REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs.   1133-1134                OF 2009 [Arising out of SLP (Crl.) Nos. 1035-1036 of 2009]

Jeewan Kumar Raut & Anr. …Appellants

Versus

Central Bureau of Investigation …Respondent

J U D G M E N T  

S.B. SINHA, J :   

1. Leave granted.

2. Applicability of Sub-section (2) of Section 167 of the Code of Criminal  Procedure,  

1973 (for short “the Code”) in a case where cognizance has been taken under Section 22 of the  

Transplantation of Human Organs Act,  1994 (for short  “TOHO”) on a complaint  filed by the  

respondent herein is the question involved in this appeal.   

It arises out of a judgment and order dated 29.01.2009 passed by a learned Single Judge of the  

Punjab and Haryana High Court in Criminal Revision Nos. 1007 and 1006 of 2008.

3. Appellants  are medical practitioners.   A First  Information Report  (FIR) was lodged  

against them under Section 420 of the Indian Penal Code and Sections 18 and 19 of TOHO at  

Police Station Palam Vihar, Gurgaon.  The investigation was transferred to the Central Bureau of

Investigation, the respondent herein.   

It registered another FIR on or about 8.02.2008 under Sections 420, 342, 326, 506 and 120-B of  

the Indian Penal Code and under Sections 18 and 19 of TOHO.

4. Appellant No. 2 was arrested on 10.02.2008 and he was produced before the learned  

Magistrate  on  11.02.2008,  whereas  appellant  No.1  surrendered  on  17.02.2008  and  produced  

before the learned Magistrate on 18.02.2008.   

5. Respondent  filed  a  complaint  under  Section  22  of  TOHO  before  the  Judicial  

Magistrate, CBI Cases, Ambala inter alia stating:

“51. That required authorization u/s 22 of TOHO Act 1994 has been  accorded by the Govt.  of  Haryana vide order dated 11.4.08 in favour  of  undersigned IO of the case….

52. That as per provisions contained in TOHO Act, 1994, cognizance  for  the  offences  punishable  under  the  provision  of  said  Act  can only be  taken up on a complaint filed by prescribed authority or by a person duly  authorized  by  competent  authority.   Ms.  Firoza  Mehrotra,  Financial  Commissioner  &  Principal  Secretary  to  the  Govt.  of  Haryana,  Home  Department being the competent authority has authorized the undersigned  IO of this case to file the complaint for the violation of provisions of TOHO  Act,  1994 by the said  accused persons  before a competent court  of  law.  Since  offences  punishable  under  the  provisions  of  Indian  Penal  Code  committed  by  above  said  accused  persons  are  pursuant  to  a  criminal  conspiracy in the same transaction, hence a composite complaint is being  filed against all the said accused persons.”

(Emphasis supplied)

It was prayed:

“54. It is most respectfully prayed that cognizance under sections 120- B r/w 326, 342, 417, 465, 473, 506 and 307 IPC and Sec. 18, 19 & 20 of  Transplanation of Human Organs Act, 1994 and substantive offences thereof  may kindly be taken against accused A-1 to A-9 and they may be tried as per  law.   It  is  also  prayed that  permission  to  conduct  further  investigation  against the arrested persons, namely, Smt. Pooja Kumar, Umesh Kumar and  Harpal may kindly be given as also against the others whose names have  emerged during investigation.”

6. Inter alia, contending that the period of 90 days from the date of detention expired on  

7.05.2008, the appellant No. 2 filed application for grant of bail.   By reason of an order dated  

9.05.2008, the learned Magistrate opined:

“…For the purposes of taking cognizance of the offences punishable under  TOHO Act, a written complaint  is  required to be filed by the competent  authority or the authorized person as required by Section 22 of the aforesaid  Act.   Therefore,  qua  the  offences  under  TOHO  Act,  it  seems  to  be  a  complaint, but in the opinion of this Court qua the offences committed by  the accused punishable under Section 120-B read with Sections 307, 326,  342, 417, 465, 473 and 506 of IPC, it seems to be police report.  If period of  custody is reckoned of both accused Ms. Linda and Dr. Amit, then it appears  to me that this police report had been filed within the period of 90 days  being filed on 29.4.2008…”

On the said reasoning, the learned Magistrate dismissed the said application.

7. The appellant No. 2 along with other accused also filed application for grant of bail,  

which was also dismissed by the learned Magistrate by an order dated 23.05.2008 holding that he  

had already taken a view while dealing with the application for grant of bail filed by the appellant  

No. 2.

8. Aggrieved by and dissatisfied therewith, the appellants filed revision applications before  

the High Court wherein notice was issued on 29.05.2008.  By reason of the impugned judgment  

dated 28.01.2009, the High Court dismissed the said revision applications.   However, the High  

Court refused to go into the question raised by the appellants herein that a complaint is not a police  

report and cannot be treated as such, stating:

“…The cognizance of the offence under the TOHO Act in terms of Section  22 is to be taken on the basis of a complaint filed by an appropriate authority  concerned.  Conceded position is that the complaint against the petitioners  under the TOHO Act was filed on 29.4.2008, which was within a period of  90 days in respect of all the petitioners.  Once the complaint was filed within

a statutory period for a cognizable offence, which is nonbailable, of which  cognizance  was  taken  by  the  Magistrate,  the  petitioners  would  not  be  entitled  to  seek  the  protection  of  Section  167(2)  Cr.P.C.,  even  if  it  is  construed for the sake of argument that a complaint is not a police report or  cannot be treated as such.  The net effect of the argument raised by counsel  for the petitioners would be that even if the complaint is not treated as a  police  report  for offences  under I.P.C.,  still  the petitioners  would not  be  entitled to be released on bail  by operation of Section 167(2) Cr.P.C.  as  complaint against them stood filed within a statutory period of 90 days.  The  petitioners could, thus, be denied the concession of said provision without  going into the elaborate and detailed submissions made by counsel for the  parties in regard to the status of complaint, being police report or not.  I am,  thus, not inclined to go further into the aspect whether this complaint can be  treated as a police report for the purpose of offences under the IPC or not.  The definition of ‘complaint’ as contained in Section 2(d) Cr.P.C., would  prima – facie tend to indicate that complaint as such, would exclude the  police report, though it is equally true that the police report need not be on  any particular format…”

9. Mr. Ranjit Kumar, learned senior counsel appearing on behalf of the appellants, would  

urge:

(i) A “complaint”  having been defined in Section 2(d) of the Code in terms whereof a  

police  report  is  excluded,  it  was  obligatory on  the  part  of  the  respondent  herein  to  

proceed either in terms of Chapter XII of the Code or Chapter XV thereof and in view of  

the fact that the FIR was lodged, investigation was carried out only in terms of Chapter  

XII of the Code, the complaint petition was not maintainable.

(ii) The investigating officer is required to file a police report as defined in Section 2(r) of  

the Code which would in turn attract the provisions of sub-section (2) of Section 173 of  

the Code, the officers of the CBI being police officers in terms of the provisions of the  

Delhi Special Police Establishment Act, 1946, the purported complaint should have been  

treated to be a police report and not a complaint petition.

(iii) Appellants  having  been  arrested  by  the  respondent,  which  power  could  have  been  

exercised by it under the Code, the only course open to it was to file a police report.

(iv) An indefeasible right having been conferred on the accused in terms of sub-section (2) of  

Section  167 of  the  Code,  the  appellants  could  not  have  been denied the  same only

because a purported complaint was filed.

10. Mr. Amarendra Sharan, learned Additional Solicitor General appearing on behalf of the  

respondent, on the other hand, urged:

(i) The learned Magistrate having taken cognizance of the offences and having committed  

the case to the Court of Sessions, the application for bail filed in terms of Sub-section (2)  

of Section 167 of the Code has become infructuous.

(ii)  The appellant No. 2 having been arrested on 10.02.2008 and the appellant No. 1 having  

surrendered on 17.02.2008 as also a complaint petition having been filed on 29.04.2008,  

the requirements of Sub-section (2) of Section 167 of the Code stand complied with, as  

even assuming that the complaint petition is to be treated as a police report, the same  

was filed within a period of 90 days.

11. Before adverting to  the rival  contentions  of  the learned counsel,  we may notice  the  

relevant provisions of the Code as also of TOHO.

Section 2(d) of the Code defines “Complaint” to mean “any allegation made orally or in  

writing to a Magistrate, with a view to his taking action under this Code, that some person, whether  

known or unknown, has committed an offence, but does not include a police report”.

Section 2(r) of the Code defines “police report” to mean “a report forwarded by a police  

officer to a Magistrate under sub-section (2) of section 173”.

Chapter  XII  of  the  Code  deals  with  information  to  the  police  and  their  powers  to  

investigate.  It begins with Section 154 providing for the mode and manner in which the information  

relating to commission of a cognizable offence if given orally to an officer incharge of the police

station is to be dealt with.  Section 156 empowers the police officer to investigate cognizable cases.  

Section 160 empowers the police officer to require attendance of witnesses.  Section 161 provides  

for examination of witnesses by police.  Section 165 empowers the police officer to search any  

premises.  It is in the aforementioned background, we may notice Sub-section (2) of Section 167 of  

the Code, which reads, thus:

“167.  Procedure  when  investigation  cannot  be  completed  in  twenty-four  hours.

(1) …. ….

(2)  The Magistrate  to  whom all  accused  person  is  forwarded under  this  section may, whether he has or not jurisdiction to try the case, from time to  time,  authorise  the  detention  of  the  accused  in  such  custody  as  such  Magistrate thinks fit, a term not exceeding fifteen days in the whole; and if  he has no jurisdiction to try the case or commit it for trial, and considers  further detention unnecessary, he may order the accused to be forwarded to a  Magistrate having such jurisdiction:

Provided that-

(a)  The  Magistrate  may authorize  the  detention  of  the  accused  person,  otherwise than in the custody of the police,  beyond the period of fifteen  days,  if  he  is  satisfied  that  adequate  grounds  exist  for  doing so,  but  no  Magistrate shall  authorise the detention of the accused person in custody  under this paragraph for a total period exceeding-

(i) Ninety days, where the investigation relates to an offence punishable with  death, imprisonment for life or imprisonment for a term of not less than ten  years;

(ii) Sixty days, where the investigation relates to any other offence,

And, on the expiry of the said period of ninety days, or sixty days, as the  case may be, the accused person shall be released on bail if he is prepared to  and does  furnish bail,  and every person released on bail  under  this  sub- section shall be deemed to be to released under the provisions of Chapter  XXXIII for the purposes of that Chapter;

(b) No Magistrate shall authorize detention in any custody under this section  unless the accused is produced before him;

(c)  No  Magistrate  of  the  second  class,  not  specially  empowered  in  this  behalf by the high Court,  shall  authorize detention in the custody of the  police.

Explanation  I.  For  the  avoidance  of  doubts,  it  is  hereby  declared  that,  notwithstanding  the  expiry of  the  period  specified  in  paragraph  (a),  the  accused shall be detained in Custody so long as he does not furnish bail.

Explanation  II.  If  any  question  arises  whether  an  accused  person  was  produced  before  the  Magistrate  as  required  under  paragraph  (b),  the  production of the accused person may be proved by his signature on the  order  authorizing  detention.”

A report of a police officer on completion of investigation is required to be filed in terms  

of Section 173 of the Code; sub-section (2) whereof empowers the investigating officer to file a  

report disclosing:

“(a)       the names of the parties;

(b)  the nature of the information;

(c)  the  names  of  the  persons  who  appear  to  be  acquainted  with  the  circumstances of the case;

(d)  whether  any offence appears  to  have been committed  and,  if  so,  by  whom;

(e)  whether the accused has been arrested;

(f)    whether he has been released on his bond and, if so, whether with or  without sureties;

(g)  whether he has been forwarded in custody under section 170.”

Chapter XIII of the Code deals with jurisdiction of the criminal courts for inquiries and

trials.  Chapter XIV provides for the conditions requisite for initiation of proceedings.  Section 190  

of the Code occurring in the said Chapter reads as under:

“190 - Cognizance of offences by Magistrates  ( 1 ) Subject to the provisions of this Chapter, any Magistrate of the first  class, and any Magistrate of the second class specially empowered in this  behalf under sub-section (2 ), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or  upon hi s own knowledge, that such offence has been committed. (  2 ) The Chief  Judicial  Magistrate may empower any Magistrate  of the  second class to take cognizance under sub-section (1 ) of such offences as  are within his competence to inquire into or try.”

Chapter XV of the Code deals with complaints to Magistrates.  Section 201 of the Code  

reads as under:

“201 - Procedure by Magistrate not competent to take cognizance of the case  

If  the  complaint  is  made  to  a  Magistrate  who  is  not  competent  to  take  cognizance of the offence he shall,— (a) if the complaint  is  in writing, return it  for presentation to the proper  Court with an endorsement to that effect; (b) if the complaint is not in writing, direct the complainant to the proper  Court.”

  TOHO was enacted to provide for the regulation of removal, storage and transplantation  

of human organs for therapeutic purposes and for the prevention of commercial dealings in human  

organs and for matters connected therewith or incidental thereto.

 Section  2(b)  of  TOHO  defines  “appropriate  authority”  to  mean  “the  Appropriate  

Authority appointed under Section 13”.

Chapter  IV of  TOHO deals  with  appropriate  authority;  Section  13  occurring  therein  

reads, thus:

“13 - Appropriate Authority  (1)  The  Central  Government  shall  appoint,  by notification,  one  or  more  officers as Appropriate Authorities for each of the Union territories for the  purposes of this Act. (2)  The  State  Government  shall  appoint,  by  notification,  one  or  more  officers as Appropriate Authorities for the purposes of this Act. (3)  The  Appropriate  Authority  shall  perform  the  following  functions,  namely :— (i)  to  grant  registration  under  sub-section  (1)  of  section  15  or  renew  registration under sub-section (3) of that section; (ii) to suspend or cancel registration under sub-section (2) of section 16; (iii) to enforce such standards, as may be prescribed, for hospitals engaged  in the removal, storage or transplantation of any human organ; (iv)  to investigate any complaint of breach of any of the provisions of this  Act or any of the rules made thereunder and take appropriate action; (v)  to  inspect  hospitals  periodically  for  examination  of  the  quality  of  transplantation  and  the  follow-up  medical  care  to  persons  who  have  undergone transplantation and persons from whom organs are removed; and (vi) to undertake such other measures as may be prescribed.”

Chapter VI of TOHO deals with offences and penalties.  Sections 18, 19 and 22 thereof  

read as under:

“18 - Punishment for removal of human organ without authority  (1) Any person who renders his services to or at any hospital and who, for  purposes  of  transplantation,  conducts,  associates  with,  or  helps  in  any  manner  in,  the  removal  of  any human organ without  authority, shall  be  punishable with imprisonment for a term which may extend to five years  and with fine which may extend to ten thousand rupees. (2) Where any person convicted under sub-section (1) is a registered medical  practitioner, his name shall be reported by the Appropriate Authority to the  respective State Medical Council for taking necessary action including the  removal of his name from the register of the Council for a period of two  years for the first offence and permanently for the subsequent offence. 19 - Punishment for commercial dealings in human organs  Whoever— (a)  makes or  receives  any payment for  the  supply of,  or  for  an offer  to  supply, any human organ; (b) seeks to find a person willing to supply for payment any human organ; (c) offers to supply any human organ for payment; (d)  initiates  or  negotiates  any arrangement  involving  the  making  of  any  payment for the supply of, or for an offer to supply, any human organ;  (e) takes part in the management or control of a body of persons, whether a  society, firm or company, whose activities consist of or include the initiation  or negotiation of any arrangement referred to in clause (d); or (f)  publishes  or  distributes  or  causes  to  be  published  or  distributed  any  advertisement,--

(a) inviting persons to supply for payment of any human organ; (b) offering to supply any human organ for payment; or (c)  indicating  that  the  advertiser  is  willing  to  initiate  or  negotiate  any  arrangement referred to in clause (d) shall be punishable with imprisonment for a term which shall not be less  than two years but which may extend to seven years and shall be liable to  fine which shall  not be less than ten thousand rupees but may extend to  twenty thousand rupees : Provided that  the  Court  may, for  any adequate  and special  reason to  be  mentioned in the judgment, impose a sentence of imprisonment for a term of  less than two years and a fine less than ten thousand rupees. 22 - Cognizance of offences  (1) No Court shall take cognizance of an offence under this Act except on a  complaint made by-- (a) the Appropriate Authority concerned, or any officer authorised in this  behalf by the Central Government or the State Government or, as the case  may be, the Appropriate Authority; or (b) a person who has given notice of not less than sixty days, in such manner  as may be prescribed, to the Appropriate Authority concerned, of the alleged  offence and of his intention to make a complaint to the Court. (2)  No Court  other  than  that  of  a  Metropolitan  Magistrate  or  a  Judicial  Magistrate of the first class shall try any offence punishable under this Act. (3) Where a complaint has been made under clause (b) of sub-section (1),  the Court may, on demand by such person, direct the Appropriate Authority  to make available copies of the relevant records in its possession to such  person.”

12. TOHO is a special  Act.   It deals  with the subjects  mentioned therein,  viz.,  offences  

relating to removal of human organs, etc.  Having regard to the importance of the subject only,  

enactment of the said regulatory statute was imperative.  TOHO provides for appointment of an  

appropriate authority to deal with the matters specified in Sub-section (3) of Section 13 thereof.  By  

reason of the aforementioned provision, an appropriate authority has specifically been authorized  

inter alia to investigate any complaint of the breach of any of the provisions of TOHO or any of the  

rules made thereunder and take appropriate action.  

13. The Appropriate Authority, subject to exceptions provided for in TOHO, thus, is only  

authorized  to  investigate  cases  of  breach  of  any of  the  provisions  thereof,  whether  penal  or  

otherwise.   

Ordinarily, any person can set the criminal law in motion.  The Parliament and the State  

Legislatures,  however,  keeping in  view the  sensitivity and/  or  importance of  the  subject,  have

carved out specific areas where violations of any of the provisions of a special statute like TOHO  

can be dealt with only by the authorities specified therein.

14. The FIR lodged before the officer incharge of the Gurgaon Police Station was by way of  

information.  It disclosed not only commission of an offence under TOHO but also under various  

provisions of the Indian Penal Code.  The officer incharge of the Police Station, however, was not  

authorized by the appropriate government to deal with the matter in relation to TOHO; but, the  

respondent was.  In that view of the matter, the investigation of the said complaint was handed over  

to it.

15. TOHO  being  a  special  statute,  Section  4  of  the  Code,  which  ordinarily  would  be  

applicable for investigation into a cognizable offence or the other provisions, may not be applicable.  

Section 4 provides for investigation, inquiry, trial, etc. according to the provisions of the Code.  

Sub-section (2) of Section 4, however, specifically provides that offences under any other law shall  

be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but  

subject to any enactment for the time being in force regulating the manner or place of investigating,  

inquiring into, tried or otherwise dealing with such offences.  TOHO being a special Act and the  

matter  relating  to  dealing  with  offences  thereunder  having  been  regulated  by  reason  of  the  

provisions thereof, there cannot be any manner of doubt whatsoever that the same shall prevail over  

the provisions of the Code.

16. The investigation in terms of Section 13(3)(iv) of TOHO, thus, must be conducted by an  

authorized officer.  Nobody else could do it.  For the aforementioned reasons, the officer incharge  

of  the  Gurgaon  Police  Station  had  no  other  option  but  to  hand  over  the  investigation  to  the  

appropriate authority.

17. The respondent has been constituted under the Delhi Special Police Establishment Act,  

1946.  In terms of the provisions  of the said Act,  the authorities  specified therein could make  

investigation in connection with a complaint.   The mode and manner in which the investigation

could be carried out have been laid down in the Act and/ or the manual framed thereunder.

18. It  is  for  the  aforementioned  reason,  upon  receipt  of  the  complaint  from the  officer  

incharge of the Gurgaon Police Station, it presumably having made a preliminary inquiry, lodged  

the FIR.  Only because it lodged the FIR and proceeded in terms of the said Act and the manual, the  

same by itself would not mean that all the provisions of Chapter XII of TOHO vis-à-vis Chapter XV  

thereof could not be invoked.

19. Section 22 of TOHO prohibits taking of cognizance except on a complaint made by an  

appropriate authority or the person who had made a complaint earlier to it as laid down therein.  

Respondent,  although,  has  all  the  powers  of  an  investigating  agency,  it  expressly  has  been  

statutorily prohibited from filing a police  report.   It  could file  a complaint  petition  only as  an  

appropriate authority so as to comply with the requirements contained in Section 22 of TOHO.  If  

by  reason  of  the  provisions  of  TOHO,  filing  of  a  police  report  by  necessary  implication  is  

necessarily forbidden, the question of its submitting a report in terms of Sub-section (2) of Section  

173 of the Code did not and could not arise.  In other words, if no police report could be filed, Sub-

section (2) of Section 167 of the Code was not attracted.

20. It is a well-settled principle of law that if a special statute lays down procedures, the ones  

laid  down under  the  general  statutes  shall  not  be  followed.   In  a  situation  of  this  nature,  the  

respondent could carry out investigations in exercise of its authorization under Section 13(3)(iv) of  

TOHO.  While doing so, it could exercise such powers which are otherwise vested in it.  But, as it  

could not file a police report but a complaint petition only; Sub-section (2) of Section 167 of the  

Code may not be applicable.  The provisions of the Code, thus, for all intent and purport, would  

apply only to an extent till conflict arises between the provisions of the Code and TOHO and as  

soon as the area of conflict reaches, TOHO shall prevail over the Code.  Ordinarily, thus, although  

in terms of the Code, the respondent upon completion of investigation and upon obtaining remand  

of the accused from time to time, was required to file a police report, it was precluded from doing

so by reason of the provisions contained in Section 22 of TOHO.   

To put it differently, upon completion of the investigation, an authorized officer could  

only file a complaint and not a police report, as a specific bar has been created by the Parliament.  In  

that view of the matter, the police report being not a complaint and vice-versa, it was obligatory on  

the part of the respondent to choose the said method invoking the jurisdiction of the Magistrate  

concerned for taking cognizance of the offence only in the manner laid down therein and not by any  

other  mode.   The procedure  laid  down in  TOHO, thus,  would  permit  the  respondent  to  file  a  

complaint and not a report which course of action could have been taken recourse to but for the  

special provisions contained in Section 22 of TOHO.   

21. It is one thing to say that the court could take recourse to the procedure laid down in  

Section 202 of the Code or even reject the complaint but then only because such a course of action  

could be resorted to by the learned Magistrate, the same, by itself, would not lead us to a conclusion  

that  the complaint  petition should have been treated to be a police report;  the logical corollary  

whereof would be to invoke the provisions of Sub-section (2) of Section 167 of the Code.   

22. Submission of Mr. Ranjit Kumar is that a complaint would not include a police report.  

No exception to the said submission can be taken having regard to the decision of this Court in  

Madhu Bala v. Suresh Kumar and Others [(1997) 8 SCC 476] and Dinesh Dalmia v. CBI [(2007) 8  

SCC 770].

However, in view of our foregoing findings, the said decisions have no application in the  

instant case.

23. We may notice that a Division Bench of the High Court of Kerala in Moosakoya v. State  

of Kerala [2008 Crl. L.J. 2388] held as under:

“3. A plain reading of the above provision will show that even though by  Section 24 all offences under the Act are made cognizable, no Court can

take cognizance of the offence except upon a written complaint made by a  person authorised in this behalf by the Government of the District Collector  or a Geologist of the Department of Mining and Geology. A 'complaint in  writing'  by  the  authorised  officer  etc.  is  the  only  condition  for  taking  cognizance as provided in Section 25. If a police officer is authorised by the  Government, he may also file a complaint on the basis of which the Court  may take cognizance. But, the Court cannot take cognizance of any offence  punishable under the Sand Act on a police report filed under Section 173(2)  of the Cr.P.C. after investigation by police…”

We, with respect, agree with the said observations.

24. For the views we have taken, we are of the opinion that stricto sensu Sub-section (2) of  

Section 167 of the Code would not apply in a case of this nature.   

Even assuming for the sake of argument that Sub-section (2) of Section 167 of the Code requires  

filing of a report within 90 days and the complaint petition having filed within the said period, the  

requirements thereof stand satisfied.

25. Appellant No. 2 having arrested on 10.02.2008 and Appellant No. 1 having surrendered  

on 17.02.2008 as also the complaint petition having been filed on 29.04.2008, the requirement of  

Sub-section (2) of Section 167 of the Code stands satisfied.

In  Sanjay Dutt v.  State Through C.B.I., Bombay (II) [(1994) 5 SCC 410], this Court  

held:

“53(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 that stage.”

Only because the court itself took a long time in taking cognizance of the offence, i.e.,  

after the expiry of the period of 90 days, the same would not mean that any new right would be  

created in favour of the appellants thereby.

26. A distinction between a remand of an accused at pre-cognizance stage vis-à-vis the post-

cognizance stage is apparent.  Whereas the remand at a pre-cognizance stage is to be made in terms  

of Sub-section (2) of Section 167 of the Code, an order of remand of an accused at post-cognizance  

stage can be effected only in terms of Sub-section (2) of Section 309 thereof.  This aspect of the  

matter has been considered by this Court recently in Mithabhai Pashabhai Patel and others v. State  

of Gujarat [2009 (7) SCALE 559].

27. Before parting, however, we must place on record that we have not been called upon to  

consider the constitutionality of the provisions of TOHO and in particular Section 22 thereof.  Thus,  

fairness in procedure as adumbrated in Article 21 of the Constitution of India as also the restrictions  

on liberty imposed by reason of the statute having regard to the fact situation obtaining herein has  

neither been argued nor is required to be determined.  We have made these observations keeping in  

view the dichotomy in the matter of application of TOHO vis-à-vis the provisions of the Code.   

If a complaint petition is filed, the procedure laid down under Chapter XV of the Code  

can be taken recourse to despite the fact that the same has been filed after full investigation and  

upon obtaining the remand of  the accused from time to time by reason of orders  passed by a  

competent Magistrate.

28. We are, however,  not oblivious of some decisions of this  Court  where some special  

statutory authorities like authorities under the Customs Act have been granted all the powers of the  

investigating officer under a special statute like the NDPS Act, but, this Court has held that they  

cannot file chargesheet and to that extent they would not be police officers.  [See Ramesh Chandra  

Mehta v. The State of West Bengal AIR 1970 SC 940, Raj Kumar Karwal v. Union of India (1990)

2 SCC 409]

29. In this case, however, the respondent having specially been empowered both under the  

1946 Act as also under the Code to carry out investigation and file a chargesheet is precluded from  

doing so only by reason of Section 22 of TOHO.  It is  doubtful as to whether in the event of  

authorization of an officer of the department to carry out investigation on a complaint made by a  

third party, he would be entitled to arrest the accused and carry on investigation as if he is police  

officer.  We hope that the Parliament would take appropriate measures to suitably amend the law in  

the near future.

30. For the reasons aforementioned, there is no merit in these appeals which are dismissed  

accordingly.

………………………….J. [S.B. Sinha]

..…………………………J.     [Asok Kumar Ganguly]

New Delhi; July 07, 2009