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CASE NO.: Appeal (crl.)  1249 of 2007

PETITIONER: Dinesh Dalmia

RESPONDENT: C.B.I.

DATE OF JUDGMENT: 18/09/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.   1249             OF 2007 [Arising out of SLP (Crl.) No. 513 of 2007]

S.B. SINHA,  J :

1.      Leave granted.

2.      Interpretation of Sub-section (2) of Section 167 of the Code of  Criminal Procedure, 1973 (for short "the Code") vis-‘-vis Sub-section (2) of  Section 309 thereof falls for consideration of this Court in this appeal which  arises out of an order dated 22.12.2006 passed by a learned Single Judge of  the High Court of Judicature at Madras in Crl. R.C. No. 1173 of 2006 setting  aside an order dated 25.08.2006 passed by the 5th Additional Sessions Judge,  Chennai in R.C. 4/(E)/03/BSC/FC/CBI New Delhi in Crl. R.C. No. 115 of  2006 whereby an order dated 30.05.2006 passed by the Special Court in Crl.  M.P. No. 788 of 2006 in C.C. No. 19189 of 2005 was set aside.

3.      Appellant was proceeded against for commission of offences under  Sections 409, 420 and 120B of the Indian Penal Code.

4.      The Central Bureau of Investigation (CBI) lodged a first information  report against the appellant and three companies registered and incorporated  under the Companies Act, 1956 on a complaint made by the Securities and  Exchange Board of India.  Indisputably, Appellant was named therein.  He  was, however, evading arrest.  He had gone to the United States.  The  learned Magistrate by an order dated 14.02.2005, on a prayer made in that  behalf by the CBI, issued a non-bailable warrant of arrest against him.  Upon  completion of investigation, a charge sheet was submitted before the  Magistrate in terms of Sub-section (2) of Section 173 of the Code.  In the  said charge sheet, name of the appellant appeared in Column No. 1 along  with the said three companies.  Name of one of the companies named in the  first information report, viz., M/s. DSQ Software Ltd., has been shown in  Column No. 2.  In the said charge sheet, it was stated:

"Investigation has revealed that Sh. Dinesh  Dalmia, the then Managing Director & Custodian  of properties, including shares, of M/s. DSQ  Software Ltd., fraudulently got dematerialized un- allotted and unlisted share of DSQ Software Ltd.  In the name of three entities namely New Vision  Investment Ltd., UK; Dinesh Dalmia Technology  Trust and Dr. Suryanil Ghosh, Trustee \026 Softec  Corporation and thereafter these shares were sold  in the market and the proceeds of sale of said  shares were credited in the accounts of M/s. DSQ  Holdings Ltd., M/s. Hulda Properties and Trade

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Ltd. and M/s. Powerflow Holding and Trading Pvt.  Ltd. and thereby dishonestly misappropriated and  cheated investors including existing share holders  and obtained undue gain to the tune of Rs.  5,94,88,37,999/-.

       Thus, Sh. Dinesh Dalmia has committed  fraudulent acts prima facie disclosing commission  of offences of cheating, breach of trust, forgery  and using forged documents as genuine by getting  wrongful gain in the matter of partly paid shares.   DSQ Software Ltd. in the name of New Vision  Investment Ltd., UK; unallotted shares in the name  of Dinesh Dalmia Technology Trust and "Dr.  Suryanil Ghosh Trustee Softec Corporation".  M/s.  DSQ Holdings Ltd., M/s. Hulda Properties and  Trades Ltd. and M/s. Powerflow Holding &  Trading Pvt Ltd have also committed offence of  cheating in the matter of above mentioned shares  and the above facts disclose commission of  offences punishable U/s 409, 420, 468 and 471  IPC on the part of accused Sh. Dinesh Dalmia (A- 1) and U/ 420 IPC on the part of accused  companies namely M/s DSQ Holdings Ltd (A-2)  represented by Sh. Dinesh Dalmia, Director, M/s.  Hulda Properties & Trades Ltd (A-3) represented  by Sh Ashok Kumar Sharma, Director & M/s  Powerflow Holding & Trading Pvt Ltd (A-4)  represented by Sh Ashok Kumar Sharma, Director.

       During investigation the allegations against  DSQ Software Ltd could not be substantiated and  hence it is not being charge sheeted.

       Accused Dinesh Dalmia is evading arrest  and has absconded to USA.  He has not joined  investigation.  Ld. ACMM, Egmore Chennai  issued an open ended non-bailable warrant of his  arrest and a Red Corner Notice (RCN) has been  issued against him through INTERPOL for  locating him.  His examination is necessary in this  case as only he alone is aware of the end use of the  funds.

       Further investigation on certain vital points  including end use of the funds, foreign  investigation in the matter of genuineness of New  Vision Investment Ltd and as shown as its  authorized signatory, Sh. Hitendra Naik, in United  Kingdom and other foreign investigation are still  continuing and after completion of the remaining  investigation the report of the same will be filed  under section 173(8) Cr. PC in due course.

       The questioned documents have been sent to  GEQD for expert opinion, it is still awaited.  After  being obtained, the same will be submitted with  additional list of documents.

       The list of witnesses and list of documents  are enclosed herewith and additional list of  documents & witnesses, if necessary, will be  submitted in due course.

       It is, therefore, prayed that this Hon’ble

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court may be pleased to take cognizance of the  offences, issue the process to secure the presence  of the accused and they may be tried according to  law."

5.      Although statements made by the witnesses under Section 161 of the  Code accompanied the charge sheet, the relevant documents could not be  filed as they were sent for examination before the Government Examiner of  Questioned Documents (GEQD).  Cognizance was taken by the Magistrate  on the said charge sheet by an order dated 25.10.2005.  It was specifically  noted that non-bailable warrant as against the appellant was still pending.   

       The CBI contended that the appellant entered into India illegally as no  endorsement had been made in his passport showing a valid travel  undertaken by him.  He was produced before a Magistrate in Delhi for  transit remand to Chennai.  An order to that effect was passed.  On  14.02.2006, when he was produced before the concerned Magistrate at  Chennai, an order for police custody was prayed for and was granted till  24.02.2006.  Another application was filed for further police custody for  four days on 21.02.2006.  An application was also filed seeking permission  to conduct brain mapping, polygraph test, on the appellant which was  allowed.  

6.      Appellant had been handed over to the police for conducting  investigation till 8.03.2006.  He, however, was remanded to judicial custody  till 14.03.2006 by an order dated 9.03.2006.  Allegedly, on the plea that  further investigation was pending, the CBI prayed for and obtained order of  remand to judicial custody from the learned Magistrate on 14.03.2006,  28.03.2006, 10.04.2006 and 28.04.2006.  All the applications were made  purported to be under Sub-section (2) of Section 167 of the Code.   

7.      Appellant, on expiry of 60 days from the date of his arrest, filed an  application for statutory bail purported to be in terms of the proviso  appended to Sub-section (2) of Section 167 of the Code on the premise that  no further charge sheet in respect of the investigation under Sub-section (8)  of Section 173 of the Code has been filed.  When the said application was  pending consideration, the CBI sought for his remand in judicial custody  under Sub-section (2) of Section 309 thereof.   

       The said application for statutory bail was rejected by the learned  Magistrate opining:

"\005Because, in this case, the petitioner was  arrested on the basis of Non-bailable warrant  issued by this court, after taking cognizance of the  offences in charge sheet.  Further, the respondent  side has clearly stated that before further  investigation commenced on 14.2.2006, the  petitioner was remanded to police custody, hence  he was in the custody of the court since his arrest  on 12.2.2006.  Therefore, after expiry of the police  custody, the petitioner should be remanded to  judicial custody u/s 309(2) Cr. P.C. and not u/s  167(2) Cr.P.C.  However, in this case, by mistake,  provision of law under which the petitioner was  remanded to judicial custody was mentioned as  Section 167(2) Cr.P.C. in the remand report.  In  fact for remanding an accused in custody against  whom charge sheet has already been filed and an  application for remand is not required.  Hence this  court is inclined to state that the petitioner was  remanded to police custody u/s 167(2) Cr.P.C. and  thereafter was remanded to judicial custody u/s  309 Cr.P.C."

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       The learned Magistrate further took note of the fact that two other  cases have been registered against him by the Calcutta Police.   

8.      A revision application filed by the appellant herein before the learned  Sessions Judge was allowed inter alia relying on or on the basis of the  decision of this Court in State Through CBI v. Dawood Ibrahim Kaskar and  Others [(2000) 10 SCC 438] stating:

"23. Taking into consideration of all these facts  and circumstances of the case and principle of law  laid down by the Hon’ble Apex Court I feel that in  view of the positive conduct of the respondent in  relying upon Section 167(2) Cr. P.C. in all their  applications (up to the filing of the bail  application), the petitioner can also rely upon it  and seek necessary orders thereunder, that the  respondent is now estopped from pleading  opposite to their own previous conduct and that  Section 309(2) cannot be applied to a person like  the petitioner, who was arrested in the course of  further investigation."

9.      The CBI moved the High Court thereagainst.  Its application was  registered as Crl. R.C. No. 1173 of 2006.  The decision of the learned  Sessions Judge was over-turned by the High Court by reason of the  impugned judgment stating:

"Because of this interpretation the learned  Magistrate is empowered to give "Police custody".   Once police custody is completed the accused  reverts back to judicial custody of post cognizance  stage.  Even if further investigation continues as  far as such accused are concerned scope of section  167 comes to an end.  "Subject to fulfillment of the  requirement and the limitation of Section 167"  only refers to the investigation during "police  custody" especially when an accused is in remand  under Section 167.  When further investigation  keeping him in police custody during post  cognizance stage is completed, the remand of an  accused is only governed under Section 309  Cr.P.C.  Under such circumstances, invoking of  proviso to section 167 and demand for a  benevolent provision is inapplicable to such  accused.

27. The object of enactment of such proviso in  Section 167 Cr. P.C. is to have control over a  lethargic, delayed investigation, especially keeping  a person in custody.  It is a specific direction to the  police to collect material without any delay.  If  sufficient incriminating materials are not collected  against the accused with the crime alleged.  It  safeguards the interest of such accused person.  If  materials are collected and reported to the  Magistrate within the period stipulated by filing  charge sheet, then the scope of proviso to section  167 extinguishes and an accused can claim bail  only on merit.

28. In the instant case most of the materials have  been collected.  The materials to connect the  accused with the crime is already available.  Final  conclusion also was reached and charge sheet  filed.  However, custodial interrogation of the

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accused felt necessary.  Such interrogation  entrusting him in police custody was done between  12.02.2006 and 27.02.2006 cognizance of the case  was taken much earlier on 25.10.2005.  Only for  custodial interrogation he was entrusted under  Section 167 to the CBI.  Section 167 Cr.P.C. can  be invoked only for such purpose in a post  cognizance case.  Otherwise a remand must be  made only under Section 309 Cr.P.C.  If a wrong  provision is quoted for further remand under  section 167 Cr.P.C. instead of 309 one cannot  claim the benefit of a benevolent proviso to section  167.  Proviso to section 167 is available only to  safeguard an innocent person or a person against  whom no materials collected in spite of detaining  him for 60/90 days.  In the instant case abundant  materials have been already collected and final  report filed.  Two years after the cognizance he  was apprehended.  He was entrusted with police  custody only for custodial interrogation.  Further  investigation may be pending to comply with other  formalities.  There may be delay to receive opinion  from experts and such delay cannot be taken  advantage of by invoking the proviso to section  167 Cr.P.C."

10.     Appellant is, thus, before us.

11.     Mr. Mukul Rohatgi, learned senior counsel appearing on behalf of the  appellant, has raised two contentions before us:

(i)     The charge sheet filed against the appellant and cognizance taken  thereupon is illegal and invalid and by reason thereof, a valuable  right of the appellant to be released on bail has been taken away. (ii)    Even if the charge sheet is legal, the right of the appellant under  Sub-section (2) of Section 167 of the Code continued to remain  available in the facts and circumstances of the case.

       Elaborating his submission, Mr. Rohatgi urged that a police report  must strictly conform to the requirements laid down under Section 173 of  the Code and the prescribed form for submission of the final form  wherefrom it would be evident that no charge sheet can be filed upon  purported completion of investigation against the appellant as he had been  absconding.  As the CBI kept investigation as against the appellant open, as  would appear from the charge sheet itself as also the prayers made and  granted by the learned Magistrate which is permissible only under Sub- section (2) of Section 167 of the Code, no chargesheet in law can be said to  have been filed so far as the appellant was concerned.  The CBI moreover  itself proceeded on the basis that the investigation against the appellant had  been pending and only in that view of the matter applications for remand  were filed under Sub-section (2) of Section 167 of the Code.  It was  contended that only when the appellant applied for grant of statutory bail,  the CBI changed its stand and filed an application for remand under Sub- section (2) of Section 309 of the Code.  

12.     Mr. Amarendra Sharan, learned Additional Solicitor General  appearing on behalf of the CBI, on the other hand, would submit that a  charge sheet having been submitted before the Court and cognizance having  been taken on the basis thereof, the only provision applicable for remand of  the accused would be  Sub-section (2) of Section 309 of the Code and, thus,  even if a wrong provision has been mentioned by CBI in their applications  for remand, the same by itself would not render the order of the Court  invalid in law.

       In this case the CBI took a conscious decision to file charge sheet

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against the appellant.  His name was shown in Column No. 1 thereof  although he was absconding.  It was found that a case for trial has been  made out.  There were five accused against whom allegations were made by  the complainant.  One of the companies was not sent for trial as nothing was  found against it.  All the other accused named in the first information report  had been sent for trial.   

14.     The learned Magistrate took cognizance of the offence.  The said  power can be exercised only under Section 190(1)(b) of the Code.  The  learned Magistrate noticed the fact, while taking cognizance of the offence,  that the appellant had been absconding and a non-bailable warrant of arrest  had been issued against him.   

       Whereas the charge sheet was submitted on 24.10.2005, the appellant  was arrested only on 12.02.2006.  According to Mr. Sharan, the additional  documents were filed on 20.01.2006.   

15.     A charge sheet is a final report within the meaning of Sub-section (2)  of Section 173 of the Code.  It is filed so as to enable the court concerned to  apply its mind as to whether cognizance of the offence thereupon should be  taken or not.  The report is ordinarily filed in the form prescribed therefor.   One of the requirements for submission of a police report is whether any  offence appears to have been committed and, if so, by whom.  In some  cases, the accused having not been arrested, the investigation against him  may not be complete.  There may not be sufficient material for arriving at a  decision that the absconding accused is also a person by whom the offence  appears to have been committed.  If the investigating officer finds sufficient  evidence even against such an accused who had been absconding, in our  opinion, law does not require that filing of the charge sheet must await the  arrest of the accused.  

16.     Indisputably, the power of the investigating officer to make a prayer  for making further investigation in terms of Sub-section (8) of Section 173 is  not taken away only because a charge sheet under Sub-section (2) thereof  has been filed.  A further investigation is permissible even if order of  cognizance of offence has been taken by the Magistrate.

17.     We may notice that a Constitution Bench of this Court in K.  Veeraswami v. Union of India and Others [(1991) 3 SCC 655] stated the law  in the following terms :

"76\005As observed by this Court in Satya Narain  Musadi v. State of Bihar that the statutory  requirement of the report under Section 173(2)  would be complied with if the various details  prescribed therein are included in the report. This  report is an intimation to the magistrate that upon  investigation into a cognizable offence the  investigating officer has been able to procure  sufficient evidence for the Court to inquire into the  offence and the necessary information is being sent  to the Court. In fact, the report under Section  173(2) purports to be an opinion of the  investigating officer that as far as he is concerned  he has been able to procure sufficient material for  the trial of the accused by the Court. The report is  complete if it is accompanied with all the  documents and statements of witnesses as required  by Section 175(5). Nothing more need be stated in  the report of the Investigating Officer. It is also not  necessary that all the details of the offence must be  stated. The details of the offence are required to be  proved to bring home the guilt to the accused at a  later stage i.e. in the course of the trial of the case  by adducing acceptable evidence.

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18.     It is true that ordinarily all documents accompany the charge sheet.   But, in this case, some documents could not be filed which were not in the  possession of the CBI and the same were with the GEQD.  As indicated  hereinbefore, the said documents are said to have been filed on 20.01.2006  whereas the appellant was arrested on 12.02.2006.  Appellant does not  contend that he has been prejudiced by not filing of such documents with the  charge sheet.  No such plea in fact had been taken.  Even if all the  documents had not been filed, by reason thereof submission of charge sheet  itself does not become vitiated in law.  The charge sheet has been acted upon  as an order of cognizance had been passed on the basis thereof.  Appellant  has not questioned the said order taking cognizance of the offence.  Validity  of the said charge sheet is also not in question.   

       Application of Sub-section (2) of Section 173 of the Code vis-‘-vis  Sub-section (2) of Section 309 must be considered having regard to the  aforementioned factual and legal backdrop in mind.

19.     Concededly, the investigating agency is required to complete  investigation within a reasonable time.  The ideal period therefor would be  24 hours, but, in some cases, it may not be practically possible to do so.  The  Parliament, therefore, thought it fit that remand of the accused can be sought  for in the event investigation is not completed within 60 or 90 days, as the  case may be.  But, if the same is not done with the stipulated period, the  same would not be detrimental to the accused and, thus, he, on the expiry  thereof would be entitled to apply for bail, subject to fulfilling the conditions  prescribed therefor.   

       Such a right of bail although is a valuable right but the same is a  conditional one; the condition precedent being pendency of the  investigation.  Whether an investigation in fact has remained pending and  the investigating officer has submitted the charge sheet only with a view to  curtail the right of the accused would essentially be a question of fact.  Such  a question strictly does not arise in this case inasmuch as, according to the  CBI, sufficient materials are already available for prosecution of the  appellant.  According to it, further investigation would be inter alia  necessary on certain vital points including end use of the funds.

20.     Apart from the appellant, three companies, registered and  incorporated under the Companies Act, have been shown as accused in the  charge sheet.  It was, therefore, not necessary for the CBI to file a charge  sheet so as to curtail the right of the accused to obtain bail.  It is, therefore,  not a case where by reason of such submission of charge sheet the appellant  has been prejudiced in any manner whatsoever.   

21.     It is also not a case of the appellant that he had been arrested in course  of further investigation.  A warrant of arrest had already been issued against  him.  The learned Magistrate was conscious of the said fact while taking  cognizance of the offence.   

       It is now well settled that the court takes cognizance of an offence and  not the offender.  [See  Anil Saran v. State of Bihar and another (1995) 6  SCC 142 and Popular Muthiah  v. State represented by Inspector of Police  (2006) 7 SCC 296]

22.     The power of a court to direct remand of an accused either in terms of  Sub-section (2) of Section 167 of the Code or Sub-section (2) of Section 309  thereof will depend on the stages of the trial.  Whereas Sub-section (2) of  Section 167 of the Code would be attracted in a case where cognizance has  not been taken, Sub-section (2) of Section 309 of the Code would be  attracted only after cognizance has been taken.

23.     If submission of Mr. Rohatgi is to be accepted, the Magistrate was not  only required to declare the charge sheet illegal, he was also required to  recall his own order of taking cognizance.  Ordinarily, he could not have

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done so.  [See Adalat Prasad v. Rooplal Jindal and Ors. (2004) 7 SCC 338,    Subramanium Sethuraman v. State of Maharashtra and Anr. 2004 (8)  SCALE 733 and Everest Advertising Pvt. Ltd. v. State, Govt. of NCT of  Delhi and Ors. JT 2007 (5) SC529]  It is also well-settled that if a thing  cannot be done directly, the same cannot be permitted to be done indirectly.   If the order taking cognizance exists, irrespective of the conduct of the CBI  in treating the investigation to be open or filing applications for remand of  the accused to police custody or judicial remand under Sub-section (2) of  Section 167 of the Code stating that the further investigation was pending,  would be of no consequence if in effect and substance such orders were  being passed by the Court in exercise of its power under Sub-section (2) of  Section 309 of the Code.  

24.     We, however, have no words to deprecate the stand of the CBI.  It  should have taken a clear and categorical stand in the matter.  

       We, however, are proceeding on the basis that irrespective of the  stand taken by the CBI, law will prevail.  We may notice the law operating  in the field in this behalf.

25.     In support of the submission in regard to interpretation of Sub-section  (2) of Section 167 and Sub-section (2) of Section 309 of the Code, strong  reliance has been placed by Mr. Rohatgi on Central Bureau of Investigation,  Special Investigation Cell \026 I, New Delhi v. Anupam J. Kulkarni [(1992) 3  SCC 141] and Dawood Ibrahim Kaskar (supra).

       In Anupam J. Kulkarni (supra), the question which inter alia arose for  consideration of this Court was as to whether the period of remand ordered  by an Executive Magistrate in terms of Section 57 of the Code should be  computed for the purpose of Sub-section (2) of Section 167 thereof.  This  Court, keeping in view the provisions of Clause (2) of Article 22 of the  Constitution of India, answered the question in the affirmative.  It was held  that a total period of remand during investigation is fifteen days.  In that  context, this Court observed:

"\005However, taking into account the difficulties  which may arise in completion of the investigation  of cases of serious nature the legislature added the  proviso providing for further detention of the  accused for a period of ninety days but in clear  terms it is mentioned in the proviso that such  detention could only be in the judicial custody.  During this period the police are expected to  complete the investigation even in serious cases.  Likewise within the period of sixty days they are  expected to complete the investigation in respect  of other offences. The legislature however  disfavoured even the prolonged judicial custody  during investigation. That is why the proviso lays  down that on the expiry of ninety days or sixty  days the accused shall be released on bail if he is  prepared to and does furnish bail\005"

       In regard to the question as to whether such an order of remand would  be permissible in law when an accused is wanted in different cases, the  answer was again rendered in affirmative.  We are not faced with such a  problem in the instant case.

26.     In Dawood Ibrahim Kaskar (supra), this Court held:

"11. There cannot be any manner of doubt that the  remand and the custody referred to in the first  proviso to the above sub-section are different from  detention in custody under Section 167. While  remand under the former relates to a stage after

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cognizance and can only be to judicial custody,  detention under the latter relates to the stage of  investigation and can initially be either in police  custody or judicial custody. Since, however, even  after cognizance is taken of an offence the police  has a power to investigate into it further, which can  be exercised only in accordance with Chapter XII,  we see no reason whatsoever why the provisions of  Section 167 thereof would not apply to a person  who comes to be later arrested by the police in  course of such investigation. If Section 309(2) is to  be interpreted - as has been interpreted by the  Bombay High Court in Mansuri (supra) - to mean  that after the Court takes cognizance of an offence  it cannot exercise its power of detention in police  custody under Section 167 of the Code, the  Investigating Agency would be deprived of an  opportunity to interrogate a person arrested during  further investigation, even if it can on production  of sufficient materials, convince the Court that his  detention in its (police) custody was essential for  that purpose. We are therefore of the opinion that  the words "accused if in custody" appearing in  Section 309(2) refer and relate to an accused who  was before the Court when cognizance was taken  or when enquiry or trial was being held in respect  of him and not to an accused who is subsequently  arrested in course of further investigation. So far as  the accused in the first category is concerned he  can be remanded to judicial custody only in view  of Section 309(2), but he who comes under the  second category will be governed by Section 167  so long as further investigation continues. That  necessarily means that in respect of the latter the  Court which had taken cognizance of the offence  may exercise its power to detain him in police  custody, subject to the fulfilment of the  requirements and the limitation of Section 167."

27.     We had noticed the dicta of the Constitution Bench judgment of this  Court.  At this juncture, we may notice the dicta laid down by this Court in  Sanjay Dutt v. State Through C.B.I. Bombay (II) [(1994) 5 SCC 410]  wherein it was held:

"53\005(2)(b) The ’indefeasible right’ of the accused  to be released on bail in accordance with Section  20(4)(bb) of the TADA Act read with Section  167(2) of the CrPC in default of completion of the  investigation and filing of the challan within the  time allowed, as held in Hitendra Vishnu Thakur is  a right which enures to, and is enforceable by the  accused only from the time of default till the filing  of the challan and it does not survive or remain  enforceable on the challan being filed. If the  accused applies for bail under this provision on  expiry of the period of 180 days or the extended  period, as the case may be, then he has to be  released on bail forthwith. The accused, so  released on bail may be arrested and committed to  custody according to the provisions of the CrPC.  The right of the accused to be released on bail after  filing of the challan, notwithstanding the default in  filing it within the time allowed, is governed from  the time of filing of the challan only by the  provisions relating to the grant of bail applicable at

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that stage."

28.     It is a well-settled principle of interpretation of statute that it is to be  read in its entirety.  Construction of a statute should be made in a manner so  as to give effect to all the provisions thereof.  Remand of an accused is  contemplated by the Parliament at two stages; pre-cognizance and post \026  cognizance.  Even in the same case depending upon the nature of charge  sheet filed by the investigating officer in terms of Section 173 of the Code, a  cognizance may be taken as against the person against whom an offence is  said to have been made out and against whom no such offence has been  made out even when investigation is pending.  So long a charge sheet is not  filed within the meaning of Sub-section (2) of Section 173 of the Code,  investigation remains pending.  It, however, does not preclude an  investigating officer, as noticed hereinbefore, to carry on further  investigation despite filing of a police report, in terms of Sub-section (8) of  Section 173 of the Code.

29.     The statutory scheme does not lead to a conclusion in regard to an  investigation leading to filing of final form under Sub-section (2) of Section  173 and further investigation contemplated under Sub-section (8) thereof.   Whereas only when a charge sheet is not filed and investigation is kept  pending, benefit of proviso appended to Sub-section (2) of Section 167 of  the Code would be available to an offender; once, however, a charge sheet is  filed, the said right ceases.  Such a right does not revive only because a  further investigation remains pending within the meaning of Sub-section (8)  of Section 173 of the Code.   

30.     The High Court, in our opinion, is correct in its finding that, in the  fact situation obtaining, the appellant had no statutory right to be released on  bail.

31.     We do not, thus, find any infirmity in the judgment of the High Court.   Accordingly, the appeal is dismissed.