New Delhi: The Supreme Court has said that an accused cannot seek default bail on the grounds that the probe is pending against other accused or the charge-sheet filed by the probe agency is incomplete.
A bench comprising Justices Bela M Trivedi and Pankaj Mithal said the right of the investigating officer to pray for further investigation in terms of sub-section (8) of Section 173 is not taken away only because a charge-sheet is filed under sub-section (2) thereof against the accused.
The bench said though ordinarily all documents relied upon by the prosecution should accompany the charge-sheet, nonetheless for some reasons, if all the documents are not filed along with the charge-sheet, that reason by itself would not invalidate or vitiate the charge-sheet and it is also well settled that the court takes cognisance of the offence and not the offender.
Once from the material produced along with the charge-sheet, the court is satisfied about the commission of an offence and takes cognisance of the offence allegedly committed by the accused, it is immaterial whether the further investigation in terms of Section 173(8) is pending or not, said the bench.
"The pendency of the further investigation qua the other accused or for production of some documents not available at the time of filing of charge-sheet would neither vitiate the charge-sheet, nor would it entitle the accused to claim right to get default bail on the ground that the charge-sheet was an incomplete charge-sheet or that the charge-sheet was not filed in terms of Section 173(2) of Cr.P.C”, said Justice Trivedi, who authored the judgment on behalf of the bench.
The top court made these observations while cancelling the bail granted to former DHFL promoters Kapil Wadhawan and his brother Dheeraj in the multi-crore bank loan scam case.
In this case, the apex court adjudicated on whether Wadhawans were entitled to the benefit of the statutory right conferred under the proviso to sub section 2 of Section 167 Cr.P.C, on the ground that the investigation qua some of the accused named in the FIR was pending.
The bench noted, "though the report under sub-section (2) of Section 173 (Chargesheet) against respondents along with the other accused was filed within the prescribed time limit and though the cognizance of the offence was taken by the special court before the consideration of the application of the respondents seeking default bail under Section 167 (2) Cr.P.C.?"
Wadhawans’ counsel argued that the CBI having kept the investigation open qua other respondents as stated in the charge-sheet, the ingredients of Section 173 Cr.P.C. could not be said to have been complied with and therefore the report/charge-sheet under Section 173 could not be said to be a complete charge-sheet. According to counsel the charge-sheet filed against the respondents and others was a subterfuge or ruse to defeat the indefeasible right of the respondents conferred under Section 167(2) Cr.P.C.
The top court said the charge-sheet having been filed against the respondents-accused within the prescribed time limit and the cognisance having been taken by the Special Court of the offences allegedly committed by them.
"The respondents could not have claimed the statutory right of default bail under Section 167(2) on the ground that the investigation qua other accused was pending", it noted, adding that e respondents-accused shall be taken into custody in this case, if released on default bail pursuant to the impugned orders.
