S. Ravindra Bhat, J.

1. The present petitioner/accused is a Nigerian national claiming to be in possession of a valid International passport issued by the Federal Republic of Nigeria. He claims bail, and asserts that he has to be released in terms of Sections 167(1) & (2) of the Code of Criminal Procedure (Cr. PC.).

2. The brief facts necessary to decide this application are that the Petitioner was apprehended by the Central Bureau of Investigation ( "CBI," hereafter referred to as "the Respondent") on 25.9.2006, based on a complaint of one Sh. Vivek Ahlawat intimating it that a consignment of counterfeit bank drafts and postal orders of foreign currency were received by him.

3. The respondent on receiving the complaint registered the First Information Report (FIR) against the accused, namely, M/s Joshua, Eubouwman and Joseph for offences punishable under Section 120B read with Section 489- A to 489-E of IPC. The Respondent raided premises of the Petitioner on suspicion that accused persons were in hiding, but none of them were found there. The Petitioner alleged that he and his three other friends, found at the premises were apprehended by the C.B.I and taken into custody for interrogation.

4. The Petitioner alleges that he was produced before the concerned magistrate after expiry of 24 hours of his arrest i.e. on 27.09.06 and the magistrate sent him to judicial custody and since then he is in custody. He further alleges that even after the expiry of 90 days the Respondent failed to file a charge sheet or a challan against him in respect of the alleged offence for which he was arrested. It is alleged that a part charge sheet was filed against him for his over staying in India, after the expiry of his visa. The visa was valid up to 08.06.2006.

5. The Petitioner states that on 10.10.2006, he applied for bail before the ACMM, which was rejected. The extracts of the order dated 13.10.2006 are as follows;

in so far as the allegations against the accused are concerned, the record reveals that the accused is not a suspect but is an accused in the present case. The accused is a Nigerian national and has been residing in India without a valid passport and visa. His address is yet to be verified. The allegations are of preparation and circulation of fake instruments of foreign currency which has been wide spread international ramification and the accused is reported to be a part of this conspiracy. Keeping in view the allegations involved, no ground for bail is made out. The application is hereby dismissed

6. The petitioner moved the learned Additional Sessions Judge, which too, rejected his bail application on 10.01.2007. The extracts of the order dated 10.01.2007 are as follows;

Allegations against the applicant are that the applicant has no authority to remain in India accordingly he was charge sheeted under Section 14 of arms act. Learned Counsel for the applicant has not shown any reasonable ground as to why the applicant who is a foreign national was present in India. Accordingly, I do not find any ground to grant bail to the applicant. Application is hereby dismissed

7. The Respondent in its reply has stated that a complaint by the Senior Security Specialist of Federal Express (Fed Ex) alleging that fake postal orders, drafts of foreign countries were being sent to various places through Federal Express, by Mr. Joshua and Mr. Eubouwman Nosa Victor was received by it. Thereafter a search was conducted on 25.9.2006 at 10.30 pm and it concluded on 26.9.2006 at 01.30 hrs. The raid was conducted at 120 D, Gokul Apartment, Krishna Nagar, Gali No. 5, Safdarjung Enclave, N.Delhi. At that time Mr. Josha was not present at the premises but Mr. Nosa Victor was present along with four other Nigerian Nationals. It is alleged by the Respondent that the Petitioner was one amongst them. The Respondent states that during the raid some incriminating materials were seized. It is also alleged that the Petitioner was found residing in India without any valid documents since 9.6.2006 till his arrest on 26.9.2006 and thus he violated the provisions of Section 14 of the Foreigners Act, 1946 for which a charge sheet was filed before the court of the Metropolitan Magistrate within the stipulated time i.e. 60 days of his arrest.

8. The Respondent alleged that the Petitioner and two others could not produce any valid document regarding their stay in India; so they were arrested and produced before the court on 27.9.2006. It is alleged that the trial in this case is in progress and the prosecution evidence is going on. It is averred that during the raid two passports, one in the name of the petitioner and another in the name of William George were seized along with some other incriminating documents. It is alleged by the Respondent that after scientific examination by CFSL authorities, it was observed that the photographs affixed on the passport i.e. of William George were the same as those on the passport of the petitioner.

9. The Respondent states that the Petitioner was apprehended on 26.9.2006 at 1600 hours only after recovery of incriminating documents such as forged passports and counterfeit banking instruments.

10. The principal contention of the Petitioner in this case is that he was apprehended on mere suspicion and he had nothing to do with the alleged offence committed by the accused persons. He has contented that he was produced before the magistrate beyond the mandatory period of 24 hours of his arrest. The Petitioner has further contended that the Respondent has even after the expiry of 90 days failed to file charge sheet in respect of the alleged offence for which he was arrested.

11. Mr. Worso Zimik, learned Counsel relied upon the decision of this Court in Ram Singh Batra v. State 2005 RLR 255, in support of his submission that the petitioner had to be released. It was held, inter alia, that:

If a person is denied bail by High Court under Section 439 and meanwhile investigation does not complete within statutory period then he is entitled to bail

12. Mr. Zimik also placed reliance on a decision of the Kerala High Court reported as S.M.Purtado v. Dy. S.P.C.B.I. Cochin which held that filing of a part charge sheet in respect of some offences, without reference to others, mentioned in the FIR, did not satisfy the requirement of having to file the challan within the period prescribed; the accused Therefore acquired an indefeasible right to be let out on bail. Reliance was also placed on the decision of the Gujarat High Court in Surajmal Kanaiyalal Soni v. State of Gujarat : (1989)1GLR44 . Counsel submitted that in accordance with the provision under Section 167, the respondent was obliged to file a challan/ charge sheet, in respect of all the offences, within the period prescribed, i.e a maximum period of 90 days; not having complied with the command of law, the court should disregard the so-called charge-sheet, and direct the petitioners release.

13. Shri Harish Gulati, learned Counsel for the respondent submits that there is no substance in the contentions that the applicant is entitled to be released on bail because of the failure of the prosecution to file charge sheet within the prescribed period. He submits that a charge sheet was filed in this case on 23-11-2006. That charge sheet shows that the applicant is arrayed as accused. The entire material disclosed till that date is forming part of the said charge sheet. He also submitted the distinction between Sections 167 and 190 of the Code and contends that Section 190(1)(b) postulates taking cognizance of the offence. Cognizance of offence is taken upon filing of charge sheet.

14. His next submission is that the applicant does not contend that the charge sheet is not compliant with Section 173(2) of the Code. Therefore, there is no question of applicants having any indefeasible right to apply for and being released on bail. The present application must, Therefore, be dismissed.

15. Counsel submits that in Section 173(8) the words used are "as far as may be". There is no question of strict compliance with Section 173(2) when such is the intention of the Legislature. Section 173(8) deals with further investigation. That is not a provision dealing with taking cognizance. It is only upon failure of the prosecution to comply with the mandate of Section 173(2) that the indefeasible right accrues and not otherwise. Since the charge sheet, so far as it related to the offence under the Foreigners Act, was complete in all respects, it was open to the respondent to carry out further investigation under Section 173(8) of the Code. It was further submitted that even in respect of offences under the Foreigners Act, the allegations were grave, and the Forensic Laboratory confirmed that the passports were forged.

16. It would be useful to notice the relevant provisions of the Cr. PC, i.e Sections 173 and 309:

167. 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 57, 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 Judicial Magistrate a copy of the entries in the diary hereinafter prescribed 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, whether he has or has no jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for 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 authorise 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 90 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 so released under the provisions of Chapter XXXIII for the purposes of that Chapter;

(b) no Magistrate shall authorise 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 authorise 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 para (a), the accused shall be detained in custody so long as he does not furnish bail.

Explanation II :- If any question arise whether an accused person was produced before the Magistrate as required under para (b), the production of the accused person may be proved by his signature on the order authorising detention.

Section 309 of the Code reads as under:

309. Power to postpone or adjourn proceedings :- (1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of the witness has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.

(2) If the Court, after taking cognizance of an offence or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same or such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody.

17. In Uday Mohanlal Acharya v. State of Maharashtra : 2001CriLJ1832 , the Supreme Court, after elaborately considering all the previous decisions on the applicability of Section 167, and the various situations arising, held as follows:

There is no provision in the Criminal Procedure Code authorising detention of an accused in custody after the expiry of the period indicated in the proviso to Sub-section (2) of Section 167 excepting the contingency indicated in Explanation I, namely, if the accused does not furnish the bail. It is in this sense it can be stated that if after expiry of the period, an application for being released on bail is filed, and the accused offers to furnish the bail, and thereby avail of his indefeasible right and then an order of bail is passed on certain terms and conditions but the accused fails to furnish the bail, and at that point of time a challan is filed then possibly it can be said that the right of the accused stood extinguished. But so long as the accused files an application and indicates in the application to offer bail on being released by appropriate orders of the Court then the right of the accused on being released on bail cannot be frustrated on the oft chance of Magistrate not being available and the matter not being moved, or that the Magistrate erroneously refuses to pass an order and the matter is moved to the higher forum and a challan is filed in interregnum. This is the only way how a balance can be struck between the so-called indefeasible right of the accused on failure on the part of the prosecution to file challan within the specified period and the interest of the society, at large, in lawfully preventing an accused for being released on bail on account of inaction on the part of the prosecuting agency. On the aforesaid premises, we would record our conclusions as follows:

1. Under Sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorise detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days in the whole.

2. Under the proviso to aforesaid Sub-section (2) of Section 167, the Magistrate may authorise detention of the accused otherwise than the custody of police for a total period not exceeding 90 days where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years. and 60 days where the investigation relates to any other offence.

3. On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favor of the accused for being released on bail on account of default by the Investigating Agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnish the bail, as directed by the Magistrate.

4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favor on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/Court must dispose it of forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the Investigating Agency. Such prompt action on the part of the Magistrate/Court will not enable the prosecution to frustrate the object of the and the legislative mandate of an accused being released on bail on account of the default on the part of the Investigating Agency in completing the investigation within the period stipulated.

5. If the accused is unable to furnish bail, as directed by the Magistrate, then the conjoint reading of Explanation I and proviso to Sub-section (2) of Section 167, the continued custody of the accused even beyond the specified period in paragraph (a) will not be unauthorised, and Therefore, if during that period the investigation is complete and charge-sheet is filed then the so-called indefeasible right of the accused would stand extinguished.

6. The expression if not already availed of used by this Court in Sanjay Dutts case 1994 AIR SCW 3857 : : 1995CriLJ477 (supra) must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in paragraph (a) of proviso to Sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail, on being directed, then it has to be held that the accused has availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same.

18. It is Therefore, settled, that an accused must be held to have availed of his right flowing from the legislative mandate engrafted in the proviso to Sub-section (2) of Section 167 of the Code of if he has filed an application after the expiry of the stipulated period alleging that no challan has been filed and he is prepared to offer the bail, if ordered, and it is found as a fact that no challan has been filed within the period prescribed from the date of the arrest of the accused. The Supreme Court held that even if the application for bail is listed after some length of time, or even if the Magistrate refuses the application erroneously and the accused moves the higher forum for getting formal order of being released on bail in enforcement of his indefeasible right, then too, filing of challan at that stage would not deprive him of the right, as such course struck a balance between the "indefeasible right" of the accused on failure on the part of the prosecution to file challan within the specified period and the interest of the society, at large in lawfully preventing an accused for being released on bail on account of inaction on the part of the prosecuting agency.

19. The Kerala High Court, in S.M.Purtados case (supra), held as follows:

10. The investigation under Section 167 of the Code can be one involving one or more offences against the accused persons. The investigation of a case cannot be split up in such a way to file piece-meal reports before Court. Section 173 of the Code does not stipulate a piece-meal investigation and filing of incomplete charge sheet before Court. It contemplates filing of a charge/refer report after completion of the entire investigation of the case in respect of all offences and where several offences area involved in a case, a charge report could be laid before Court only after the investigation is over and formation of an opinion regarding all the offences alleged against the accused. Admittedly, for the offence under Section 3 of the Official Secrets Act, 1923, in maximum punishment prescribed is 14 years of imprisonment. Therefore, under Section 167(2) of the Code, the maximum period the accused could be detained in custody is 90 days. That period was over on 10-4-1996, the date on which the CBI had filed a report in Court in respect of offences other than the one under the Official Secrets Act. Admittedly, the petitioners are even now in custody and now more than 130 days even elapsed since then.

11. In the decision reported in Vijayaraghavan v. CBI , this Court held that the investigation of a cases relates to the entire transaction of which information is given and not merely one of the offences committed in the course of the transaction. In paragraph 10, this Court held thus:

10. The expression case used in the provisions under examination has to be understood in the general sense and not in a narrow or technical way. The words offence and case are not synonymous, though an offence always leads to a case and a case would always involve an offence or offences. An occurrence or transaction may involve commission of only one offence; or it may involve several offences. When a police officer receives information about the commission of a cognizable offence, and records the same, he is said to register a case, sometimes called a crime case. Case understood in this general sense means that the case before the police officer arising from the information placed before him regarding an occurrence in which an offence or offences are committed. Case relates to the transactions of which information is given and not merely one of the offences committed during the course of the transaction.

This Court further held that when Section 173 speaks of completion of investigation, it must ordinarily be taken to refer to completion of investigation of all the facts and circumstances relating to the case, whether the transaction involves one offence or plurality of offences and a final report or charge sheet under Section 173 could be filed only after completion of the investigation in the case relating to all the offences arising in the case. We are in respectful agreement with the said finding arrived at by U. L. Bhat, J., as he than was. Viewed in that light, it must be held that the charge report stated to have been filed by the CBI on 10-4-1996 cannot be said to be a final report as contemplated under Section 173 of the Code and we must say that the prosecution was not justified in making piece-meal charge report in respect of various offences alleged to have been committed by the petitioners. In the absence of completion of the investigation of the case against the petitioners, we hold that the Magistrate cannot take cognizance of the case as contemplated under Section 309 of the Code.

12. A Magistrate can take cognizance of an offence only on filing of a report under Section 173(2) of the Code. Unless power is conferred by law, there is no inherent power to remand an accused to custody. Holding so, in the decision reported in Natabar Parida v. State of Orissa : AIR1975SC1465 , the Supreme Court proceeded to say that under Section 167(2) proviso and under Section 309(2) of the new Code, the power of remand of jail custody conferred on the Magistrate during the pendency of the investigation is only under the former Section and not under the latter Section. The Supreme Court also held that Section 309(2) is attracted only after cognizance of an offence is taken or commencement of the trial has proceeded.

13. A remand under Section 309(2) of the Code can be made only after taking cognizance of the offence. That being the position, in the absence of a final report regarding all the offences alleged to have been committed by the accused persons, it has to be held that the Magistrate has not taken cognizance of the offences as required by Section 309(2) of the Code. The Magistrate is not empowered to order remand of the accused to judicial custody unless final report as contemplated under Section 173(2) of the Code is laid before Court.

14. Thus, in the light of the report filed by the CBI, a further investigation in respect of the offences under the Official Secrets Act, IPC, Act and the Order is necessary. If final report is laid before Court and the Magistrate takes cognizance of the offence, a further report under Section 173(8) of the Code regarding commission of offences or involvement of the accused in connection with the other offences can be made. But in the absence of a final report in respect of all the offences, it cannot be said that a final report under Section 173(2) in respect of the offences alleged to have been committed by the petitioners under the Official Secrets Act could be legally filed by invoking the provisions of Section 173(8) of the Code. The finding of the Court below to the contra is, in our view, illegal.

15. Admittedly, no final report has been filed by the CBI against the petitioners in respect of the various offences. In its absence, the prosecution is not justified in resorting to Section 173(8) of the Code to submit a further report in respect of the alleged involvement of the petitioners under the Official Secrets Act, IPC, Act and the Order. Since the investigation of the case is not complete, we find no reason to deny the statutory bail to the petitioners under Section 167(2) of the Code.

16. The Supreme Court has held that in the scheme of the 1973 Code, remand to custody during investigation can be made only under Section 167 of the Code and remand to custody under Section 309 can be made only after taking cognizance of the offence by the Court. The result is that if the investigation is not over and the period mentioned in Section 167(2) to detain the accused is custody is over, by invoking Section 309 of the Code, the custody of the accused cannot be extended and are to be released on bail.

20. It is well known that the court takes cognizance of the crime, not the offender. The argument that the respondent filed a charge-sheet, within time, when it did, is not correct. The charge-sheet pertains only to the offence under the Foreigners Act, for which, as per proviso to Section 167(2) had to be filed within 60 days. But for the other offences, in respect of which the period prescribed, for filing the charge sheet is 90 days, no charges were indicated. Though the right of the investigating agency to file a supplementary charge sheet, or a further report (under Section 173(8) pursuant to order of the court) cannot be disputed, yet the fact remains that there cannot be part charge sheet, as has been contended in the present case. Therefore, following the decision in S.M.Purtados case, as well as the Supreme Court ruling in Uday Mohanlal Acharya, it has to be concluded that the petitioner is entitled to be enlarged on bail. This is without prejudice to such other rights the respondents may have in law, to place further materials in support of the case, before the trial Court.

21. In view of the above discussion, the petitioner is directed to be enlarged on bail, subject to the following conditions:

a) His furnishing a personal bond in the sum of Rs. 30,000/- and a surety of the like amount to the satisfaction of the competent court;

b) His undertaking not to leave the country, during the trial into offences under the Foreigners Act, and depositing his passport with the court;

c) His reporting to the court every week, on a date to be determined by the court, during pendency of the trial.

The petition is allowed in the above terms.