Raaesh Aggarwal v. State Through CBI

1. Allowed, subject to just exceptions. BAIL APPLN. NO.1806/2Q13 & BAIL APPLN. 1848/2013

2. Dr.A.M. Singhvi, learned senior counsel for the petitioner in Bail Application No. 1806/2013 submits that the Central Bureau of Investigation (CBI) has filed incomplete chargesheet before the learned Special Judge, CBI on 4"^ October, 2013. It is submitted that the petitioner has not been furnished the copies of the •statements of the witnesses as well as documents mentioned as Annexures 'A' & 'B' in the chargesheet at page 21. It is further submitted that the counsel for the petitioner inspected the court record today morning and the documents have not even been filed before the learned Special Judge. It is submitted that under Section 173(5) Cr.P.C., the final report has to be accompanied with all the documents and the statements of the witnesses. It is submitted that the chargesheet filed by the CBI was put up for consideration before the Court on 5"' October, 2013 when the investigating officer sought two-three weeks' time for filing documents as well as sanction for prosecution whereupon the learned Court fixed the case for 25"' October, 2013. Copy of the chargesheet filed by the CBI and true copies ofthe orders dated 4"' October, 2013 and 5"^ October, 2013 have been handed over and are taken on record. BailApplication Nos. 1806/20IS &1848.2013 Page No.2of[5]

3. Learned senior counsel for the petitioner submits that since the chargesheet has not been filed along with the documents within sixty days, the petitioner is entitled to bail under the proviso to Section 167(2) Cr.P.C. It is further submitted that the learned Special Judge has not taken the cognizance asthe CBI has not filed the documents along with the chargesheet. It is further submitted thatthe learned Special Judge has thepower to keep the accused in further custody only after taking congizance of offence under Section 309 Cr.P.C.

4. Learned senior counsel refers to and relies upon the judgment ofthe Calcutta High Court in Raghubir Saran Jain Vs. State, MANU/WB/0194/1995 in which the Court held that the police report under Section 173(2) Cr.P.C. unaccompanied by the documents under Section 173(5) Cr.P.C., cannot be said to be a police report in the eyes of law, being an incomplete report. Learned senior counsel further refers to and relies upon the judgment of the Andhra Pradesh High Court in Matchumari China Venkatareddy Vs. State of Andhra Pradesh, 1994 Crl.J. 257 in which the Court granted bail to the petitioner on the ground that the chargesheet under Section 173 (2) Cr.P.C. was not complete as it was notaccompanied with thematerial papers and statements.

5. Reliance is also made on the case of Suresh Kalmadi & Vishwa Kumar Verma Vs. CBI, 187 (2012) DLT 575 in BailApplication Nos.1806/2013 &1848.2013 PageNo.3 of[5] X which this Court granted bail to the accused considering that there is no likehhood of the accused influencing the witnesses and they would be available to face the trial. It is submitted that in the present case, the entire evidence has already been collected by the CBI and there is no possibility ofthe petitioners tampering with the evidence and there is also no likelihood of the petitioner not remaining available for trial.

6. Mr.Ramesh Gupta, learned senior counsel for the petitioner in Bail Application No. 1848/2013, submits that since the sanction for prosecution of the public servants has not been received, the chargesheet filed by the petitioner is not complete and no cognizance thereof can be taken in view of Section 19 of the Prevention of Corruption Act, 1988. Reference is made to the judgment of the Supreme Court in Anil Kumar Vs. M.K. Aiyappa, MANU/SC/1002/2013. Reference is also made to the judgment of this court in Hari Chand & Raj Pal Vs. State, ILR (1977) 2 Del 367 in which this court observed that filing of incomplete challan would entitle the accused to be released on bail under Secfion 167(2) Cr.P.C.

7. Learned Standing counsel for the CBI submits that the chargesheet has been filed before the expiry of sixty days and, therefore, the petitioners are not entitled to be released on bail. Learned Standing counsel submits that the non-filing of the documents as well as the statements of the witnesses would not Bail Application Nos.1806/2013 & 1848.2013 Page No.4 of[5] make the chargesheet incomplete. It is further submitted that filing of the chargesheet has to be within the statutory period of sixty days and the congnizance can be taken by the Court thereafter.

8. This Court is of the view that the filing of the documents and statements of the witnesses along with the chargesheet is mandatory under Section 173(2) Cr.P.C. in terms ofthe judgments cited by the petitioner, and, therefore, chargesheet remains incomplete due to the non-filing of the documents and the statements. The effect of incomplete chargesheet would bethat the petitioners become entitled to be released on bail under the proviso of Section 167(2) ofthe Cr.P.C.

9. In the facts and circumstances of this case, the applications are allowed and the petitioners are directed to be released on furnishing bail bond in the sum of Rs.1,00,000/- each with one surety ofthe like amount to the satisfaction ofthe learned Special Judge, CBI. The petitioners shall not leave the country without the permission ofthe learned Trial Court.

10. Copy ofthis order be given dasti under the signatures ofthe court master. J.R. MIDHA, J OCTOBER 07, 2013 aa BailApplication Nos.1806/2013 &1848.2013 Page No.5 of[5]