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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

WITH

CRIMINAL APPEAL NO.1082 OF 2015 (Arising out of S.L.P. (Crl.) No. 3612 of 2015)

Central Bureau of Investigation … Appellant

Versus

Chandi Karan … Respondent

WITH

CRIMINAL APPEAL NO.1083 OF 2015 (Arising out of S.L.P. (Crl.) No. 4241 of 2015)

Central Bureau of Investigation … Appellant

Versus

Anuj Pandey … Respondent

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J U D G M E N T

Prafulla C. Pant, J.

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

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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 further

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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, Niranjan

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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 Chandi

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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.

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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;

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(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).”

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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 438

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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.”

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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 770

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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

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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.