While taking potshots at the apathetic manner in which the CBI filed the piecemeal chargesheet, the Delhi High Court in a most learned, laudable, landmark, logical and latest judgment titled Avinash Jain vs Central Bureau of Investigation in Bail Appln. 583/2023 & CRL.M.(Bail) 274/2023 in Neutral Citation Number which is 2023:DHC:3429 and cited in 2023 LiveLaw (Del) 423 while permitting the CBI to pick up one aspect of the investigation and file a piece-meal charge sheet to defeat the right of an accused to default bail goes against the mandate of Article 21 of the Constitution. It must be mentioned here that the Court was hearing a plea challenging the denial of default bail to an accused in a loan fraud case by the CBI Court in February this year. While granting the default bail to Jain, Hon’ble Mr Justice Amit Sharma clearly stated that the fundamental right to personal life and liberty under Article 21 of the Constitution of India and its co-relation with 167(2) of the CrPC has been, over the years, clearly established by way of judicial precedents of the Supreme Court of India as well as various High Courts. The Court also made it plainly clear that, “The right of an accused to default bail under Section 167(2) of the CrPC would arise in a case where the chargesheet is not filed within the stipulated period. The other circumstance giving rise to the right to default bail would be in case where the prosecution files a preliminary or incomplete chargesheet, within the period prescribed for offences mentioned therein and in that process, defeating the right of the accused to statutory bail.”
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Amit Sharma sets the ball in motion by first and foremost putting forth in para 1 that, “The present application under Section 439 read with Section 482 of the Code of Criminal Procedure, 1973 (CrPC‘) seeks the following prayers:
A. Pass necessary orders and directions, thereby directing for grant of statutory/default bail to the Petitioner and directing for the release of the Petitioner from custody in FIR bearing No. RC2232020A0009 dated 19.11.2020 u/s 120B r/w 420, 468 and 471 of the IPC and 13(2) r/w 13 (1) (d) of the Prevention of Corruption Act, 1988 registered by CBI, ACV, New Delhi, on such terms and conditions as may deem fit and proper.
AND
B. Pass necessary orders and directions, thereby setting aside the order dated 10.02.2023 passed by the Ld. Trial Court in the matter titled as ‘CBI vs. M/s Arise India Ltd.’ in IA No. 1/23 in CBI Case No.10/2023 pertaining to FIR bearing No. RC2232020A0009 dated 19.11.2020 u/s 120B r/w 420, 468 and 471 of the IPC and 13(2) r/w 13 (1) (d) of the Prevention of Corruption Act, 1988 registered by CBI, AC-V, New Delhi.
AND
C. Pass any other necessary and appropriate orders and direction, as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case, in the interest of justice.”
Background
To put things in perspective, the Bench envisages in para 2 that, “The present FIR was registered on the basis of a complaint received from S. Bavani Sankaran, Deputy General Manager, State Bank of India, SAMB-I (‘SBI’) on behalf of a consortium of six banks alleging that M/s Arise India Ltd. (‘the company’) and its directors, including the present applicant alongwith other unknown public servants availed credit facilities from the said consortium of banks led by the SBI and diverted the borrowed funds for purposes other than those for which they were released. The loan account of the company was declared as a Non-Performing Asset (‘NPA’) by the SBI on 27.02.2017 and subsequently by other banks in the consortium, with a total outstanding amount of Rs. 512.67 Crores. After a forensic audit, the account of the company was declared as a ‘fraud’ by the SBI on 27.05.2019.”
As it turned out, the Bench enunciates in para 3 that, “On the basis of the aforesaid complaint, the present FIR was registered against M/s Arise India Ltd., Avinash Jain (applicant herein), Virender Mishra, Rajnish, unknown public servants and other unknown private persons under Section 120B read with Sections 420, 468 and 471 of the Indian Penal Code, 1860 (‘IPC’) and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (‘PC Act’) for causing wrongful loss of public money on 19.11.2020. The applicant was arrested on 14.11.2022 in the said FIR for offences under Section 120B read with Sections 420, 468 and 471 of the IPC and Section 13(2) read with 13(1)(d) of the PC Act. He was produced before the learned Special Judge on 15.11.2022 and remanded to judicial custody for one day. Thereafter, after five days in police custody granted vide order dated 16.11.2022, he was remanded to judicial custody on 21.12.2022. The CBI filed a chargesheet, dated 30.12.2022, on 06.01.2023 qua the applicant and other accused persons under Section 120B read with Sections 420 and 471 of the IPC and substantive offences thereof. In the said chargesheet, it was stated that further investigation was continuing in terms of Section 173(8) of the CrPC.”
As we see, the Bench observes in para 4 that, “An application for default bail under Section 167(2) of the CrPC was moved on behalf of the applicant herein on 01.02.2023, which was dismissed vide order dated 10.02.2023 passed by Sh. Raghubir Singh, Special Judge (PC Act) (CBI) – 18, Rouse Avenue District Courts, New Delhi. While dismissing the application, the learned Special Judge observed as under:
11. On the basis of the findings given hereinabove, it becomes clear that the investigating agency had filed the Charge Sheet u/s 173 Cr. P.C qua 08 accused persons including the applicant/accused well before the expiry of 60 days period by keeping the option of further investigation ‘open’ as per provisions u/s 173 (8) Cr. P.C as the requisite permission u/s 17A was in the process and it was beyond the control of the IO to conduct & conclude the investigation in the absence of the same. The right to statutory bail stands defeated once the Charge Sheet is filed within the stipulated period as held in Suresh Kumar Bhikamchand Jain Vs. State of Maharashtra & Ors., SLP (Crl) No.147/2013 and as reaffirmed by the Apex Court in SFIO Vs. Rahul Modi & Ors. Hon’ble the Apex Court has gone to the extent of saying that even the aspect of not taking cognizance was not at all to be considered for the purpose of default bail. Accordingly, the application in hand is disposed of as dismissed.”
Most significantly and most commendably, the Bench then minces absolutely no words to hold in para 38 that, “In Chitra Ramkrishna (supra), after a detailed analysis of the precedents on the subject, a distinction was drawn between ‘completion of investigation’ and ‘further investigation’. It was observed that further investigation can be resorted to only after completion of investigation and filing of the chargesheet. It was held that a chargesheet can be filed before the Court of competent jurisdiction only when the investigation with respect to the FIR is complete in all respects and an opinion has been given with regard to the offences alleged against the accused in the FIR. It was held that the investigating agency cannot fragment or break the FIR, and file different chargesheets. It was held that if the investigating agencies are permitted to file a chargesheet piece-meal, it would defeat the right of an accused under Section 167(2) of the CrPC and that would be violative of Article 21 of the Constitution of India. The contention of learned SPP for the CBI was that the said judgement was passed in a different factual context. The said contention does not appeal to this Court, inasmuch as the basic principle of the law that investigation for the offences in relation to which an accused has been arrested, should be complete at the time the chargesheet has been filed will not vary on facts. A supplementary chargesheet is permissible only when certain aspects of the investigation, which are otherwise complete in the main chargesheet, are still required to be looked into.”
Most forthrightly and most remarkably, the Bench mandates in para 42 that, “It is reflected from the records of the case that the FIR was registered on 19.11.2020 under Section 120B read with Sections 420, 468 and 471 of the IPC and Section 13(2) read with Section 13(1)(d) of the PC Act. The present applicant was arrested on 14.11.2022 under the aforesaid sections. The CBI, on 16.12.2022, sought approval from the competent authority under Section 17A of the of the PC Act, but proceeded to file the chargesheet, before the expiry of the stipulated term of 60 days, while keeping the investigation for offences under Section 13(2) read with Section 13(1)(d) of the PC Act open. Therefore, it is clear that the CBI had not completed the investigation with respect to offences under Section 13(2) read with Section 13(1)(d) of the PC Act, for which the applicant was arrested. Permitting the CBI to pick up one aspect of the investigation and file a piece-meal chargesheet with respect to the same and consequently, defeating the right of the applicant to default bail, goes against the mandate of Article 21 of the Constitution, as held by the Hon‘ble Supreme Court in M. Ravindran (supra), Fakhrey Alam (supra) and Satender Kumar Antil (supra).”
Of course, the Bench then directs in para 43 that, “In the facts and circumstances of the present case, the application is allowed. The applicant is admitted to default bail under Section 167(2) of the CrPC in case RC2232020A0009 registered by the CBI at PS: AC-V, Delhi upon his furnishing a personal bond in the sum of Rs. 2,00,000/- alongwith two sureties of like amount to the satisfaction of the learned Trial Court/Link Court, further subject to the following conditions:
i. The memo of parties shows that the applicant is residing at B-38, Jain Chowk, Mangala Puri, Palam, New Delhi, NCT of Delhi, South West Delhi – 110045. In case of any change of address, the applicant is directed to inform the same to the Investigating Officer.
ii. The applicant shall not leave India without the prior permission of the learned Trial Court.
iii. The applicant is directed to give all his mobile numbers to the Investigating Officer and keep them operational at all times.
iv. The applicant shall not, directly or indirectly, tamper with evidence or try to influence the witness in any manner.
v. In case it is established that the applicant tried to tamper with the evidence, the bail granted to the applicant shall stand cancelled forthwith.”
For sake of clarity, the Bench clarifies in para 44 that, “Needless to state, nothing mentioned hereinabove is an opinion on the merits of the case pending before the learned Trial Court.”
Further, the Bench directs in para 45 that, “The application stands disposed of along with all the pending application(s), if any.”
Furthermore, the Bench also directs in para 46 that, “Let a copy of this judgment be communicated to the concerned Jail Superintendent.”
‖Finally, the Bench concludes by holding in para 47 that, “Order be uploaded on the website of this Court, forthwith.”
In sum, we thus see that the Delhi High Court has made it indubitably clear that filing piecemeal chargesheet defeats the right to default bail and goes against the mandate of Article 21 of the Constitution. It thus goes without saying that all the police and CBI officers must ensure always that piecemeal chargesheet is not filed and adhere in letter and spirit to what the Delhi High Court has held so very clearly, cogently and convincingly in this leading case. No denying it!
Sanjeev Sirohi