The High Court refused the bail prayer filed by an accused challenging the regularity of the charge-sheet. It held that the charge-sheet was final and filed within the statutory time, making the request for default bail inapplicable despite a clause allowing further investigation.
Refused the prayer for granting default bail to the petitioner.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Page No.# 1/13
GAHC010001362023
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./36/2023
DINESH JAISWAL
S/O LATE BACHELAL JAISWAL, DIRECTOR OF M/S DINSAN GLOBAL VENTURES PVT LTD, R/O P.S.-BASISTHA, HOUSE NO. 137, NATUN BAZAR, BASISTHA CHARIALI, GUWAHATI-29, DIST-KAMRUP (M), ASSAM
VERSUS
THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MR D J HALOI
Advocate for the Respondent : PP, ASSAM
BEFORE
HON’BLE MR. JUSTICE KALYAN RAI SURANA
For the petitioner : Mr. S. Das, Advocate. For State respondent : Mr. M. Phukan, P.P. Date of hearing : 07.02.2023 and 09.02.2023. Date of judgment : 09.02.2023
JUDGMENT AND ORDER (ORAL)
Heard Mr. S. Das, learned counsel for the petitioner. Also heard
Mr. M. Phukan, the learned Public Prosecutor for the State.
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“Investigation u/s 173(8) of Cr.P.C. is continuing for collecting more evidence against other accused persons as well as arrested accused persons found involved in this case.”
Therefore, it has been submitted that on a plain and simple reading of para 16.63 of the charge-sheet, it is clear that the investigation is continuing and therefore, incomplete.
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as per terms and conditions of the tender documents, raised bills for payment without execution of works, based on false and fabricated weigh bridge slips. As extensive description of manner in which funds of the Guwahati Municipal Corporation has been siphoned-off, only a brief description of the alleged offence committed by the petitioner has been mentioned in this order by avoiding burdening this order with voluminous materials contained in the charge-sheet against the petitioner.
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order dated 16.01.2020 and had remanded the case. Thus, as 168 days had expired after the statutory period of 90 days, the petitioner therein was granted default bail, however, with a condition that petitioner can be re-arrested after charge-sheet is filed. The said part of the order, allowing the I.O. to arrest the petitioner was assailed before the Supreme Court of India, which was interfered with by the Supreme Court of India in the case of Kamlesh Chaudhary (supra). Thus, on facts, the present case is distinguishable because the order dated 12.01.2023, by the learned trial Court, taking cognizance of the offence, has not been interfered with.
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context, para-18 and 19 thereof are quoted below:-
“ 18 . None of the said cases detract from the position that once a charge-sheet is filed within the stipulated time, the question of grant of default bail or statutory bail does not arise. As indicated hereinabove, in our view, the filing of chargesheet is sufficient compliance with the provisions of Section 167(2)(a)(ii) in this case. Whether cognizance is taken or not is not material as far as Section 167, Cr.P.C. is concerned. The right which may have accrued to the Petitioner, had charge-sheet not been filed, is not attracted to the facts of this case. Merely because sanction had not been obtained to prosecute the accused and to proceed to the stage of Section 309 CrPC, it cannot be said that the accused is entitled to grant of statutory bail, as envisaged in Section 167 CrPC The scheme of the 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. An accused has to remain in custody of some court. During the period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced. During that stage, under Section 167(2) CrPC, the Magistrate is vested with authority to remand the accused to custody, both police custody and or judicial custody, for 15 days at a time, up to a maximum period of 60 days in cases of offences punishable for less than 10 years and 90 days where the offences are punishable for over 10 years or even death sentence. In the event, an investigating authority fails to file the charge-sheet within the stipulated period, the accused is entitled to be released on statutory bail. In such a situation, 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. The two stages are different, but one follows the other so as to maintain a continuity of the custody of the accused with a court.
19 . Having regard to the above, we have no hesitation in holding that notwithstanding the fact that the prosecution had not been able to obtain sanction to prosecute the accused, the accused was not entitled to grant of statutory bail since the charge-sheet had been filed well within the period contemplated under Section 167(2) (a)(ii) CrPC. Sanction is an enabling provision to prosecute, which is totally separate from the concept of investigation which is concluded by the filing of the charge-sheet. The two are on separate footings. In that view of the matter, the Special Leave Petition deserves to be and is hereby dismissed.”
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it appears that as no charge-sheet was filed, the petitioner filed an application under section 167(2) for default bail and the charge-sheet was filed on 21.04.2022, against the petitioner, but without obtaining sanction for prosecution and therefore, plea was taken that no cognizance can be taken on such charge-sheet. It has been held in the said case that the prosecution cannot circumvent the provision of Section 167(2) by filing incomplete or part chargesheet. In the said context, the Court is of the considered opinion that the said proposition is not in dispute, but as cognizance of the offence having already been taken by the learned trial Court, it would not be open to this Court, in exercise of jurisdiction under section 439 CrPC, to revisit the said order dated 12.01.2023 and to opine that the charge-sheet was filed in part or was incomplete.
15 . A very wide power is vested in the investigating agency to conduct further investigation after it has filed the report in terms of Section 173(2). The legislature has specifically used the expression 'nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Section 173(2) has been forwarded to the Magistrate', which unambiguously indicates the
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legislative intent that even after filing of a report before the court of competent jurisdiction, the Investigating Officer can still conduct further investigation and where, upon such investigation, the officer in charge of a police station gets further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the prescribed form. In other words, the investigating agency is competent to file a supplementary report to its primary report in terms of Section 173(8).The supplementary report has to be treated by the Court in continuation of the primary report and the same provisions of law, i.e., sub-section (2) to sub-section (6) of Section 173 shall apply when the Court deals with such report.
27 . Here, we will also have to examine the kind of reports that can be filed by an investigating agency under the scheme of the Code.
27.1 . Firstly, the FIR which the investigating agency is required to file before the Magistrate right at the threshold and within the time specified.
27.2 . Secondly, it may file a report in furtherance to a direction issued under Section 156(3) of the Code.
27.3 . Thirdly, it can also file a 'further report1, as contemplated under Section 173(8).
27.4 . Finally, the investigating agency is required to file a 'final report' on the basis of which the Court shall proceed further to frame the charge and put the accused to trial or discharge him as envisaged by Section 227 of the Code.
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28 . Next question that comes up for consideration of this Court is whether the empowered Magistrate has the jurisdiction to direct 'further investigation' or 'fresh investigation'. As far as the latter is concerned, the law declared by this Court consistently is that the learned Magistrate has no jurisdiction to direct 'fresh' or 'de novo' investigation. However, once the report is filed, the Magistrate has jurisdiction to accept the report or reject the same right at the threshold. Even after accepting the report, it has the jurisdiction to discharge the accused or frame the charge and put him to trial. But there are no provisions in the Code which empower the Magistrate to disturb the status of an accused pending investigation or when report is, filed to wipe out the report and its effects in law. Reference in this regard can be made to K. Chandrasekhar v. State of Kerala, (1998) 5 SCC 223; Ramachandran v. R. Udhayakumar, (2008) 5 SCC 413, Nirmal Singh Kahlon v State of Punjab & Ors., (2009) 1 SCC 441, Mithabhai Pashabhai Patel & Ors. v. State of Gujarat, (2009) 6 SCC 332; and Babubhai v. State of Gujarat, (2010) 12 SCC 254. 29 . Now, we come to the former question, i.e., whether the Magistrate has jurisdiction under Section 173(8) to direct further investigation.
30 . The power of the Court to pass an order for further investigation has been a matter of judicial concern for some time now. The courts have taken somewhat divergent but not diametrically opposite views in this regard. Such views can be reconciled and harmoniously applied without violation of the rule of precedence. In the case of State of Punjab v. Central Bureau of Investigation, (2011) 9 SCC 182, the Court noticed the distinction that exists between 'reinvestigation' and 'further investigation'. The Court also noticed the settled principle that the courts subordinate to the High Court do not have the statutory inherent powers as the High Court does under Section 482 of the Code and therefore, must exercise their jurisdiction within the four corners of the Code.
31 . Referring to the provisions of Section 173 of the Code, the Court observed that the police has the power to conduct further investigation in terms of Section 173(8) of the Code but also opined that even the Trial Court can direct further investigation in contradistinction to fresh investigation, even where the report has been filed. It will be useful to refer to the following paragraphs of the judgment wherein the Court while referring to the case of Mithabhai Pashabhai Patel v. State of Gujarat (supra) held as under:
"13. It is, however, beyond any cavil that 'further investigation' and
'reinvestigation' stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely, under Articles 226 and 32 of the Constitution of India could direct a 'State' to get an offence investigated and/or further investigated by a different agency. Direction of a reinvestigation, however, being forbidden in law, no superior court would ordinarily issue such a direction. Pasayat, J. in Ramachandran v. R.
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Udhayakumar, (2008) 5 SCC 413 opined as under:
A distinction, therefore, exists between a reinvestigation and further investigation.
32 . In the case of Minu Kumari & Anr. v. State of Bihar & Ors., (2006) 4 SCC 359, this Court explained the powers that are vested in a Magistrate upon filing of a report in terms of Section 173(2)(i) and the kind of order that the Court can pass. The Court held that when a report is filed before a Magistrate, he may either (i) accept the report and take cognizance of the offences and issue process; or (ii) may disagree with the report and drop the proceedings; or (iii) may direct further investigation under Section 156(3) and require the police to make a further report. 33 . This judgment, thus, dearly shows that the Court of Magistrate has a clear power to direct further investigation when a report is filed under Section 173(2) and may also exercise such powers with the aid of Section 156(3) of the Code. The lurking doubt, if any, that remained in giving wider interpretation to Section 173(8) was removed and controversy put to an end by the judgment of this Court in the case of Hemant Dhasmana v. CBI, (2001) 7 SCC 536, where the Court held that although the said order does not, in specific terms, mention the power of the court to order further investigation, the power of the police to conduct further investigation envisaged therein can be triggered into motion at the instance of the court! When any such order is passed by the court, which has the jurisdiction to do so, then such order should not even be interfered with in exercise of a higher court's revisional jurisdiction. Such orders would normally be of an advantage to achieve the ends of justice. It was clarified, without ambiguity, that the magistrate, in exercise of powers under Section 173(8) of the Code can direct the CBI to further investigate the case and collect further evidence keeping in view the objections raised by the appellant to the investigation and the new report to be submitted by the Investigating Officer, would be governed by sub-Section (2) to sub-Section (6) of Section 173 of the Code. There is no occasion for the court to
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interpret Section 173(8) of the Code restrictively. After filing of the final report, the learned Magistrate can also take cognizance on the basis of the material placed on record by the investigating agency and it is permissible for him to direct further investigation. Conduct of proper and fair investigation is the hallmark of any criminal investigation.
39 . The power vested upon the investigating agency by Section 173(8) of the Cr.PC is a wide power. The said sub-section opens up with the wordings “Nothing in this section shall be deemed to preclude further investigation…” which is in the nature of a non-obstante clause giving overriding powers. Under this provision, the investigating agency shall not be precluded by anything in the section from making further investigation in respect of the report which has been submitted under subsection (2) and on obtaining further evidence, the same should be forwarded to the Magistrate in the form of a further report or reports regarding such evidence wherein the provisions of sub-sections (2) to (6) shall apply.
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collected against the petitioner, it cannot be said that the charge-sheet is not a final but a preliminary charge-sheet. Therefore, notwithstanding that there is an averment in the charge-sheet to the effect that “Investigation u/s 173(8) of Cr.P.C. is continuing for collecting more evidence against other accused persons as well as arrested accused persons found involved in this case”, the same does not make the charge-sheet anything less than a final report as envisaged under section 173(2) CrPC.
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JUDGE
Comparing Assistant
2 issues framed by the court
Whether the grant of default bail is barred when the charge-sheet mentions further investigation under Section 173(8) CrPC?
Whether a charge-sheet filed within the statutory period entitling the accused to statutory bail despite a request for further investigation?
Colour shows how this judgement treated each authority
Kamlesh Chaudhary v. State of RajasthanDistinguished¶33
Kamlesh Chaudhary v. State of Rajasthan, 2021 SCC OnLine SC 270 · Who else cites this
Rakesh Kumar Paul v. State of AssamDistinguished¶11
Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67 · Who else cites this
Suresh Kumar Bhikamchand Jain v. State of Maharashtra & Anr.Referred¶13
Suresh Kumar Bhikamchand Jain v. State of Maharashtra & Anr., (2013) 3 SCC 77 · Who else cites this
Chitra Ramakrishna v. CBIDistinguished¶14
Chitra Ramakrishna v. Central Bureau of Investigation (CBI), (2022) SCC OnLine Del 3124 · Who else cites this
Subhra Jyoti Bharali v. The Directorate of EnforcementReferred¶15
Subhra Jyoti Bharali v. The Directorate of Enforcement
State v. T. Gangi ReddyReferred¶66
State through Central Bureau of Investigation v. T. Gangi Reddy
Vinay Tyagi v. Irshad AliReferred¶16
Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762 · Who else cites this
Ranjit Kumar Borah v. CBIReferred¶17
Ranjit Kumar Borah v. Central Bureau of Investigation
State of Punjab v. CBIReferred¶30
State of Punjab v. Central Bureau of Investigation, (2011) 9 SCC 182 · Who else cites this
Minu Kumari v. State of BiharReferred¶32
Minu Kumari & Anr. v. State of Bihar, (2006) 4 SCC 359 · Who else cites this
Hemant Dhasmana v. CBIReferred¶32
Hemant Dhasmana v. CBI, (2001) 7 SCC 536 · Who else cites this
5 provisions across 3 enactments
Dinesh Jaiswal
The State of Assam represented by the Public Prosecutor, Assam
Kalyan Rai Surana
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
