Order on BA 29718 in RA 21118
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IN THE SPECIAL COURT FOR CBI AT GREATER BOMBAY
BAIL APPLICATION NO. 297 OF 2018
IN
RA No. 211 OF 2018
IN
RCB/SM/2018/E0001 CBI BS & FC, MUMBAI.
Mr. Vipul N. Ambani
S/o. Natwarlal Hirachand Ambani,
Age:49 years,
Residing at 4A, Rizvi Park, 5A,
Altamount Road, Mumbai.
}
}
}
}
}… Applicant/Accused no.2
Vs.
Union of India through
The State CBI/Bank Securities &
Fraud Cell, Mumbai
}
}
}……. Respondent
CORAM:
DATED:
HIS HONOUR JUDGE
SHRI S.R. TAMBOLI
(COURT ROOM NO.47)
2.05.2018
Appearance:
SPP Mr. Mahamane for the CBI, BS and FC.
Advocate Mr. Prashant Pawar for the applicant/accused No.2.
ORDER
In the instant application, applicant/accused no.2 has prayed for
‘Default
Bail’
under
section
167(2)(a)(ii)
of
the
Cr.
P.C.
Applicant/accused has been arraigned as an accused in connection with
the FIR bearing R.C. No.1E/2018 CBI BS & FC, Mumbai for the offence
under section 120B r/w. 420 of Indian Penal Code, 1860 and under
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Order on BA 29718 in RA 21118
section 13(2) r/w. Section 13(1)(d) of Prevention of Corruption Act,
1988.
2.
Ld. counsel for applicant submitted that, applicant/accused has
been shown as arrested on 20/02/2018. Since, then he is in custody. It
was necessary for the investigating officer to file the chargesheet within
a period of 60 days. However, cheargesheet is not filed within 60 days.
Hence, as per section 167(2)(a)(ii) of Cr.P.C., accused is entitle for
default bail. Accused is ready to furnish it. Hence, he prayed that
accused be released on bail.
3.
Per contra Ld. SPP CBI, BS & FC submitted that, initially this case
was registered u/s. 120B r/w. 420 of Indian Penal Code, 1860 and
under section 13(2) r/w. Section 13(1)(d) of Prevention of Corruption
Act, 1988 against the accused persons. During investigation, it has
revealed that Public Servants have violated various guidelines of the
bank for giving credit facilities to accused firms. Therefore, on the basis
of evidence collected during investigation, it was considered to invoke
the provisions of section 409 of IPC against the accused persons in
addition to the penal sections mentioned in the FIR. Accordingly, on
13.03.2018, CBI filed an application before this Hon’ble Court vide M.A.
No.365/2018 for incorporating Sec.409 of IPC in this case i.e., FIR
baring no.RC1(E)/2018CBI, BS & FC, Mumbai. Said application came
to be allowed by this Court. That the offence u/s.409 IPC is punishable
for imprisonment for life, or with imprisonment of either description for
a term which may extend to ten years, and shall also be liable to fine.
Hence, as per section 167(2)(a)(i) of Cr.P.C., this Court may authorise
the detention of the applicant accused upto a period of 90 days. In view
of the settled position of law, the applicant accused is not entitled for
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Order on BA 29718 in RA 21118
default bail as he alongwith other accused persons are now being
investigated for commission of offences punishable u/s. 120B r/w. 409,
420 of IPC and section 13(2)r/w. 13(1)(d) of PC Act, 1988. Hence, he
prayed to reject the application.
4.
To support his contention, Ld. Counsel for applicant/accused
placed reliance on the decision of Hon’ble Apex Court. It is delievered in
Rakesh Kumar Paul vs. State of Assam , MANU/SC/0993/2017 . In said
case, Hon’ble Apex court observed as under:
”Discussion on interpretation
19. To answer the primary question before us, we need to first decide the
meaning of the expression “punishable with imprisonment for not less than
ten years” occurring in Clause (i) to proviso (a) of Section 167(2) of the Code
of Criminal Procedure Its interpretation stirred considerable debate and
discussion before us.
20. Learned Counsel for the Petitioner relied upon Rajeev Chaudhary v. State
(NCT) of Delhi) MANU/SC/0330/2001 : (2001) 5 SCC 34 to contend that
“not less than” 10 years imprisonment must mean a minimum of 10 years
imprisonment. In that decision, the offence was punishable Under Section 386
of the Indian Penal Code which provides that an accused, if found guilty, shall
be punished with imprisonment for a term “which may extend to 10 years”.2
This Court contrasted that expression with the words “not less than” occurring
in Clause (i) to proviso (a) of Section 167(2) of the Code of Criminal
Procedure Juxtaposing the two expressions, this Court concluded that the
words “not less than” in Clause (i) would mean that the imprisonment should
be 10 years or more and would cover only those offences for which
punishment of imprisonment could be for a clear period of 10 years or more.
It was held in paragraph 6 of the Report:
“From the relevant part of the aforesaid sections, it is apparent that
pending investigation relating to an offence punishable with imprisonment for
a term “not less than 10 years”, the Magistrate is empowered to authorize the
detention of the Accused in custody for not more than 90 days. For rest of the
offences, the period prescribed is 60 days. Hence in cases where offence is
punishable with imprisonment for 10 years or more, the Accused could be
detained up to a period of 90 days. In this context, the expression “not less
than” would mean imprisonment should be 10 years or more and would cover
only those offences for which punishment could be imprisonment for a clear
period of 10 years or more. Under Section 386 punishment provided is
imprisonment of either description for a term which may extend to 10 years
and also fine. That means, imprisonment can be for a clear period of 10 years
or less. Hence, it could not be said that minimum sentence would be 10 years
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Order on BA 29718 in RA 21118
or more. Further, in context also if we consider Clause (i) of proviso (a) to
Section 167(2), it would be applicable in case where investigation relates to
an offence punishable (1) with death; (2) imprisonment for life; and (3)
imprisonment for a term of not less than ten years. It would not cover the
offence for which punishment could be imprisonment for less than 10
years. Under Section 386 Indian Penal Code, imprisonment can vary from
minimum to maximum of 10 years and it cannot be said that imprisonment
prescribed is not less than 10 years.”
This decision certainly supports the contention of learned Counsel and there is
also a feeling of déjà vu in the use of the words “or more” in the decision,
those words having been used in the Notes on Clauses when the Code of
Criminal Procedure was sought to be amended in 1978.
26. Of the two views expressed by this Court, we accept the view in
Rajeev Chaudhary..”
5.
He also placed reliance on the decision of Hon’ble Apex Court. It
is delievered in Rajeev Chaudhary vs. State (N.C.T.) of Delhi ,
MANU/SC/0330/2001,” In said case, Hon’ble Apex court observed as
under:
” 5. From the relevant part of the aforesaid sections, it is apparent tat pending
investigation relating to an offence punishable with imprisonment for a term
“not less than 10 years”, the Magistrate is empowered to authorise the
detention of the accused in custody for not more than 90 days. For rest of the
offences, period prescribed is 60 days. Hence in cases, where offence is
punishable with imprisonment for 10 years or more, accused could be
detained up to a period of 90 days. In this context, the expression “not less
than” would mean imprisonment should be 10 years or more and would cover
only those offences for which punishment could be imprisonment for a clear
period of 10 years or more. Under Section 386 punishment provided is
imprisonment of either description for a term which may extend to 10 years
and also fine. That means, imprisonment can be for a clear period of 10
years or less. Hence, it could not be said that minimum sentence would
be 10 years or more. Further, in context also if we consider clause (i) of
proviso (a) to Section 167(2), it would be applicable in case where
investigation relates to an offence punishable (1) with death; (2)
imprisonment for life; and (3) imprisonment for a term of not less than ten
years. It would not cover the offence for which punishment could be
imprisonment for less than 10 years. Under Section 386 of the IPC,
imprisonment can very from minimum to maximum of 10 years and it cannot
be aid that imprisonment prescribed is not less than 10 years.”
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6.
Order on BA 29718 in RA 21118
Relying on the ratio laid on in aforesaid cases, Ld. Counsel for
applicant submitted that the provisions of section 409 of IPC is not
applicable to the present accused. Even if, it is made applicable, said
offence is punishable with imprisonment either description for a term
which may extend to 10 years. Therefore, in view of the ratio laid own
in aforesaid cases, it was necessary to file chargesheet within a period of
60 days from the date of the arrest. However, no such chargesheet is
filed within 60 days from the date of the arrest. Hence, accused is
entitled for default bail.
7.
However, in Rakesh Kumar Paul case (supra) Hon’ble Apex
Court observed as under:
”93. In my view the language of the statute is clear and unambiguous. Out of
the three categories of offences, we need to deal only with that category of
offences where the punishment prescribed is not less than 10 years. If an
offence is punishable with death then whatever be the minimum punishment,
the period of investigation permissible would be 90 days. Similarly, if the
offence is punishable with life imprisonment, even if the minimum
sentence provided is less than 10 years, the period of detention before
‘default bail’ is available would be 90 days.
95. In the first two categories, the legislature made reference only to the
maximum punishment imposable, regardless of the minimum punishment,
which may be imposed. Therefore, if a person is charged with an offence,
which is punishable with death or life imprisonment, but the minimum
imprisonment is less than 10 years, then also the period of 90 days will apply.
However, when we look at the third category, the words used by the
legislature are “not less than ten years”. This obviously means that the
punishment should be 10 years or more. This cannot include offences where
the maximum punishment is 10 years. It obviously means that the minimum
punishment is 10 years whatever be the maximum punishment.
100. A bare reading of Section 167 of the Code clearly indicates that if the
offence is punishable with death or life imprisonment or with a minimum
sentence of 10 years, then Section 167(2)(a)(i) will apply and the Accused
can apply for ‘default bail’ only if the investigating agency does not file
chargesheet within 90 days. However, in all cases where the minimum
sentence is less than 10 years but the maximum sentence is not death or life
imprisonment then Section 167(2)(a)(ii) will apply and the Accused will be
entitled to grant of ‘default bail’ after 60 days in case chargesheet is not filed.
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Order on BA 29718 in RA 21118
113. In view of the above discussion, my findings are as follows:
1…………………
2. Section 167(2)(a)(i) of the Code is applicable only in cases where the
Accused is charged with (i) offences punishable with death and any lower
sentence; (ii) offences punishable with life imprisonment and any lower
sentence and (iii) offences punishable with minimum sentence of 10 years;
3. In all cases where the minimum sentence is less than 10 years but the
maximum sentence is not death or life imprisonment then Section 167(2)(a)
(ii) will apply and the Accused will be entitled to grant of ‘default bail’ after
60 days in case chargesheet is not filed.
4. The right to get this bail is an indefeasible right and this right must be
exercised by the Accused by offering to furnish bail.
8.
Ratio laid own in Rakesh Kumar Paul case as well as Rajeev
Chaudhry’s case clearly shows that the chargesheet needs to be filed
within a period of 60 days when offence is punishable with
imprisonment for less than 10 years. In the present case this court has
permitted to the prosecution to add section 409 of IPC. There is
allegations of conspiracy against applicant/accused. Therefore, at this
stage it is difficult to accept that the offence under section of IPC is not
attracted against the accused.
9.
Ratio laid on in Rakesh Kumar Paul case (supra) is not helpful
to support the contention of the applicant. Interpretation made by Ld.
Counsel of applicant is not acceptable. It is without any basis. While
reading the judgment, court has to take into consideration the entire
judgment. After considering the same, this court found no substance in
the contention of the Ld. Counsel of the applicant.
10.
View of this court also gets support from the decision of Hon’ble
Gujarat High Court. It is delieverd in Manish vs. State of Gujarat,
MANU/GJ/0175/2018. In said case, Hon’ble Gujarat High Court
referred the ratio laid down in Rakesh Kumar Paul’s Case (Supra)
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Order on BA 29718 in RA 21118
and observed as under:
”19. In a very recent pronouncement of the Supreme Court in the case of Rakesh
Kumar Paul vs. State of Assam, MANU/SC/0993/2017 : AIR 2017 SC 3948, the law
has been very exhaustively explained. The majority view taken in the said matter is
that section 167(2)(a)(i) of the Code is applicable only in the cases where the accused
is charged with (i) offences punishable with death and any lower sentence; (ii)
offences punishable with life imprisonment and any lower sentence and (iii) offence
punishable with minimum sentence of 10 years. In all cases where the minimum
sentence is less than 10 years but the maximum sentence is not death or life
imprisonment, then section 167(2)(a)(ii) will apply and the accused will be entitled to
grant of “default bail” after 60 days in case the charge-sheet is not filed.”
11.
In the present case, offence alleged against the accused is
punishable with life imprisonment. Therefore, it can not be said that the
offence alleged against the accused is punishable with imprisonment for
less than 10 years. Hence, the period for filing of chargesheet is not 60
days. It is 90 days from the date of arrest. Said period is not expired.
Prosecution can file chargesheet in 90 days as per section 167 of Cr.P.C.
Application of accused is without any merit. It deserves to be dismissed.
In the result, this court pass following order.
ORDER
Application is dismissed.
02.05.2018
Dictated on
Transcribed on
Checked on
Signed on
: 02.05.2018
: 03.5.2018
: 03.05.2018
: 03.05.2018
(S.R. TAMBOLI)
Special Judge(CBI)
Gr. Bombay
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Order on BA 29718 in RA 21118
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE
03.05.2018
Name of the Judge
TIME
3.35 p.m.
Date of Pronouncement of
Judgement/Order.
Judgement/order signed by P.O on
Judgement/order uploaded on
NAME OF STENOGRAPHER
Mrs. R. S. Bhor
HHJ Shri S.R. Tamboli
(CR No.47)
02.05.2018
03.05.2018
03.05.2018