Interim Order 7

Order Details: COPY OF ORDER
Pdf Text: Bail Application No. IA/1/2023
SAHIL PAL Vs. CBI
In
CBI vs Himanshu @ Rinku Asija
CC No. CBI/64/2023
04.10.2023
Present: None.
1. Vide this order I shall dispose off an application filed on
behalf of accused/applicant Sahil Pal seeking grant of default
bail under Section 167(2) CrPC.
2. Reply to the application has been filed by CBI. Copy
supplied.
3. Facts in the present matter are that the instant case FIR was
registered on the basis of credible source information to the effect
that Sahil Pal, Ashish Bhambani alongwith others are engaged in
illicit activities, impersonating government officials of Canada
and subsequently committing crypto currency frauds using
computer resources and communication devices. It has come to
the light that they have defrauded Mr. Trishan Goussard, a
canadian resident by impersonating themselves as officials of
Government of Canada and they coerced him into depositing
CAD 7006 into a crypto wallet to evade potential fraud charges
against his social insurance number. During investigation, it has
transpired that crypto wallet used was registered in the name of
Mr. Sahil Pal, email ID Sahilpal1666@ gmail.com, mobile no
8860344110 and Mr. Ashish Bhambani email ID
bhambani_ashish@ yahoo.cacom, mobile no. 9999460088.
During search of the residential premises of accused Sahil Pal,
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six digital devices (including mobile phones and sim cards),
incriminating documents like whatsapp chats in respect of calling
of foreign nationals, scripts related to text support services and
social insurance as well as Indian currency notes amounting to
Rs. 99,97,500/- and US $3500 were seized. Investigation
revealed that two Bitcoins were transferred via block chain to a
wallet owned by accused/applicant Sahil on the binance
platforms. Notice u/s 41A CrPC dated 25.07.2023 was given to
accused/applicant to appear before the IO on 26.07.2023 at
10.00 am and he joined investigation at 12.30 pm. During
interrogation, accused/applicant was confronted with the
recoveries made during the search from his residential premises
i.e. the source of money recovered and whereabouts of his
associates. However, accused/applicant did not provided
satisfactory answers regarding the user of the virtual numbers
and use of the scripts nor he disclosed the name of his other
associates/accomplices who had conspired with him to cheat the
foreign nationals in the guise of text support services and social
insurance etc. Accused/applicant did not provided any
information in respect of the numbers of the victims and the
exact pretext to call them and information in respect of software
being used for calling the victims. Accused/applicant disclosed
that in respect of transactions pertaining to BTCs (Bitcoins), he
was doing the same at the instance of Rinku @ Himanshu but he
did not disclose as to how he used to convert the BTCs into US $
and further transfer of the same in other crypto wallet in order to
get cash. Accused/applicant did not disclosed the entire modus
operandi adopted in the instant crime and the source of huge cash
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of Rs. 1 crore (approximately) found in his possession.
Accused/applicant did not cooperated with the process of
investigation and therefore, he was arrested on 26.07.2023 and
was produced before this court on 27.07.2023. After culmination
of investigation charge-sheet was filed.
4. The main contention of the accused/applicant is that the
incomplete charge-sheet was filed as no relied upon documents
was accompanied with it. It is averred that the investigating
agency has not filed the documents and the statement of
witnesses along with the charge-sheet. It is further submitted that
it is reflected in the order dated 25.09.2023 passed by this court
wherein it was submitted by the IO that documents relied upon
the charge-sheet have been brought by her and the same would
be filed during the course of the day and accordingly, IO was
directed to file the documents. It is admitted fact that the IO had
filed the documents which were checked and verified by the
Ahlmad on 27.09.2023.
5. Ld. Counsel for the applicant/accused submits that IO has
filed the incomplete charge-sheet as the same was not
accompanied with the relied upon documents. Therefore, it can
not be considered as a complete charge-sheet and the indefeasible
right in favor of the accused stands accrued after the expiry of 60
days of accused in JC. It was also submitted that charge-sheet
was filed on 25.09.2023 i.e. after the lapse of 60 days from the
day when the accused/applicant was remanded to JC.
6. The Counsel for the applicant relied upon following
judgments of Hon'ble Superior Courts:-
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(i) ED vs. Kapil Wadhawan 2023 LiveLaw (SC) 249.
(ii) Ritu Chhabaria vs. UOI 2023 SCC OnLine SC 502.
(iii) M. Ravinderan vs. IO, DRI 2020 SCC OnLine SC
867.
(iv) CBI vs. Kapil Wadhawan, Crl. M.C. No. 6544/2022
dated 30.05.2023 of Hon'ble High Court of Delhi.
(v) Sundeep Kumar Bafna vs. State (2014) 16 SCC
623.
(vi) Jitendra Vs. State 2022 SCC Online All 674.
(vii) Satender Kumar Antil vs. CBI 2022 SCC OnLine
SC 825.
(viii) Yadav Singh vs. CBI, W.P. No. 266/2020 dated
08.07.2020 of Hon'ble High Court of Allahabad.
7. On the other hand, instant application has been vehemently
opposed by CBI. It is contended that the present application is
not maintainable as the charge-sheet had been filed on
23.09.2023 i.e. well before the expiry of 60 days from the date of
first remand of the accused. It is further submitted that relied
upon documents has been filed on 27.09.2023 and it cannot be
said that incomplete charge-sheet has been filed.
8. I have heard the rival contentions and have gone through
the record including the instant application, reply thereof and
judgements relied upon.
9. In the case of Bikramjit Singh v. State of Punjab Crl.
Appeal no.667 of 2020, the Hon'ble Apex Court observed that
“the right to bail u/s 167(2) proviso (a) is absolute. It is a
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legislative command and not court's discretion. If the
investigating agency fails to file charge-sheet before the expiry of
90/60 days, as the case may be, the accused in custody should be
released on bail. But at that stage, merits of the case are not to
be examined. In fact, the magistrate has no power to remand a
person beyond the stipulated period of 90/60 days. He must pass
an order of bail and communicate the same to the accused to
furnish the requisite bail bond.”
10. The relevant facts for the disposal of the instant application
are that the applicant/accused was arrested on 26.07.2023 and
was produced before this court on 27.07.2023. As per the
application, the applicant has completed 60 days in custody on
24.09.2023 and since no charge-sheet has been filed, therefore,
applicant/accused has become entitled to be released on statutory
bail as per the provision of Section 167(2) CrPC.
11. As per the reply filed by the CBI, after the completion of
investigation, the charge-sheet along with the list of documents
and witnesses was filed on 23.09.2023, vide filing number
134/2023 i.e. well before the expiry of 60 days of the accused in
custody. The endorsement on the charge-sheet establishes that the
same was filed at the filing counter on 23.09.2023 and the it was
marked to this court for 25.09.2023 by Ld. CMM, RADC, New
Delhi on 23.09.2023 itself.
12. In the case of Sunil Vasant Rao v. State of Maharashtra,
(2002) 3 MahLJ 689 the High Court observed:-
“On the backdrop of above undisputed facts, the
question which arises for my consideration in the present
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case is whether mere filing of charge-sheet within the
prescribed time, unaccompanied by material papers as
contemplated sheet amounts to failure to file the same,
which in turn confers on the accused right to be released on
bail under Section 167 (2) of the Code since Court is not
competent to take cognizance of the offence on the basis of
such incomplete charge-sheet/report.”
13. In this case, the High Court relied upon the judgment in
Matchumari China Venketreddy and Ors. v. State of Andhra
Pradesh, 1993 SCC OnLine AP 567 wherein it is observed that:-
“The forwarding is done for the purpose of taking
the same on record and file of the court and then only, the
same is perused by the Court to take cognizance of the
offence. Mere forwarding without meaning it to be taken on
file is not contemplated under law. If the police report is
forwarded to the Magistrate for taking it on file, but if the
Magistrate finds that the said report, is not in consonance
with section 173 (2) read with Section 173 (5) Criminal
Procedure Code, he declines to take it on record and that
act is only administrative and not judicial. Unless the
charge-sheet is in the official custody of the court together
with its accompaniments to be furnished to the accused, it
cannot be construed that there is a filing of charge-sheet.
Chapter XVI relates to commencement of proceedings
before Magistrate, process to be issued when Magistrate
taken cognizance of the offence. The next stage is framing
of charges under Chapter XVII. Next stage is trial and the
eventual being the judgment.”
14. In the judgment of “Narendra Kumar Amin Vs. CBI &
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Ors. (2015) 3 SCC 417, Hon'ble Apex Court has dealt with the
provisions of Sections 173(2) and 173(5) CrPC in terms of
Section 167 CrPC. The Hon'ble Apex Court has observed in the
Para no. 14, 15 & 16 of the judgment as follows:-
“14. With reference to the aforesaid rival legal
contentions we have examined the impugned order to find
out the correctness of the findings and reasons recorded
keeping in view the statutory provisions under Section 173
(2) and (5) read with Section 2 (r) of Cr.P.C. and with
reference to the judgments on which both the learned
senior counsel placed reliance upon. In our considered
view, itis an undisputed fact that the charge-sheet was filed
on 3.7.2013 that is 90th day. Section 2 (r) of Cr.P.C. defines
the expression "police report" as a report forwarded by a
police officer to a magistrate under Section 173 (2) of
Cr.P.C. The particulars to be furnished in the police report
which are extracted as above are complied with in the
instant case. Therefore, filing of the police report as
required under Section 173 (2) is within 90 days in the
instant case.
15. The High Court while dealing with this aspect has
carefully considered the aforesaid relevant aspects of the
case and stated its reasons at para 10.1 which reads thus:"
10.1 From the above, it was seen that the contents of the
charge-sheet set-out in its prefatory details, showed the
revelations in the investigation. The Investigating Officer
mentioned the role played by the accused persons. The
Investigating Officer opined on the basis of the material
collected by him during the investigation that the prima-
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facie commission of offence in his view was made out. It
was evidently clear that the charge-sheet as presented
incorporated all the necessary details required under
Section 173 (2) including that whether offence was
committed and by whom,which was in terms of clause (d)
of Section 173 (2) What is described as bare and empty
format, in fact disclosed the contents necessary in law to be
mentioned. It could not be viewed as a format hollow in its
contents not to enable the Magistrate to take the
cognizance."Therefore, the High Court is right in rejecting
the prayer of default bail under Section 167 (2) of Cr.P.C.
Upon the filing of the police report, cognizance was taken
by the learned ACJM on 3.7.2013 which is evident from the
order passed by him which is extracted above. It is
pertinent to point out that the said order remains
unchallenged by the appellant. Therefore, it is not open for
him to turnaround and contend that cognizance was not
taken by the learned ACJM on 3.7.2013. On this count,the
contentions urged by the learned senior counsel Mr. Ram
Jethmalani appearing for the appellant are wholly
untenable and liable to be rejected.
16. The observation made at para 76 of the constitution
Bench judgment of this Court in the case of K. Veeraswamy
(supra) that the report is complete if it is accompanied by
all documents and statement of witnesses as required under
Section 173 (5) of Cr.P.C. cannot be construed as the
statement of law, since it was not made in the context of the
police report under Section 2 (r) read with Section 173 (2)
(5) and (8) of Cr.P.C. On the contrary, the three Judge
Bench of this Court in the decision in Central Bureau of
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Investigation v. R.S. Pai's case (supra), after referring to
the earlier judgment of the coordinate Bench in Narayan
Rao's case (supra) categorically held that the word"shall"
used in sub- Section (5) cannot be interpreted as
mandatory, but directory. The said statement of law is
made after considering the provisions of Section 2(r) read
with Section 173 (5)and (8) of Cr.P.C. Therefore, filing of
police report containing the particulars as mentioned
under Section 173 (2) amounted to completion of filing of
the report before the learned ACJM, cognizance is taken
and registered the same. The contention of the appellant
that the police report filed in this case is not as per the
legal requirement under Section 173 (2) & (5) of Cr.P.C.
which entitled him for default bail is rightly rejected by the
High Court and does not call for any interference by this
Court.”
15. On the joint reading of the provisions of Section 167 and
173 CrPC, it is clear that the legislative intent was to ensure that
the investigation be completed without unnecessary delay.
Section 173 (1) CrPC specifically provides that the investigation
shall be completed without unnecessary delay. Section 173 (2)
CrPC mandates that the investigating agency shall forward the
police report in the prescribed form immediately after the
completion of the investigation. This report shall contain certain
details as provided in this Section.
16. Section 167 CrPC provides for the custody of the accused
during the investigation of the case and it is clearly mentioned
that in case investigation is not completed within 60 or 90 days
as the case may be, the accused got an indefeasible right to be
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released on bail. Both the provisions of CrPC are meant to
protect the right of personal liberty of the accused.
17. In the present case, charge-sheet has been filed on
23.09.2023 i.e. on 59th day of the accused in custody and hence, it
cannot be said that accused/applicant has got indefeasible right to
be admitted on statutory bail.
18. The only legal aspect involved in the disposal of this
application pertains to the concept of police report under Section
173 CrPC. Section 2(r) CrPC defines police report as a report
forwarded by a police officer to a Magistrate under Section
173(2) CrPC. The main argument of the defence counsel is that
the police report without the submission of relied upon
documents and the statement of witnesses is an incomplete
charge-sheet as the same has not been filed as mandated by
Section 173(5) CrPC.
19. The main purpose of Sections 167 and 173 CrPC is to
ensure that investigation be completed expeditiously. In the
present case, the charge-sheet in the terms of Section 173(2)
CrPC was filed within the period of 60 days. Now, it is not in
dispute that the charge-sheet/police report under Section 173(2)
CrPC was not filed within the period of 60 days. It is pertinent to
mention that the police report submitted by the IO on 23.09.2023
contained the list of witnesses and the list of documents. The
only fact is that the documents and statement of witnesses in
terms of aforesaid list were not submitted within the statutory
period of 60 days. The investigation was very much completed
and the police report was submitted on 23.09.2023 i.e. within the
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statutory period of 60 days. Merely because the relied upon
documents and the statement of witnesses as per the list of
witnesses and documents were submitted after the expiry of 60
days does not entitle the accused to get the statutory bail under
Section 167(2) CrPC. Hence, in view of the foregoing
discussions, I find not merits in the instant application.
Consequently, the instant application stands dismissed.
20. Application stands disposed of.
21. Dasti.
(DEEPAK KUMAR-II)
ACMM-2 cum ACJ
RADC/ND/04.10.2023
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