Thokchom Gyaneshor vs Directorate Of Enforcement

Court
Delhi High Court

$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 27.10.2026
# CNR No. DLHC010482292026
+ W.P.(CRL) 3157/2026, CRL.M.A. 31406/2026
THOKCHOM GYANESHOR .....Petitioner
Through: Mr. Siddhartha Borgohain, Mr.
Rahul Tainguria, Mr.
Watitemjen Jamir, Mr. Satendra
Yadav and Mr. Divyanshu
Singh, Advs.
versus
DIRECTORATE OF ENFORCEMENT .....Respondent
Through: Mr. Vivek Gurnani, Panel
Counsel, Mr. Kanishk Maurya
and Mr. Chabhinandan Patra,
Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MR. JUSTICE ARUN BHARDWAJ
NAVIN CHAWLA, J. (ORAL)
1. This Writ Petition has been filed under Article 226 of the
Constitution of India, praying for the following reliefs:-
“a. Issue a Writ in the Nature of Habeas Corpus or any
other appropriate writ thereby setting aside the Remand
Order dated 30.09.2026 under Section 187 of BNSS, 2023
which is in violation of Articles 14, 19, 20, 21 of the
Constitution, 1950 and the statutory provisions contained
in the Sanhita;
b. Call for the Records of the ED Case No.
ECIR/STF/15/2024 registered as Complaint Case No.
62/2026 before the Hon’ble Court of Ld. Special Exclusive
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Court- 01 (NIA Act, 2008), RACC, New Delhi
c. Release the Petitioner on bail in view of the violations
of the law laid down by Hon’ble Supreme Court as
pleaded above;
d. pass such other/further order(s) as this Hon’ble Court
may deem fit and proper in the interests of justice.”
Facts in brief:
2. The background of the facts in which the present petition arises,
is that on the basis of an information received, the Ministry of Home
Affairs directed the National Investigation Agency (hereinafter
referred to as ‘ NIA ’) to take up the investigation, which resulted in an
FIR RC/23/2023/NIA/DLI being registered on 19.07.2023 at Police
Station NIA, Head Quarters, New Delhi under Sections 120B, 121A
and 122 of the Indian Penal Code, 1860 and under Sections 18, 18B
and 39 of the Unlawful Activities (Prevention) Act, 1967.
3. The petitioner herein, was arrested in the said FIR on
13.03.2024 and was remanded to police custody vide order dated
14.03.2024, which he challenged in a Writ Petition, being W.P. (Crl.)
No. 1929/2024, before this Court. The said Writ Petition was allowed
by this Court vide judgment and order dated 20.02.2025.
4. In the interregnum , the respondent herein recorded
ECIR/STF/15/2024 on 06.09.2024 in relation to the United National
Liberation Front (UNLF). An addendum thereto was also issued on
18.09.2024. The petitioner was formally arrested in this case, while
being in judicial custody of Special Court NIA, on 16.10.2024, and
was thereafter remanded to judicial custody by the orders passed by
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Date:29.10.2026 18:50

the learned Special Court PMLA, including by an order dated
18.12.2024, whereby the learned Special Court PMLA also took
cognizance on the complaint filed by the respondent in the
abovementioned ECIR.
5. The petitioner challenged the said order before this Court by
way of CRL.M.C. 4134/2025, praying for the following reliefs:-
“a. Issue notice to the Respondents with respect to the
present petition filed before this Hon’ble Court.
b. Call for the scanned copy records of ED case no.
ECIR/STF/15/2024 registered as Complaint case no. 147
of 2024 pending before the Hon’ble Court of Ld. Special
Judge, Special Court PMLA, Patiala House Court, New
Delhi.
c. Declare the remand orders commencing from
17.10.2024 and culminating on 05.12.2024 exercised by
the Ld. Court under Section 187 of BNSS, 2023 as illegal
in view of the violation of Articles 14, 21 and 22(1) of
Constitution of India, Section 44, 65 of the Act, 2002 read
with Section 197 of BNSS, 2023.
d. Declare Order dated 03.12.2024 passed by Ld. Court as
non-est in law and direct the Respondents to file the
present complaint pending before the Ld. Court, PHC,
New Delhi in the Court of Special Judge PMLA, Imphal
(Manipur).
e. Declare order of cognizance of offence dated
18.12.2024 passed by Ld. Special Judge PMLA, Patiala
House Court, New Delhi upon the Prosecution Complaint
filed by the Respondents as non-est in law in view of the
violation of Section 223 of BNSS, 2023.
f. Declare remand orders passed by Ld. Special Judge
PMLA, New Delhi post cognizance i.e. under Section 346
of BNSs, 2023 as illegal as in violation of Article 21 of
Constitution of India and Section 346 of BNSS, 2023
g. Release the petitioner on bail in view of the violation as
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Date:29.10.2026 18:50

pleaded in this petition.
h. Pass any other / order(s) as this Hon’ble Court may
deem fit in favour of the Petitioners to meet the ends of
justice.”
6. As recorded in the order dated 28.08.2025 passed in CRL.M.C.
4134/2025, the petitioner, however, confined his petition only to
prayer ‘e’ and ‘f’, which have been quoted hereinabove.
7. The said petition was disposed of by the learned Single Judge of
this Court vide judgment and order dated 29.05.2026, inter alia ,
holding as under:-
“80. The Order dated 18.12.2024 of taking cognizance on
the Complaint, is hereby, set aside and the Special Judge
(PMLA) is hereby, directed to give a pre-cognizance
hearing to the petitioner.
IV. Challenge to Post-Cognizance Remand from
the date of Cognizance on 18.12.2024 and thereafter:
81. The Petitioner has also challenged the Order dated
01.05.2025 whereby he was remanded to judicial custody
for a period of two months.
82. It is contended that as per Section 346 BNSS which
deals with post cognizance remand, the Petitioner could
not have been remanded to Judicial Custody for more than
15 days at a time, while in this case each remand was
more than two months. Such remand was bad in law, on
this account.
83. The first proviso to Section 346(2) reads as under:
“346.----- …
Provided that no Court shall remand an accused
person to custody under this section for a term exceeding
fifteen days at a time: …”
84. However, it may be noted that once the Order taking
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cognizance has been set aside, the remand order dated
01.05.2025 is not governed by the provision relating to
post-cognizance remand; rather it is going to be governed
by the provision relating to pre-cognizance remand. The
relevant provision is thus, S. 187 BNSS (previously 167
Cr.P.C), which is extracted, as under:
“187. Procedure when investigation cannot be
completed in twenty-four hours. (1)Whenever any person
is arrested and detained in custody, and it appears that the
investigation cannot be completed within the period of
twenty-four hours fixed by section 58, and there are
grounds for believing that the accusation or information is
well-founded, the officer in charge of the police station or
the police officer making the investigation, if he is not
below the rank of sub-inspector, shall forthwith transmit
to the nearest Magistrate a copy of the entries in the diary
hereinafter specified relating to the case, and shall at the
same time forward the accused to such Magistrate.
(2)The Magistrate to whom an accused person is
forwarded under this section may, irrespective of whether
he has or has no jurisdiction to try the case, after taking
into consideration whether such person has not been
released on bail or his bail has been cancelled, authorize,
from time to time, the detention of the accused in such
custody as such Magistrate thinks fit, for a term not
exceeding fifteen days in the whole, or in parts, at any
time during the initial forty days or sixty days out of
detention period of sixty days or ninety days, as the case
may be, as provided in subsection (3), 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. (3)The Magistrate may authorize the
detention of the accused person, beyond the period of
fifteen days, if he is satisfied that adequate grounds exist
for doing so, but no Magistrate shall authorize the
detention of the accused person in custody under this sub-
section 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
ten years or more;(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,
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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 so released under the provisions of Chapter XXXV for
the purposes of that Chapter.
(4)….”
85. However, a bare perusal of this provision reveals that
the statutory mandate, is unambiguous. The power to
remand is restricted to a maximum of fifteen days at one
time. The Ld. Special Judge’s Order remanding the
Petitioner for a period of two months, is in patent
violation of the express statutory provision contained in
Section 187 of BNSS, 2023. Such an order is ex-facie
illegal and cannot be sustained.
86. Now, once the remand Order is set aside, there are
two consequences that necessarily follow.
87. First and foremost, after the cognizance is taken, the
Petitioner was necessarily required to be remanded to
judicial custody, under Section 346 BNSS. When the Order
of Cognizance is set aside, the post- cognizance remand
under Section 346, cannot be held to be bad in law.
88. This was explained by the Supreme Court in the case
of Suresh Kumar Bhikamchand Jain vs. State of
Maharashtra (2013) 3 SCC 77 in the context of default
being under Section 167(2)(a)(ii), that the powers for
remand pre-cognizance was under Section 167 Cr.P.C.,
while postcognizance it was under Section 309 Cr.P.C. It
was held that if the cognizance is not taken and the person
is remanded to custody beyond a period of 60 days, this
power is deemed to have exercised under Section 167
Cr.P.C.
89. The Supreme Court in, Natabar Parida & ors. v. State
of Orissa, (1975) 2 SCC 220 held that, once cognizance is
taken or the trial commences, the power to remand the
accused shifts from Section 167 [corresponding to section
187 B.N.S.S.], to Section 309(2) [corresponding to section
346(2) B.N.S.S.], of the Code. Under the first proviso to
Section 309(2), no single remand may exceed fifteen days
at a time. Further, the custody contemplated by Section
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309 is judicial custody alone and not police custody, the
object being that after the commencement of inquiry or
trial the accused ought not to remain under police
influence.
90. The second aspect is what are the consequences of the
remand being more than 15 days, at one instance. It may
be noted that there was no objection taken to the long
remand by the Petitioner, despite being presented on every
date. Secondly, it may observed that under the old
Cr.P.C., the post-cognizance remand was under Section
309 Cr.P.C, wherein there was no limitation on the period
of remand provided. The Court of Sessions could give
post-cognizance remand for any number of days. The
Sessions Judge under the PMLA enjoys the status of
Sessions Judge.
91. It is no doubt, true that the position of law has been
changed by the Section 346 BNSS, which has put an
embargo on post-cognizance remand by any Trial Court
being more than 15 days and, therefore, on account of
change of law apparently, there still remains some
confusion with the Trial Courts. Be as it may, this can
never be a ground to discount any specific provisions of
law.
92. In the given circumstances, the Accused may claim a
right to Bail; but till then, his Judicial Custody has to be
extended, in accordance with law.
93. In the present case, the Petitioner had not been
granted Bail, and in such a situation there was no option,
but to remand him to Judicial Custody. There may have
been a violation of the number of days, but it cannot be
held to be a patent illegality or a ground of release. It is a
mere irregularity on which the Petitioner may seek Bail,
but no such relief can be granted in exercise of the
jurisdiction under Section 482 Cr.P.C.
94. The Petitioner is at liberty to move an Application for
Bail on the ground of the over-extended post-cognizance
remand, for a period beyond the period specified by the
Legislature.
95. The Counsel for the Respondent has also argued that
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the delay and laches on the part of the Petitioner, while
invoking the inherent jurisdiction of this Court, is also as
aspect to be considered.
96. In the case of State of U.P. vs. Sudhir Kumar Singh
(2021) 19 SCC 706, it was observed that no prejudice is
caused to a person complaining of the breach of natural
justice, which such person does not dispute the case
against him. This can happen by reason of estoppel,
acquiescence, waiver and by way of non-challenge or non-
denial or admission of facts, in cases in which the Court
finds on facts, that no real prejudice has been caused to
the person complaining of breach of natural justice.
97. The petitioner, herein has been transferred to
Guwahati, vide Order dated 23.07.2025, wherein he is in
judicial custody of the Guwahati Court. The Petitioner
may have been remanded for extended period between
January, 29 till he was shifted to Guwahati, beyond 15
days, as is permitted, but neither the Petitioner had raised
any objection nor any prejudice has consequently, been
caused to the Petitioner. There exists no ground to quash
the Complaint.

Conclusion:
105. In view of the aforesaid, the Order dated 18.12.2024,
taking cognizance on the Complaint, is hereby, set aside
and the ld. Special Judge (PMLA) is directed to give a
hearing to the Petitioner, before proceeding to take
cognizance. The petitioner is at liberty to seek bail, in
accordance with law. The pending Application(s) are
disposed of, accordingly.”
8. The petitioner, being aggrieved by the said judgment,
approached the Hon’ble Supreme Court by way of SLP (Crl.) No.
12220-12221/2026, titled Thokchom Gyaneshor vs. Directorate of
Enforcement , which the learned counsel for the petitioner explains
was limited to the non-grant of prayer ‘f’ of CRL.M.C 4134/2025.
9. The Supreme Court, vide its order dated 27.07.2026, dismissed
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the said Special Leave Petition, clarifying as under:-
“1. Having heard the learned counsel for the petitioner,
we are not inclined to interfere with the impugned order.
However, we make it clear that this order will not stand in
the way of the petitioner while applying for regular bail
before the High Court.”
10. The petitioner then filed an application seeking bail under
Section 480 of the Bharatiya Nagarik Suraksha Sanhita, 2023
(hereinafter referred to as ‘ BNSS ’) before the learned Special Court.
However, at the time of the hearing of the same, and as recorded in the
impugned order dated 30.09.2026, the learned counsel for the
petitioner submitted that the same is not being pressed as the order of
cognizance has been set aside and there is no provision for remanding
the petitioner to custody, he, therefore, was praying for bail only on
this limited ground.
11. The learned Special Judge dismissed the application filed by the
petitioner, observing as under:-
“…On joint reading of the aforesaid orders of the Hon’ble
Supreme Court of India and of the Hon’ble High Court of
Delhi, it is clear that accused A-l is required to move a
regular bail under Section 45 of the Prevention of Money
Laundering Act, 2002 and no bail can be granted on
technical ground of cognizance order being set aside.
Further, this court is of the opinion that once the order of
cognizance is set aside, remand proceedings shall be
governed by Section 187 of BNSS, 2023. Accordingly, both
accused are remanded to 14 days custody till 13.10.2026.
In terms of proviso to order 223 of BNSS, 2023, accused
are being provided an opportunity of being heard
regarding prosecution complaint filed by ED.”
12. As far as cognizance on the complaint filed by the respondent is
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concerned, the learned Special Judge had adjourned the proceedings to
13.10.2026 for hearing the accused persons on the same, in
compliance with Section 223 of the BNSS.
13. The learned counsel for the petitioner submits that the hearing
on cognizance was adjourned by the learned Special Judge on the said
date on the plea of the petitioner that the present petition has been
filed. The same is now listed for hearing on 06.11.2026 for arguments
on the bail application of Accused No.2, and for further proceedings
on 18.11.2026, before the learned Special Judge.
Submissions of the learned counsel for the petitioner:
14. The learned counsel for the petitioner, placing reliance on
Sanjay Dutt v. State (through CBI) , (1994) 5 SCC 410; Ramdeo
Mahto v. State of Bihar , 1977 SCC OnLine Pat 175; Suresh Kumar
Bhikamchand Jain v. State of Maharashtra and Anr. , (2013) 3 SCC
77; SFIO v. Rahul Modi & Anr. , (2023) 15 SCC 311; and Dhanrak
Aswani v. Amar S. Mulchandani , (2024) 9 SCR 257, submits that
Section 167(2) of the Code of Criminal Procedure, 1973 (hereinafter
referred to as ‘ CrPC’ ), which now is Section 187(3) of the BNSS,
empowers a Magistrate to remand an accused to the custody for a
period not exceeding 90 days, where the investigation relates to an
offence punishable with death, imprisonment for life or imprisonment
for a term of 10 years or more, or for a period not exceeding 60 days,
where the investigation relates to any other offence. He submits that in
the present case, the said period has expired and cognizance on the
complaint filed by the respondent has not been taken; the earlier
cognizance order being set aside by the learned Single Judge of this
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Court. He submits that, therefore, in the present case, the power to
remand the accused to custody vested in the Special Court under
Section 187 of the BNSS, will no longer be available. Further, as
cognizance on the complaint filed by the respondent has not been
taken by the learned Special Judge, the power of remand vested with
the learned Special Court under Section 346(2) of the BNSS will also
not be available. He submits that therefore, the petitioner was not
required to obtain bail, but was entitled to be released from custody,
there being no power to extend the period of remand.
Submission of the learned counsel for the respondent:
15. On the other hand, the learned counsel for the respondent
submits that the above issue is no longer res integra and in fact, stands
covered by the judgment and order dated 29.05.2026 passed by the
learned Single Judge of this Court in CRL.M.C. 4134/2025 and the
dismissal of the Special Leave Petition by the Supreme Court vide its
order dated 27.07.2026, which left it open to the petitioner to apply for
regular bail while upholding his remand in custody.
16. Further, placing reliance on the judgments of the Supreme
Court in Suresh Kumar Bhikamchand Jain vs. State of Maharashtra
and Anr . ( supra ) and Judgebir Singh alias Jasbir Singh Sharma
Alias Jasbir and Ors. v. National Investigation Agency , (2023) 17
SCC 48, he submits that as the complaint has been filed within the
period prescribed under Section 187 of the BNSS, therefore, the
remand of the petitioner by the learned Special Court is legal and the
only remedy available to the petitioner would be to apply for bail on
merits.
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Date:29.10.2026 18:50

Analysis & findings:
17. We have considered the submissions made by the learned
counsels for the parties.
18. At the outset, we would note that the petitioner is trying to re-
open an issue which already stands determined by a detailed judgment
of a learned Single Judge of this Court, being the judgment dated
29.05.2026 passed in CRL.M.C. 4134/2025, against which a Special
Leave Petition filed by the petitioner also stands dismissed by the
Supreme Court by way of an order dated 27.07.2026, reserving liberty
in the petitioner to apply for regular bail. The Supreme Court,
therefore, did not find any illegality in the order remanding the
petitioner to custody, though the order taking cognizance on the
complaint filed by the respondent had been set aside. The petitioner,
instead of availing of the remedy reserved by the Supreme Court, is
trying to reopen an issue which already stands determined. In our
view, the same is not permissible as we are not sitting in an appeal
over the order passed by the learned Single Judge of this Court.
Therefore, the present petition is liable to be dismissed on this short
ground itself.
19. Be that as it may, we have also considered the submissions of
the learned counsel for the petitioner on merits, and find that the issue
raised by him is no longer res integra but is, in our opinion, fully
covered by the judgment of the Supreme Court in Judgebir Singh
( supra ), wherein the Supreme Court, considering the para materia
provisions under Section 167 and Section 309 of the CrPC, held as
under:
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“58. This Court in Suresh Kumar Bhikamchand Jain
[Suresh Kumar Bhikamchand Jain v. State of Maharashtra,
(2013) 3 SCC 77 : (2013) 2 SCC (Cri) 229 : (2013) 1 SCC (L&S)
480] had the occasion to consider in detail the question whether
cognizance of the charge-sheet was necessary to prevent the
accused from seeking default bail or whether mere filing of the
charge-sheet would suffice for the investigation to be deemed
complete. The petitioner in the said case was arrested on 11-3-
2012 on the allegation of misappropriation of amounts meant for
development of slums in Jalgaon City. The petitioner therein was
accused of committing offences punishable under Sections 120-B,
409, 411, 406, 408, 465, 466, 468, 471, 177 and 109 read with
Section 34IPC and also under Sections 13(1)(c), 13(1)(d) and
13(2) of the Prevention of Corruption Act, 1988. The contention
of the petitioner therein was that he could not have been
remanded to custody in view of cognizance not being taken for
want of sanction within the statutory period of 90 days. The
scheme of the provisions relating to remand of an accused first
during the stage of investigation and thereafter, after cognizance
is taken, indicates that the legislature intended investigation of
certain crimes to be completed within the period prescribed
therein. This Court held that in the event of investigation not
being completed by the investigating authorities within the
prescribed period, the accused acquires an indefeasible right to
be granted bail, if he offers to furnish bail. This Court was of the
firm view that if on either the 61st day or the 91st day, an accused
makes an application for being released on bail in default of
charge-sheet having been filed, the court has no option but to
release the accused on bail. However, once the charge-sheet was
filed within the stipulated period, the right of the accused to
statutory/default bail came to an end and the accused would be
entitled to pray for regular bail on merits. It was held by this
Court that the filing of charge-sheet is sufficient compliance with
the provisions of proviso (a) to Section 167(2)CrPC and that
taking of cognizance is not material to Section 167CrPC. The
scheme of CrPC is such that once the stage of investigation is
completed, the court proceeds to the next stage, which is the
taking of cognizance and trial. During the period of investigation,
the accused is under the custody of the Magistrate before whom
he or she is first produced, with such Magistrate being vested
with the power to remand the accused to police custody and/or
judicial custody, up to a maximum period as prescribed under
Section 167(2)CrPC. Acknowledging the fact that an accused has
to remain in custody of some court, this Court concluded that on
filing of the charge-sheet within the stipulated period, the accused
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continues to remain in the custody of the Magistrate till such time
as cognizance is taken by the court trying the offence, when the
said court assumes custody of the accused for purposes of remand
during the trial in terms of Section 309CrPC. This Court clarified
that the two stages are different, with one following the other so
as to maintain continuity of the custody of the accused with a
court.
59. We refer to the relevant portions of Suresh Kumar
Bhikamchand Jain [Suresh Kumar Bhikamchand Jain v. State of
Maharashtra, (2013) 3 SCC 77 : (2013) 2 SCC (Cri) 229 : (2013)
1 SCC (L&S) 480] judgment as under : (SCC pp. 84-86, paras
16-18)
“16. At this juncture, we may refer to certain dates which
are relevant to the facts of this case, namely: (a) 11-3-
2012 — The petitioner arrested and remanded to police
custody; (b) 25-4-2012 — First charge-sheet filed against
the four accused; (c) 1-6-2012 — Supplementary charge-
sheet filed in which the petitioner is named; (d) 30-7-2012
— The trial court rejected the petitioner's prayer for grant
of bail; (e) 13-9-2012 [Suresh v. State of Maharashtra,
2012 SCC OnLine Bom 2358] — The High Court
confirmed the order of the trial court; (f) 2-10-2012 —
Application filed under Section 167(2)CrPC before the
trial court; (g) 5-10-2012 — The trial court rejected the
application under Section 167(2)CrPC. From the above
dates, it would be evident that both the charge-sheet as
also the supplementary charge-sheet were filed within 90
days from the date of the petitioner's arrest and remand to
police custody. It is true that cognizance was not taken by
the Special Court on account of failure of the prosecution
to obtain sanction to prosecute the accused under the
provisions of the PC Act, but does such failure amount to
non-compliance with the provisions of Section
167(2)CrPC is the question with which we are confronted.
17. In our view, grant of sanction is nowhere
contemplated under Section 167CrPC. What the said
section contemplates is the completion of investigation in
respect of different types of cases within a stipulated
period and the right of an accused to be released on bail
on the failure of the investigating authorities to do so. The
scheme of the provisions relating to remand of an
accused, first during the stage of investigation and,
thereafter, after cognizance is taken, indicates that the
legislature intended investigation of certain crimes to be
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completed within 60 days and offences punishable with
death, imprisonment for life or imprisonment for a term of
not less than 10 years, within 90 days. In the event, the
investigation is not completed by the investigating
authorities, the accused acquires an indefeasible right to
be granted bail, if he offers to furnish bail. Accordingly, if
on either the 61st day or the 91st day, an accused makes
an application for being released on bail in default of
charge-sheet having been filed, the court has no option
but to release the accused on bail. The said provision has
been considered and interpreted in various cases, such as
the ones referred to hereinbefore. Both the decisions in
Natabar Parida case [Natabar Parida v. State of Orissa,
(1975) 2 SCC 220 : 1975 SCC (Cri) 484] and in Sanjay
Dutt case [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994
SCC (Cri) 1433] were instances where the charge-sheet
was not filed within the period stipulated in Section
167(2)CrPC and an application having been made for
grant of bail prior to the filing of the charge-sheet, this
Court held that the accused enjoyed an indefeasible right
to grant of bail, if such an application was made before
the filing of the charge-sheet, but once the charge-sheet
was filed, such right came to an end and the accused
would be entitled to pray for regular bail on merits.
18. None of the said cases detract from the position that
once a charge-sheet is filed within the stipulated time, the
question of grant of default bail or statutory bail does not
arise. As indicated hereinabove, in our view, the filing of
charge-sheet is sufficient compliance with the provisions
of Section 167(2)(a)(ii) in this case. Whether cognizance
is taken or not is not material as far as Section 167CrPC
is concerned. The right which may have accrued to the
petitioner, had charge-sheet not been filed, is not
attracted to the facts of this case. Merely because sanction
had not been obtained to prosecute the accused and to
proceed to the stage of Section 309CrPC, it cannot be said
that the accused is entitled to grant of statutory bail, as
envisaged in Section 167CrPC. The scheme of CrPC is
such that once the investigation stage is completed, the
court proceeds to the next stage, which is the taking of
cognizance and trial. An accused has to remain in custody
of some court. During the period of investigation, the
accused is under the custody of the Magistrate before
whom he or she is first produced. During that stage, under
Section 167(2)CrPC, the Magistrate is vested with
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authority to remand the accused to custody, both police
custody and/or judicial custody, for 15 days at a time, up
to a maximum period of 60 days in cases of offences
punishable for less than 10 years and 90 days where the
offences are punishable for over 10 years or even death
sentence. In the event, an investigating authority fails to
file the charge-sheet within the stipulated period, the
accused is entitled to be released on statutory bail. In such
a situation, the accused continues to remain in the custody
of the Magistrate till such time as cognizance is taken by
the court trying the offence, when the said court assumes
custody of the accused for purposes of remand during the
trial in terms of Section 309CrPC. The two stages are
different, but one follows the other so as to maintain a
continuity of the custody of the accused with a court.”
(emphasis supplied)
60. It is clear from the decision of this Court in Suresh Kumar
Bhikamchand Jain [Suresh Kumar Bhikamchand Jain v. State of
Maharashtra, (2013) 3 SCC 77 : (2013) 2 SCC (Cri) 229 : (2013)
1 SCC (L&S) 480] that filing of a charge-sheet is sufficient
compliance with the provisions of Section 167CrPC and that an
accused cannot demand release on default bail under Section
167(2)CrPC on the ground that cognizance has not been taken
before the expiry of the statutory time period. The accused
continues to be in the custody of the Magistrate till such time
cognizance is taken by the court trying the offence, which
assumes custody of the accused for the purpose of remand after
cognizance is taken.
61. The aforesaid decision of this Court makes the position of law
very clear that once the charge-sheet has been filed within the
stipulated time, the question of grant of statutory/default bail does
not arise. Whether cognizance has been taken or not taken is not
relevant for the purpose of compliance of Section 167CrPC. The
mere filing of the charge-sheet is sufficient.
62. The decision of Suresh Kumar Bhikamchand Jain [Suresh
Kumar Bhikamchand Jain v. State of Maharashtra, (2013) 3 SCC
77 : (2013) 2 SCC (Cri) 229 : (2013) 1 SCC (L&S) 480] has been
referred to and relied upon by this Court in Rahul Modi [Serious
Fraud Investigation Office v. Rahul Modi, (2023) 15 SCC 311] .
In the said decision, the very same point fell for the consideration
of the Court, whether the accused is entitled for statutory/default
bail under Section 167(2)CrPC on the ground that cognizance
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had not been taken before the expiry of 60 days or 90 days from
the date of remand?
63. However, one another issue that fell for the consideration of
this Court, in Rahul Modi [Serious Fraud Investigation Office v.
Rahul Modi, (2023) 15 SCC 311] was whether Suresh Kumar
Bhikamchand Jain [Suresh Kumar Bhikamchand Jain v. State of
Maharashtra, (2013) 3 SCC 77 : (2013) 2 SCC (Cri) 229 : (2013)
1 SCC (L&S) 480] had taken a different view than in Sanjay Dutt
[Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri) 1433] ,
Mohd. Iqbal Madar Sheikh v. State of Maharashtra [Mohd. Iqbal
Madar Sheikh v. State of Maharashtra, (1996) 1 SCC 722 : 1996
SCC (Cri) 202] and M. Ravindran v. Directorate of Revenue
Intelligence [M. Ravindran v. Directorate of Revenue
Intelligence, (2021) 2 SCC 485 : (2021) 1 SCC (Cri) 876] . This
Court explained in details as to why nothing contrary to Sanjay
Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri)
1433] , Iqbal Madar [Mohd. Iqbal Madar Sheikh v. State of
Maharashtra, (1996) 1 SCC 722 : 1996 SCC (Cri) 202] and M.
Ravindran [M. Ravindran v. Directorate of Revenue Intelligence,
(2021) 2 SCC 485 : (2021) 1 SCC (Cri) 876] had been decided in
Suresh Kumar Bhikamchand Jain [Suresh Kumar Bhikamchand
Jain v. State of Maharashtra, (2013) 3 SCC 77 : (2013) 2 SCC
(Cri) 229 : (2013) 1 SCC (L&S) 480] . We quote the relevant
observations : (Rahul Modi case [Serious Fraud Investigation
Office v. Rahul Modi, (2023) 15 SCC 311] , SCC paras 20-27)
“20. The point that requires to be considered is whether
this Court has taken a different view in Sanjay Dutt
[Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri)
1433] , Madar Sheikh [Mohd. Iqbal Madar Sheikh v. State
of Maharashtra, (1996) 1 SCC 722 : 1996 SCC (Cri) 202]
and M. Ravindran [M. Ravindran v. Directorate of
Revenue Intelligence, (2021) 2 SCC 485 : (2021) 1 SCC
(Cri) 876] . In Sanjay Dutt [Sanjay Dutt v. State, (1994) 5
SCC 410 : 1994 SCC (Cri) 1433] , this Court held that the
indefeasible right accruing to the accused is enforceable
only prior to the filing of challan and it does not survive
or remain enforceable, on the challan being filed. It was
made clear that once the challan has been filed, the
question of grant of bail has to be considered and decided
only with reference to the merits of the case under the
provisions relating to grant of bail to an accused after the
filing of the challan. In light of the above findings, this
Court held that the custody of the accused after the
challan has been filed is not governed by Section 167(2)
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but different provisions of CrPC.
21. In Madar Sheikh [Mohd. Iqbal Madar Sheikh v. State
of Maharashtra, (1996) 1 SCC 722 : 1996 SCC (Cri) 202]
, which was relied upon by the learned Senior Counsel
appearing for Respondents 1 and 2 and the Intervener, the
appellants therein were taken into custody on 16-1-1993.
The charge-sheet was submitted on 30-8-1993. Though
the appellants were entitled to be released in view of the
charge-sheet not being filed within the statutory period
prescribed under Section 20(4)(b) of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 read with
proviso (a) to Section 167(2)CrPC, they did not make an
application for release on bail on the ground of default in
completion of the investigation within the statutory period.
After filing of the charge-sheet and cognizance having
been taken, they continued to be in custody on the basis of
orders of remand passed under other provisions of CrPC.
Refusing to grant relief of statutory bail in the said fact
situation, this Court held that the right conferred on an
accused under Section 167(2) cannot be exercised after
the charge-sheet has been submitted and cognizance has
been taken.
22. A plain reading of the judgment in Madar Sheikh
[Mohd. Iqbal Madar Sheikh v. State of Maharashtra,
(1996) 1 SCC 722 : 1996 SCC (Cri) 202] would show that
reference to the right of statutory bail becoming
unenforceable after cognizance having been taken is in
view of the facts of the said case, where this Court denied
statutory bail to the appellants therein on the ground that
charge-sheet was filed and cognizance had also been
taken, with orders of remand passed under other
provisions of CrPC. Thereafter, they were not entitled for
bail under Section 167(2).
23. Application for bail under Section 167(2)CrPC fell for
consideration of this Court in M. Ravindran [M.
Ravindran v. Directorate of Revenue Intelligence, (2021)
2 SCC 485 : (2021) 1 SCC (Cri) 876] . In the said case,
the appellant was arrested and remanded to judicial
custody on 4-8-2018 for offences punishable under the
Narcotics Drugs and Psychotropic Substances Act, 1985.
On 1-2-2019, the appellant therein filed an application for
bail under Section 167(2) on the ground that investigation
was not complete and charge-sheet had not been filed
within the statutory period. The trial court granted bail
under Section 167(2), which was set aside by the High
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Court of Madras by judgment dated 21-11-2019
[Directorate of Revenue Intelligence v. M. Ravindran,
2019 SCC OnLine Mad 33543] . Challenging the said
judgment of the High Court, the appellant approached this
Court.
24. The crucial fact in M. Ravindran case [M. Ravindran
v. Directorate of Revenue Intelligence, (2021) 2 SCC 485
: (2021) 1 SCC (Cri) 876] is that the appellant therein
filed an application on 1-2-2019 at 10.30 a.m. before the
trial court and on the same day at 4.25 p.m., an additional
complaint was filed against the appellant, on the basis of
which dismissal of the bail application was sought. This
Court restored the order of the trial court while setting
aside the judgment [Directorate of Revenue Intelligence v.
M. Ravindran, 2019 SCC OnLine Mad 33543] of the High
Court, by holding that the accused is deemed to have
“availed of” or enforced his right to be released on
default bail, once application for bail has been filed under
Section 167(2) on expiry of the stipulated time period.
25. Taking into account the fact that before the expiry of
180 days, no charge-sheet had been submitted nor any
application filed seeking extension of time to investigate,
this Court in M. Ravindran case [M. Ravindran v.
Directorate of Revenue Intelligence, (2021) 2 SCC 485 :
(2021) 1 SCC (Cri) 876] held that the appellant was
entitled to be released on statutory bail notwithstanding
the subsequent filing of an additional complaint. The point
that was decided in the said case was that the filing of an
additional complaint after the accused has availed his
right to be released on default bail, should not deter the
courts from enforcing this indefeasible right, if the
charge-sheet was not filed before the expiry of the
statutory period. Reference was made by this Court to
Madar Sheikh [Mohd. Iqbal Madar Sheikh v. State of
Maharashtra, (1996) 1 SCC 722 : 1996 SCC (Cri) 202] in
M. Ravindran [M. Ravindran v. Directorate of Revenue
Intelligence, (2021) 2 SCC 485 : (2021) 1 SCC (Cri) 876]
. This Court observed that no prior application for bail
was filed in Madar Sheikh [Mohd. Iqbal Madar Sheikh v.
State of Maharashtra, (1996) 1 SCC 722 : 1996 SCC (Cri)
202] though the charge-sheet was submitted after the
expiry of the statutory period. This Court repeated the
findings recorded in Madar Sheikh [Mohd. Iqbal Madar
Sheikh v. State of Maharashtra, (1996) 1 SCC 722 : 1996
SCC (Cri) 202] that the right to bail cannot be exercised
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once the charge-sheet has been submitted and cognizance
has been taken. As stated above, the said conclusion in
Madar Sheikh [Mohd. Iqbal Madar Sheikh v. State of
Maharashtra, (1996) 1 SCC 722 : 1996 SCC (Cri) 202]
was arrived at with reference to the facts of the case.
26. The issue that arose for consideration before this
Court in Criminal Appeals Nos. 701-702 of 2020 relates
to whether the date of remand is to be included in
computation of the period of 60 days or 90 days, as
contemplated under proviso (a) to Section 167(2), for
considering the claim for default bail. Taking note of the
divergence of opinions on the said point, this Court felt
the need for consideration of the issue by a larger Bench.
The later order dated 12-3-2021 [Kapil Wadhawan v.
CBI, 2021 SCC OnLine SC 3468] passed in SLPs (Crl.)
Nos. 2105-06 and 2111-12 of 2021 is for tagging all those
matters along with Criminal Appeals Nos. 701-702 of
2020. The submission made on behalf of the petitioners
therein and recorded in the said order relates to the filing
of a charge-sheet on the last day without a list of
witnesses and documents not amounting to a proper filing
of charge-sheet. Mr Rohatgi referred to the SLPs (Crl.)
Nos. 2111-12 of 2021 and submitted that one of the points
raised relates to cognizance being taken before the expiry
of the statutory period under Section 167CrPC. It is clear
that a reference to a larger Bench pertains to the issue of
exclusion or inclusion of the date of remand for
computation of the period prescribed under Section 167.
Therefore, there is no requirement for referring this case
to a larger Bench.
27. A close scrutiny of the judgments inSanjay Dutt
[Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC (Cri)
1433] , Madar Sheikh [Mohd. Iqbal Madar Sheikh v. State
of Maharashtra, (1996) 1 SCC 722 : 1996 SCC (Cri) 202]
andM. Ravindran [M. Ravindran v. Directorate of
Revenue Intelligence, (2021) 2 SCC 485 : (2021) 1 SCC
(Cri) 876] would show that there is nothing contrary to
what has been decided inBhikamchand Jain [Suresh
Kumar Bhikamchand Jain v. State of Maharashtra, (2013)
3 SCC 77 : (2013) 2 SCC (Cri) 229 : (2013) 1 SCC (L&S)
480] . In all the above judgments which are relied upon by
either side, this Court had categorically laid down that the
indefeasible right of an accused to seek statutory bail
under Section 167(2)CrPC arises only if the charge-sheet
has not been filed before the expiry of the statutory period.
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Reference to cognizance inMadar Sheikh [Mohd. Iqbal
Madar Sheikh v. State of Maharashtra, (1996) 1 SCC 722
: 1996 SCC (Cri) 202] is in view of the fact situation
where the application was filed after the charge-sheet was
submitted and cognizance had been taken by the trial
court. Such reference cannot be construed as this Court
introducing an additional requirement of cognizance
having to be taken within the period prescribed under
proviso (a) to Section 167(2)CrPC, failing which the
accused would be entitled to default bail, even after filing
of the charge-sheet within the statutory period. It is not
necessary to repeat that in bothMadar Sheikh [Mohd.
Iqbal Madar Sheikh v. State of Maharashtra, (1996) 1
SCC 722 : 1996 SCC (Cri) 202] andM. Ravindran [M.
Ravindran v. Directorate of Revenue Intelligence, (2021)
2 SCC 485 : (2021) 1 SCC (Cri) 876] , this Court
expressed its view that non-filing of the charge-sheet
within the statutory period is the ground for availing the
indefeasible right to claim bail under Section
167(2)CrPC. The conundrum relating to the custody of the
accused after the expiry of 60 days has also been dealt
with by this Court inBhikamchand Jain [Suresh Kumar
Bhikamchand Jain v. State of Maharashtra, (2013) 3 SCC
77 : (2013) 2 SCC (Cri) 229 : (2013) 1 SCC (L&S) 480] .
It was made clear that the accused remains in custody of
the Magistrate till cognizance is taken by the relevant
court. As the issue that arises for consideration in this
case is squarely covered by the judgment inBhikamchand
Jain [Suresh Kumar Bhikamchand Jain v. State of
Maharashtra, (2013) 3 SCC 77 : (2013) 2 SCC (Cri) 229 :
(2013) 1 SCC (L&S) 480] , the order passed by the High
Court on 31-5-2019 [Mukesh Modi v. SFIO, 2019 SCC
OnLine P&H 6252] is hereby set aside.” (emphasis
supplied)
64. Our attention was drawn by the learned counsel appearing
for the accused to a very recent pronouncement of this Court, in
Ritu Chhabaria v. Union of India [Ritu Chhabaria v. Union of
India, (2024) 12 SCC 116 : 2023 SCC OnLine SC 502] . This
decision has been relied upon to fortify the submission that right
of an accused to seek default bail cannot be defeated by filing
incomplete charge-sheet. Ritu Chhabaria filed a writ petition
under Article 32 of the Constitution, seeking release of her
husband on default bail. In the facts of the said case, three issues
fell for the consideration of this Court:
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(i) Can a charge-sheet or a prosecution complaint be filed
in piecemeal without first completing the investigation of
the case?
(ii) Whether the filing of such a charge-sheet without
completing the investigation will extinguish the right of an
accused for grant of default bail?
(iii) Whether the remand of an accused can be continued
by the trial court during the pendency of investigation
beyond the stipulated time as prescribed by CrPC?
65. This Court, while allowing the petition observed in paras 25
and 26, respectively, as under : (Ritu Chhabaria case [Ritu
Chhabaria v. Union of India, (2024) 12 SCC 116 : 2023 SCC
OnLine SC 502] )
“25. This right of statutory bail, however, is extinguished,
if the charge-sheet is filed within the stipulated period.
The question of resorting to a supplementary charge-sheet
under Section 173(8)CrPC only arises after the main
charge-sheet has been filed, and as such, a supplementary
charge-sheet, wherein it is explicitly stated that the
investigation is still pending, cannot under any
circumstance, be used to scuttle the right of default bail,
for then, the entire purpose of default bail is defeated, and
the filing of a charge-sheet or a supplementary charge-
sheet becomes a mere formality, and a tool, to ensue that
the right of default bail is scuttled.
26. It is thus axiomatic that first investigation is to be
completed, and only then can a charge-sheet or a
complaint be filed within the stipulated period, and failure
to do so would trigger the statutory right of default bail
under Section 167(2)CrPC. In Union of India v.
Thamisharasi [Union of India v. Thamisharasi, (1995) 4
SCC 190 : 1995 SCC (Cri) 665] , which was a case under
the Narcotic Drugs and Psychotropic Substances Act,
1985, on finding that the investigation was not complete
and a charge-sheet was not filed within the prescribed
period, denial of default bail was held to be in violation of
Article 21 of the Constitution of India, and it was further
held that even the twin limitation on grant of bail would
not apply.”
66. Thus, in Ritu Chhabaria [Ritu Chhabaria v. Union of India,
(2024) 12 SCC 116 : 2023 SCC OnLine SC 502] , the facts were
altogether different. In the said case, indisputably, the
investigation was in progress, but as the statutory time period to
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file the charge-sheet was coming to an end, the charge-sheet was
filed clarifying that the investigation was still pending. In such
circumstances, this Court took the view that there is no question
of filing any supplementary charge-sheet, taking the aid of sub-
section (8) of Section 173CrPC, as sub-section (8) of Section
173CrPC comes into play only after the investigation is
completed and the charge-sheet is laid. We are of the view that
the aforesaid decision of this Court is of no avail to the accused
in the present case. In the case on hand, the charge-sheet was
filed after the entire investigation was completed. This fact is not
in dispute.
67. Thus, we answer Issue 1 holding that filing of a charge-sheet
is sufficient compliance with the provisions of Section 167CrPC
and that an accused cannot claim any indefeasible right of being
released on statutory/default bail under Section 167(2)CrPC on
the ground that cognizance has not been taken before the expiry
of the statutory time period to file the charge-sheet. We once
again, reiterate what this Court said in Suresh Kumar
Bhikamchand Jain [Suresh Kumar Bhikamchand Jain v. State of
Maharashtra, (2013) 3 SCC 77 : (2013) 2 SCC (Cri) 229 : (2013)
1 SCC (L&S) 480] that grant of sanction is nowhere
contemplated under Section 167CrPC.”
[emphasis supplied]
20. In the present case, the complaint was filed by the respondent
within the period as prescribed under Section 187 of the BNSS.
Though, the order dated 18.12.2024, taking cognizance thereon, has
been set aside by the learned Single Judge of this Court for want of
compliance with section 223 of the BNSS, that is, grant of prior
hearing to the accused before taking cognizance on such complaint, in
our view, the above judgment in Judgebir Singh ( supra ) would
squarely apply to the facts of the present case and therefore, the order
of further remand cannot be said to be illegal. The remedy of the
petitioner was to apply for bail on merits.
21. Accordingly, we find no merit in the present petition and the
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same, along with pending application(s), if any, is dismissed.
22. There shall be no orders as to costs.
NAVIN CHAWLA, J
ARUN BHARDWAJ, J
OCTOBER 27, 2026/ mj/AD/hn
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