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CASE NO.:

Appeal (crl.) 1249 of 2007

PETITIONER:

Dinesh Dalmia

RESPONDENT:

C.B.I.

DATE OF JUDGMENT: 18/09/2007

BENCH:

S.B. Sinha & Harjit Singh Bedi

JUDGMENT:

J U D G M E N T

CRIMINAL APPEAL NO. 1249 OF 2007

[Arising out of SLP (Crl.) No. 513 of 2007]

S.B. SINHA, J :

1. Leave granted.

2. Interpretation of Sub-section (2) of Section 167 of the Code of

Criminal Procedure, 1973 (for short "the Code") vis-`-vis Sub-section (2) of

Section 309 thereof falls for consideration of this Court in this appeal which

arises out of an order dated 22.12.2006 passed by a learned Single Judge of

the High Court of Judicature at Madras in Crl. R.C. No. 1173 of 2006 setting

aside an order dated 25.08.2006 passed by the 5th Additional Sessions Judge,

Chennai in R.C. 4/(E)/03/BSC/FC/CBI New Delhi in Crl. R.C. No. 115 of

2006 whereby an order dated 30.05.2006 passed by the Special Court in Crl.

M.P. No. 788 of 2006 in C.C. No. 19189 of 2005 was set aside.

3. Appellant was proceeded against for commission of offences under

Sections 409, 420 and 120B of the Indian Penal Code.

4. The Central Bureau of Investigation (CBI) lodged a first information

report against the appellant and three companies registered and incorporated

under the Companies Act, 1956 on a complaint made by the Securities and

Exchange Board of India. Indisputably, Appellant was named therein. He

was, however, evading arrest. He had gone to the United States. The

learned Magistrate by an order dated 14.02.2005, on a prayer made in that

behalf by the CBI, issued a non-bailable warrant of arrest against him. Upon

completion of investigation, a charge sheet was submitted before the

Magistrate in terms of Sub-section (2) of Section 173 of the Code. In the

said charge sheet, name of the appellant appeared in Column No. 1 along

with the said three companies. Name of one of the companies named in the

first information report, viz., M/s. DSQ Software Ltd., has been shown in

Column No. 2. In the said charge sheet, it was stated:

"Investigation has revealed that Sh. Dinesh

Dalmia, the then Managing Director & Custodian

of properties, including shares, of M/s. DSQ

Software Ltd., fraudulently got dematerialized un-

allotted and unlisted share of DSQ Software Ltd.

In the name of three entities namely New Vision

Investment Ltd., UK; Dinesh Dalmia Technology

Trust and Dr. Suryanil Ghosh, Trustee \026 Softec

Corporation and thereafter these shares were sold

in the market and the proceeds of sale of said

shares were credited in the accounts of M/s. DSQ

Holdings Ltd., M/s. Hulda Properties and Trade

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Ltd. and M/s. Powerflow Holding and Trading Pvt.

Ltd. and thereby dishonestly misappropriated and

cheated investors including existing share holders

and obtained undue gain to the tune of Rs.

5,94,88,37,999/-.

Thus, Sh. Dinesh Dalmia has committed

fraudulent acts prima facie disclosing commission

of offences of cheating, breach of trust, forgery

and using forged documents as genuine by getting

wrongful gain in the matter of partly paid shares.

DSQ Software Ltd. in the name of New Vision

Investment Ltd., UK; unallotted shares in the name

of Dinesh Dalmia Technology Trust and "Dr.

Suryanil Ghosh Trustee Softec Corporation". M/s.

DSQ Holdings Ltd., M/s. Hulda Properties and

Trades Ltd. and M/s. Powerflow Holding &

Trading Pvt Ltd have also committed offence of

cheating in the matter of above mentioned shares

and the above facts disclose commission of

offences punishable U/s 409, 420, 468 and 471

IPC on the part of accused Sh. Dinesh Dalmia (A-

1) and U/ 420 IPC on the part of accused

companies namely M/s DSQ Holdings Ltd (A-2)

represented by Sh. Dinesh Dalmia, Director, M/s.

Hulda Properties & Trades Ltd (A-3) represented

by Sh Ashok Kumar Sharma, Director & M/s

Powerflow Holding & Trading Pvt Ltd (A-4)

represented by Sh Ashok Kumar Sharma, Director.

During investigation the allegations against

DSQ Software Ltd could not be substantiated and

hence it is not being charge sheeted.

Accused Dinesh Dalmia is evading arrest

and has absconded to USA. He has not joined

investigation. Ld. ACMM, Egmore Chennai

issued an open ended non-bailable warrant of his

arrest and a Red Corner Notice (RCN) has been

issued against him through INTERPOL for

locating him. His examination is necessary in this

case as only he alone is aware of the end use of the

funds.

Further investigation on certain vital points

including end use of the funds, foreign

investigation in the matter of genuineness of New

Vision Investment Ltd and as shown as its

authorized signatory, Sh. Hitendra Naik, in United

Kingdom and other foreign investigation are still

continuing and after completion of the remaining

investigation the report of the same will be filed

under section 173(8) Cr. PC in due course.

The questioned documents have been sent to

GEQD for expert opinion, it is still awaited. After

being obtained, the same will be submitted with

additional list of documents.

The list of witnesses and list of documents

are enclosed herewith and additional list of

documents & witnesses, if necessary, will be

submitted in due course.

It is, therefore, prayed that this Hon'ble

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court may be pleased to take cognizance of the

offences, issue the process to secure the presence

of the accused and they may be tried according to

law."

5. Although statements made by the witnesses under Section 161 of the

Code accompanied the charge sheet, the relevant documents could not be

filed as they were sent for examination before the Government Examiner of

Questioned Documents (GEQD). Cognizance was taken by the Magistrate

on the said charge sheet by an order dated 25.10.2005. It was specifically

noted that non-bailable warrant as against the appellant was still pending.

The CBI contended that the appellant entered into India illegally as no

endorsement had been made in his passport showing a valid travel

undertaken by him. He was produced before a Magistrate in Delhi for

transit remand to Chennai. An order to that effect was passed. On

14.02.2006, when he was produced before the concerned Magistrate at

Chennai, an order for police custody was prayed for and was granted till

24.02.2006. Another application was filed for further police custody for

four days on 21.02.2006. An application was also filed seeking permission

to conduct brain mapping, polygraph test, on the appellant which was

allowed.

6. Appellant had been handed over to the police for conducting

investigation till 8.03.2006. He, however, was remanded to judicial custody

till 14.03.2006 by an order dated 9.03.2006. Allegedly, on the plea that

further investigation was pending, the CBI prayed for and obtained order of

remand to judicial custody from the learned Magistrate on 14.03.2006,

28.03.2006, 10.04.2006 and 28.04.2006. All the applications were made

purported to be under Sub-section (2) of Section 167 of the Code.

7. Appellant, on expiry of 60 days from the date of his arrest, filed an

application for statutory bail purported to be in terms of the proviso

appended to Sub-section (2) of Section 167 of the Code on the premise that

no further charge sheet in respect of the investigation under Sub-section (8)

of Section 173 of the Code has been filed. When the said application was

pending consideration, the CBI sought for his remand in judicial custody

under Sub-section (2) of Section 309 thereof.

The said application for statutory bail was rejected by the learned

Magistrate opining:

"\005Because, in this case, the petitioner was

arrested on the basis of Non-bailable warrant

issued by this court, after taking cognizance of the

offences in charge sheet. Further, the respondent

side has clearly stated that before further

investigation commenced on 14.2.2006, the

petitioner was remanded to police custody, hence

he was in the custody of the court since his arrest

on 12.2.2006. Therefore, after expiry of the police

custody, the petitioner should be remanded to

judicial custody u/s 309(2) Cr. P.C. and not u/s

167(2) Cr.P.C. However, in this case, by mistake,

provision of law under which the petitioner was

remanded to judicial custody was mentioned as

Section 167(2) Cr.P.C. in the remand report. In

fact for remanding an accused in custody against

whom charge sheet has already been filed and an

application for remand is not required. Hence this

court is inclined to state that the petitioner was

remanded to police custody u/s 167(2) Cr.P.C. and

thereafter was remanded to judicial custody u/s

309 Cr.P.C."

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The learned Magistrate further took note of the fact that two other

cases have been registered against him by the Calcutta Police.

8. A revision application filed by the appellant herein before the learned

Sessions Judge was allowed inter alia relying on or on the basis of the

decision of this Court in State Through CBI v. Dawood Ibrahim Kaskar and

Others [(2000) 10 SCC 438] stating:

"23. Taking into consideration of all these facts

and circumstances of the case and principle of law

laid down by the Hon'ble Apex Court I feel that in

view of the positive conduct of the respondent in

relying upon Section 167(2) Cr. P.C. in all their

applications (up to the filing of the bail

application), the petitioner can also rely upon it

and seek necessary orders thereunder, that the

respondent is now estopped from pleading

opposite to their own previous conduct and that

Section 309(2) cannot be applied to a person like

the petitioner, who was arrested in the course of

further investigation."

9. The CBI moved the High Court thereagainst. Its application was

registered as Crl. R.C. No. 1173 of 2006. The decision of the learned

Sessions Judge was over-turned by the High Court by reason of the

impugned judgment stating:

"Because of this interpretation the learned

Magistrate is empowered to give "Police custody".

Once police custody is completed the accused

reverts back to judicial custody of post cognizance

stage. Even if further investigation continues as

far as such accused are concerned scope of section

167 comes to an end. "Subject to fulfillment of the

requirement and the limitation of Section 167"

only refers to the investigation during "police

custody" especially when an accused is in remand

under Section 167. When further investigation

keeping him in police custody during post

cognizance stage is completed, the remand of an

accused is only governed under Section 309

Cr.P.C. Under such circumstances, invoking of

proviso to section 167 and demand for a

benevolent provision is inapplicable to such

accused.

27. The object of enactment of such proviso in

Section 167 Cr. P.C. is to have control over a

lethargic, delayed investigation, especially keeping

a person in custody. It is a specific direction to the

police to collect material without any delay. If

sufficient incriminating materials are not collected

against the accused with the crime alleged. It

safeguards the interest of such accused person. If

materials are collected and reported to the

Magistrate within the period stipulated by filing

charge sheet, then the scope of proviso to section

167 extinguishes and an accused can claim bail

only on merit.

28. In the instant case most of the materials have

been collected. The materials to connect the

accused with the crime is already available. Final

conclusion also was reached and charge sheet

filed. However, custodial interrogation of the

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accused felt necessary. Such interrogation

entrusting him in police custody was done between

12.02.2006 and 27.02.2006 cognizance of the case

was taken much earlier on 25.10.2005. Only for

custodial interrogation he was entrusted under

Section 167 to the CBI. Section 167 Cr.P.C. can

be invoked only for such purpose in a post

cognizance case. Otherwise a remand must be

made only under Section 309 Cr.P.C. If a wrong

provision is quoted for further remand under

section 167 Cr.P.C. instead of 309 one cannot

claim the benefit of a benevolent proviso to section

167. Proviso to section 167 is available only to

safeguard an innocent person or a person against

whom no materials collected in spite of detaining

him for 60/90 days. In the instant case abundant

materials have been already collected and final

report filed. Two years after the cognizance he

was apprehended. He was entrusted with police

custody only for custodial interrogation. Further

investigation may be pending to comply with other

formalities. There may be delay to receive opinion

from experts and such delay cannot be taken

advantage of by invoking the proviso to section

167 Cr.P.C."

10. Appellant is, thus, before us.

11. Mr. Mukul Rohatgi, learned senior counsel appearing on behalf of the

appellant, has raised two contentions before us:

(i) The charge sheet filed against the appellant and cognizance taken

thereupon is illegal and invalid and by reason thereof, a valuable

right of the appellant to be released on bail has been taken away.

(ii) Even if the charge sheet is legal, the right of the appellant under

Sub-section (2) of Section 167 of the Code continued to remain

available in the facts and circumstances of the case.

Elaborating his submission, Mr. Rohatgi urged that a police report

must strictly conform to the requirements laid down under Section 173 of

the Code and the prescribed form for submission of the final form

wherefrom it would be evident that no charge sheet can be filed upon

purported completion of investigation against the appellant as he had been

absconding. As the CBI kept investigation as against the appellant open, as

would appear from the charge sheet itself as also the prayers made and

granted by the learned Magistrate which is permissible only under Sub-

section (2) of Section 167 of the Code, no chargesheet in law can be said to

have been filed so far as the appellant was concerned. The CBI moreover

itself proceeded on the basis that the investigation against the appellant had

been pending and only in that view of the matter applications for remand

were filed under Sub-section (2) of Section 167 of the Code. It was

contended that only when the appellant applied for grant of statutory bail,

the CBI changed its stand and filed an application for remand under Sub-

section (2) of Section 309 of the Code.

12. Mr. Amarendra Sharan, learned Additional Solicitor General

appearing on behalf of the CBI, on the other hand, would submit that a

charge sheet having been submitted before the Court and cognizance having

been taken on the basis thereof, the only provision applicable for remand of

the accused would be Sub-section (2) of Section 309 of the Code and, thus,

even if a wrong provision has been mentioned by CBI in their applications

for remand, the same by itself would not render the order of the Court

invalid in law.

In this case the CBI took a conscious decision to file charge sheet

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against the appellant. His name was shown in Column No. 1 thereof

although he was absconding. It was found that a case for trial has been

made out. There were five accused against whom allegations were made by

the complainant. One of the companies was not sent for trial as nothing was

found against it. All the other accused named in the first information report

had been sent for trial.

14. The learned Magistrate took cognizance of the offence. The said

power can be exercised only under Section 190(1)(b) of the Code. The

learned Magistrate noticed the fact, while taking cognizance of the offence,

that the appellant had been absconding and a non-bailable warrant of arrest

had been issued against him.

Whereas the charge sheet was submitted on 24.10.2005, the appellant

was arrested only on 12.02.2006. According to Mr. Sharan, the additional

documents were filed on 20.01.2006.

15. 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 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.

16. Indisputably, the power of the investigating officer to make a prayer

for making further investigation in terms of Sub-section (8) of Section 173 is

not taken away only because a charge sheet under Sub-section (2) thereof

has been filed. A further investigation is permissible even if order of

cognizance of offence has been taken by the Magistrate.

17. We may notice that a Constitution Bench of this Court in K.

Veeraswami v. Union of India and Others [(1991) 3 SCC 655] stated the law

in the following terms :

"76\005As observed by this Court in Satya Narain

Musadi v. State of Bihar that the statutory

requirement of the report under Section 173(2)

would be complied with if the various details

prescribed therein are included in the report. This

report is an intimation to the magistrate that upon

investigation into a cognizable offence the

investigating officer has been able to procure

sufficient evidence for the Court to inquire into the

offence and the necessary information is being sent

to the Court. In fact, the report under Section

173(2) purports to be an opinion of the

investigating officer that as far as he is concerned

he has been able to procure sufficient material for

the trial of the accused by the Court. The report is

complete if it is accompanied with all the

documents and statements of witnesses as required

by Section 175(5). Nothing more need be stated in

the report of the Investigating Officer. It is also not

necessary that all the details of the offence must be

stated. The details of the offence are required to be

proved to bring home the guilt to the accused at a

later stage i.e. in the course of the trial of the case

by adducing acceptable evidence.

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18. It is true that ordinarily all documents accompany the charge sheet.

But, in this case, some documents could not be filed which were not in the

possession of the CBI and the same were with the GEQD. As indicated

hereinbefore, the said documents are said to have been filed on 20.01.2006

whereas the appellant was arrested on 12.02.2006. Appellant does not

contend that he has been prejudiced by not filing of such documents with the

charge sheet. No such plea in fact had been taken. Even if all the

documents had not been filed, by reason thereof submission of charge sheet

itself does not become vitiated in law. The charge sheet has been acted upon

as an order of cognizance had been passed on the basis thereof. Appellant

has not questioned the said order taking cognizance of the offence. Validity

of the said charge sheet is also not in question.

Application of Sub-section (2) of Section 173 of the Code vis-`-vis

Sub-section (2) of Section 309 must be considered having regard to the

aforementioned factual and legal backdrop in mind.

19. 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. The

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 with 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.

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 the

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.

20. Apart from the appellant, three companies, registered and

incorporated under the Companies Act, have been shown as accused in the

charge sheet. It was, therefore, not necessary for the CBI to file a charge

sheet so as to curtail the right of the accused to obtain bail. It is, therefore,

not a case where by reason of such submission of charge sheet the appellant

has been prejudiced in any manner whatsoever.

21. It is also not a case of the appellant that he had been arrested in course

of further investigation. A warrant of arrest had already been issued against

him. The learned Magistrate was conscious of the said fact while taking

cognizance of the offence.

It is now well settled that the court takes cognizance of an offence and

not the offender. [See Anil Saran v. State of Bihar and another (1995) 6

SCC 142 and Popular Muthiah v. State represented by Inspector of Police

(2006) 7 SCC 296]

22. The power of a court to direct remand of an accused either in terms of

Sub-section (2) of Section 167 of the Code or Sub-section (2) of Section 309

thereof will depend on the stages of the trial. Whereas Sub-section (2) of

Section 167 of the Code would be attracted in a case where cognizance has

not been taken, Sub-section (2) of Section 309 of the Code would be

attracted only after cognizance has been taken.

23. If submission of Mr. Rohatgi is to be accepted, the Magistrate was not

only required to declare the charge sheet illegal, he was also required to

recall his own order of taking cognizance. Ordinarily, he could not have

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done so. [See Adalat Prasad v. Rooplal Jindal and Ors. (2004) 7 SCC 338,

Subramanium Sethuraman v. State of Maharashtra and Anr. 2004 (8)

SCALE 733 and Everest Advertising Pvt. Ltd. v. State, Govt. of NCT of

Delhi and Ors. JT 2007 (5) SC529] It is also well-settled that if a thing

cannot be done directly, the same cannot be permitted to be done indirectly.

If the order taking cognizance exists, irrespective of the conduct of the CBI

in treating the investigation to be open or filing applications for remand of

the accused to police custody or judicial remand under Sub-section (2) of

Section 167 of the Code stating that the further investigation was pending,

would be of no consequence if in effect and substance such orders were

being passed by the Court in exercise of its power under Sub-section (2) of

Section 309 of the Code.

24. We, however, have no words to deprecate the stand of the CBI. It

should have taken a clear and categorical stand in the matter.

We, however, are proceeding on the basis that irrespective of the

stand taken by the CBI, law will prevail. We may notice the law operating

in the field in this behalf.

25. In support of the submission in regard to interpretation of Sub-section

(2) of Section 167 and Sub-section (2) of Section 309 of the Code, strong

reliance has been placed by Mr. Rohatgi on Central Bureau of Investigation,

Special Investigation Cell \026 I, New Delhi v. Anupam J. Kulkarni [(1992) 3

SCC 141] and Dawood Ibrahim Kaskar (supra).

In Anupam J. Kulkarni (supra), the question which inter alia arose for

consideration of this Court was as to whether the period of remand ordered

by an Executive Magistrate in terms of Section 57 of the Code should be

computed for the purpose of Sub-section (2) of Section 167 thereof. This

Court, keeping in view the provisions of Clause (2) of Article 22 of the

Constitution of India, answered the question in the affirmative. It was held

that a total period of remand during investigation is fifteen days. In that

context, this Court observed:

"\005However, taking into account the difficulties

which may arise in completion of the investigation

of cases of serious nature the legislature added the

proviso providing for further detention of the

accused for a period of ninety days but in clear

terms it is mentioned in the proviso that such

detention could only be in the judicial custody.

During this period the police are expected to

complete the investigation even in serious cases.

Likewise within the period of sixty days they are

expected to complete the investigation in respect

of other offences. The legislature however

disfavoured even the prolonged judicial custody

during investigation. That is why the proviso lays

down that on the expiry of ninety days or sixty

days the accused shall be released on bail if he is

prepared to and does furnish bail\005"

In regard to the question as to whether such an order of remand would

be permissible in law when an accused is wanted in different cases, the

answer was again rendered in affirmative. We are not faced with such a

problem in the instant case.

26. In Dawood Ibrahim Kaskar (supra), this Court held:

"11. There cannot be any manner of doubt that the

remand and the custody referred to in the first

proviso to the above sub-section are different from

detention in custody under Section 167. While

remand under the former relates to a stage after

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cognizance and can only be to judicial custody,

detention under the latter relates to the stage of

investigation and can initially be either in police

custody or judicial custody. Since, however, even

after cognizance is taken of an offence the police

has a power to investigate into it further, which can

be exercised only in accordance with Chapter XII,

we see no reason whatsoever why the provisions of

Section 167 thereof would not apply to a person

who comes to be later arrested by the police in

course of such investigation. If Section 309(2) is to

be interpreted - as has been interpreted by the

Bombay High Court in Mansuri (supra) - to mean

that after the Court takes cognizance of an offence

it cannot exercise its power of detention in police

custody under Section 167 of the Code, the

Investigating Agency would be deprived of an

opportunity to interrogate a person arrested during

further investigation, even if it can on production

of sufficient materials, convince the Court that his

detention in its (police) custody was essential for

that purpose. We are therefore of the opinion that

the words "accused if in custody" appearing in

Section 309(2) refer and relate to an accused who

was before the Court when cognizance was taken

or when enquiry or trial was being held in respect

of him and not to an accused who is subsequently

arrested in course of further investigation. So far as

the accused in the first category is concerned he

can be remanded to judicial custody only in view

of Section 309(2), but he who comes under the

second category will be governed by Section 167

so long as further investigation continues. That

necessarily means that in respect of the latter the

Court which had taken cognizance of the offence

may exercise its power to detain him in police

custody, subject to the fulfilment of the

requirements and the limitation of Section 167."

27. We had noticed the dicta of the Constitution Bench judgment of this

Court. At this juncture, we may notice the dicta laid down by this Court in

Sanjay Dutt v. State Through C.B.I. Bombay (II) [(1994) 5 SCC 410]

wherein it was held:

"53\005(2)(b) The 'indefeasible right' of the accused

to be released on bail in accordance with Section

20(4)(bb) of the TADA Act read with Section

167(2) of the CrPC in default of completion of the

investigation and filing of the challan within the

time allowed, as held in Hitendra Vishnu Thakur is

a right which enures to, and is enforceable by the

accused only from the time of default till the filing

of the challan and it does not survive or remain

enforceable on the challan being filed. If the

accused applies for bail under this provision on

expiry of the period of 180 days or the extended

period, as the case may be, then he has to be

released on bail forthwith. The accused, so

released on bail may be arrested and committed to

custody according to the provisions of the CrPC.

The right of the accused to be released on bail after

filing of the challan, notwithstanding the default in

filing it within the time allowed, is governed from

the time of filing of the challan only by the

provisions relating to the grant of bail applicable at

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that stage."

28. It is a well-settled principle of interpretation of statute that it is to be

read in its entirety. Construction of a statute should be made in a manner so

as to give effect to all the provisions thereof. Remand of an accused is

contemplated by the Parliament at two stages; pre-cognizance and post \026

cognizance. Even in the same case depending upon the nature of charge

sheet filed by the investigating officer in terms of Section 173 of the Code, a

cognizance may be taken as against the person against whom an offence is

said to have been made out and against whom no such offence has been

made out even when investigation is pending. So long a charge sheet is not

filed within the meaning of Sub-section (2) of Section 173 of the Code,

investigation remains pending. It, however, does not preclude an

investigating officer, as noticed hereinbefore, to carry on further

investigation despite filing of a police report, in terms of Sub-section (8) of

Section 173 of the Code.

29. 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.

30. The High Court, in our opinion, is correct in its finding that, in the

fact situation obtaining, the appellant had no statutory right to be released on

bail.

31. We do not, thus, find any infirmity in the judgment of the High Court.

Accordingly, the appeal is dismissed.