District Court Complex, Rouse Avenue: Anuradha Shukla Bhardwaj, Spl. Judge (PC Act) CBI-21 allowed applications filed under Section 167(2) CrPC and granted bail to the accused persons for failure of the Central Bureau of Investigation to file charge sheet within the permissible period of 60 days.
Instant bail applications under Section 167(2) CrPC were filed primarily on the ground that a right accrued in favour of the accused persons on account of non-filing of charge sheet under the provisions of Official Secrets Act. It was pleaded that the fact that offences under Sections 3 and 5 of the Official Secrets Act, 1923 were being investigated came to the knowledge of accused persons for the first time during the hearing of their first bail applications under Section 167(2) CrPC, which were dismissed. CBI submitted that the said offences were being investigated and a supplementary charge sheet was to be filed.
Factual Matrix
The accused persons were arrested on the allegations of leaking internal information regarding tender related documents on considering illegal gratification. The police custody and judicial custody of the accused persons were taken from time to time and on every occasion, a request was made to the court to keep the documents in sealed cover in view of the sensitivity of the matter since the investigation indicated leakage of sensitive material pertaining to Defence of the country. The applications filed for extension of police custody and judicial custody reflected that at no occasion the extension was sought on the ground that investigation was pending under the Official Secrets Act.
Further, CBI replied that the investigation was being conducted under the Official Secrets Act, the Ministry of Defence has been requested to file a formal complaint as per law and a supplementary charge sheet would follow.
Analysis, Law and Decision
The Court noted that there was no dispute that the attracted provisions of the Official Secrets Act prescribing the punishment upto 14 years with no lower limit of the sentence are covered by proviso (a)(ii) of Section 167(2) CrPC.
Chargesheet in the matter as such ought to have been filed within 60 days in the matter.
In the present matter, though there was no denial that two charge sheets had been filed within the prescribed time period of 60 days, but the applicants argued that the charge sheets were incomplete.
Considering the timeline and progress of the investigation as also the proceedings before the Court, it found that at no point did CBI inform the Court that an investigation under Official Secrets Act was also taken up, although the investing agency knew that a case under the Official Secrets Act is made out against the accused persons. The prosecution admitted that no separate FIR was registered under the Official Secrets Act and that the investigation for the offences under the provisions of Official Secrets Act was taken up. Thus, it was not the case of the prosecution that the offences under the Official Secrets Act were being investigated in a different case. Two different charge sheets were filed under the provisions of PC Act and IPC, but in no charge sheet, there was any mention of the Official Secrets Act.
Applying the judgments in State of Maharashtra v. Bharati Chandmal Varma, (2002) 2 SCC 121 and Tunde Gbaja v. CBI, 2007 SCC OnLine Del 450 to the facts of the case, the Court held that the investigation qua the Official Secrets Act having been taken up in the same case, the limitation of 60 days would apply for completion of investigation in respect of all the offences including the Official Secrets Act from the date of arrest of the accused persons.
It was mentioned by the agency in the reply to the earlier bail application that to attract the provisions of Sections 3 and 5 of the Official Secrets Act, a written complaint was required to be made and the investigating agency has requested by way of proposal to the Ministry of Defence regarding filing of the complaint and that the process was pending. In this regard, the Court noted that although a complaint is required where it was held that although a complaint is required from the concerned Ministry for the offences under Official Secrets Act, the investigating agency is obliged to file a report under Section 173 CrPC alongside putting on record the investigation conducted by it.
Investigation in the cases of Official Secrets Act is conducted by the agency whichever registers the FIR and the Department whoever accords the sanction by way of authorizing a person to file the complaint act only on the basis of investigation conducted by such agency.
The Court found that in view of the decision of Tunde Gbaja v. CBI, 2007 SCC OnLine Del 450, it was incumbent upon the investigating agency to have filed the charge sheet within 60 days under Section 173(2) CrPC mentioning that the investigation on their part was complete and that the reference was made to the Ministry concerned for filing complaint under the relevant sections. It was concluded that:
[T]he charge sheet filed before the court is incomplete in as much as there is no mention regarding the investigation being carried under the Official Secrets Act, though the same was being carried in this case itself. The charge sheet thus is incomplete for the purposes of Section 167(2) of CrPC.
A lot of stress was laid on the fact that the offences alleged against the accused were very serious in nature. But the Court negated such argument stating that the fact remains that the provisions of Section 167(2) CrPC do not permit the court to consider the gravity of offence or seriousness thereof. Reliance was placed on the Supreme Court decision in M. Ravindran v. Directorate of Revenue Intelligence,(2021) 2 SCC 485.
In such view of the matter, the applicants were admitted to bail under Section 167(2) CrPC on furnishing personal bond in the sum of Rs 1 lakh with one surety.
Lastly, the Prosecutor submitted that the bail was being granted to the accused persons in two charge sheets and a third charge sheet is intended to be filed. The bail order will be required in third charge sheet also. On this, the Court noted that:
[T]he accused were not arrested thrice in three different charge sheets. The two charge sheets are culmination of investigation in the same FIR. The accused were arrested in one FIR and therefore, are to be granted bail in one FIR only and the release will also be in one FIR only. There being no three instances of arrest the accused will be considered on bail in the FIR in which they were arrested. Separate bail under Section 439 CrPC might be required only after the accused are summoned by the court in different charge sheets.
The applications were disposed of in the above terms. [CBI v. S.J. Singh, CBI No. 58 of 2021, decided on 18-11-2021]
Advocates before the Court:
Mr. Raman Kumar, Ld. PP for CBI.
Mr. Kumar Bhaskar, DSP from CBI.
Mr. Meenesh Dubey and Mr. Abdhesh Chaudhary, Ld. Advocates for accused Satwinder Jeet Singh.
Mr. Bharat Chugh, Mr. Yashpreet Singh, Mr. Ekjot Bhasin, Ld. Advocates for accused Randeep Singh.
Mr. Sumit Kumar, Ld. Adv. for T. P. Shastry.
Mr. Naveen Kumar, Ld. Adv. for accused Ajit Kumar Pandey.
The first order w.r.t grant of default bail was passed on 17./11/2021 in CBI v Ajit Kumar Pandey, in the same FIR, second order dated 18/11/2021 is the replica of order dated 17/11/2021.