Sunday, 24 January 2016

Whether police remand can be sought U/S167(2) CrPC in respect of an accused who is arrested at the stage of further investigation?

In view of the above facts, in the present case, in our
opinion, the High Court is not justified on the basis of Dinesh
Dalmia (supra) in upholding refusal of remand in police
custody by the Magistrate, on the ground that accused stood
in custody after his arrest under Section 309 CrPC. We have
already noted above the principle of law laid down by the three
judge bench of this Court in State v. Dawood Ibrahim
Kaskar (supra) that police remand can be sought under
Section 167(2) CrPC in respect of an accused arrested at the
stage of further investigation, if the interrogation is needed by
the investigating agency. This Court has further clarified in
said case that expression ‘accused if in custody’ in Section
309(2) CrPC does not include the accused who is arrested on
further investigation before supplementary charge sheet is
filed.For the reasons, as discussed above, we find that the
refusal of police remand in the present case is against the
settled principle of law laid down by this Court.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1081 OF 2015
(Arising out of S.L.P. (Crl.) No. 3611 of 2015)
Central Bureau of Investigation … Appellant
Versus
Rathin Dandapat and others … Respondents
Citation; 2015 (4) Crimes 347 SC

A common question of law is involved in these three
appeals as to whether no remand in police custody can be
given to the investigating agency in respect of the absconding
accused who is arrested only after filing of the charge sheet.
2. We have heard learned counsel for the parties and
perused the papers on record.
3. The instant case from which these appeals have arisen,
relates to killing of nine persons and injuring large number of
villagers of Village Netai of District Paschim Medinipore in
West Bengal. It is alleged that the respondents in the present
appeals and other accused, on 07.01.2011, after forming an
unlawful assembly in the rooftop of respondent No. 1, Rathin
Dandapat, committed the crime. First Information Report was
lodged on the same day at Police Station Lalgarh in respect of
offences punishable under Sections 148, 149, 326, 307, 302 of
Indian Penal Code (IPC), and also in respect of offences
punishable under Section 25/27 of Arms Act. The
investigation of the case was initially done by regular police,
but later transferred to Criminal Investigation Department
(CID) of the State. Vide order dated 18.2.2011, passed by the
High Court of Judicature at Calcutta in Writ Petition Nos.
1170(W) of 2011, 1172(W) of 2011 and 1181(W) of 2011, the
investigation was transferred to Central Bureau of
Investigation (for short “the CBI”), the appellant before us.
4. During investigation accused, namely Abhani Bhusan
Singha, Subhendu Mondal, Aswani Chalak, Nabagopal Sanki,
Pintu Roy, Gandib Ban Roy, Lob Duley, Banamali Duley,
Niranjan Kotal, Rupchand Ahir, Raju Roy and Swapan Roy
were arrested. On completion of investigation, the CBI
submitted charge sheet dated 4.4.2011 against 21 accused,
including the arrested ones and the absconders. It was
mentioned in the charge sheet that further investigation of the
case was kept open for the purposes of collection of furtherPage 4
Page 4 of 13
evidence and the arrest of the absconders. It was also
mentioned that further collected evidence during investigation
would be forwarded by filing supplementary charge sheet.
5. The respondents, namely, Rathin Dandapat, Md.
Khaliluddin, Dalim Pandey, Joydeb Giri, Tapan Dey (all
respondents in Criminal Appeal arising out of S.L.P. (Crl.) No.
3611 of 2015), Chandi Karan (respondent in Criminal Appeal
arising out of S.L.P. (Crl.) No. 3612 of 2015), Anuj Pandey
(respondent in Criminal Appeal arising out of S.L.P. (Crl.) No.
4241 of 2011), and one Kanai Dey, were declared proclaimed
offenders. Meanwhile, the trial proceeded and, after providing
necessary copies to the accused, as required under Section
207 of the Code of Criminal Procedure, 1973 (for short
“CrPC”), the Additional Chief Judicial Magistrate, Jhargram,
on 9.8.2011, committed the case to the Court of Sessions,
Paschim Medinipore. The Court of Sessions on 10.12.2011
framed charge against accused Abhani Bhusan Singha,
Subhendu Mondal, Aswani Chalak, Nabagopal Sanki, Pintu
Roy, Gandib Ban Roy, Lob Duley, Banamali Duley, NiranjanPage 5
Page 5 of 13
Kotal, Rupchand Ahir, Raju Roy and Swapan Roy. The last
two accused, namely, Raju Roy and Swapan Roy were later
declared juveniles and their cases were sent to Juvenile
Justice Board, Paschim Medinipore. The present case, as
against said two juveniles, is said to be lying stayed vide order
dated 8.9.2014, passed by this Court in S.L.P. No. 5699 of
2014. In respect of other accused against whom charge was
framed, trial further proceeded and ten Prosecution Witnesses
were examined. However, their cross-examination was
deferred at the instance of arrested accused persons, other
than the juveniles.
6. Out of eight proclaimed offenders, five, namely, Rathin
Dandapat, Md. Khaliluddin, Dalim Pandey, Joydeb Giri and
Tapan Dey, were arrested on 29.4.2014, whereafter on
30.4.2014 the CBI sought their remand in police custody. The
Additional Chief Judicial Magistrate, Jhargram rejected the
prayer of the CBI, aggrieved by which said investigating agency
submitted Revisional Application (C.R.R. No. 1510 of 2014)
before the Calcutta High Court. Absconder-accused ChandiPage 6
Page 6 of 13
Karan was arrested on 9.5.2014 by CID of the State, which
informed the CBI about his arrest and meanwhile vacation
Magistrate remanded judicial custody of said accused up to
12.5.2014. The CBI on 12.5.2014 sought remand in police
custody in respect of Chandi Karan, but the same was also
rejected by the Additional Chief Judicial Magistrate, Jhargram,
against which Revisional Application (C.R.R. No. 1641 of 2014)
was filed before the High Court. As to the absconder-accused
Anuj Pandey too, CID, West Bengal, on 7.5.2014 informed the
CBI about his arrest from Chandrapura in Jharkhand, and he
was produced on 8.5.2014 before the Additional Chief Judicial
Magistrate, Jhargram where CBI sought remand in police
custody but the same was also refused. Aggrieved by said
order dated 8.5.2014, passed by the Additional Chief Judicial
Magistrate, Revisional Application (C.R.R. No. 1640 of 2014)
was filed before the High Court. All the three Criminal
Revisions were disposed of by the High Court by separate
orders of the same date, i.e., 15.10.2014, against which these
criminal appeals are filed through special leave.Page 7
Page 7 of 13
7. Before further discussion, we think it just and proper to
quote the relevant provisions of law.
8. Proviso to sub-section (2) of Section 167 CrPC, which
empowers a Magistrate to authorize detention of an accused in
the custody of police, reads as under: -
“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 authorize 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 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 so
released under the provisions of Chapter
XXXIII for the purposes of that Chapter;Page 8
Page 8 of 13
(b) No Magistrate shall authorize detention of the
accused in custody of the police under this
section unless the accused is produced before
him in person for the first time and
subsequently every time till the accused
remains in the custody of the police, but the
Magistrate may extend further detention in
judicial custody on production of the accused
either in person or through the medium of
electronic video linkage;
(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.”
9. Sub-section (8) of Section 173, under which investigating
agency has power to further investigate the matter in which
the report/charge sheet has already been filed, is reproduced
hereunder: -
“(8) Nothing in this section shall be deemed to
preclude further investigation in respect of an
offence after a report under sub-section (2) has been
forwarded to the Magistrate and, where upon such
investigation, the officer in charge of the police
station obtains further evidence, oral or
documentary, he shall forward to the Magistrate a
further report or reports regarding such evidence in
the form prescribed; and the provisions of
sub-sections (2) to (6) shall, as far as may be, apply
in relation to such report or reports as they apply in
relation to a report forwarded under sub-section
(2).”Page 9
Page 9 of 13
10. Relevant provision of sub-section (2) of Section 309 CrPC,
empowering remand of an accused, provides as under: -
“(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:
xxx xxx xxx
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.”
11. In State through CBI v. Dawood Ibrahim Kaskar and
others1
, a three judge bench of this Court has laid down the
law on the issue relating to grant of police custody of a person
arrested during further investigation. In paragraph 11 of said
case, this Court has held as follows: -
“11. There cannot be any manner of doubt that the
remand and the custody referred to in the first
proviso to the above sub-section are different from
detention in custody under Section 167. While
remand under the former relates to a stage after
cognizance and can only be to judicial custody,
1
(2000) 10 SCC 438Page 10
Page 10 of 13
detention under the latter relates to the stage of
investigation and can initially be either in police
custody or judicial custody. Since, however, even
after cognizance is taken of an offence the police
has a power to investigate into it further, which can
be exercised only in accordance with Chapter XII,
we see no reason whatsoever why the provisions of
Section 167 thereof would not apply to a person
who comes to be later arrested by the police in
course of such investigation. If Section 309(2) is to
be interpreted — as has been interpreted by the
Bombay High Court in Mohd. Ahmed Yasin Mansuri
v. State of Maharashtra [1994 Cri LJ 1854 (Bom)], —
to mean that after the Court takes cognizance of an
offence it cannot exercise its power of detention in
police custody under Section 167 of the Code, the
Investigating Agency would be deprived of an
opportunity to interrogate a person arrested during
further investigation, even if it can on production of
sufficient materials, convince the Court that his
detention in its (police) custody was essential for
that purpose. We are, therefore, of the opinion that
the words “accused if in custody” appearing in
Section 309(2) refer and relate to an accused who
was before the Court when cognizance was taken or
when enquiry or trial was being held in respect of
him and not to an accused who is subsequently
arrested in course of further investigation. So far as
the accused in the first category is concerned he
can be remanded to judicial custody only in view of
Section 309(2), but he who comes under the second
category will be governed by Section 167 so long as
further investigation continues. That necessarily
means that in respect of the latter the Court which
had taken cognizance of the offence may exercise its
power to detain him in police custody, subject to the
fulfilment of the requirements and the limitation of
Section 167.”
12. The case of Dinesh Dalmia v. CBI2
, which is relied upon
by the High Court, relates to granting of bail under Section
167(2) CrPC. In said case, the accused/absconder (Dinesh
Dalmia) after his arrest was produced before the Magistrate,
and on the request of CBI police custody was granted on
14.2.2006 till 24.2.2006, whereafter on another application
further police custody was granted till 8.3.2006. Said accused
was remanded to judicial custody, and the accused sought
statutory bail under sub-section (2) of Section 167 CrPC as no
charge sheet was filed against him by CBI within sixty days of
his arrest. The Magistrate rejected the application for
statutory bail on the ground that it was a case of further
investigation after filing of the charge sheet, and the remand of
the accused to judicial custody was under Section 309 CrPC,
after police remand came to an end, granted under Section
167(2) CrPC. The High Court upheld said order and this
Court also affirmed the view taken by the High Court.
13. In view of the above facts, in the present case, in our
opinion, the High Court is not justified on the basis of Dinesh
2
(2007) 8 SCC 770Page 12
Page 12 of 13
Dalmia (supra) in upholding refusal of remand in police
custody by the Magistrate, on the ground that accused stood
in custody after his arrest under Section 309 CrPC. We have
already noted above the principle of law laid down by the three
judge bench of this Court in State v. Dawood Ibrahim
Kaskar (supra) that police remand can be sought under
Section 167(2) CrPC in respect of an accused arrested at the
stage of further investigation, if the interrogation is needed by
the investigating agency. This Court has further clarified in
said case that expression ‘accused if in custody’ in Section
309(2) CrPC does not include the accused who is arrested on
further investigation before supplementary charge sheet is
filed.
14. For the reasons, as discussed above, we find that the
refusal of police remand in the present case is against the
settled principle of law laid down by this Court. Therefore, the
impugned orders passed by the High Court, affirming the
orders of the Additional Chief Judicial Magistrate, Jhargram,
are liable to be set aside. Accordingly, the impugned orders
passed by the High Court and the orders passed by the
Magistrate, declining the police remand, are set aside. The
Magistrate is directed to pass fresh orders on the applications
made by the appellant before it relating to granting of police
remand of the respondents in accordance with law.
15. All the three appeals stand allowed.
………………………………J.
[Dipak Misra]
 ………………………………J.
[Prafulla C. Pant]
New Delhi;
August 21, 2015.
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