Accused Can't Seek Default Bail Merely Because Investigation Is Pending Against Other Accused Or Chargesheet Is Incomplete : Supreme Court

While deciding the question whether the accused could avail the statutory remedy of default bail when the investigation is pending against other accused, the Supreme Court on Wednesday (January 24) held in negative by holding that the statutory right to default bail cannot be availed by the accused once the charge-sheet is filed against him.

The Court added that the accused cannot exercise the right to be released on default bail on the ground of incomplete submission of the charge-sheet or that the investigation is pending against other co-accused.

"Though ordinarily all documents relied upon by the prosecution should accompany the chargesheet, nonetheless for some reasons, if all the documents are not filed along with the chargesheet, that reason by itself would not invalidate or vitiate the chargesheet. It is also well settled that the court takes cognizance of the offence and not the offender," the Court observed.

"The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 175 (5). As settled in the afore-stated case, it is not necessary that all the details of the offence must be stated," the Court added.

Setting aside the concurring findings of the High Court and the Trial Court, the Bench of Justices Bela Trivedi and Pankaj Mithal, noted that although the non-filing of charge-sheet within the prescribed time period gives birth to a statutory right of an accused to be released on default bail with in Section 167 (2) Cr.P.C. but such a right couldn't be exercised by an accused if a charge-sheet is filed against him although not necessarily containing all the details of the offence.

“The benefit of proviso appended to sub-section (2) of Section 167 of the Code would be available to the offender only when a chargesheet is not filed and the investigation is kept pending against him. Once however, a chargesheet is filed, the said right ceases,”

The Supreme Court made these observations while allowing the appeal filed by the Central Bureau of Investigation (CBI) against the Judgment of the Delhi High Court upholding the order of the Trial Court releasing Kapil and Dheeraj Wadhawan on default bail in multi-crore siphoning off and misappropriation of funds received by way of loan from Union Bank of India led consortium of banks.

SV Raju, Additional Solicitor General appearing for the CBI argued that the accused's right to claim default bail ceases once the charge sheet is filed against him and the cognizance is taken by the magistrate based on the charge-sheet submitted.

Per contra, Senior Advocates Mukul Rohatgi and Amit Desai representing the accused submitted that the right to be released on default bail can be exercised by the accused once it is found that the charge-sheet submitted against him is an incomplete charge-sheet.

The accused can avail the right to be released on the default bail only if the charge sheet is not filed within the prescribed time period or an investigation is pending against the accused, and there remains no ground to the accused to exercise the right of default bail once the charge-sheet is duly submitted with proper documents and statements of witnesses as required by Section 175 (5).

The judgment authored by Justice Trivedi stated :

"Once from the material produced along with the chargesheet, the court is satisfied about the commission of an offence and takes cognizance 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. The pendency of the further investigation qua the other accused or for production of some documents not available at the time of filing of chargesheet would neither vitiate the chargesheet, nor would it entitle the accused to claim right to get default bail on the ground that the chargesheet was an incomplete chargesheet or that the chargesheet was not filed in terms of Section 173(2) of Cr.P.C"

Thus, the court accordingly allowed the criminal appeal of the CBI while setting-aside the decision of the Trial Court granting the default bail to the Wadhawan Brothers.

In this context, it may be recalled that the Supreme Court, in its April 2023 judgment in Ritu Chhabaria v. Union of India 2023 LiveLaw (SC) 352 had held the investigating officer cannot file an incomplete chargesheet to defeat the right to default bail. However, a larger bench led by the CJI later ordered that the Trial Courts should not grant default bail relying on Ritu Chhabaria judgment, which the Central Agencies sought to be recalled.

Case Details: CENTRAL BUREAU OF INVESTIGATION VERSUS KAPIL WADHAWAN & ANR.

Citation : 2024 LiveLaw (SC) 58

Click Here to Read the Judgment