Case: Jeewan Kumar Raut &amp; Another Vs. Central Bureau of Investigation

and Others [(1997) 8 SCC 476] and Dinesh Dalmia v. CBI [(2007) 8 SCC 770] . However, in view of our foregoing findings, the said decisions have no application in the instant case. 23. We may notice that a Division Bench of the High Court of Kerala in Moosakoya v. State of Kerala [2008 Crl. L.J. 2388] held as under: "3. A plain reading of the above provision will show that even though by Section 24 all offences under the Act are made cognizable, no Court can take cognizance of the offence except upon a written complaint made by a person authorised in this behalf by the Government of the District Collector or a Geologist of the Department of Mining and Geology. A complaint in writing by the authorised officer etc. is the only condition for taking cognizance as provided in Section 25. If a police officer is authorised by the Government, he may also file a complaint on the basis of which the Court may take cognizance. But, the Court cannot take cognizance of any offence punishable under the Sand Act on a police report filed under Section 173(2) of the Cr.P.C. after investigation by police..." We, with respect, agree with the said observations. 24. For the views we have taken, we are of the opinion that stricto sensu Sub-section (2) of Section 167 of the Code would not apply in a case of this nature. Even assuming for the sake of argument that Sub-section (2) of Section 167 of the Code requires filing of a report within 90 days and the complaint petition having filed within the said period, the requirements thereof stand satisfied. 25. Appellant No. 2 having arrested on 10.02.2008 and Appellant No. 1 having surrendered on 17.02.2008 as also the complaint petition having been filed on 29.04.2008, the requirement of Sub-section (2) of Section 167 of the Code stands satisfied. In Sanjay Dutt v. State Through C.B.I., Bombay (II) [(1994) 5 SCC 410] , this Court held: "53(2)(b) The indefeasible right of the accused to be released on bail inaccordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the CrPC in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the CrPC. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage." Only because the court itself took a long time in taking cognizance of the offence, i.e., after the expiry of the period of 90 days, the same would not mean that any new right would be created in favour of the appellants thereby. 26. A distinction between a remand of an accused at pre-cognizance stage vis-`-vis the post-cognizance stage is apparent. Whereas the remand at a pre-cognizance stage is to be made in terms of Sub-section (2) of Section 167 of the Code, an order of remand of an accused at post-cognizance stage can be effected only in terms of Sub-section (2) of Section 309 thereof. This aspect of the matter has been considered by this Court recently in Mithabhai Pashabhai Patel and others v. State of Gujarat [2009 (7) SCALE 559 ]. 27. Before parting, however, we must place on record that we have not been called upon to consider the constitutionality of the provisions of TOHO and in particular Section 22 thereof. Thus, fairness in procedure as adumbrated in Article 21 of the Constitution of India as also the restrictions on liberty imposed by reason of the statute having regard to the fact situation obtaining herein has neither been argued nor is required to be determined. We have made these observations keeping in view the dichotomy in the matter of application of TOHO vis-`-vis the provisions of the Code. If a complaint petition is filed, the procedure laid down under Chapter XV of the Code can be taken recourse to despite the fact that the same has been filed after full investigation and upon obtaining the remand of the accused from time to time by reason of orders passed by a competent Magistrate.28. We are, however, not oblivious of some decisions of this Court where some special statutory authorities like authorities under the Customs Act have been granted all the powers of the investigating officer under a special statute like the NDPS Act, but, this Court has held that they cannot file chargesheet and to that extent they would not be police officers. [See Ramesh Chandra Mehta v. The State of West Bengal AIR 1970 SC 940 , Raj Kumar Karwal v. Union of India (1990) 2 SCC 409 ].29. In this case, however, the respondent having specially been empowered both under the 1946 Act as also under the Code to carry out investigation and file a chargesheet is precluded from doing so only by reason of Section 22 of TOHO. It is doubtful as to whether in the event of authorization of an officer of the department to carry out investigation on a complaint made by a third party, he would be entitled to arrest the accused and carry on investigation as if he is police officer. We hope that the Parliament would take appropriate measures to suitably amend the law in the near future.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]24. For the views we have taken, we are of the opinion that stricto sensu Sub-section (2) of Section 167 of the Code would not apply in a case of this nature. Even assuming for the sake of argument that Sub-section (2) of Section 167 of the Code requires filing of a report within 90 days and the complaint petition having filed within the said period, the requirements thereof stand satisfied.Before parting, however, we must place on record that we have not been called upon to consider the constitutionality of the provisions of TOHO and in particular Section 22 thereof. Thus, fairness in procedure as adumbrated in Article 21 of the Constitution of India as also the restrictions on liberty imposed by reason of the statute having regard to the fact situation obtaining herein has neither been argued nor is required to be determined. We have made these observations keeping in view the dichotomy in the matter of application of TOHO vis-`-vis the provisions of the Code. If a complaint petition is filed, the procedure laid down under Chapter XV of the Code can be taken recourse to despite the fact that the same has been filed after full investigation and upon obtaining the remand of the accused from time to time by reason of orders passed by a competent Magistrate.28. We are, however, not oblivious of some decisions of this Court where some special statutory authorities like authorities under the Customs Act have been granted all the powers of the investigating officer under a special statute like the NDPS Act, but, this Court has held that they cannot file chargesheet and to that extent they would not be police officers. [See Ramesh Chandra Mehta v. The State of West Bengal AIR 1970 SC 940 , Raj Kumar Karwal v. Union of India (1990) 2 SCC 409 ].29. In this case, however, the respondent having specially been empowered both under the 1946 Act as also under the Code to carry out investigation and file a chargesheet is precluded from doing so only by reason of Section 22 of TOHO. It is doubtful as to whether in the event of authorization of an officer of the department to carry out investigation on a complaint made by a third party, he would be entitled to arrest the accused and carry on investigation as if he is police officer. We hope that the Parliament would take appropriate measures to suitably amend the law in the near future.