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REPORTABLE   

IN THE SUPREME COURT OF INDIA  

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NOS. 816-817 OF 2019  

(arising out of SLP(CRL.) Nos.10051-10052 of 2018)  

PRADEEP RAM           .... APPELLANT(S)  

VERSUS  

THE STATE OF JHARKHAND & ANR.      .... RESPONDENT(S)  

J U D G M E N T  

ASHOK BHUSHAN, J.  

These appeals have been filed against the judgment  

dated 26.09.2018 of High Court of Jharkhand dismissing  

the Writ Petition (Crl.) No. 277 of 2018 and Crl. Misc.  

Petition No. 1114 of 2016 under Section 482 Cr.P.C.  

filed by the appellant.    

2. Brief facts of the case and sequence of events  

are:-  

2.1 On 11.01.2016, a First Information Report No.  

02/2016, Police Station Tandwa was lodged for

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offences under Sections 414, 384, 386, 387,  

120-B I.P.C. read with Sections 25(1-B)(a),  

26, 35 of the Arms Act and Section 17(1) and  

(2) of the Criminal Law Amendment Act.  Apart  

from petitioner, there were 11 other named  

accused.  The allegations made against the  

accused were that applicant by showing fear  

of extremist of TPC Group recovered levy from  

the contractors, transporters and coal  

businessman.  It was also alleged that on  

information received from a co-accused, a  

search was also conducted in the house of the  

appellant, during which search, an amount of  

Rs.57,57,510/- was recovered from the bag kept  

in the room of the appellant alongwith four  

mobiles.  No satisfactory explanation was  

given by the appellant.  

2.2 By order dated 10.03.2016, the appellant was  

granted regular bail by the High Court after  

he was taken into custody.  On 10.03.2016, a  

charge sheet was submitted under Sections 414,

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384, 386, 387, 120-B I.P.C. read with Sections  

25(1-B)(a), 26, 35 of the Arms Act and  

Sections 17(1) and (2) of the Criminal Law  

Amendment Act.  Chief Judicial Magistrate,  

Chatra took cognizance of the offences under  

Sections 414, 384, 386, 387, 120-B I.P.C. read  

with Sections 25(1-B)(a), 26, 35 of the Arms  

Act and Section 17(1) and (2) of the Criminal  

Law Amendment Act on 11.03.2016.  A Crl.M.P.  

No. 1114 of 2016 was filed by the appellant  

on 10.05.2016 in the High Court under Section  

482 Cr.P.C. praying for quashing the entire  

criminal proceeding including the order  

taking cognizance dated 11.03.2016.  On  

19.09.2016, the Chief Judicial Magistrate  

framed charges against the appellant under  

Sections 414, 384, 386, 387, 120-B I.P.C.   

Charges were also framed under                     

Sections 25(1-B)(a), 26, 35 of the Arms Act  

as well as under Section 17(1) and (2) of the  

Criminal Law Amendment Act.  The High Court  

passed an interim order on 15.12.2016 staying

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the further proceedings in Tandwa P.S. Case  

No.2/2016.    

2.3 On the prayer made by the Investigating  

Officer on 09.04.2017, offences under  

Sections 16, 17, 20 and 23 of the Unlawful  

Activities (Prevention) Act, 1967 were added  

against the accused.  Central Government  

issued an order dated 13.02.2018 in exercise  

of power conferred under sub-section 5 of  

Section 6 read with Section 8 of the National  

Investigation Agency Act, 2008 suo-moto  

directing the National Investigation Agency  

to take up investigation of case F.I.R.  

No.02/2016, in which Sections 16, 17, 20 and  

23 of the Unlawful Activities (Prevention)  

Act, 1967 were added, which were scheduled  

offences. In pursuance of the order of the  

Central Government dated 13.02.2018, National  

Investigation Agency re-registered the First  

Information Report as FIR No.RC-

06/2018/NIA/DLI dated 16.02.2018 under the

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above noted sections.  The appellant being  

under custody in some other case, request was  

made on behalf of the National Investigating  

Agency before the Special Judge, NIA, Ranchi  

on 22.06.2018 praying for issuance of  

production warrant.  The Special Judge allowed  

the prayer.  Consequently, the appellant was  

produced from Chatra Jail on 25.06.2018 and  

was remanded to judicial custody by order of  

Special Judge dated 25.06.2018.    

2.4 A Writ Petition (Crl.) No.277 of 2018 was  

filed by the appellant praying for quashing  

the entire criminal proceedings in connection  

with Special NIA Case No.03 of 2018 including  

the First Information Report being No.RC-

06/2018/NIA/DLI.  A further prayer was also  

made for quashing the order dated 25.06.2018  

remanding the appellant to the judicial  

custody by order of the Judicial Commissioner-

cum-Special Judge, NIA, Ranchi.  The High  

Court by the impugned judgment dated

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26.09.2018 dismissed both, the Writ Petition  

(Crl.) No.277 of 2018 as well as Crl.M.P.  

No.1114 of 2016, aggrieved against which  

judgment, these appeals have been filed by the  

appellant.            

3. We have heard Shri Abhinav Mukherji, learned  

counsel appearing for the appellant and Shri Aman  

Lekhi, learned Additional Solicitor General for the  

Union of India.  We have also heard learned counsel  

appearing for the State of Jharkhand.  

4. Learned counsel for the appellant submits that  

investigation against the appellant in P.S. Case No.02  

of 2016 having been completed and charge sheet having  

been submitted by the investigating agency on  

10.03.2016, NIA could not have registered second  

F.I.R. on 16.02.2018 being FIR No.RC-06/2018/NIA/DLI.   

It is submitted that the Special Judge committed error  

in passing the order dated 25.06.2018 remanding the  

appellant to judicial custody under Section 167  

Cr.P.C.  When cognizance has already been taken on

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11.03.2016, order could have only been passed under  

Section 309 Cr.P.C.  It is submitted that by re-

registration of the F.I.R., NIA cannot carry on any  

re-investigation into the offence incorporated in the  

F.I.R. dated 10.03.2016.  It is further submitted that  

appellant having been already granted bail on  

10.03.2016, he cannot be re-arrested by virtue of  

addition of new offences under Sections 16, 17, 20 and  

23 of the Unlawful Activities (Prevention) Act, 1967.   

The only course open for the NIA was to file an  

application for cancellation of the bail dated  

10.03.2016.  It was only after cancellation of the  

bail that appellant could have been re-arrested or  

taken into judicial custody.    

5. Learned ASG refuting the submissions of the  

counsel for the appellant contends that present is not  

a case of registration of any second F.I.R.  It is  

submitted that NIA has only re-registered the F.I.R.  

as per the provisions of National Investigation Agency  

Act, 2008.  The re-registration of the F.I.R. by NIA  

cannot be said to be a second F.I.R.  It is further

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submitted that the mere fact that charge sheet has  

been submitted in P.S. Case No.02 of 2016 and  

cognizance has been taken by the Chief Judicial  

Magistrate shall not preclude the NIA from carrying  

out further investigation and submit a supplementary  

report.  It is submitted that by virtue of Section  

173(8) of Cr.P.C., even when report under Section  

173(2) is submitted, the investigation agency can  

carry on further investigation and collect oral or  

documentary evidence and submit a supplementary  

report.  It is further submitted that as per the NIA  

Act, when scheduled offence is committed, the  

investigation is handed over to different  

investigation agency.  Present is a case where  

scheduled offences were committed and have already  

been added in P.S. Case No.02/2016 for which it is  

NIA, which has to carry on the investigation as per  

the order of the Central Government dated 13.02.2018.   

There is no lack of jurisdiction in the NIA to conduct  

further investigation and submit a supplementary  

report.  It is further submitted that NIA has concluded  

the investigation and already submitted a charge sheet

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on 21.12.2018. Whenever a scheduled offence is  

reported, the Central Government has a wide amplitude  

of power to direct the NIA to investigate into such  

offence and while taking over the investigation, the  

FIR is re-registered, as only the nomenclature  

changes.  It is further submitted that the bail granted  

to the appellant on 10.03.2016 in P.S. Case No. 02 of  

2016 cannot enure to the benefit of the appellant in  

reference to offences under Sections 16, 17, 20 and 23  

of the Unlawful Activities (Prevention) Act, 1967.  The  

appellant had to apply for grant of fresh bail in  

respect of newly added offences.  It is further  

submitted that the Special Judge has rightly remanded  

the appellant exercising power under Section 167  

Cr.P.C., during further investigation by NIA.  The  

mere fact that the cognizance was taken earlier by  

Chief Judicial Magistrate cannot preclude the Special  

Judge to exercise power under Section 167 Cr.P.C. for  

further investigation by NIA.        

6. Learned counsel for the parties in support of  

their respective submissions placed reliance on

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various judgments of this Court as well as judgments  

of High Courts, which shall be considered while  

considering the submissions in detail.      

7. From the submissions of the learned counsel for  

the parties and the pleadings on the record, following  

are the issues, which arise for consideration in these  

appeals:-  

(i) Whether in a case where an accused has been  

bailed out in a criminal case, in which  

case, subsequently new offences are added,  

is it necessary that bail earlier granted  

should be cancelled for taking the accused  

in custody?  

(ii) Whether re-registration of F.I.R. No.RC-

06/2018/NIA/DLI is a second F.I.R. and is  

not permissible there being already a FIR  

No. 02/2016 registered at P.S. Tandwa  

arising out of same incident?  

(iii) Whether N.I.A. could conduct any further  

investigation in the matter when  

investigation in the P.S. Case No.02/2016  

having already been completed and charge  

sheet has been submitted on 10.03.2016 with  

regard to which cognizance has already been

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taken by Chief Judicial Magistrate, Chatra  

on 11.03.2016?  

(iv) Whether the order dated 25.06.2018 passed  

by Judicial Commissioner-cum-Special Judge,  

NIA, Ranchi remanding the appellant to  

judicial custody is in accordance with law?  

(v) Whether the power under Section 167 Cr.P.C.  

can be exercised in the present case, where  

the cognizance has already been taken by  

Chief Judicial Magistrate on 11.03.2016 or  

the accused could have been remanded only  

under Section 309(2) Cr.P.C.?  

Issue No.1  

8. In the facts of the present case, appellant was  

granted bail on 10.03.2016 in F.I.R. No.02/2016 under  

Sections 414, 384, 386, 387, 120-B I.P.C. read with  

Sections 25(1-B)(a), 26, 35 of the Arms Act and Section  

17(1) and (2) of the Criminal Law Amendment Act.  In  

the present case, the appellant was not arrested by  

the investigation agency after addition of Sections  

16, 17, 20 and 23 of the Unlawful Activities  

(Prevention) Act, 1967, rather he was already in jail  

in connection with some other case and an application

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was filed in the Court of Special Judge by the  

prosecution praying for production warrant, which  

application having been allowed, the appellant was  

produced in the Court on 26.06.2018 and was remanded  

in judicial custody.   

9. The question, as to whether when an accused is  

bailed out in a criminal case, in which new offences  

have been added, whether for arresting the accused, it  

is necessary to get the bail cancelled, has arisen  

time and again, there are divergent views of different  

High Courts on the above question. On one side, the  

High Courts have taken the view that for arresting the  

accused, who is already on bail, in event of addition  

of new offences, the earlier bail need to be cancelled  

whereas the other line of opinion is that for new  

offences accused has to obtain a fresh bail order and  

the earlier bail order shall not enure to the benefit  

of the accused.   

10. Learned counsel for the parties have also relied  

on several judgments of different High Courts in regard

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to the circumstance when new cognizable and non-

bailable offences are added.  We may briefly refer to  

few of the decisions of the High Courts in the above  

regard. Patna High Court in Sita Ram Singh and Anr.  

Vs. State of Bihar, 2002 (2) BLJR 859 had considered  

the case where case was initially instituted under  

Section 307 I.P.C.  FIR was lodged on 24.08.2000 under  

Section 307 I.P.C. The accused was granted bail on  

01.09.2000.  Thereafter, due to death of the injured  

on 06.09.2000, Section 302 I.P.C. was added.  Informant  

had applied for cancellation of the bail.  The bail  

earlier granted was cancelled in view of subsequent  

development.  In the above context, Patna High Court  

relying on judgment of this Court in Prahlad Singh  

Bhati Vs. NCT, Delhi and Another, (2001) 4 SCC 280  

held that on a serious change in the nature of the  

offence, the accused becomes disentitled to the  

liberty granted to him in relation to a minor offence  

and in such circumstances, the correct approach of the  

Court concerned would be to apply its mind afresh as  

to whether the accused is entitled for grant of bail,  

in the changed circumstances.    

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11. Rajasthan High Court in Sukhpal Vs. State of  

Rajasthan, 1988 (1) RLW 283 has also made following  

observations in paragraph No.4:-  

“4.  I am, therefore, of the opinion that the  

legal position is beyond doubt that once an  

accused is ordered to be released on bail  

under any of the Section of Chapter XXXIII  

of the Cr.P.C. the police had no power to  

arrest him by merely adding another section  

which may be non-bailable. The police must  

seek an order from the Court for cancellation  

of bail granted to a person………………………….”  

12. Another judgment of Madras High Court in Dhivan  

Vs. State, (2010) 2 MWN (Cr.) also took the same view.   

In paragraph No.11, following was observed:-  

“11. In view of the above discussions, I have  

no hesitation to hold that simply because a  

penal provision is added in the case in  

respect of a serious non-bailable offence,  

the bail granted earlier shall not  

automatically stand cancelled and therefore,  

the police shall not have the power to re-

arrest the accused until the bail granted  

earlier is cancelled by way of a positive  

order by the appropriate court…………………………..”  

13. There are few decisions of Allahabad High Court  

also where the issue has been addressed.  One judgment  

of the High Court namely Bijendra and Ors. Vs. State  

of U.P. and Ors., (2006) CriLJ 2253 has also been  

referred to and relied in the impugned judgment.  In

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paragraph No.25, following observations have been made  

by Allahabad High Court:-  

“25.  After hearing the learned Counsels for  

the both sides at a great length and after  

analyzing Section 437 Cr. P. C. it transpires  

that Section 437 relates with bail in cases  

of non-bailable offence by the magistrate.  

So far as the first contention which the  

learned Counsel for the applicants advanced,  

that because the bail has been granted in the  

same crime number and therefore by mere  

change of section accused cannot be sent to  

jail is concerned it is to be noted that case  

crime number is nowhere mentioned in the  

aforesaid section, which is the number of  

police for identification of the case and is  

a procedural number of the police station.  

Crime number has no relation with bail under  

Cr. P. C. In this view of the matter the  

contention of learned Counsel for the  

applicant cannot be accepted and is therefore  

rejected.  

Coming to the second contention of the  

learned Counsel for the applicant that there  

is no bar for this Court to direct the  

Magistrate to accept fresh bail bonds for the  

newly added offence triable by Court of  

Session's it is noted that this direction  

will amount to asking the Magistrate to do  

something de-hors the law. The contention is  

devoid of merit. Section 437 Cr.P.C. relates  

to an offence, therefore, on addition of a  

new offence, the accused is required to  

appear before the court and seek bail. His  

bail cannot be considered unless and until  

he surrenders and is in custody in that  

offence. Any accused who is not in custody  

in an offence cannot be granted bail. Custody  

is sine qua non for consideration of bail  

prayer. Consequently when the accused is  

guilty of an added offence and is not on bail,

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he cannot be allowed to furnish bond without  

being in custody in that offence. For getting  

bail in newly added offences the accused has  

to surrendered in that offence………………………..”   

14. In another case of Allahabad High Court in Bankey  

Lal Sharma Vs. State of U.P. and Ors., (2008) CriLJ  

3779 rejecting the submission that the applicant  

should not be required to obtain fresh bail on addition  

of new offences, following was observed in paragraph  

No.14:-  

“14. At this stage, learned Counsel for the  

applicant submits that the applicant should  

not be required to obtain fresh bail under  

the newly added section. This relief cannot  

be granted in view of the decision of the  

Apex Court in Hamida v. Rashid alias Rasheed  

and Ors. (LVIII)2007 ACC 577, wherein it has  

been mentioned that without surrender prayer  

for bail in the newly added Section cannot  

be considered.”  

15. Learned counsel for the appellant has also relied  

on judgment of High Court of Jammu & Kashmir in CRMC  

No.270/2018 - Fayaz Ahmad Khan and Ors. Vs. State,  

decided on 03.10.2018, where Jammu and Kashmir High  

Court relying on judgment of this Court in Manoj Suresh  

Jadhav & Ors. (supra) took the view that simply because  

a penal provision is added in respect of a serious

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non-bailable offence, the bail granted earlier shall  

not automatically stand cancelled and therefore, the  

police shall not have the power to re-arrest the  

accused until the bail granted earlier is cancelled by  

way of a positive order by the appropriate court.   

16. We may also notice a pertinent observation made  

by this Court in Prahlad Singh Bhati (supra).  In the  

above case, a case was registered under Sections 306  

and 498-A I.P.C.  Application for anticipatory bail  

was dismissed, however, while dismissing the  

application, the Additional Sessions Judge had  

observed that if on facts a case under Section 302 is  

made out against the accused, State shall be at liberty  

to arrest the accused. After investigation, charge  

sheet was filed under Sections 302, 406 and 498-A. The  

accused was directed to appear before the Magistrate  

since he did not appear, non-bailable warrants were  

issued.  The accused had filed an application under  

Section 482 Cr.P.C. in the High Court.  Subsequently,  

the accused appeared before the Magistrate, he was  

admitted on bail even in a case under Section 302 IPC.

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The revision petition was dismissed by the High Court  

against the order releasing the accused on bail.  The  

complainant had approached this Court.  In paragraph  

Nos. 4 and 9, following observations have been made by  

this Court:-  

“4. From the facts, as narrated in the  

appeal, it appears that even for an offence  

punishable under Section 302 IPC, the  

respondent-accused was never arrested and he  

manipulated the prevention of his arrest  

firstly, by obtaining an order in terms of  

Section 438 of the Code and subsequently by  

a regular bail under Section 437 of the Code  

from a Magistrate.  

9. ……………………..With the change of the nature  

of the offence, the accused becomes  

disentitled to the liberty granted to him in  

relation to a minor offence, if the offence  

is altered for an aggravated crime……………………..”  

17. This Court in Hamida Vs. Rashid alias Rasheed and  

Others, (2008) 1 SCC 474 held that an accused after  

addition of serious non-cognizable offence is required  

to surrender and apply for bail for newly added  

offences.  It is, thus, clear that the bail granted to  

an accused earlier to addition of new non-bailable  

offence shall not enure to the benefit of the accused  

insofar as newly added offences are concerned and he

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is required to surrender and obtain a bail with regard  

to newly added offences to save him from arrest.   

18. Whether after addition of new non-bailable  

offence, police authority can straightaway arrest the  

accused, who is already granted bail by the Court, in  

reference to offences prior to addition of new offences  

or the police is to necessarily obtain an order from  

the Court either of cancellation of the bail or  

permission to arrest the accused in changed  

circumstances are questions where different views have  

been expressed by different High Courts.  In the  

present case, the appellant was not arrested by the  

police after addition of offences under the Unlawful  

Activities (Prevention) Act, 1967, rather the police  

authorities had made an application before the Court  

for issue of production warrant since the accused was  

already in custody in jail in reference to another  

case.    

19. We may refer to the relevant provisions of the  

Cr.P.C. regarding grant of bail.  Chapter XXXIII of

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the Code of Criminal Procedure, Sections 436 to 439  

deals with bail.  Section 437 deals with the provision  

when bails can be taken in case of non-bailable  

offence.  Section 437(5), which is relevant for the  

present controversy is as follows:-  

“(5) Any Court which has released a person  

on bail under sub- section (1) or sub-  

section (2), may, if it considers it  

necessary so to do, direct that such person  

be arrested and commit him to custody.”  

20. Section 439 deals with special powers of High  

Court or Court of Session regarding bail.  Section  

439(2) is to the following effect:-  

“(2) A High Court or Court of Session may  

direct that any person who has been released  

on bail under this Chapter be arrested and  

commit him to custody.”  

21. Both Sections 437(5) and 439(2) empowers the Court  

to arrest an accused and commit him to custody, who  

has been released on bail under Chapter XXXIII.  There  

may be numerous grounds for exercise of power under  

Sections 437(5) and 439(2).  The principles and grounds  

for cancelling a bail are well settled, but in the  

present case, we are concerned only with one aspect of  

the matter, i.e., a case where after accused has been

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granted the bail, new and serious offences are added  

in the case.  A person against whom serious offences  

have been added, who is already on bail can very well  

be directed to be arrested and committed to custody by  

the Court in exercise of power under Sections 437(5)  

and 439(2).  Cancelling the bail granted to an accused  

and directing him to arrest and taken into custody can  

be one course of the action, which can be adopted while  

exercising power under Sections 437(5) and 439(2), but  

there may be cases where without cancelling the bail  

granted to an accused, on relevant consideration,  

Court can direct the accused to be arrested and  

committed to custody.  The addition of serious offences  

is one of such circumstances, under which the Court  

can direct the accused to be arrested and committed to  

custody despite the bail having been granted with  

regard to the offences with which he was charged at  

the time when bail was considered and granted.   

22. One of the judgments, which needs to be noticed  

in the above reference is Hamida Vs. Rashid alias  

Rasheed and Others (supra).  In the above case, the

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accused was granted bail for offences under Sections  

324, 352 and 506 IPC.  The victim succumbed to his  

injuries in the night intervening 16.06.2005 and  

17.06.2005.  The offence thereafter was converted into  

Section 304 IPC.  An application was filed in the High  

Court by the accused to permit them to remain on same  

bail even after conversion of the offence into one  

under Section 304 IPC, which was allowed by the High  

Court. The complainant filed an appeal by special leave  

in this Court against the judgment of the Allahabad  

High Court.  This Court allowed the appeal and set  

aside the order of the High Court and directed the  

accused to be taken into custody with liberty to apply  

for bail for the offences for which he was charged  

before proper Court in accordance with law.  This Court  

further held that accused could apply for bail afresh  

after the offence had been converted into one under  

Section 304 IPC.  This Court laid down following in  

paragraph Nos. 10, 11 and 12:-       

“10. In the case in hand, the respondents-

accused could apply for bail afresh after the  

offence had been converted into one under  

Section 304 IPC. They deliberately did not do  

so and filed a petition under Section 482

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CrPC in order to circumvent the procedure  

whereunder they would have been required to  

surrender as the bail application could be  

entertained and heard only if the accused  

were in custody. It is important to note that  

no order adverse to the respondents-accused  

had been passed by any court nor was there  

any miscarriage of justice or any illegality.  

In such circumstances, the High Court  

committed manifest error of law in  

entertaining a petition under Section 482  

CrPC and issuing a direction to the  

subordinate court to accept the sureties and  

bail bonds for the offence under Section 304  

IPC. The effect of the order passed by the  

High Court is that the accused after getting  

bail in an offence under Sections 324, 352  

and 506 IPC on the very day on which they  

were taken into custody, got an order of bail  

in their favour even after the injured had  

succumbed to his injuries and the case had  

been converted into one under Section 304 IPC  

without any court examining the case on  

merits, as it stood after conversion of the  

offence. The procedure laid down for grant of  

bail under Section 439 CrPC, though available  

to the respondents-accused, having not been  

availed of, the exercise of power by the High  

Court under Section 482 CrPC is clearly  

illegal and the impugned order passed by it  

has to be set aside.  

11. Learned counsel for the appellant has  

submitted that charge under Section 302 IPC  

has been framed against the respondents-

accused by the trial court and some  

subsequent orders were passed by the High  

Court by which the accused were ordered to  

remain on bail for the offence under Section  

302 read with Section 34 IPC on furnishing  

fresh sureties and bail bonds only on the  

ground that they were on bail in the offence  

under Section 304 IPC. These orders also

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deserve to be set aside on the same ground.  

12. In the result, the appeal is allowed. The  

impugned order dated 1-7-2005 passed by the  

High Court and all other subsequent orders  

whereby the respondents-accused were  

directed to remain on bail for the offence  

under Section 302 read with Section 34 IPC on  

furnishing fresh sureties and bail bonds are  

set aside. The respondents-accused shall be  

taken into custody forthwith. It is, however,  

made clear that it will be open to the  

accused-respondents to apply for bail for the  

offences for which they are charged before  

the appropriate court and in accordance with  

law.”  

23. We may notice one more judgment of this Court  

reported in Mithabhai Pashabhai Patel and others vs.  

State of Gujarat, (2009) 6 SCC 332. Two Judge Bench of  

this Court in paragraph 18 laid down following:  

“18. The 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 (sic) 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. What this Court said in the above case is that  

accused who have been granted bail and are not in  

custody could not be taken in custody ordinarily unless

25  

their bail was not cancelled. Can from the above  

observation it can be held that unless the bail earlier  

granted is cancelled the Court has no power to direct  

the accused to be taken into custody.   

25. We may have again to look into provisions of  

Sections 437(5) and 439(2) of Cr.P.C. Sub-section (5)  

of Section 437 of Cr.P.C uses expression ‘if it  

considers it necessary so to do, direct that such  

person be arrested and commit him to custody’.  

Similarly, sub-section (2) of Section 439 of Cr.P.C.  

provides: ‘may direct that any person who has been  

released on bail under this Chapter be arrested and  

commit him to custody’. A plain reading of the  

aforesaid provisions indicates that provision does not  

mandatorily provide that the Court before directing  

arrest of such accused who has already been granted  

bail must necessary cancel his earlier bail. A  

discretion has been given to the Court to pass such  

orders to direct for such person be arrested and commit  

him to the custody which direction may be with an order  

for cancellation of earlier bail or permission to

26  

arrest such accused due to addition of graver and non-

cognizable offences. Two Judge Bench judgment in  

Mithabhai Pashabhai Patel (supra) uses the word  

‘ordinarily’ in paragraph 18 of the judgment which  

cannot be read as that mandatorily bail earlier granted  

to the accused has to be cancelled before Investigating  

Officer to arrest him due to addition of graver and  

non-cognizable offences.   

26. Learned counsel for the appellant has relied on  

an order of this Court dated 07.05.2018 in SLP (Crl.)  

No.10179 of 2017 – Manoj Suresh Jadhav & Ors. Vs. The  

State of Maharashtra.  In the above case, the  

petitioners were granted bail for offence punishable  

under Section 509 read with Section 34 IPC.  During  

the course of investigation, the police added another  

offence under Section 376 IPC and re-arrested the  

accused.  The petitioners filed writ petition before  

the High Court, which was dismissed.  This Court in  

the above case while disposing the special leave  

petition observed as under:-  

27  

“………………  

We have heard learned counsel appearing  

for the parties and perused the record.   

It is not permissible for the respondent-

State to simply re-arrest the petitioners by  

ignoring order dated 02.06.2016 passed by the  

learned Additional Sessions Judge, Pune,  

which was in force at that time.   

We direct that the petitioners shall be  

released on bail on the same condition/s as  

imposed in the aforesaid order dated  

02.06.2016 by the learned Sessions Judge,  

Pune.   

Having regard to the provision of Section  

439(2) of the Code of Criminal Procedure, the  

respondent-State is at liberty to apply for  

cancellation of bail and seek the custody of  

the petitioners-accused.   

With the aforesaid directions, the  

special leave petition is disposed of."  

27. Relying on the above said order, learned counsel  

for the appellant submits that respondent State ought  

to get first the order dated 10.03.2016 granting bail  

to appellant cancelled before seeking custody of the  

appellant.  It may be true that by mere addition of an  

offence in a criminal case, in which accused is bailed  

out, investigating authorities itself may not proceed  

to arrest the accused and need to obtain an order from  

the Court, which has released the accused on the bail.  

28  

It is also open for the accused, who is already on  

bail and with regard to whom serious offences have  

been added to apply for bail in respect of new offences  

added and the Court after applying the mind may either  

refuse the bail or grant the bail with regard to new  

offences.  In a case, bail application of the accused  

for newly added offences is rejected, the accused can  

very well be arrested.  In all cases, where accused is  

bailed out under orders of the Court and new offences  

are added including offences of serious nature, it is  

not necessary that in all cases earlier bail should be  

cancelled by the Court before granting permission to  

arrest an accused on the basis of new offences.  The  

power under Sections 437(5) and 439(2) are wide powers  

granted to the court by the Legislature under which  

Court can permit an accused to be arrested and commit  

him to custody without even cancelling the bail with  

regard to earlier offences.  Sections 437(5) and 439(2)  

cannot be read into restricted manner that order for  

arresting the accused and commit him to custody can  

only be passed by the Court after cancelling the  

earlier bail.   

29  

28. Coming back to the present case, the appellant was  

already into jail custody with regard to another case  

and the investigating agency applied before Special  

Judge, NIA Court to grant production warrant to produce  

the accused before the Court.  The Special Judge having  

accepted the prayer of grant of production warrant,  

the accused was produced before the Court on 26.06.2018  

and remanded to custody.  Thus, in the present case,  

production of the accused was with the permission of  

the Court.  Thus, the present is not a case where  

investigating agency itself has taken into custody the  

appellant after addition of new offences rather  

accused was produced in the Court in pursuance of  

production warrant obtained from the Court by the  

investigating agency.  We, thus do not find any error  

in the procedure which was adopted by the Special  

Judge, NIA Court with regard to production of appellant  

before the Court. In the facts of the present case, it  

was not necessary for the Special Judge to pass an  

order cancelling the bail dated 10.03.2016 granted to  

the appellant before permitting the accused appellant  

to be produced before it or remanding him to the

30  

judicial custody.   

29. In view of the foregoing discussions, we arrive  

at following conclusions in respect of a circumstance  

where after grant of bail to an accused, further  

cognizable and non-bailable offences are added:-  

(i) The accused can surrender and apply for bail  

for newly added cognizable and non-bailable  

offences.  In event of refusal of bail, the  

accused can certainly be arrested.    

(ii) The investigating agency can seek order  

from the court under Section 437(5) or  

439(2) of Cr.P.C. for arrest of the accused  

and his custody.   

(iii) The Court, in exercise of power under  

Section 437(5) or 439(2) of Cr.P.C., can  

direct for taking into custody the accused  

who has already been granted bail after  

cancellation of his bail. The Court in  

exercise of power under Section 437(5) as  

well as Section 439(2) can direct the person  

who has already been granted bail to be  

arrested and commit him to custody on

31  

addition of graver and non-cognizable  

offences which may not be necessary always  

with order of cancelling of earlier bail.   

(iv) In a case where an accused has already been  

granted bail, the investigating authority  

on addition of an offence or offences may  

not proceed to arrest the accused, but for  

arresting the accused on such addition of  

offence or offences it need to obtain an  

order to arrest the accused from the Court  

which had granted the bail.   

30. The issue No.1 is answered accordingly.  

Issue Nos.2 and 3  

31. The Central Government in exercise of its power  

under sub-section 5 of Section 6 read with Section 8  

of the National Investigation Agency Act, 2008 passed  

following order:-  

“F. No. 11011/08/2018/NIA  

Government of India  

Ministry of Home Affairs  

CTCR Division  

North Block,   

New Delhi   

Dated, the 13th February, 2018  

32  

ORDER  

Whereas, the Central Government has  

received information regarding registration  

of a Case FIR No. 02/2016 dated 11.01.2016  

at Tandwa PS, District Chatra, Jharkhand u/s  

414, 384, 386, 387, 120B of the Indian Penal  

Code, sections 25(1-B)(a), 26, 35 of Arms Act  

and section 17(1)(2) of Criminal Law  

Amendment Act relating to incidents of  

extortion/levy collection/money laundering  

by the Maoist cadres in the LWE affected  

States like Jharkhand and Bihar.   

And whereas, sections 16,17,20,23 of the  

Unlawful Activities (Prevention) Act, 1967  

were added later during the course of  

investigation.  

And whereas, the Central Government  

having regard to the gravity of the said  

offence is of the opinion that the offence  

involved is a scheduled offence which is  

required to be investigated by the National  

Investigation Agency in accordance with the  

National Investigation Agency Act, 2008.   

Now, therefore, in exercise of the powers  

conferred under sub-section 5 of section 6  

read with section 8 of the National  

Investigation Agency Act, 2008, the Central  

Government hereby suo-motu directs the  

National Investigation Agency to take up  

investigation of the aforesaid case.   

Sd/- Illegible   

(Dharmender Kumar)   

Under Secretary to the Government of India”  

32. The NIA, which registered the FIR No.RC-

06/2018/NIA/DLI dated 16.02.2018, in pursuance of the

33  

order of the Central Government dated 13.02.2018, the  

submission which has been made by the learned counsel  

for the appellant is that the FIR dated 16.02.2018 is  

a second FIR, hence could not have been registered.   

It is submitted that with regard to one incident only  

one FIR can be registered and registration of second  

FIR is illegal.  Learned counsel for the appellant in  

support of his submission has placed reliance on  

judgments of this Court in T.T. Antony Vs. State of  

Kerala and Others, (2001) 6 SCC 181; Babubhai Vs. State  

of Gujarat and Others, (2010) 12 SCC 254; Chirra  

Shivraj Vs. State of Andhra Pradesh, (2010) 14 SCC 444  

and Amitbhai Anilchandra Shah Vs. Central Bureau of  

Investigation & Anr., (2013) 6 SCC 348.    

33. In T.T. Antony (supra) with regard to an  

occurrence which took place on 25.11.1994 – Crime No.  

353 of 1994 and Crime No. 354 of 1994 were registered  

at Kuthuparamba Police Station in District Kannur.  The  

State Government appointed the commission of inquiry  

under Commissions of Inquiry Act, 1952, which  

submitted a report on 27.05.1997.  The Government

34  

accepted the report of the Commission.  As a follow up  

action, the Additional Chief Secretary to the  

Government of Kerala wrote to the Director General of  

Police regarding acceptance of the report of the  

Commission by the Government and directed that legal  

action be taken against those responsible on the basis  

of the findings of the Commission.  The Director  

General of Police issued orders to the Inspector  

General of Police on 02.07.1997 to register a case  

immediately and have the same investigated by a senior  

officer.  On 04.07.1997 the Inspector General of Police  

noted that firing without jurisdiction by which people  

were killed amounted to murder and issued direction to  

the Station House Officer to register a case under the  

appropriate sections and forward the investigation  

copy of the FIR to the Deputy Inspector General of  

Police.  Subsequently, another case was registered as  

Crime No.268 of 1997, which was challenged by filing  

a writ petition before the Kerala High Court.  Learned  

Single Judge directed for re-investigation by CBI.  The  

Division Bench on appeal directed fresh investigation  

by the State police headed by one of the three senior

35  

officers instead of investigation by CBI.  Appeal was  

filed against the said judgment in this Court.  One of  

the questions, which was noted for consideration by  

this Court in para 15(i) is as follows:-  

“15. On these contentions, four points arise  

for determination:  

(i) whether registration of a fresh case,  Crime No. 268 of 1997, Kuthuparamba  

Police Station on the basis of the  

letter of the DGP dated 2-7-1997 which  

is in the nature of the second FIR  

under Section 154 CrPC, is valid and  

it can form the basis of a fresh  

investigation;  

xxxxxxxxxxx”  

34. This Court laid down that as per the scheme of  

Code of Criminal Procedure only the earliest or the  

first information report in regard to the commission  

of a cognizable offence satisfies the requirements of  

FIR and there can be no second F.I.R.  In paragraph  

No.20, following has been laid down:-  

“20. From the above discussion it follows  

that under the scheme of the provisions of  

Sections 154, 155, 156, 157, 162, 169, 170  

and 173 CrPC only the earliest or the first  

information in regard to the commission of a  

cognizable offence satisfies the  

requirements of Section 154 CrPC. Thus there  

can be no second FIR and consequently there

36  

can be no fresh investigation on receipt of  

every subsequent information in respect of  

the same cognizable offence or the same  

occurrence or incident giving rise to one or  

more cognizable offences. On receipt of  

information about a cognizable offence or an  

incident giving rise to a cognizable offence  

or offences and on entering the FIR in the  

station house diary, the officer in charge  

of a police station has to investigate not  

merely the cognizable offence reported in the  

FIR but also other connected offences found  

to have been committed in the course of the  

same transaction or the same occurrence and  

file one or more reports as provided in  

Section 173 CrPC.”  

35. The same principle has been reiterated in Babubhai  

Vs. State of Gujarat (supra) and Chirra Shivraj Vs.  

State of Andhra Pradesh (supra).  This Court in  

Amitbhai Anilchandra Shah Vs. Central Bureau of  

Investigation (supra) had again occasion to consider  

the legality of second FIR.  After reviewing the  

earlier decisions under the heading “legal aspects as  

to permissibility/impermissibility of second FIR”.   

This Court laid down following in paragraph Nos. 36  

and 37:-  

“36. Now, let us consider the legal aspects  

raised by the petitioner Amit Shah as well as  

CBI. The factual details which we have  

discussed in the earlier paragraphs show that  

right from the inception of entrustment of

37  

investigation to CBI by order dated 12-1-

20104 till filing of the charge-sheet dated  

4-9-2012, this Court has also treated the  

alleged fake encounter of Tulsiram Prajapati  

to be an outcome of one single conspiracy  

alleged to have been hatched in November 2005  

which ultimately culminated in 2006. In such  

circumstances, the filing of the second FIR  

and a fresh charge-sheet for the same is  

contrary to the provisions of the Code  

suggesting that the petitioner was not being  

investigated, prosecuted and tried “in  

accordance with law”.  

37. This Court has consistently laid down the  

law on the issue interpreting the Code, that  

a second FIR in respect of an offence or  

different offences committed in the course of  

the same transaction is not only  

impermissible but it violates Article 21 of  

the Constitution. In T.T. Antony3, this Court  

has categorically held that registration of  

second FIR (which is not a cross-case) is  

violative of Article 21 of the Constitution.  

The following conclusion in paras 19, 20 and  

27 of that judgment are relevant which read  

as under: (SCC pp. 196-97 & 200)  

“19. The scheme of CrPC is that an  

officer in charge of a police station  

has to commence investigation as  

provided in Section 156 or 157 CrPC on  

the basis of entry of the first  

information report, on coming to know  

of the commission of a cognizable  

offence. On completion of  

investigation and on the basis of the  

evidence collected, he has to form an  

opinion under Section 169 or 170 CrPC,  

as the case may be, and forward his  

report to the Magistrate concerned  

under Section 173(2) CrPC. However,  

even after filing such a report, if he

38  

comes into possession of further  

information or material, he need not  

register a fresh FIR; he is empowered  

to make further investigation,  

normally with the leave of the court,  

and where during further investigation  

he collects further evidence, oral or  

documentary, he is obliged to forward  

the same with one or more further  

reports; this is the import of sub-

section (8) of Section 173 CrPC.  

20. From the above discussion it  

follows that under the scheme of the  

provisions of Sections 154, 155, 156,  

157, 162, 169, 170 and 173 CrPC only  

the earliest or the first information  

in regard to the commission of a  

cognizable offence satisfies the  

requirements of Section 154 CrPC. Thus  

there can be no second FIR and  

consequently there can be no fresh  

investigation on receipt of every  

subsequent information in respect of  

the same cognizable offence or the  

same occurrence or incident giving  

rise to one or more cognizable  

offences. On receipt of information  

about a cognizable offence or an  

incident giving rise to a cognizable  

offence or offences and on entering  

the FIR in the station house diary,  

the officer in charge of a police  

station has to investigate not merely  

the cognizable offence reported in the  

FIR but also other connected offences  

found to have been committed in the  

course of the same transaction or the  

same occurrence and file one or more  

reports as provided in Section 173  

CrPC.  

* * *

39  

27. A just balance between the  

fundamental rights of the citizens  

under Articles 19 and 21 of the  

Constitution and the expansive power  

of the police to investigate a  

cognizable offence has to be struck by  

the court. There cannot be any  

controversy that sub-section (8) of  

Section 173 CrPC empowers the police  

to make further investigation, obtain  

further evidence (both oral and  

documentary) and forward a further  

report or reports to the Magistrate.  

In Narang case it was, however,  

observed that it would be appropriate  

to conduct further investigation with  

the permission of the court. However,  

the sweeping power of investigation  

does not warrant subjecting a citizen  

each time to fresh investigation by  

the police in respect of the same  

incident, giving rise to one or more  

cognizable offences, consequent upon  

filing of successive FIRs whether  

before or after filing the final  

report under Section 173(2) CrPC. It  

would clearly be beyond the purview of  

Sections 154 and 156 CrPC, nay, a case  

of abuse of the statutory power of  

investigation in a given case. In our  

view a case of fresh investigation  

based on the second or successive  

FIRs, not being a counter-case, filed  

in connection with the same or  

connected cognizable offence alleged  

to have been committed in the course  

of the same transaction and in respect  

of which pursuant to the first FIR  

either investigation is under way or  

final report under Section 173(2) has  

been forwarded to the Magistrate, may  

be a fit case for exercise of power

40  

under Section 482 CrPC or under  

Articles 226/227 of the Constitution.”  

The above referred declaration of law by this  

Court has never been diluted in any  

subsequent judicial pronouncements even  

while carving out exceptions.”  

36. Paragraph 58.1 to 58.10 contains the summary of  

judgments. In paragraph Nos.58.3 and 58.4 following  

has been laid down:-  

“58.3. Even after filing of such a report,  

if he comes into possession of further  

information or material, there is no need to  

register a fresh FIR, he is empowered to make  

further investigation normally with the leave  

of the court and where during further  

investigation, he collects further evidence,  

oral or documentary, he is obliged to forward  

the same with one or more further reports  

which is evident from sub-section (8) of  

Section 173 of the Code. Under the scheme of  

the provisions of Sections 154, 155, 156,  

157, 162, 169, 170 and 173 of the Code, only  

the earliest or the first information in  

regard to the commission of a cognizable  

offence satisfies the requirements of Section  

154 of the Code. Thus, there can be no second  

FIR and, consequently, there can be no fresh  

investigation on receipt of every subsequent  

information in respect of the same cognizable  

offence or the same occurrence or incident  

giving rise to one or more cognizable  

offences.  

58.4. Further, on receipt of information  

about a cognizable offence or an incident  

giving rise to a cognizable offence or  

offences and on entering FIR in the station

41  

house diary, the officer in charge of the  

police station has to investigate not merely  

the cognizable offence reported in the FIR  

but also other connected offences found to  

have been committed in the course of the same  

transaction or the same occurrence and file  

one or more reports as provided in Section  

173 of the Code. Sub-section (8) of Section  

173 of the Code empowers the police to make  

further investigation, obtain further  

evidence (both oral and documentary) and  

forward a further report(s) to the  

Magistrate. A case of fresh investigation  

based on the second or successive FIRs not  

being a counter-case, filed in connection  

with the same or connected cognizable offence  

alleged to have been committed in the course  

of the same transaction and in respect of  

which pursuant to the first FIR either  

investigation is underway or final report  

under Section 173(2) has been forwarded to  

the Magistrate, is liable to be interfered  

with by the High Court by exercise of power  

under Section 482 of the Code or under  

Articles 226/227 of the Constitution.”  

37.  Thus, from the above discussions, it is clear  

that there cannot be any dispute to the proposition  

that second FIR with regard to same offences is barred.   

But whether in the present case, FIR dated 16.02.2018  

registered by NIA, can be said to be second FIR.   

Before answering the above question, we need to look  

into the scheme of the NIA Act, 2008.     

42  

38. NIA Act, 2008 was enacted to constitute an  

investigation agency at the national level to  

investigate and prosecute offences affecting the  

sovereignty, security and integrity of India, security  

of State, friendly relations with foreign States and  

offences under Acts enacted to implement international  

treaties, agreements, conventions and resolutions of  

the United Nations, its agencies and other  

international organisations and for matters connected  

therewith or incidental thereto.   

39. Sections 3 to 5 of the Act deal with National  

Investigation Agency.  Chapter III deals with  

investigation by the National Investigation Agency.   

Sections 6 to 8, which are relevant for the present  

case are as follows:-  

“6. Investigation of Scheduled Offences.—(1)  

On receipt of information and recording  

thereof under section 154 of the Code  

relating to any Scheduled Offence the  

officer-in-charge of the police station shall  

forward the report to the State Government  

forthwith.   

(2) On receipt of the report under sub-

section (1), the State Government shall  

forward the report to the Central Government  

as expeditiously as possible.   

43  

(3) On receipt of report from the State  

Government, the Central Government shall  

determine on the basis of information made  

available by the State Government or received  

from other sources, within fifteen days from  

the date of receipt of the report, whether  

the offence is a Scheduled Offence or not and  

also whether, having regard to the gravity  

of the offence and other relevant factors,  

it is a fit case to be investigated by the  

Agency.   

(4) Where the Central Government is of the  

opinion that the offence is a Scheduled  

Offence and it is a fit case to be  

investigated by the Agency, it shall direct  

the Agency to investigate the said offence.   

(5) Notwithstanding anything contained in  

this section, if the Central Government is  

of the opinion that a Scheduled Offence has  

been committed which is required to be  

investigated under this Act, it may, suo  

motu, direct the Agency to investigate the  

said offence.   

(6) Where any direction has been given under  

sub-section (4) or sub-section (5), the State  

Government and any police officer of the  

State Government investigating the offence  

shall not proceed with the investigation and  

shall forthwith transmit the relevant  

documents and records to the Agency.   

(7) For the removal of doubts, it is hereby  

declared that till the Agency takes up the  

investigation of the case, it shall be the  

duty of the officer-in-charge of the police  

station to continue the investigation.   

7. Power to transfer investigation to State  

Government.—While investigating any offence  

under this Act, the Agency, having regard to  

the gravity of the offence and other relevant

44  

factors, may—   

(a)  if it is expedient to do so, request  

the State Government to associate  

itself with the investigation; or   

(b)  with the previous approval of the  

Central Government, transfer the case  

to the State Government for  

investigation and trial of the  

offence.  

8. Power to investigate connected offences.—

While investigating any Scheduled Offence,  

the Agency may also investigate any other  

offence which the accused is alleged to have  

committed if the offence is connected with  

the Scheduled Offence.”  

40. Further, under Section 6, Central Government has  

to constitute such Courts and by virtue of sub-section  

(1) of Section 13 provides that:-  

“Notwithstanding anything contained in the  

Code, every Scheduled Offence investigated by  

the Agency shall be tried only by the Special  

Court within whose local jurisdiction it was  

committed.”  

41. The Schedule of the Act, Item No.2 mentioned “The  

Unlawful Activities (Prevention) Act, 1967”.  Thus,  

any offence under Unlawful Activities (Prevention)  

Act, 1967 is a scheduled offence.  When the offences  

under the Unlawful Activities (Prevention) Act, 1967  

were added in case Crime No.02/2016 and that the

45  

Central Government order issued in exercise of its  

power under sub-section 5 of Section 6 by entrusting  

the investigation to NIA, NIA is competent to  

investigate the offence and submit a supplementary  

report.     

42. Before proceeding further, we may notice few  

features of the present case, which are necessary to  

be noticed.  As noticed above, a charge sheet in the  

case Crime No.02/2016 was submitted by the  

investigating agency on 10.03.2016 and cognizance was  

taken on 11.03.2016.  The offences under Unlawful  

Activities (Prevention) Act, 1967 were added on  

09.04.2017.  Charges were framed on 19.09.2016,  

offences under Unlawful Activities (Prevention) Act,  

1967 were added for the first time on 09.04.2017, thus,  

there was no occasion for investigation of offences  

under Unlawful Activities (Prevention) Act, 1967 prior  

to April, 2017.  The charge sheet dated 10.03.2016 and  

charges framed on 19.09.2016 were not with respect to  

offences under Unlawful Activities (Prevention) Act,  

1967, thus, when the Central Government directed the

46  

NIA to investigate the offence under scheduled  

offences, NIA was fully competent to investigate the  

offences and submit a supplementary report.  Present  

is not a case where any charges for offences punishable  

under the Unlawful Activities (Prevention) Act, 1967  

were available prior to April, 2017, thus, NIA was  

fully competent to investigate further in the case as  

per the directions issued by the Central Government  

vide order dated 13.02.2018.  

43. Sub-section (6) of Section 6 prohibits State  

Government or any police officer of the State  

Government to proceed with the investigation.  In the  

present case, when order was issued by Central  

Government on 13.02.2018, it was not competent for  

police officer of the State Government to proceed with  

the investigation. We, thus, are of the opinion that  

FIR, which was re-registered by NIA on 16.02.2018  

cannot be held to be second FIR of the offences rather  

it was re-registration of the FIR to give effect to  

the provisions of the NIA Act and re-registration of  

the FIR is only procedural Act to initiate the

47  

investigation and the trial under the NIA Act.  The  

re-registration of the FIR, thus, is neither barred  

nor can be held that it is second FIR.    

44. As far as the submissions of the learned counsel  

for the appellant that NIA cannot conduct any  

investigation or submit any report, since  

investigation was already completed and charge sheet  

was submitted, the charge sheet was submitted on  

16.03.2016 and charges were framed on 19.09.2016 by  

which date offences under Unlawful Activities  

(Prevention) Act, 1967 were not even added, since for  

the first time the offences under Unlawful Activities  

(Prevention) Act, 1967 were added on 09.04.2017. The  

Scheme as delineated by Section 173 Cr.P.C. itself  

indicates that even after report under Section 173(2)  

is submitted, it is always open for the police  

authorities to conduct further investigation and  

collect both documentary and oral evidence and submit  

a report under Section 173(8).  In this context,  

reference is made to judgment of this Court in Vinay  

Tyagi Vs. Irshad Ali alias Deepak and Others, (2013)  

5 SCC 762, in which case after examining the provisions

48  

and elaborating the scheme as delineated by Section  

173 Cr.P.C., following was laid down by this Court in  

paragraph No.15:-  

“15. A very wide power is vested in the  

investigating agency to conduct further  

investigation after it has filed the report  

in terms of Section 173(2). The legislature  

has specifically used the expression “nothing  

in this section shall be deemed to preclude  

further investigation in respect of an  

offence after a report under Section 173(2)  

has been forwarded to the Magistrate”, which  

unambiguously indicates the legislative  

intent that even after filing of a report  

before the court of competent jurisdiction,  

the investigating officer can still conduct  

further investigation and where, upon such  

investigation, the officer in charge of a  

police station gets further evidence, oral  

or documentary, he shall forward to the  

Magistrate a further report or reports  

regarding such evidence in the prescribed  

form. In other words, the investigating  

agency is competent to file a supplementary  

report to its primary report in terms of  

Section 173(8). The supplementary report has  

to be treated by the court in continuation  

of the primary report and the same provisions  

of law i.e. sub-section (2) to sub-section  

(6) of Section 173 shall apply when the court  

deals with such report.”  

45. This Court again in Amrutbhai Shambhubhai Patel  

Vs. Sumanbhai Kantibhai Patel and Others, (2017) 4 SCC  

177 statutorily noticed the provisions of Section  

173(8) as added in the Cr.P.C., 1973.  After noticing

49  

the 41st Report of the Law Commission of India in  

reference to Section 173, this Court laid down  

following in paragraph Nos. 20 and 21:-  

“20. The newly added sub-section (8), as its  

text evinces, permits further investigation  

by the officer in charge of the police  

station concerned in respect of an offence  

after a report under sub-section (2) had been  

forwarded to the Magistrate and also to lay  

before the Magistrate a further report, in  

the form prescribed, whereupon such  

investigation, he obtains further evidence,  

oral or documentary. It is further ordained  

that on submission of such further report,  

the essentialities engrafted in sub-sections  

(2) to (6) would apply also in relation to  

all such report or reports.  

21. The integration of sub-section (8) is  

axiomatically subsequent to the 41st Report  

of the Law Commission Report of India  

conveying its recommendation that after the  

submission of a final report under Section  

173, a competent police officer, in the event  

of availability of evidence bearing on the  

guilt or innocence of the accused ought to  

be permitted to examine the same and submit  

a further report to the Magistrate concerned.  

This assumes significance, having regard to  

the language consciously applied to design  

Section 173(8) in the 1973 Code. Noticeably,  

though the officer in charge of a police  

station, in categorical terms, has been  

empowered thereby to conduct further  

investigation and to lay a supplementary  

report assimilating the evidence, oral or  

documentary, obtained in course of the said  

pursuit, no such authorisation has been  

extended to the Magistrate as the Court is  

in seisin of the proceedings. It is, however

50  

no longer res integra that a Magistrate, if  

exigent to do so, to espouse the cause of  

justice, can trigger further investigation  

even after a final report is submitted under  

Section 173(8). Whether such a power is  

available suo motu or on the prayer made by  

the informant, in the absence of request by  

the investigating agency after cognizance has  

been taken and the trial is in progress after  

the accused has appeared in response to the  

process issued is the issue seeking scrutiny  

herein.”  

46. In paragraph No.31, it was reiterated that the  

right of the police to further investigate even under  

the 1898 Code was not exhausted and it could exercise  

such right often as necessary, when fresh information  

would come to light.  In paragraph No.31, following  

has been laid down:-  

“31. This Court also recounted its  

observations in Ram Lal Narang, (1979) 2 SCC  

332, to the effect that on the Magistrate  

taking cognizance upon a police report, the  

right of the police to further investigate  

even under the 1898 Code was not exhausted  

and it could exercise such right often as  

necessary, when fresh information would come  

to light. That this proposition was  

integrated in explicit terms in sub-section  

(8) of Section 173 of the new Code, was  

noticed. The desirability of the police to  

ordinarily inform the Court and seek its  

formal permission to make further  

investigation, when fresh facts come to  

light, was stressed upon to maintain the  

independence of the judiciary, the interest  

of the purity of administration of criminal

51  

justice and the interest of the comity of the  

various agencies and institutions entrusted  

with different stages of such dispensation.  

47. We, thus, do not find any lack of jurisdiction in  

NIA to carry on further investigation and submit a  

supplementary report.  In the counter affidavit, it  

has been stated by the Union of India that NIA has  

concluded investigation and already a charge sheet has  

been submitted on 21.12.2018 vide first supplementary  

charge sheet.  We, thus, do not find any lack of  

jurisdiction in the NIA to carry on further  

investigation in the facts of the present case.  

Issue Nos. 4 and 5  

48. Both the issues being interrelated are being taken  

together.   

49. We may recapitulate the essential facts for  

deciding the above issues. F.I.R. No. 2 of 2016 dated  

11.01.2016 was registered on 11.01.2016. The appellant  

was taken into custody on 11.01.2016 itself. On  

10.03.2016, the appellant was granted bail by the order

52  

of High Court. Charge sheet dated 10.03.2016 was  

submitted before the Court of C.J.M., Chatra, on which  

chargesheet C.J.M. took cognizance on 11.03.2016 under  

Sections 414, 384, 386, 387, 120(B) I.P.C., Sections  

25(1-B)(a), 26, 35 Arms Act and 17(1)(2) Criminal Law  

Amendment Act. The prayer of investigation officer on  

09.04.2017 to add offences under Section 16, 17, 20  

and 23 of Unlawful Activities (Prevention) Act was  

allowed. After notification of Central Government  

dated 13.02.2018 transferring the investigation to  

NIA, NIA took over the investigation and re-registered  

FIR No.RC-06/2018/NIL/DLI. The case stood transferred  

to court of Judicial Commissioner-cum-Special Judge  

NIA, Ranchi. The appellant being in custody in some  

other case, NIA prayed before Special Judge for issue  

of production warrant. On 25.06.2018 on the strength  

of production warrant appellant was produced before  

the Special Judge on 25.06.2018 by superintendent,  

Chatra Jail, Chatra. The Special Judge vide his order  

dated 25.06.2018 remanded the appellant to B.M.C. Jail  

Ranchi and directed to be produced on 26.06.2018. On  

26.06.2018, the appellant was produced from Jail

57  

sentence proposed to be imposed on him.   

Provided also that –  

(a) no adjournment shall be granted at the  request of a party, except where the  

circumstances are beyond the control of  

that party;  

(b) the fact that the pleader of a party is  engaged in another Court, shall not be a  

ground for adjournment;  

(c) where a witness is present in Court but a  party or his pleader is not present or  

the party or his pleader though present  

in Court, is not ready to examine or  

cross-examine the witness, the Court may,  

if thinks fit, record the statement of  

the witness and pass such orders as it  

thinks fit dispensing with the  

examination-in-chief or cross-

examination of the witness, as the case  

may be.  

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.”  

52. The issue to be answered in the present case is  

as to whether for remanding the accused (appellant),  

Section 167(2) Cr.P.C. could have been resorted to by

58  

the Special Judge or remand could have been done only  

under Section 309(2) Cr.P.C. This Court had occasion  

to consider the provisions of Section 167 and Section  

309 Cr.P.C. in large number of cases. In the old code,  

there was a provision namely Section 344 which was  

akin to Section 309 of present Code. Section 167 of  

Code of Criminal Procedure, 1973, corresponds to  

Section 167 of the old Code. This Court had occasion  

to consider Section 167 and Section 344 of the old  

Code in Gouri Shankar Jha vs. State of Bihar and  

others, 1972 (1) SCC 564. This Court in paragraph No.  

12 laid down following: -  

“12. Thus, Section 167 operates at a stage  

when a person is arrested and either an  

investigation has started or is yet to start,  

but is such that it cannot be completed  

within 24 hours. Section 344, on the other  

hand, shows that investigation has already  

begun and sufficient evidence has been  

obtained raising a suspicion that the accused  

person may have committed the offence and  

further evidence may be obtained, to enable  

the police to do which, a remand to jail  

custody is necessary. “  

53. This Court in Central Bureau of Investigation,  

Special Investigation Cell-I, New Delhi Vs. Anupam J.  

Kulkarni, (1992) 3 SCC 141, had occasion to consider

59  

Section 309 Cr.P.C. This Court held that Section 309  

comes into operation after taking cognizance and not  

during the period of investigation. Remand order under  

this provision (Section 309) can only be with judicial  

custody.  

54. We may refer to a Three-Judge Bench Judgment of  

this Court in State through CBI Vs. Dawood Ibrahim  

Kaskar and Others, (2000) 10 SCC 438. In the above  

case, the Government of India, with the consent of the  

Government of Maharashtra, issued a notification  

entrusting further investigation in the above cases to  

Delhi Special Police Establishment (CBI). The CBI  

filed applications before the designated Court praying  

for issuance of non-bailable warrants of arrests  

against several accused and the applications were  

rejected by the Designated Court relying on a Bombay  

High Court judgment in Mohd. Ahmed Yasin Mansuri v.  

State of Maharashtra, 1994 Crl.LJ 1854 (Bom.).  In  

paragraph No.6 of the judgment, this Court has noticed  

the judgment of Bombay High Court in Mohd. Ahmed Yasin  

Mansuri v. State of Maharashtra (supra) and

60  

observations made by the Bombay High Court.  Bombay  

High Court has observed in the said case that in the  

Code, no power is conferred for police custody after  

cognizance of an offence is taken.    

55. The observations made by the High Court as quoted  

in para 6 of the judgment were not approved by this  

Court.  This Court also noticed the provisions of  

Sections 167 and 309 Cr.P.C.  In paragraph Nos. 10 and  

11, following has been laid down:-  

10. In keeping with the provisions of Section  

173(8) and the above-quoted observations, it  

has now to be seen whether Section 309(2) of  

the Code stands in the way of a Court, which  

has taken cognizance of an offence, to  

authorise the detention of a person, who is  

subsequently brought before it by the police  

under arrest during further investigation, in  

police custody in exercise of its power under  

Section 167 of the Code. Section 309 relates  

to the power of the Court to postpone the  

commencement of or adjournment of any inquiry  

or trial and sub-section (2) thereof reads  

as follows:  

“309. (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

61  

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:”  

11. …………………..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 Mansuri — 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…………………………….”  

56. This Court clearly held that Section 309(2) does

62  

not refer to an accused, who is subsequently arrested  

in course of further investigation. This Court in  

paragraph No. 11, as noted above, clearly held that  

even after cognizance is taken of an offence the police  

has a power to investigate into it further and there  

is no reason 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.   

57. In above Three Judge Bench judgment the accused  

was subsequently arrested during investigation after  

cognizance was taken. Three Judge Bench explained the  

words “accused if in custody” to relate to an accused  

who was before the court when cognizance was taken or  

when inquiry or trial was being held in respect of him  

and not to an accused who is subsequently arrested in  

course of further investigation. There cannot be any  

dispute to the above proposition laid down by this  

Court but the above judgment does not help the  

appellant in facts of the present case. In the present  

case as noticed above, the accused was before the Court  

when cognizance was taken or when inquiry or trial was

63  

being held in respect of him. In the facts of present  

case as noted above, the accused was produced in the  

Court of Special Judge on 25.06.2018, he was produced  

under production warrant from jail custody. The  

accused was thus very well in custody on the date when  

he was produced in the Court. Thus, this was not a  

case that accused was subsequently arrested during the  

investigation and was produced before the Court. The  

accused was arrested on 11.01.2016 immediately after  

lodging of the FIR and was granted bail on 10.03.2016.  

Thus, in view of the law as laid down by this Court in  

State through CBI Vs. Dawood Ibrahim Kaskar(Supra),  

the appellant was in custody and the Court could have  

remanded him in exercise of jurisdiction under Section  

309(2) and the present was not a case where Section  

167(2) could have been resorted to.   

58. A Two Judge Bench judgment in Dinesh Dalmia Vs.  

Central Bureau of Investigation, (2007) 8 SCC 770, is  

relevant for the present case where this Court had  

occasion to interpret sub-Section (2) of Section 167  

Cr.P.C vis-à-vis sub-Section (2) of Section 309

64  

Cr.P.C. In paragraph No. 29, this Court laid down: -  

“29. The power of a court to direct remand  

of an accused either in terms of sub-section  

(2) of Section 167 of the Code or sub-section  

(2) of Section 309 thereof will depend on the  

stages of the trial. Whereas sub-section (2)  

of Section 167 of the Code would be attracted  

in a case where cognizance has not been  

taken, sub-section (2) of Section 309 of the  

Code would be attracted only after cognizance  

has been taken.”  

59. After referring to Anupan J. Kulkarni(supra) and  

Dawood Ibrahim (Supra), this court laid down following  

in paragraph No. 39: -   

“39. The statutory scheme does not lead to a  

conclusion in regard to an investigation  

leading to filing of final form under sub-

section (2) of Section 173 and further  

investigation contemplated under sub-section  

(8) thereof. Whereas only when a charge-sheet  

is not filed and investigation is kept  

pending, benefit of proviso appended to sub-

section (2) of Section 167 of the Code would  

be available to an offender; once, however,  

a charge-sheet is filed, the said right  

ceases. Such a right does not revive only  

because a further investigation remains  

pending within the meaning of sub-section (8)  

of Section 173 of the Code.”  

60. Learned counsel for the appellant has relied on a  

Two Judge Bench judgment of this Court in Mithabhai  

Pashabhai Patel and Others Vs. State of Gujarat, (2009)  

6 SCC  332.  In paragraph No. 17, this Court made

65  

following observations:-  

“17. The power of remand in terms of the  

aforementioned provision is to be exercised  

when investigation is not complete. Once the  

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:  

“309. Power to postpone or adjourn  

proceedings.—  

(1) * * * ”  

61. The above observations do support the submissions  

raised by the learned counsel for the appellant.  

62.  After having noticed, the relevant provisions of  

Section 167(2) and Section 309, Cr.P.C and law laid  

down by this Court, we arrive at following   

conclusions: -  

(i) The accused can be remanded under Section  

167(2) Cr.P.C during investigation till  

cognizance has not been taken by the Court.  

(ii) That even after taking cognizance when an  

accused is subsequently arrested during

66  

further investigation, the accused can be  

remanded under Section 167(2) Cr.P.C.  

(iii) When cognizance has been taken and the accused  

was in custody at the time of taking  

cognizance or when inquiry or trial was being  

held in respect of him, he can be remanded to  

judicial custody only under Section 309(2)  

Cr.P.C.   

63. We, thus, find substance in submission of learned  

counsel for the appellant that in the present case  

accused could have been remanded only under Section  

309(2) Cr.P.C. The submission which was taken on behalf  

of the CBI before us was that the accused was remanded  

under Section 167(2) Cr.P.C. Since he was produced  

before Special Judge during further investigation. The  

stand taken by the CBI is not correct.  

64. We, however, have to decide the issue as per law  

irrespective of the stand taken by CBI. We may notice  

the order dated 25.06.2018 passed by the Court of

67  

Judicial Commissioner-cum-Special Judge NIA, Ranchi,  

which is to the following effect: -   

“………25.06.2018 On strength of issued  

production warrant superintend Chatra Jail,  

Chatra produced accused namely Pradeep Ram @  

Pradeep verma S/o Devki Ram, R/o Village.  

Winglat, P.S. Tandwa, District-Chatra. Let  

accused Pradeep Ram remanded in the case and  

sent to B.M.C. Jail, Ranchi to be produced  

on 26.06.2018. Learned Spl.P.P. is present.  

Issued Custody warrant.  

Dictated  

Ad/- Illegible  

Spl. Judge(NIA)  

..”  

65. The special Judge in his order has neither  

referred to Section 309 nor Section 167 under which  

accused was remanded. When the Court has power to pass  

a particular order, non-mention of provision of law or  

wrong mention of provision of law is inconsequential.  

As held above, the special Judge could have only  

exercised power under Section 309(2), hence, the  

remand order dated 25.06.2018 has to be treated as  

remand order under Section 309(2) Cr.P.C. The special  

Judge being empowered to remand the accused under  

Section 309(2) in the facts of the present case, there

68  

is no illegality in the remand order dated 25.06.2018  

when the accused was remanded to the judicial custody.  

66. We, thus, do not find any error in the order dated  

25.06.2018 but for the reasons as indicated above. The  

High Court, thus, committed error in holding that the  

order of remand dated 25.06.2018 was in exercise of  

power under Section 167 Cr.P.C. We, however, hold that  

the remand order dated 25.06.2018 was in exercise of  

power under Section 309(2). The remand order is upheld  

for the reasons as indicated above.   

67. The issue Nos.4 and 5 are decided accordingly.  

68. In view of the foregoing discussions, we do not  

find any merit in the appeals and the appeals are  

dismissed.    

...............................J.  

   ( ASHOK BHUSHAN )  

...............................J.  

   ( K.M.JOSEPH)  

NEW DELHI,  

July 01, 2019.