Delhi High Court
Ashish Pathak vs Central Bureau Of Investigation on 10 March, 2025
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision:10th March, 2025.
+ BAIL APPLN. 3836/2024 & CRL.M.(BAIL) 1747/2024 (for interim
bail)
ASHISH PATHAK .....Petitioner
Through: Mr. Tushar Agarwal, Ms. Tripti Roy,
Mr. Arun Kumar and Mr. Amarjeet
Singh, Advocates.
versus
CENTRAL BUREAU OF INVESTIGATION .....Respondent
Through: Mr. Ravi Sharma, SPP (CBI) with
Mr. Swapnil Choudhary, Mr. Ishann
Bhardwaj, Mr. Sagar and Ms.
Madhulika Rai Sharma, Advocates.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
JUDGMENT
SANJEEV NARULA, J. (Oral):
1. The present application under Section 483 read with Sections 187(3)
and 528 of the Bharatiya Nagarik Suraksha Sanhita, 20231 (Section 439 read
with Sections 167(2) and 482 of the Code of Criminal Procedure, 1973),2
seeks grant of default regular bail in the proceedings emanating from FIR
No. RC-32(S)/2022/SC-III/ND dated 9th December, 2022 registered at P.S.
SC-III/ND, under Section 3 of the Official Secret Act, 19233 and Section
120-B of the Indian Penal Code, 1860.4 The Applicant further seeks setting1
[‘BNSS’]
2
[‘CrPC‘]
3
[‘OS Act‘]
4
[‘IPC‘]Signature Not Verified
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aside of the order dated 19th September, 2024 passed by the Special Judge,
PC Act, Rouse Avenue Courts, rejecting the Applicant’s request for regular
bail.
Factual Background
2. Briefly stated, the facts leading to the filing of the present petition are
as follows:
2.1 The Central Bureau of Investigation5 registered Case No. RC-
32(S)/2022/CBI/SC-III/ND PS; Special Crime-III, New Delhi under the OS
Act on 9th December, 2022. This FIR was registered on the basis of
references issued by the Ministry of Home Affairs6, New Delhi, wherein
MHA transferred the investigation of the FIR No. 0293/2022 dated 20th
September, 2022 at P.S. Special Cell, New Delhi Range, Lodhi Colony,
New Delhi, to the CBI, culminating in the impugned FIR.
2.2 The FIR pertains to a journalist, namely Vivek Raghuvanshi, who is
allegedly involved in the illegal collection of sensitive information. The
Applicant was arrested in the said case on 16th May, 2023, following a raid
conducted by the CBI at his residential premises.
2.3 The CBI has filed four chargesheets/ prosecution complaints, with the
first one being filed on 12th July, 2023.7 As per the averments in the 1st
Chargesheet, the Applicant was identified as the source from which Vivek
Raghuvanshi obtained confidential classified document, i.e., extract of the
Annual Acquisition Plan.8 Accordingly, he was charge-sheeted under
Section 3(1)(c) of the OS Act read with Section 120-B IPC.
5
[‘CBI’]
6
[‘MHA’]
7
[‘1st Chargesheet’]
8
[‘AAP’]
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2.4 The Chief Metropolitan Magistrate took cognizance of the 1 st
Chargesheet on 19th July, 2023, and the matter was subsequently committed
to the Sessions Court vide order dated 4th August, 2023.
2.5 The Applicant filed a regular bail application before the Special
Judge, which was dismissed by order dated 12th September, 2023.
Aggrieved, the Applicant challenged the said order before this Court.
2.6 On 17th October, 2023, during the pendency of bail proceedings, the
CBI filed 2nd Prosecution Complaint along with Supplementary Chargesheet
against the co-accused. Thereafter, the 3rd Prosecution Complaint was filed
on 22nd November, 2023, with Paragraph No. 17 of the complaint stating
that four additional AAPs were recovered from the Applicant’s laptop.
2.7 In light of these developments, the Applicant withdrew his bail
application filed before this Court, with liberty to approach the Trial Court at
the appropriate stage.
2.8 Thereafter, the Applicant filed an application before the Trial Court,
seeking default bail under Section under Section 167(2) CrPC. However, the
application was dismissed by order dated 14th March, 2024.
2.9 The Applicant then filed a third bail application before the Special
Court, Rouse Avenue, seeking regular bail. During the pendency of this
application, the CBI, on 22nd August, 2024, filed the 4th Prosecution
Complaint along with supplementary chargesheet against the Applicant and
another co-accused. The Special Court (PC Act), vide impugned order dated
19th September, 2024, dismissed the Applicant’s request for grant of bail.
2.10 Aggrieved by the dismissal, the Applicant has now invoked the
jurisdiction of this Court, seeking grant of default bail under Section 167(2)
CrPC.
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Applicant’s Case
3. Mr. Tushar Agarwal, Counsel for the Applicant, states that the
Applicant was arrested on 16th May, 2023 and the maximum period for
which he could be held in detention, pending investigation, expired on 14th
July, 2023. He contends that the 1st Chargesheet, dated 12th July, 2023, filed
by the CBI, was incomplete and intended solely to frustrate the Applicant’s
right to seek statutory default bail under Section 167(2) CrPC. In support of
this contention, Mr. Agarwal makes the following submissions:
3.1 On 16th May, 2023, during a search at the Applicant’s residence,
certain electronic devices, including his mobile and laptop were seized, and
he was arrested on the same day. However, the 1st Chargesheet filed by the
CBI was based on only one document recovered from his mobile phone,
while further investigation was kept pending. Subsequently, in the 3 rd
Prosecution Complaint filed on 22nd November, 2023, the CBI, in Paragraph
17, recorded the following :
“17. That during the course of further investigation, the data extracted
from the laptop of accused Ashish Pathak was scrutinised and it is revealed
that copies of the following four additional Annual Acquisition Plans have
also been found stored in his laptop:
S.No Description of Document Pages 1. DRAFT ANNUAL ACQUISITION PLAN 19 2014-16. 2. ANNUAL ACQUISITION PLAN (MP) 2012-14: 22 IAF. This document is marked SECRET on each page and Appendix A is marked Confidential. 3. DRAFT ANNUAL ACQUISITION PLAN 2012- 21 14 (Navy). This document is marked Confidential in each page. 4. ARMY AAP 2012-14. This document is marked 27 confidential on each page. Signature Not Verified Digitally Signed By:NITIN KAIN BAIL APPLN. 3836/2024 Page 4 of 22 Signing Date:12.03.2025 20:23:37
The above mentioned documents have been sent to the Chief Vigilance
Officer, Ministry of Defence, New Delhi for obtaining opinion which is
awaited.”
This statement suggests that the four additional documents referenced in the
3rd Prosecution Complaint were already in the possession of CBI at the time
of filing the 1st Chargesheet. The seizure memo dated 17th May, 2023
confirms that the laptop containing these documents had already been taken
into custody by the CBI.
3.2 The CBI has failed to provide any explanation as to why the 1 st
Chargesheet did not include these four documents, which were available in
the laptop that the CBI had in their possession since 16 th May, 2023. This
indicates that the CBI, with the sole intention of frustrating the Applicant’s
right to seek default bail, deliberately filed an incomplete chargesheet on
12th July, 2023.
3.3 The Prosecution’s own conduct confirms that the investigation against
the Applicant remained ongoing well beyond the statutory period. This is
further corroborated by the 2nd, 3rd and 4th Prosecution Complaints/
chargesheets, each of which explicitly states that they were filed as
supplementary chargesheets in continuation of the initial chargesheet. This
continued investigation, extending long after the statutory period, reinforces
the Applicant’s claim that the 1st Chargesheet was merely a tactic to deny
him the benefit of default bail.
3.4 If the investigation related to the offence for which the Applicant was
initially arrested, had revealed further ramifications, any further
investigation would continue to relate to the same arrest. Therefore, the
period envisaged in the proviso to Section 167(2) would remain
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unextendible. On this issue, in State of Maharashtra v. Bharati Chandmal,9
it has been held as follows:
“11. For the application of the proviso to Section 167(2) of the Code
there is no necessity to consider when the investigation could legally have
commenced. That proviso is intended only for keeping an arrested person
under detention for the purpose of investigation and the legislature has
provided a maximum period for such detention. On the expiry of the said
period the further custody becomes unauthorized and hence it is mandated
that the arrested person shall be released on bail if he is prepared to and
does furnish bail. It may be a different position if the same accused was
found to have been involved in some other offence disconnected from the
offence for which he was arrested. In such an eventuality the officer
investigating such second offence can exercise the power of arresting him
in connection with the second case. But if the investigation into the offence
for which he was arrested initially had revealed other ramifications
associated therewith, any further investigation would continue to relate to
the same arrest and hence the period envisaged in the proviso to Section
167(2) would remain unextendible.”
3.5 Under Section 173(8) CrPC, an investigating agency has the power to
conduct further investigation with formal permission of the court as and
when fresh facts come to light after filing of report under Section 173(2)
CrPC and for that purpose it need not “keep open” further investigation.
However, in the instant case, the CBI has kept investigation pending qua
other facts in relation to the Applicant.
3.6 If an investigating agency deliberately keeps the investigation
pending, despite having access to crucial evidence, and then files
supplementary chargesheets in a staggered manner, it amounts to a
calculated effort to deny the accused the right to default bail. In support of
this contention, reliance is placed on Avinash Jain v. CBI,10 wherein it has
been observed as under:
9
(2002) 2 SCC 121.
10
2023 SCC OnLine Del 2946.
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“36. The fundamental right to personal life and liberty under Article 21
of the Constitution of India and its co-relation with 167(2) of the CrPC
has been, over the years, clearly established by way of judicial precedents
of the Hon’ble Supreme Court of India as well as various High Courts. The
right of an accused to default bail under Section 167(2) of the CrPC would
arise in a case where the chargesheet is not filed within the stipulated
period. The other circumstance giving rise to the right to default bail
would be in case where the prosecution files a preliminary or incomplete
chargesheet, within the period prescribed for offences mentioned therein
and in that process, defeating the right of the accused to statutory bail. In
the present case, the chargesheet, as per learned Senior Counsel
appearing on behalf of the applicant, is incomplete and therefore, the
applicant is entitled to default bail as a matter of right. To demonstrate
that the present chargesheet is incomplete in nature, reliance was placed
on:
i. M. Ravindran v. Intelligence Officer, DRI, (2021) 2 SCC 485.
ii. Fakhrey Alam v. State of Uttar Pradesh, 2021 SCC OnLine SC
532.
iii. Chitra Ramkrishna v. CBI, 2022 SCC OnLine Del 3124.
iv. S.M. Furtado v. CBI, 1996 SCC OnLine Ker 112.
v. Tunde Gbaja v. Central Bureau of Investigation, 2007 [2] JCC
1306.
xx …. xx …. xx
45. In Chitra Ramkrishna (supra), after a detailed analysis of the
precedents on the subject, a distinction was drawn between ‘completion of
investigation’ and ‘further investigation’. It was observed that further
investigation can be resorted to only after completion of investigation and
filing of the chargesheet. It was held that a chargesheet can be filed before
the Court of competent jurisdiction only when the investigation with
respect to the FIR is complete in all respects and an opinion has been
given with regard to the offences alleged against the accused in the FIR. It
was held that the investigating agency cannot fragment or break the FIR,
and file different chargesheets. It was held that if the investigating
agencies are permitted to file a chargesheet piece-meal, it would defeat
the right of an accused under Section 167(2) of the CrPC and that would
be violative of Article 21 of the Constitution of India. The contention of
learned SPP for the CBI was that the said judgment was passed in a
different factual context. The said contention does not appeal to this
Court, inasmuch as the basic principle of the law that investigation for the
offences in relation to which an accused has been arrested, should be
complete at the time the chargesheet has been filed will not vary on facts.
A supplementary chargesheet is permissible only when certain aspects of
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the investigation, which are otherwise complete in the main chargesheet,
are still required to be looked into.”
3.7 In the present case, the CBI’s conduct in filing multiple prosecution
complaints suggests a deliberate attempt to subvert the Applicant’s statutory
right to default bail. The material seized from the Applicant, including his
laptop, was already in the possession of the CBI at the time of the 1st
Chargesheet dated 12th July, 2023. Despite this, the agency omitted crucial
evidence and continued its investigation beyond the statutory period, only to
later incorporate the same material in the 3rd Prosecution Complaint dated
22nd November, 2023. This delay in disclosure reinforces the argument that
the CBI knowingly filed an incomplete chargesheet to defeat the Applicant’s
rights.
3.8 Furthermore, the CBI misled this Court by suppressing material facts.
Paragraph No. 17 of the 3rd Prosecution Complaint confirms that the
additional AAPs were referred to the Chief Vigilance Officer of the Ministry
of Defence for an opinion on 27th September, 2023. However, despite
receiving a response from the Ministry of Defence on 8 th January, 2024, the
CBI falsely claimed, during the arguments in March 2024, that no opinion
had been received. This concealment of material facts highlights the
Prosecution’s bad faith in depriving the Applicant of his statutory rights.
3.9 The judgement in Central Bureau of Investigation vs. Kapil
Wadhawan and another,11 sought to be relied upon by the CBI, is
inapplicable to the facts of the present case. The principles enunciated
therein do not apply to the present case, as the facts here demonstrate a
11
(2024) 3 SCC 734.
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calculated suppression of evidence and a piecemeal approach to
chargesheets, rendering the Applicant’s continued incarceration unlawful.
Respondent’s Case
4. Mr. Ravi Sharma, SPP for the CBI, argues that the Applicant is not
entitled to default bail under Section 167(2) CrPC, and makes the following
submissions:
4.1 The instant case was taken up for investigation by the CBI on the
basis of ID notes dated 07/09th December, 2022 by the MHA, resulting in
the registration of the impugned FIR No. 293/2022 dated 20th September,
2022 under Section 3 of the OS Act read with Section 120-B IPC registered
at PS Special Cell, Lodhi Colony, New Delhi. The case was thereafter
transferred to CBI for investigation.
4.2 Upon completion of the initial investigation, the 1 st Chargesheet was
filed on 12th July, 2023 against the Applicant and co-accused Vivek
Raghuvanshi under Section 3(1)(c) of the OS Act read with Section 120-B
IPC. This chargesheet expressly stated that further investigation under
Section 173(8) CrPC was ongoing to collect additional evidence and
examine the role of other suspects. Cognizance was taken on 19th July, 2023,
and the case was committed to the Court of Sessions on 4th August, 2023.
4.3 On the basis of further investigation, three more prosecution
complaints were filed–against Vivek Raghuvanshi and Rahul Gangal on
17th October, 2023; against Ananj Kumar Tyagi and the Applicant on 22nd
November, 2023; and against Rajeev Dandotia and the Applicant on 22nd
August, 2024, respectively for the offences for which they have been
committed to the Court of Sessions for trial. Even in the said chargesheets,
further investigation under Section 173(8) CrPC was kept open.
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4.4 The investigation revealed that the Applicant had shared a
confidential classified document, i.e., extract of AAP 2021-2023 with co-
accused Vivek Raghuvanshi on 15th June, 2021 through Telegram, after
obtaining it from co-accused Ananj Kumar Tyagi on 29th May, 2021 through
Whatsapp. The Ministry of Defence opined that the said document was
confidential and classified, and its possession was covered under Section
3(1)(c) of the OS Act. Further, the Ministry opined that the document was
classified as confidential by the CoI Strategic Planning (Plans Coordination
and Financial Planning), in whose custody it was kept, and that making
physical or digital copies of the AAP is prohibited.
4.5 Further scrutiny of the Applicant’s electronic devices led to the
discovery of four additional AAPs, i.e., AAP 2012-14 (Army), AAP 2012-
14 (Navy), AAP 2012-14 (IAF) and AAP 2014-16 (Army) from the
Applicant’s laptop, which were sent to Ministry of Defence for opinion. The
Ministry opined that AAP 2012-14 (IAF) is classified as secret; AAP 2012-
14 (Army) & AAP 2014-16 (Army) as confidential; and AAP 2012-14
(Navy) as draft confidential. These facts were incorporated in the 3rd
Prosecution Compliant/ supplementary chargesheet dated 22nd November,
2023.
4.6 In any event, the 1st Chargesheet clearly outlined the offences under
the OS Act as well as the IPC against the Applicant. This chargesheet was
filed on 12th July, 2023, which was before the expiration of 60 days from the
date of the Applicant’s arrest on 16th May, 2023. Therefore, notwithstanding
the recovery of additional material during the course of the investigation,
which led to the filing of supplementary chargesheets, the Applicant is not
entitled to the grant of default bail under Section 167(2) CrPC.
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4.7 The supplementary chargesheets/ Prosecution Complaints were filed
in continuation of the 1st Chargesheet as per Section 173(8) CrPC. Reliance
is placed on the judgement of the Supreme Court in Vinay Tyagi v. Irshad
Ali,12 wherein the Court observed as follows:
“‘Further investigation’ is where the Investigating Officer obtains
further oral or documentary evidence after the final report has been
filed before the Court in terms of Section 173(8). This power is vested
with the Executive. It is the continuation of a previous investigation
and, therefore, is understood and described as a ‘further
investigation’. Scope of such investigation is restricted to the
discovery of further oral and documentary evidence. Its purpose is to
bring the true facts before the Court even if they are discovered at a
subsequent stage to the primary investigation. It is commonly
described as ‘supplementary report’. ‘Supplementary report’ would
be the correct expression as the subsequent investigation is meant and
intended to supplement the primary investigation conducted by the
empowered police officer. Another significant feature of further
investigation is that it does not have the effect of wiping out directly or
impliedly the initial investigation conducted by the investigating
agency. This is a kind of continuation of the previous investigation.
The basis is discovery of fresh evidence and in continuation of the
same offence and chain of events relating to the same occurrence
incidental thereto. In other words, it has to be understood in complete
contradistinction to a ‘reinvestigation’, ‘fresh’ or ‘de novo’
investigation.”
4.8 To support the contentions noted above, reliance is also placed on the
judgements in Central Bureau of Investigation vs. Kapil Wadhawan and
another,13 Dinesh Dalmia vs. CBI,14 Abdul Azeez P.V. and others vs.
National Investigation Agency,15 and Kishan Lal vs. Dharmendra Bafna.16
12
(2013) 5 SCC 762.
13
(2024) 3 SCC 734.
14
(2007) 8 SCC 770.
15
(2014) 16 SCC 543.
16
(2009) 7 SCC 685.
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Analysis
5. The Court has carefully considered the submissions made by the
parties and examined the record. The Applicant has vehemently argued that
the 1st Chargesheet was incomplete, and was filed with the intent to frustrate
his right to seek default bail under Section 167 CrPC. The CBI, in contrast,
has refuted this claim, asserting that the 1st Chargesheet adequately disclosed
the offences committed by the Applicant, and that the subsequent
chargesheets/prosecution complaints were filed in continuation of the 1st
Chargesheet, following ongoing investigation. In light of this, the primary
issue for consideration before the Court is whether the Applicant is entitled
to grant of default bail on the ground of the 1 st Chargesheet being
“incomplete”. Accordingly, the Court proceeds to examine whether the 1st
Chargesheet was indeed incomplete, as claimed by the Applicant.
6. On this issue, it is imperative to refer to the judgement of the Supreme
Court in K. Veeraswami v. Union of India,17 wherein the Court delineated
the statutory requirement of a chargesheet/ final report under Section 173(2)
CrPC:
“76. The charge-sheet is nothing but a final report of police officer
under Section 173(2) of the CrPC. The Section 173(2) provides that
on completion of the investigation the police officer investigating into
a cognizable offence shall submit a report. The report must be in the
form prescribed by the State Government and stating therein (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 had been released on his bond and, if so, whether with or
without sureties; and (g) whether he has been forwarded in custody
under Section 170. As 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
17
(1991) 3 SCC 655.
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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.”
7. As observed in K. Veeraswami, the final report serves as an
intimation to the magistrate that the Investigating Officer has procured
sufficient evidence for the court to inquire into the alleged offence. The
report is considered to be complete when it includes the relevant documents
as well as statements of witnesses as per Section 173(5) CrPC. The
Investigating Officer is neither obligated to include any further details, nor
to outline every aspect of the offence in the report. The specifics of the
offence are required to be proved to establish the culpability by adducing
evidence at the subsequent stage of trial.
8. In light of the foregoing legal principles, when we examine the 1st
Chargesheet, it can be discerned that it contains the following details:
(a) The names of the parties involved–the Complainant, Mr. Pramod
Chauhan, Inspector, Special Cell, Delhi Police, as well as the accused, i.e.,
Vivek Raghuvanshi and Ashish Pathak, the Applicant;
(b) A brief statement of facts outlining the details of the alleged offence
and the involvement of the accused persons in the offence under SectionSignature Not Verified
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3(1)(c) of the OS Act read with Section 120-B IPC, pertaining to illegal
obtaining and collection of sensitive information;
(c) The complaint in the instant case was filed by Mr. Vishal, Dy.
Superintendent Police, CBI Security Wing as per the directions of the
Government under Section 13(3) of the OS Act;
(d) The indication of the offence being committed by the accused
persons, along with their respective roles in the commission of the offence;
(e) The dates of arrest of both the accused, being 16 th and 17th May, 2023
respectively;
(f) That the accused persons had not been released on bail;
(g) That the accused persons had been forwarded to the court on 17 th
May, 2023; and
(h) List of documents and articles.
9. Thus, the inclusion and incorporation of all these prerequisites in the
Chargesheet affirms that it meets the statutory requirements set out under
Section 173(2) CrPC. The 1st Chargesheet adequately narrated the factual
background and the allegations against the accused persons, including the
Applicant, for collecting sensitive confidential information related to
defence services. Therefore, the 1st Chargesheet provided a sufficient factual
and legal foundation for the Prosecution to implicate the accused persons,
which was later supplemented through further investigation.
10. The Applicant has also argued that the subsequent
chargesheets/prosecution complaints were filed due to the alleged
incompleteness of the investigation in the 1 st Chargesheet. The Applicant
contends that the findings in the 3rd Prosecution Complaint, which were
based on the laptop seized from the Applicant at the time of his arrest,
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should have been incorporated into the 1 st Chargesheet. However, it is
crucial to emphasize that the supplementary chargesheets were filed as a
continuation of the 1st Chargesheet, in accordance with the provisions of
Section 173(8) CrPC, which states as follows:
“173. Report of police officer on completion of investigation.–
“(1) xx …. .xx ….. xx
(8) Nothing in this section shall be deemed to preclude further
investigation in respect of an offence after a report under sub-section
(2) has been forwarded to the Magistrate and, where upon such
investigation, the officer in charge of the police station obtains further
evidence, oral or documentary, he shall forward to the Magistrate a
further report or reports regarding such evidence in the form
prescribed; and the provisions of sub-sections (2) to (6) shall, as far
as may be, apply in relation to such report or reports as they apply in
relation to a report forwarded under sub-section (2).”
11. In this regard, the Supreme Court in Dinesh Dalmia clarified that the
mere filing of a chargesheet does not preclude the investigating officer from
conducting further investigation. The Court also emphasized that the
statutory framework of the CrPC does not imply that the investigation stands
concluded upon the filing of a chargesheet, but rather permits further
investigation even after the chargesheet is filed. The Court held as follows:
“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.
xx …. .xx ….. xx
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 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 madeSignature Not Verified
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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.”
12. Furthermore, in Abdul Azeez, the Supreme Court observed that
merely because certain facets of the case require further investigation, it
does not alter the fact that the chargesheet filed is a final report. The Court
emphasized that continued investigation after the filing of the first
chargesheet does not entitle the accused to default bail under Section 167(2)
CrPC:
“4. Having gone through the charge-sheet, we are not persuaded to
take a different view. The materials adverted to show that it was a
final report on the facets investigated into by the investigating agency.
Furthermore, the requisite sanctions as required under Sections 18
and 18A of the UAPA and so also under Section 7 of the Explosive
Substances Act were also accorded by the concerned authorities. The
charge-sheet so filed before the learned Special Court was complete
in all respects so as to enable the learned Special Court to take
cognizance in the matter. Merely because certain facets of the matter
called for further investigation it does not deem such report
anything other than a final report. In our opinion Section 167(2) of
Cr.P.C. stood fully complied with and as such the petitioners are not
entitled to statutory bail under Section 167(2) of Cr.P.C.”
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13. Thus, the filing of supplementary chargesheets does not, in itself,
render the initial chargesheet incomplete. The law recognizes that an
investigation is a dynamic process, and new material may emerge even after
the filing of a chargesheet. The Supreme Court, in Vinay Tyagi v. Irshad
Ali, has clarified that further investigation is a continuation of the primary
investigation and does not render the earlier chargesheet invalid or
incomplete. In the present case, the Prosecution, in the 1st Chargesheet and
the subsequent prosecution complaints, explicitly indicated that further
investigation under Section 173(8) was being carried out to examine the
roles of other accused or suspected individuals, known/unknown, as well as
to gather additional evidence. Accordingly, the subsequent prosecution
complaints were merely an extension of the 1st Chargesheet, and do not
entitle the Applicant to default bail under Section 167(2), particularly since
the 1st Chargesheet fulfilled all the statutory requirements and adequately
established “all the offences” against the Applicant.
14. The judgments cited by the Applicant, in the opinion of the Court, are
distinguishable and do not apply to the facts of the present case. The
Applicant has placed reliance on the Supreme Court’s decision in Bharati
Chandmal, arguing that if the offence for which the Applicant was initially
arrested revealed further ramifications, any subsequent investigation would
be deemed to relate to the same arrest. While this legal principle is well-
settled, it must be understood in its proper context. In Bharati Chandmal,
the Supreme Court was dealing with a distinct issue–the commencement of
the 90-day period under Section 167(2) CrPC in the context of an
investigation requiring approval under the Maharashtra Control of
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Organised Crime Act, 1999.18 The accused in that case had been taken into
custody before the formal grant of approval for investigation under
MCOCA. In those circumstances, the Court held that any subsequent
developments or extensions of the investigation would continue to relate to
the original arrest, and that the relevant 90-day period for filing the
chargesheet would commence from the date of the accused’s initial arrest
rather than the date of approval of the investigation. Since the chargesheet
was filed beyond the said 90-day period, the accused was found entitled to
default bail.
15. The facts of the present case are materially different. Here, the
Applicant was arrested on 16th May, 2023, and the 1st Chargesheet was filed
on 12th July, 2023, well within the statutory period of 60 days as prescribed
under Section 167(2) CrPC for the offences in question. Furthermore, unlike
in Bharati Chandmal, the supplementary chargesheets in this case were not
filed due to any newly emerging ramifications of the original offence; rather,
they were filed in the course of a continuing investigation under Section
173(8) CrPC. The subsequent chargesheets merely supplemented the initial
investigation and did not alter the fundamental nature of the case or extend
the statutory period for filing the chargesheet. Accordingly, the Applicant’s
reliance on Bharati Chandmal to claim entitlement to default bail is
misplaced, and does not advance his case in any manner.
16. Further, the Applicant has relied upon the judgment of this Court in
Avinash Jain, contending that conducting a piecemeal investigation and
filing fragmented chargesheets would undermine the accused’s right to seek
default bail. However, a careful reading of Avinash Jain demonstrates that
18
[‘MCOCA’]
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the principle laid down therein does not support the Applicant’s contention.
In Avinash Jain, the allegations against the accused pertained to (i)
diversion of borrowed funds, and (ii) connivance/conspiracy with unknown
public servants, pursuant to which the accused was implicated in offences
under the IPC as well as the Prevention of Corruption Act, 1988.19 In that
case, the investigating agency filed a chargesheet within the statutory period,
but it only addressed the first aspect–diversion of borrowed funds, while
the second aspect, concerning offences under the PC Act, was introduced for
the first time in a supplementary chargesheet filed after the statutory period
had elapsed. The Court held that because the investigation into all offences
against the accused was incomplete at the time of filing the first chargesheet,
the accused could not be denied the benefit of default bail. However, the
Court also clarified that a supplementary chargesheet is permissible when
additional aspects of an investigation–which are otherwise complete in the
main chargesheet–require further scrutiny.
17. The facts of the present case are distinguishable from the said case.
Here, the 1st Chargesheet comprehensively covered all offences under the
IPC and the OS Act, implicating the Applicant based on the recovery of an
AAP from his mobile phone. The supplementary chargesheets did not
introduce any new offences; rather, they were filed as part of a continuing
investigation, which had been explicitly kept open for the examination of
additional evidence and the roles of other accused persons. In the course of
this further investigation, the CBI discovered four additional classified
documents stored on the Applicant’s laptop, which were subsequently
detailed in the 3rd Prosecution Complaint. Pertinently, these discoveries did
19
[‘PC Act‘]
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not alter the nature of charges against the Applicant or implicate him in any
new offence beyond what was already alleged in the 1st Chargesheet.
18. Thus, the supplementary chargesheets merely provided additional
evidentiary material against the Applicant in respect of the same offences
enumerated in the 1st Chargesheet. The principles laid down in Avinash Jain
do not assist the Applicant, as this is not a case where the prosecution
deliberately omitted certain offences in the initial chargesheet to deny the
accused default bail. On the contrary, the filing of supplementary
chargesheets was in furtherance of an investigation that had already met the
statutory threshold required under Section 173(2) CrPC. Accordingly, the
Applicant’s reliance on Avinash Jain is untenable.
19. The Applicant has also relied upon the judgment of the Madras High
Court in S.M. Furtado v. C.B.I.20 However, a careful examination of the
said decision reveals that it also does not advance the Applicant’s case. In
S.M. Furtado, the chargesheet filed by the CBI was deemed incomplete, as
it only addressed offences under the Territorial Waters, Continental Shelf,
Exclusive Economic Zone and Other Maritime Zones Act, 1976, while
omitting other serious offences under IPC, the OS Act, and the Foreigners
Order, 1948. The Court concluded that since the investigation into these
other offences was still ongoing, the prosecution could not be deemed to
have completed its investigation in terms of Section 173(2) CrPC, thereby
entitling the accused to default bail. However, the facts of the present case
stand on an entirely different footing. Unlike in S.M. Furtado, where the
prosecution deliberately omitted offences from the initial chargesheet, the 1 st
Chargesheet in the present case comprehensively covered all the offences
20
1996 SCC OnLine Ker 112.
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alleged against the Applicant–under both the IPC and the OS Act. Thus,
the ruling in S.M. Furtado does not apply to the present case, as the
chargesheet filed against the Applicant was substantively complete at the
time of filing, and met the statutory threshold required under Section 173(2)
CrPC. The subsequent investigation was within the permissible scope of
further investigation under Section 173(8) CrPC and did not affect the
legality of the 1st Chargesheet. Accordingly, the Applicant’s reliance on
S.M. Furtado is misplaced and does not support his claim for default bail.
Conclusion
20. In light of the foregoing, it is abundantly clear that the 1st
Chargesheet, dated 12th July, 2023, was filed within less than sixty days of
the Applicant’s arrest on 16th May, 2023, thereby falling well within the
statutory period prescribed under Section 167(2) CrPC. The 1st Chargesheet
duly complied with all the statutory requisites for a chargesheet or final
report, detailing all the necessary information as mandated by Section
173(2) CrPC. Moreover, the 1st Chargesheet comprehensively set out all the
offences alleged against the Applicant, both under the IPC and the OS Act,
and was not incomplete as contended by the Applicant. The 1st Chargesheet,
as well as the supplementary chargesheets/ prosecution complaints
consistently and explicitly indicated that further investigation was open to
examine the roles of the accused/ suspected and collect additional evidence,
a provision permitted under Section 173(8) CrPC. Therefore, the Applicant’s
assertion that an incomplete chargesheet was filed to frustrate his right to
seek default bail is entirely untenable.
21. The Court finds no merit in the present application. Accordingly, the
Applicant’s request for grant of default bail is dismissed.
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22. It is clarified that any observations made in the present order are for
the purpose of deciding the present bail application and shall not influence
the outcome of the Trial.
23. In view of the foregoing, the application is dismissed along with
pending application.
SANJEEV NARULA, J
MARCH 10, 2025
d.negi
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