Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 941 OF 2009
(Arising out of SLP (Crl.) No. 6759 of 2008)
Mithabhai Pashabhai Patel and others …. Appellants
Versus
State of Gujarat …. Respondent
J U D G M E N T
S, B. SINHA, J.
Leave granted.
1. Whether with the change of an investigating authority, police custody
of the accused on remand can be sought for, although cognizance of the
offence had already been taken, is the question involved herein.
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2. It arises out of a judgment and order dated 5 September, 2009 passed
by the High Court of Gujarat at Ahmedabad in Criminal Revision
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Application No.482 of 2008 setting aside an order dated 23 May, 2008
passed by the learned Second Additional Sessions Judge, Himatnagar in
Sessions Case No.70 of 2002.
3. Shorn of all unnecessary details the fact of the matter is as under :-
Appellants had been prosecuted for commission of an offence under
Sections 302/307/395/396/397/201/435/324/143/147/148/149/153-A/341/
337/427 and 120-B of the Indian Penal Code as also under Section 135 of
the Bombay Police Act.
4. The occurrence in which the appellant is involved is said to have
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taken place on 20 August, 2002 at Vadvasa Patia Village near Prantij. A
first information report was lodged on the same date. During course of
investigation all the six appellants were arrested.
5. Indisputably, they were remanded to police custody in terms of sub-
section (2) of Section 167 of the Code of Criminal Procedure, 1973
(hereinafter referred to as ‘the Code’). Upon completion of investigation, a
charge sheet was submitted. The matter was committed to the Sessions
Court. Cognizance of the offence was taken by the Sessions Judge. They
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were granted bail by the High Court by an order dated 30 August, 2003.
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6. The matter, however, came up before this Court. A Bench of this
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Court by an order dated 26 March, 2008 passed by in Writ Petition (Crl.)
No. 109 of 2003 appointed a Special Investigation Team. Pursuant to or in
furtherance of the said direction the State of Gujarat issued a Notification on
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1 April, 2008 constituting a Special Investigation Team to investigate into
cases arising out of Godhra incident and communal riots erupted thereafter
in the year 2002.
In terms of the said Notification the SIT could work out the modalities
and the norms required to be followed for the purpose of
inquiry/investigation including further investigation.
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7. An application was filed on or about 22 May, 2008 by one
Himanshu Shukla, Assistant Superintendent of Police, seeking remand of the
accused for a period of 14 days. The reasons assigned therefor were that that
offences under some provisions were added and investigation with respect to
the said offences from the accused could not be carried out therefor in
respect of certain points mentioned therein.
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8. By reason of a judgment and order dated 23 May, 2008 the said
application was rejected by the learned Sessions Judge, relevant portion
whereof which reads as under:-
“….However at present, this Court cannot entrust
the physical custody of accused to the Special
Investigation Team for custodial interrogation
because in the presence offence, the Hon’ble
Gujarat High Court had granted regular bail vide
Criminal Miscellaneous Application No.4115/2002
dated 30/08/2002 and in that bail order imposed
certain conditions. Hence without getting
cancelled the said regular bail granted by the
Hon’ble High Court, this court cannot grant Police
remand as the present accused are on bail, hence
first of all Special Investigation Team is required
to resort the Hon’ble High Court for cancellation
of said bail order for Police custody for the
purpose of further investigation as directed by the
Hon’ble Highest Court of our Land.
14. Therefore, applicant-member of Special
Investigation Team directed to approach the
Hon’ble High Court to set aside/cancel the said
regular bail order passed by the Hon’ble High
Court.
15. It is pertinent to note that Police remand can
be granted only by the committal court. Therefore,
after getting cancellation of bail order, applicant-
member of Special Investigation Team is also
directed to first of all approach the learned Judicial
Magistrate First Class Prantij-committal court for
Police custody in the present case because this
court is a Sessions Court not competent to grant
remand order unless and until that prayer is
rejected by Magistrate.”
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9. Respondent preferred a revision application thereagainst before the
High Court. By reason of the impugned judgment the High Court reversed
the decision of the Sessions Judge and directed that the appellants be
remanded to custody.
10. Mr. Nikhil Goel, learned counsel appearing on behalf of the appellants
would contend that having regard to the provisions contained in Section
167(2) as well Section 309(2) of the Code the impugned judgment cannot be
sustained.
11. Ms. K. Enatoli Sema, learned counsel appearing on behalf of the
respondent-State, on the other hand, urged that keeping in view the special
facts and circumstances of this case, the order of the High Court should not
be interfered with.
12. The short question which arises for consideration is whether in the
facts and circumstances of the case the High Court was correct in directing
custodial remand of the appellants.
13. The High Court in support of its order opined :
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a) Having regard to the constitution of the Special Investigating
Team, further investigation is required to be made and Section
167(2) of the Code gives ample power for further investigation.
b) Further investigation is required to be made in the facts and
circumstances of the case as earlier investigation was carried
out in a most perfunctory manner.
c) Since new sections are added, further enquiry/investigation
would be required to be conducted in the matter and the
investigating agency cannot be denied such a right and to have
the custody of the appellants. For the said purpose, the fact that
the appellants had been granted bail would be of no relevance.
d) Section 167 (2) and not the proviso appended to Section 309 (2)
of the Code would be applicable in a case of this nature.
e) As the Special Investigating Team has the power to
reinvestigate, it is not necessary to seek for cancellation of bail.
f) The committal order having been passed, the Sessions Judge
should have exercised its jurisdiction under Section 397 of the
Code.
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14. By an order dated 22 September, 2008 this Court directed as under :-
“ Application for exempting from filing O.T.
is allowed.
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Issue notice.
Till further orders, further investigation by
Special Investigation Team may proceed.
However, the petitioner may be summoned by the
Special Investigation Team appointed by this
Court on the days fixed by it without taking the
petitioners into custody and their interrogation
shall be done only during day time. One or more
members of the Special Investigation Team only
would interrogate the petitioners and nobody else.”
15. It is stated at the Bar that pursuant to the said order appellants had
appeared before the concerned Sessions Judge as also the Special
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Investigating Team. They had visited Police Station, Prantij on 13
September, 2008 and submitted a written representation expressing their
willingness to cooperate with the further investigation by the Special
Investigating Team but they were not examined. Their presence, however,
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was required on 14 September, 2008 wherefor a letter dated 12
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September, 2008 was sent by fax on 13 September, 2008. Appellants
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appeared before the Sessions Judge and the on 14 September, 2008 and the
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matter was adjourned to 22 September, 2008. They visited the police
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station also on 14 and 15 September, 2008.
16. This Court while passing the order in exercise of its jurisdiction under
Article 32 of Constitution of India did not direct re-investigation. This court
exercised its jurisdiction which was within the realm of the Code.
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Indisputably the investigating agency in terms of sub-section (8) of Section
173 of the Code can pray before the Court and may be granted permission to
investigate into the matter further. There are, however, certain situations,
where such a formal request may not be insisted upon.
17. It is, however, beyond any cavil that ‘further investigation’ and ‘re-
investigation’ stand on different footing. It may be that in a given situation a
superior court in exercise of its constitutional power, namely under Articles
226 and 32 of the Constitution of India could direct a ‘State’ to get an
offence investigated and/or further investigated by a different agency.
Direction of a re-investigation, however, being forbidden in law, no superior
could would ordinarily issue such a direction.
Pasayat, J. in Ramachandran v. R. Udhayakumar, [(2008) 5 SCC 413],
opined as under :-
“7. At this juncture it would be necessary to take
note of Section 173 of the Code. From a plain
reading of the above section it is evident that even
after completion of investigation under sub-section
(2) of Section 173 of the Code, the police has right
to further investigate under sub-section (8), but not
fresh investigation or reinvestigation…”
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18. A distinction, therefore, exists between a re-investigation and further
investigation.
19. If the investigating authority, in terms of the provisions of the Code,
could not ask for re-investigation, we would have to proceed on the basis
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that this Court in its order dated 26 March, 2008 only directed further
investigation.
20. We may notice that this aspect of the matter has also been considered
by this Court in Nirmal Singh Kahlon v. State of Punjab, [ (2009) 1 SCC
441 ], wherein it has been opined :-
“63. The High Court in this case was not
monitoring any investigation. It only desired that
the investigation should be carried out by an
independent agency. Its anxiety, as is evident from
the order dated 3-4-2002, was to see that the
officers of the State do not get away. If that be so,
the submission of Mr. Rao that the monitoring of
an investigation comes to an end and after the
charge-sheet is filed, as has been held by this Court
in Vineet Narain and M.C. Mehta (Taj Corridor
Scam) v. Union of India, loses all significance.”
21. The investigating agency and/or a court exercise their jurisdiction
conferred on them only in terms of the provisions of the Code. The courts
subordinate to the High Court even do not have any inherent power under
Section 482 of the Code of Criminal Procedure or otherwise. The pre-
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cognizance jurisdiction to remand vested in the subordinate courts, therefore,
must be exercised within the four-corners of the Code. The power to
remand, indisputably, is vested in a Magistrate in terms of sub-section (2) of
Section 167 of the Code which reads as under :-
“167. Procedure when investigation cannot be
completed in twenty-four hours.
(1) …. ….
(2) The Magistrate to whom all accused person is
forwarded under this section may, whether he has
or not jurisdiction to try the case, from time to
time, authorise the detention of the accused in such
custody as such Magistrate thinks fit, 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 authorize 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,
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And, on the expiry of the said period of ninety
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 to
released under the provisions of Chapter XXXIII
for the purposes of that Chapter;
(b) No Magistrate shall authorize 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
authorize 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 paragraph (a), the accused
shall be detained in Custody so long as he does not
furnish bail.
Explanation II. If any question arises whether an
accused person was produced before the
Magistrate as required under paragraph (b), the
production of the accused person may be proved
by his signature on the order authorizing
detention.”
22. The power of remand in terms of the aforementioned provision is to
be exercised when investigation is not complete. Once charge-sheet is filed
and cognizance of the offence is taken, the court cannot exercise its power
under sub-section (2) of Section 167 of the Code. Its power of remand can
then be exercised in terms of sub-section (2) of Section 309 which reads as
under :-
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“ 309. Power to postpone or adjourn proceedings.
(1) …. ….
(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 on such
terms as it thinks fit, for such time as it considers
reasonable, and may by a warrant remand the
accused if in custody:
Provided that no Magistrate shall remand an
accused person to custody under this section for a
term exceeding fifteen days at a time:
Provided further that when witnesses are in
attendance no adjournment or postponement shall
be granted, without examining them, except for,
special reasons to be recorded in writing:
Provided also that no adjournment shall be granted
for the purpose only of enabling the accused
person to show cause against the sentence
proposed to be imposed on him.
Explanation-1. If sufficient evidence has been
obtained to raise a suspicion that the accused may
have committed an offence, and it appears likely
that further evidence may be obtained by a
remand, this is a reasonable cause for a remand.
Explanation 2. The terms on which an adjournment
or postponement may be granted include, in
appropriate cases, the payment of costs by the
prosecution or the accused.”
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23. Appellants had been granted bail. They are not in custody of the
court. They could not be taken in custody ordinarily unless their bail was
not cancelled. The High Court, in our opinion, was not correct in holding
that as further investigation was required, sub-section (2) of Section 167 of
the Code gives ample power for grant of police remand.
24. The distinction between the power of remand in terms of sub-section
(2) of Section 167 and sub-section (2) of Section 309 of the Code is
apparent.
25. We may notice a few precedents in this behalf :-
In Raghubir Singh and others v. State of Bihar, [(1986) 4 SCC 481],
this Court held :-
“22. The result of our discussion and the case-law
is this: An order for release on bail made under the
proviso to Section 167(2) is not defeated by lapse
of time, the filing of the charge-sheet or by remand
to custody under Section 309(2). The order for
release on bail may however be cancelled under
Section 437(5) or Section 439(2). Generally the
grounds for cancellation of bail, broadly, are,
interference or attempt to interfere with the due
course of administration of justice, or evasion or
attempt to evade the course of justice, or abuse of
the liberty granted to him. The due administration
of justice may be interfered with by intimidating or
suborning witnesses, by interfering with
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investigation, by creating or causing disappearance
of evidence etc. The course of justice may be
evaded or attempted to be evaded by leaving the
country or going underground or otherwise placing
himself beyond the reach of the sureties. He may
abuse the liberty granted to him by indulging in
similar or other unlawful acts. Where bail has been
granted under the proviso to Section 167(2) for the
default of the prosecution in not completing the
investigation in 60 days, after the defect is cured
by the filing of a charge-sheet, the prosecution
may seek to have the bail cancelled on the ground
that there are reasonable grounds to believe that
the accused has committed a non-bailable offence
and that it is necessary to arrest him and commit
him to custody. In the last mentioned case, one
would expect very strong grounds indeed.”
Yet again in CBI v. Anupam J. Kulkarni, [ (1992) 3 SCC 141], K.
Jayachandra Reddy, J. speaking for the Bench held as under :-
“We may, however, like to make it explicit that
such re-arrest or second arrest and seeking police
custody after the expiry of the period of first
fifteen days should be with regard to the
investigation of a different case other than the
specific one in respect of which the accused is
already in custody. A literal construction of
Section 167(2) to the effect that a fresh remand for
police custody of a person already in judicial
custody during investigation of a specific case
cannot under any circumstances be issued, would
seriously hamper the very investigation of the
other case the importance of which needs no
special emphasis. The procedural law is meant to
further the ends of justice and not to frustrate the
same. It is an accepted rule that an interpretation
which furthers the ends of justice should be
preferred. It is true that the police custody is not
the be-all and end-all of the whole investigation
but yet it is one of its primary requisites
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particularly in the investigation of serious and
heinous crimes. The legislature also noticed this
and permitted limited police custody. The period
of first fifteen days should naturally apply in
respect of the investigation of that specific case for
which the accused is held in custody. But such
custody cannot further held to be a bar for
invoking a fresh remand to such custody like
police custody in respect of an altogether different
case involving the same accused.
[Emphasis
supplied]
We may also notice that in State v. Dawood Ibrahim Kaskar, [AIR
1997 SC 2494 ], a Three Judge Bench held as under :-
“ The manner in which a person arrested during
investigation has to be dealt with by the
Investigating Agency, and by the Magistrate on his
production before him, is provided in Section 167
of the Code. The said section contemplates that
when the investigation cannot be completed within
24 hours fixed by Section 57 and there are grounds
to believe that the charge levelled against the
person arrested is well founded it is obligatory on
the part of the Investigation Officer to produce the
accused before the nearest Magistrate. On such
production the Magistrate may authorise the
detention of the accused initially for a term not
exceeding 15 days either in police custody, or in
judicial custody. On expiry of the said period of 15
days the Magistrate may also authorise his further
detention otherwise than in police custody if he is
satisfied that adequate grounds exist for such
detention.”
This Court in Dinesh Dalmia v. CBI, [ (2007) 8 SCC 770 ], opined:-
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“38 . It is a well-settled principle of interpretation
of statute that it is to be read in its entirety.
Construction of a statute should be made in a
manner so as to give effect to all the provisions
thereof. Remand of an accused is contemplated by
Parliament at two stages; pre-cognizance and post-
cognizance. Even in the same case, depending
upon the nature of charge-sheet filed by the
investigating officer in terms of Section 173 of the
Code, a cognizance may be taken as against the
person against whom an offence is said to have
been made out and against whom no such offence
has been made out even when investigation is
pending. So long a charge-sheet is not filed within
the meaning of sub-section (2) of Section 173 of
the Code, investigation remains pending. It,
however, does not preclude an investigating
officer, as noticed hereinbefore, to carry on further
investigation despite filing of a police report, in
terms of sub-section (8) of Section 173 of the
Code.”
In Rama Chaudhary v. State of Bihar, [2009 (5) SCC 366], it was
held:
“9. The above said provision also makes it clear
that further investigation is permissible, however,
reinvestigation is prohibited. The law does not
mandate taking of prior permission from the
Magistrate for further investigation. Carrying out a
further investigation even after filing of the
charge-sheet is a statutory right of the police.
Reinvestigation without prior permission is
prohibited. On the other hand, further investigation
is permissible.
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10. From a plain reading of Sub-section (2) and
Sub-section (8) of Section 173, it is evident that
even after submission of police report under Sub-
section (2) on completion of investigation, the
police has a right to "further" investigation under
Sub-section (8) of Section 173 but not "fresh
investigation" or "reinvestigation". The meaning of
"Further" is additional; more; or supplemental.
"Further" investigation, therefore, is the
continuation of the earlier investigation and not a
fresh investigation or reinvestigation to be started
ab initio wiping out the earlier investigation
altogether. Sub-section (8) of Section 173 clearly
envisages that on completion of further
investigation, the investigating agency has to
forward to the Magistrate a "further" report and not
fresh report regarding the "further" evidence
obtained during such investigation.
26. Furthermore in this case the Special Investigating Team has already
submitted its report to this Court. Nothing has been pointed out before us as
to why even the bail granted to the appellants should be cancelled so as to
enable us to consider that question independently.
27. No sufficient or cogent material has been placed on record by the
State or the Special Investigating Team in this behalf.
28. For the reasons aforementioned the impugned judgment cannot be
sustained which is set aside accordingly. The appeal is allowed.
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29. We, however, in the peculiar facts and circumstances of this case, in
exercise of our jurisdiction under Article 142 of the Constitution of India,
make the interim direction absolute subject to any other or further orders that
may be passed by the Sessions Judge till an additional charge sheet, if any, is
filed by the Special Investigating Agency before the learned Sessions Judge.
……..………..……………..J.
[ S.B. Sinha ]
……………………………..J.
[(Dr.) Mukundakam Sharma]
New Delhi
May 06, 2009
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