The Supreme Court Monday said an accused is not entitled to statutory bail under the Code of Criminal Procedure (CrPC) on the ground that a trial court has not taken cognizance of the charge sheet filed by the probe agency before the stipulated 60 or 90-day period.
The apex court’s significant legal observation came in a verdict which aside the default bail granted to founder and Managing Director of Adarsh Credit Cooperative Society, Mukesh Modi and Rahul Modi in a case pertaining to syphoning over Rs 200 crore of the depositors.
167. Procedure when investigation cannot be completed in twenty four hours: As per Section 167 of CrPC, if the investigation into an offence is not completed within 24 hours and the accused is in custody, the concerned police officers shall forward the accused to the nearest Judicial Magistrate. If the accusations made are well-founded, the accused shall not be released on bail unless his/her detention is authorized by a magistrate from time to time. In the case of a woman under 18 years of age, the detention shall be in a remand home or a recognized social institution.
Under section 167 (2) of the CrPC, an accused becomes entitled to grant of statutory bail if the probe agency fails to file the charge sheet in the trial court within the stipulated period of either 60 or 90 days. A probe agency gets mandatory 90 days for filing the charge sheet in cases, where punishment prescribed is between 10 years jail term to death penalty and it gets 60 days for filing the probe report where maximum sentence is below 10 years.
Chargesheet is sufficient compliance under Section 167 CRPC: This Court in Suresh Kumar Bhikamchand Jain v. State of Maharashtra & Anr. (1 (2013) 3 SCC 77). This Court held that in the event of investigation not being completed by the investigating authorities within the prescribed period, the accused acquires an indefeasible right to be granted bail, if he offers to furnish bail. This Court was of the firm opinion that if on either the 61st day or the 91st day, an accused makes an application for being released on bail in default of charge-sheet having been filed, the court has no option but to release the accused on bail. However, once the chargesheet was filed within the stipulated period, the right of the accused to statutory bail came to an end and the accused would be entitled to pray for regular bail on merits. It was held by this Court that the filing of charge-sheet is sufficient compliance with the provisions of proviso (a) to Section 167(2), CrPC and that taking of cognizance is not material to Section 167. The scheme of CrPC is such that once the investigation stage is completed, the court proceeds to the next stage, which is the taking of cognizance and trial.
During the period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced, with such Magistrate being vested with power to remand the accused to police custody and/or judicial custody, up to a maximum period as prescribed under Section 167(2). Acknowledging the fact that an accused has to remain in custody of some court, this Court concluded that on filing of the charge-sheet within the stipulated period, the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the court trying the offence, when the said court assumes custody of the accused for purposes of remand during the trial in terms of Section 309, CrPC. This Court clarified that the two stages are different, with one following the other so as to maintain continuity of the custody of the accused with a court.
The conclusion of the High Court that the accused cannot be remanded beyond the period of 60 days under Section 167 and that further remand could only be at the post-cognizance stage, is not correct in view of the judgment of this Court in Bhikamchand Jain (supra).
The point that requires to be considered is whether this Court has taken a different view in Sanjay Dutt v. State (1994) 5 SCC 410). In Sanjay Dutt (supra), this Court held that the indefeasible right accruing to the accused is enforceable only prior to the filing of challan and it does not survive or remain enforceable, on the challan being filed. It was made clear that once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan.
In light of the above findings, this Court held that the custody of the accused after the challan has been filed is not governed by Section 167(2) but different provisions of the CrPC.
A close scrutiny of the judgments in Sanjay Dutt (supra), Mohamed Iqbal Madar Sheikh & Ors. v. State of Maharashtra (1996) 1 SCC 722) and submitted that this Court in M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence (4 (2021) 2 SCC 485) would show that there is nothing contrary to what has been decided in Bhikamchand Jain (supra). In all the above judgments which are relied upon by either side, this Court had categorically laid down that the indefeasible right of an accused to seek statutory bail under Section 167(2), CrPC arises only if the charge-sheet has not been filed before the expiry of the statutory period.
The court held that in both Madar Sheikh (supra) and M. Ravindran (supra), this Court expressed its view that non-filing of the charge-sheet within the statutory period is the ground for availing the indefeasible right to claim bail under Section 167(2), CrPC.
The conundrum relating to the custody of the accused after the expiry of 60 days has also been dealt with by this Court in Bhikamchand Jain (supra). It was made clear that the accused remains in custody of the Magistrate till cognizance is taken by the relevant court.
The Serious Fraud Investigation Office (SFIO), in its appeal, had challenged the the grant of default bail by the high court on the ground that the trial court did not take cognizance of the charge sheet within the statutory period prescribed under CrPC.
The Punjab and Haryana High Court extended the benefit of statutory bail provision by holding that it can be granted in cases where the cognizance of the charge sheet has not been taken by the trial court. Faced with the tricky legal issue, a bench of Justices L Nageswara Rao and B R Gavai referred to several key judgements on the issue and set aside the high court verdict.
It said introducing an additional requirement of cognizance being taken by the trial court for denying the bail was not permissible. The order of May 31, 2019 of of Punjab and Haryana high Court granting statutory bail to the father-son duo in the case was challenged by SFIO.
The father-son duo was arrested by the SFIO of the Ministry of Corporate Affairs in December 2018 for committing an alleged fraud by syphoning over Rs 200 crore of over 20 lakh depositors through an alleged Ponzi scheme. The Ahmedabad-based society was operational since 1999. Mukesh and Rahul were arrested in December 2018 but were released on interim bail with effect from December 21 till April 1 following a Delhi High Court order. However, the Supreme Court, on March 27, 2019, had set aside the order on an appeal filed by the SFIO and had directed the duo to surrender before a special court in Gurgaon.
Serious Fraud Investigation Office …. Versus ………….. Rahul Modi & Ors. [Criminal Appeal Nos.185-186 of 2022]
HONBLE MR JUSTICE NAGESWAR RAO
Judge Supreme Court of India
HON’BLE MR JUSTICE BHUSHAN RAMAKRISHNA GAVAI
Judge Supreme Court of India
