aged About 45 Years R/o
Jhalariya, 607/b, Platine Paradise Lasuriya Indore, Districtd Indore,
Madhya Pradesh.
2. Amit Sarkar S/o Shri Ashok Sardkar Aged About 41 Years R/o C-94,
G-05, Shalimar Garden Extension 02 Gajiyabad, District Gagiyabad,
Uttar Pradesh. (Wrongly Mentioned As Shamimar In Ann. P/1)
3. Subhayan Banerjee S/o Shri Sidharth Banerjee Aged About 37 Years
R/o A D-145 Terth Bhawan, Ravindrapall, Kestopur, Kolkatha, West
Bengal. --- Applicants.
Versus
• State Of Chhattisgarh P.S. Janjgir, District - Janjgir Champa,
Chhattisgarh. --- Respondent
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For Applicant(s) : Mr. Ashutosh Trivedi, Adv.
For respondent/State : Mr. Kunal Das, PL.
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Hon'ble Shri Justice Deepak Kumar Tiwari Order On Board 11.11.2022
1. As both these cases have been preferred by the same applicants in which common question of law is involved, they heard together and are disposed of by this order.
2. These revision cases have been preferred by the applicants against the orders dated 27.09.2022 passed by the learned Sessions Judge, Janjgir, District Janjgir Champa in Session Trial No.45/2022 & Session Trial No.44/2022 respectively, whereby, the the application filed by the applicants 2 under Section 167 (2) (a) of the Code of Criminal Procedure (for short 'Cr.P.C.') for their release on default bail for filing of the charge-sheet by the police after expiry of the prescribed time, has been rejected.
3. Shri Asutosh Trivedi, learned counsel for the applicants submits that the applicants have been arrested for the offences punishable under Sections 420 & 34 of IPC; Sections 3, 4 & 6 of the Prize Chits And Money Circulation Schemes (Banning) Act, 1978 and Sections 6 & 10 of the Chhattisgarh Protection of Depositors Interest Act, 2005. He submits that learned trial Court has taken cognizance on the basis of incomplete charge-sheet and the investigation officer is still seeking time to file additional documents only to defeat the object to grant bail as provided under Section 167 (2) of the Cr.P.C. Therefore, the impugned order dated 27.09.2022 is liable to be set aside and the applicants may be released by granting them default bail.
4. Per contra, Shri Kunal Das, learned State counsel vehemently opposes the submission and prayer of the applicants and submits that Section 173 of Cr.P.C. empowers the investigation officer that after filing of the charge-sheet, he may move an application under Section 173 (8) of Cr.P.C. for further investigation and to file additional documents and no bars is provided under the law. He further submits that sufficient material has already been filed along with the charge-sheet and the charge-sheet filed cannot be termed as incomplete charge-sheet, therefore, both criminal revisions are liable to be dismissed.
5. Heard learned counsel for the parties and perused the documents.
6. Section 173(5) of the Cr.PC provides that the investigating officer shall produce all the documents at the time of submission of the report. The relevant portion of Section 173 Cr.P.C. is reproduced hereunder:-
"173. Report of police officer on completion of investigation.--(1) Every investigation under this 3 Chapter shall be completed without unnecessary delay.
(2)(i) As soon as it is completed, the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating--
(a) the names of the parties;
(b) the nature of the information;
(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 has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody under Section 170.
(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given. (3)-(4) *** (5) When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report--
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
(6)-(7) *** (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)."
7. In the matter of Central Bureau of Investigation v. R.S. Pai, (2002) 5 SCC 82 it has been held that if further investigation is not precluded then there is no question of not permitting the prosecution to produce additional documents which were gathered prior to or subsequent to the investigation, 4 and following was observed in para 7 :
"7. From the aforesaid sub-sections, it is apparent that normally, the investigating officer is required to produce all the relevant documents at the time of submitting the charge-sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or the charge-sheet, it is always open to the investigating officer to produce the same with the permission of the court. In our view, considering the preliminary stage of prosecution and the context in which the police officer is required to forward to the Magistrate all the documents or the relevant extracts thereof on which the prosecution proposes to rely, the word "shall" used in sub-section (5) cannot be interpreted as mandatory, but as directory. Normally, the documents gathered during the investigation upon which the prosecution wants to rely are required to be forwarded to the Magistrate, but if there is some omission, it would not mean that the remaining documents cannot be produced subsequently. Analogous provision under Section 173(4) of the Code of Criminal Procedure, 1898 was considered by this Court in Narayan Rao v. State of A.P. [AIR 1957 SC 737 : 1958 SCR 283 : 1957 Cri LJ 1320] (SCR at p. 293) and it was held that the word "shall" occurring in sub-section (4) of Section 173 and sub-section (3) of Section 207-A is not mandatory but only directory. Further, the scheme of sub-section (8) of Section 173 also makes it abundantly clear that even after the charge-sheet is submitted, further investigation, if called for, is not precluded. If further investigation is not precluded then there is no question of not permitting the prosecution to produce additional documents which were gathered prior to or subsequent to the investigation. In such cases, there cannot be any prejudice to the accused. Hence, the impugned order passed by the Special Court cannot be sustained."
8. Further, In the matter of Dinesh Dalmia v. CBI, (2007) 8 SCC 770 in paragraphs 19, 24, 25 & 39 following was observed:-
"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 5 and, if so, by whom. In some cases, the accused having not been arrested, the investigation against him may not be complete. There may not be sufficient material for arriving at a decision that the absconding accused is also a person by whom the offence appears to have been committed. If the investigating officer finds sufficient evidence even against such an accused who had been absconding, in our opinion, law does not require that filing of the charge-sheet must await the arrest of the accused.
24. Concededly, the investigating agency is required to complete investigation within a reasonable time. The ideal period therefor would be 24 hours, but, in some cases, it may not be practically possible to do so. Parliament, therefore, thought it fit that remand of the accused can be sought for in the event investigation is not completed within 60 or 90 days, as the case may be. But, if the same is not done within the stipulated period, the same would not be detrimental to the accused and, thus, he, on the expiry thereof would be entitled to apply for bail, subject to fulfilling the conditions prescribed therefor.
25. Such a right of bail although is a valuable right but the same is a conditional one; the condition precedent being pendency of the investigation. Whether an investigation in fact has remained pending and the investigating officer has submitted the charge-sheet only with a view to curtail the right of the accused would essentially be a question of fact. Such a question strictly does not arise in this case inasmuch as, according to CBI, sufficient materials are already available for prosecution of the appellant. According to it, further investigation would be inter alia necessary on certain vital points including end use of the funds.
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."
9. In the matter of Aleksander Kurganov v State and Another, 2021 SCC OnLine Bom 150 after analyzing the aforesaid judgments of Dinesh Dalmia (Supra) and CBI Vs. RS Pai (Supra ), following was observed : 6
"61. Then, Dinesh Dalmia notes that such a right of bail is a valuable right, but it is a conditional one--the condition precedent being pendency of the investigation. Whether an investigation, in fact, has remained pending and the investigating officer has submitted the chargesheet only to curtail the right of the accused would essentially be a question of fact. On facts, Dinesh Dalmia has observed that such a question strictly does not arise in that case because, according to the CBI, sufficient material has already been available for the appellant's prosecution. In this regard, Dinesh Dalmia distinguishes between section 167 (2) and section 309 (2) of the Code as to the remand of the accused. Section 167 (2) applies where cognisance has not been taken; section 309 (2) applies where cognisance has been taken.
62. Dinesh Dalmia has concluded that the accused can benefit from proviso to sub-section (2) of section 167 of the Code if the chargesheet is not filed. But once a charge sheet is filed, that 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.
63. In the context of forensic expert's report on a questioned document which forms the foundation for an offence under section 420 IPC, Dinesh Dalmia has specifically held that 'there may be a delay to receive an opinion from experts and such delay cannot be taken advantage of by invoking the proviso to Section 167, Cr.PC'."
10. Taking into consideration the aforesaid principles laid down by the Hon'ble Supreme Court, this Court of the view that the charge-sheet has already been filed against the applicants, so they cannot take benefit by invoking the proviso to Section 167 Cr.P.C. and therefore, the trial Court was justified in rejecting the application filed by applicants.
11. Accordingly, the impugned order is affirmed and this revision being bereft of any substance deserve to be and is hereby dismissed at motion stage.
Sd/-
(Deepak Kumar Tiwari) Judge Ajay