Tushar Agarwal, Ms. Tripti Roy, Mr. Arun Kumar and Mr. Amarjeet Singh, Advocates v. CENTRAL BUREAU OF INVESTIGATION

Judgment

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 setting 1 [‘BNSS’] 2 [‘CrPC’] 3 [‘OS Act’] 4 [‘IPC’] Signature Not Verified Digitally Signed By:NITIN KAIN Signing Date:12.03.2025 20:23:37 BAIL APPLN. 3836/2024 Page 1 of 22 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’] Signature Not Verified Digitally Signed By:NITIN KAIN Signing Date:12.03.2025 20:23:37 BAIL APPLN. 3836/2024 Page 2 of 22

2.4 The Chief Metropolitan Magistrate took cognizance of the 1st 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. Signature Not Verified Digitally Signed By:NITIN KAIN Signing Date:12.03.2025 20:23:37 BAIL APPLN. 3836/2024 Page 3 of 22 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 3rd 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 1.

4. Description of Document DRAFT ANNUAL ACQUISITION PLAN 2014-16. ANNUAL ACQUISITION PLAN (MP) 2012-14: IAF. This document is marked SECRET on each page and Appendix A is marked Confidential. DRAFT ANNUAL ACQUISITION PLAN 2012- 14 (Navy). This document is marked Confidential in each page. ARMY AAP 2012-14. This document is marked confidential on each page. Pages 19 22 21 27 Signature Not Verified Digitally Signed By:NITIN KAIN Signing Date:12.03.2025 20:23:37 BAIL APPLN. 3836/2024 Page 4 of 22 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 1st Chargesheet did not include these four documents, which were available in the laptop that the CBI had in their possession since 16th 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 the proviso to Section 167(2) would remain Signature Not Verified Digitally Signed By:NITIN KAIN Signing Date:12.03.2025 20:23:37 BAIL APPLN. 3836/2024 Page 5 of 22 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. Signature Not Verified Digitally Signed By:NITIN KAIN Signing Date:12.03.2025 20:23:37 BAIL APPLN. 3836/2024 Page 6 of 22 “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. …. ….

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 Signature Not Verified Digitally Signed By:NITIN KAIN Signing Date:12.03.2025 20:23:37 BAIL APPLN. 3836/2024 Page 7 of 22 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 8th 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. Signature Not Verified Digitally Signed By:NITIN KAIN Signing Date:12.03.2025 20:23:37 BAIL APPLN. 3836/2024 Page 8 of 22 calculated suppression of evidence and a piecemeal approach 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 1st 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. Signature Not Verified Digitally Signed By:NITIN KAIN Signing Date:12.03.2025 20:23:37 BAIL APPLN. 3836/2024 Page 9 of 22

4.4 The investigation revealed 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,

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. Signature Not Verified Digitally Signed By:NITIN KAIN Signing Date:12.03.2025 20:23:37 BAIL APPLN. 3836/2024 Page 10 of 22

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: therefore, is understood and described as a “‘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 ‘further and, 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 to a ‘reinvestigation’, ‘fresh’ or ‘de novo’ contradistinction 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