Patel & Ors. Vs. State of Gujarat  INSC 964 (6 May 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 941 OF 2009
(Arising out of SLP (Crl.) No. 6759 of 2008) Mithabhai Pashabhai Patel and
others .... Appellants Versus State of Gujarat .... Respondent
S, B. SINHA, J.
with the change of an investigating authority, police custody of the accused on
remand can be sought for, although cognizance of the offence had already been
taken, is the question involved herein.
arises out of a judgment and order dated 5th September, 2009 passed by the High
Court of Gujarat at Ahmedabad in Criminal Revision Application No.482 of 2008
setting aside an order dated 23rd May, 2008 passed by the learned Second
Additional Sessions Judge, Himatnagar in Sessions Case No.70 of 2002.
of all unnecessary details the fact of the matter is as under :- Appellants had
been prosecuted for commission of an offence under Sections
302/307/395/396/397/201/435/324/143/147/148/149/153-A/341/ 337/427 and 120-B of
the Indian Penal Code as also under Section 135 of the Bombay Police Act.
occurrence in which the appellant is involved is said to have taken place on
20th August, 2002 at Vadvasa Patia Village near Prantij. A first information
report was lodged on the same date. During course of investigation all the six
appellants were arrested.
they were remanded to police custody in terms of sub- section (2) of Section
167 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the
Code'). Upon completion of investigation, a charge sheet was submitted. The
matter was committed to the Sessions Court. Cognizance of the offence was taken
by the Sessions Judge. They were granted bail by the High Court by an order
dated 30th August, 2003.
matter, however, came up before this Court. A Bench of this Court by an order
dated 26th March, 2008 passed by in Writ Petition (Crl.) No. 109 of 2003
appointed a Special Investigation Team. Pursuant to or in furtherance of the
said direction the State of Gujarat issued a Notification on 1st April, 2008
constituting a Special Investigation Team to investigate into cases arising out
of Godhra incident and communal riots erupted thereafter in the year 2002.
In terms of the said
Notification the SIT could work out the modalities and the norms required to be
followed for the purpose of inquiry/investigation including further
application was filed on or about 22nd May, 2008 by one Himanshu Shukla,
Assistant Superintendent of Police, seeking remand of the accused for a period
of 14 days. The reasons assigned therefor were that that offences under some
provisions were added and investigation with respect to the said offences from
the accused could not be carried out therefor in respect of certain points
reason of a judgment and order dated 23rd May, 2008 the said application was
rejected by the learned Sessions Judge, relevant portion whereof which reads as
under:- "....However at present, this Court cannot entrust the physical
custody of accused to the Special Investigation Team for custodial
interrogation because in the presence offence, the Hon'ble Gujarat High Court
had granted regular bail vide Criminal Miscellaneous Application No.4115/2002
dated 30/08/2002 and in that bail order imposed certain conditions. Hence
without getting cancelled the said regular bail granted by the Hon'ble High
Court, this court cannot grant Police remand as the present accused are on
bail, hence first of all Special Investigation Team is required to resort the
Hon'ble High Court for cancellation of said bail order for Police custody for
the purpose of further investigation as directed by the Hon'ble Highest Court
of our Land.
Therefore, applicant-member of Special Investigation Team directed to approach
the Hon'ble High Court to set aside/cancel the said regular bail order passed
by the Hon'ble High Court.
It is pertinent to note that Police remand can be granted only by the committal
court. Therefore, after getting cancellation of bail order, applicant- member
of Special Investigation Team is also directed to first of all approach the
learned Judicial Magistrate First Class Prantij-committal court for Police
custody in the present case because this court is a Sessions Court not
competent to grant remand order unless and until that prayer is rejected by
preferred a revision application thereagainst before the High Court. By reason
of the impugned judgment the High Court reversed the decision of the Sessions
Judge and directed that the appellants be remanded to custody.
Nikhil Goel, learned counsel appearing on behalf of the appellants would
contend that having regard to the provisions contained in Section 167(2) as
well Section 309(2) of the Code the impugned judgment cannot be sustained.
K. Enatoli Sema, learned counsel appearing on behalf of the respondent-State,
on the other hand, urged that keeping in view the special facts and
circumstances of this case, the order of the High Court should not be
short question which arises for consideration is whether in the facts and
circumstances of the case the High Court was correct in directing custodial
remand of the appellants.
High Court in support of its order opined :
a) Having regard to
the constitution of the Special Investigating Team, further investigation is
required to be made and Section 167(2) of the Code gives ample power for
investigation is required to be made in the facts and circumstances of the case
as earlier investigation was carried out in a most perfunctory manner.
c) Since new sections
are added, further enquiry/investigation would be required to be conducted in
the matter and the investigating agency cannot be denied such a right and to
have the custody of the appellants. For the said purpose, the fact that the
appellants had been granted bail would be of no relevance.
d) Section 167 (2)
and not the proviso appended to Section 309 (2) of the Code would be applicable
in a case of this nature.
e) As the Special
Investigating Team has the power to reinvestigate, it is not necessary to seek
for cancellation of bail.
f) The committal
order having been passed, the Sessions Judge should have exercised its
jurisdiction under Section 397 of the Code.
an order dated 22nd September, 2008 this Court directed as under :- "
Application for exempting from filing O.T. is allowed.
Till further orders,
further investigation by Special Investigation Team may proceed.
the petitioner may be summoned by the Special Investigation Team appointed by
this Court on the days fixed by it without taking the petitioners into custody
and their interrogation shall be done only during day time. One or more members
of the Special Investigation Team only would interrogate the petitioners and
is stated at the Bar that pursuant to the said order appellants had appeared
before the concerned Sessions Judge as also the Special Investigating Team.
They had visited Police Station, Prantij on 13 th September, 2008 and submitted
a written representation expressing their willingness to cooperate with the
further investigation by the Special Investigating Team but they were not
examined. Their presence, however, was required on 14th September, 2008
wherefor a letter dated 12th September, 2008 was sent by fax on 13th September,
2008. Appellants appeared before the Sessions Judge and the on 14th September,
2008 and the matter was adjourned to 22nd September, 2008. They visited the
police station also on 14th and 15th September, 2008.
Court while passing the order in exercise of its jurisdiction under Article 32
of Constitution of India did not direct re-investigation. This court exercised
its jurisdiction which was within the realm of the Code.
investigating agency in terms of sub-section (8) of Section 173 of the Code can
pray before the Court and may be granted permission to investigate into the
matter further. There are, however, certain situations, where such a formal
request may not be insisted upon.
is, however, beyond any cavil that `further investigation' and `re-
investigation' stand on different footing. It may be that in a given situation
a superior court in exercise of its constitutional power, namely under Articles
226 and 32 of the Constitution of India could direct a `State' to get an
offence investigated and/or further investigated by a different agency.
Direction of a
re-investigation, however, being forbidden in law, no superior could would
ordinarily issue such a direction.
Pasayat, J. in
Ramachandran v. R. Udhayakumar, [(2008) 5 SCC 413], opined as under :- "7.
At this juncture it would be necessary to take note of Section 173 of the Code.
From a plain reading of the above section it is evident that even after
completion of investigation under sub-section (2) of Section 173 of the Code,
the police has right to further investigate under sub-section (8), but not
fresh investigation or reinvestigation..."
distinction, therefore, exists between a re-investigation and further
the investigating authority, in terms of the provisions of the Code, could not
ask for re-investigation, we would have to proceed on the basis that this Court
in its order dated 26th March, 2008 only directed further investigation.
may notice that this aspect of the matter has also been considered by this
Court in Nirmal Singh Kahlon v. State of Punjab, [ (2009) 1 SCC 441 ], wherein
it has been opined :- "63. The High Court in this case was not monitoring
any investigation. It only desired that the investigation should be carried out
by an independent agency. Its anxiety, as is evident from the order dated
3-4-2002, was to see that the officers of the State do not get away. If that be
so, the submission of Mr. Rao that the monitoring of an investigation comes to
an end and after the charge-sheet is filed, as has been held by this Court in Vineet
Narain and M.C. Mehta (Taj Corridor Scam) v. Union of India, loses all
investigating agency and/or a court exercise their jurisdiction conferred on
them only in terms of the provisions of the Code. The courts subordinate to the
High Court even do not have any inherent power under Section 482 of the Code of
Criminal Procedure or otherwise. The pre- cognizance jurisdiction to remand
vested in the subordinate courts, therefore, must be exercised within the
four-corners of the Code. The power to remand, indisputably, is vested in a
Magistrate in terms of sub-section (2) of Section 167 of the Code which reads
as under :- "167. Procedure when investigation cannot be completed in
(1) .... ....
(2) The Magistrate to
whom all accused person is forwarded under this section may, whether he has or
not jurisdiction to try the case, from time to time, authorise the detention of
the accused in such custody as such Magistrate thinks fit, a term not exceeding
fifteen days in the whole; and if he has no jurisdiction to try the case or
commit it for trial, and considers further detention unnecessary, he may order
the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that- (a)
The Magistrate may authorize the detention of the accused person, otherwise
than in the custody of the police, beyond the period of fifteen days, if he is
satisfied that adequate grounds exist for doing so, but no Magistrate shall
authorise the detention of the accused person in custody under this paragraph
for a total period exceeding- (i) Ninety days, where the investigation relates
to an offence punishable with death, imprisonment for life or imprisonment for
a term of not less than ten years;
(ii) Sixty days,
where the investigation relates to any other offence, 10 And, on the expiry of
the said period of ninety days, or sixty days, as the case may be, the accused
person shall be released on bail if he is prepared to and does furnish bail,
and every person released on bail under this sub-section shall be deemed to be
to released under the provisions of Chapter XXXIII for the purposes of that
(b) No Magistrate
shall authorize detention in any custody under this section unless the accused
is produced before him;
(c) No Magistrate of
the second class, not specially empowered in this behalf by the high Court,
shall authorize detention in the custody of the police.
Explanation I. For
the avoidance of doubts, it is hereby declared that, notwithstanding the expiry
of the period specified in paragraph (a), the accused shall be detained in
Custody so long as he does not furnish bail.
Explanation II. If
any question arises whether an accused person was produced before the
Magistrate as required under paragraph (b), the production of the accused
person may be proved by his signature on the order authorizing detention."
power of remand in terms of the aforementioned provision is to be exercised
when investigation is not complete. Once charge-sheet is filed and cognizance
of the offence is taken, the court cannot exercise its power under sub-section
(2) of Section 167 of the Code. Its power of remand can then be exercised in
terms of sub-section (2) of Section 309 which reads as under :- "309.
Power to postpone or adjourn proceedings.
(1) .... ....
(2) If the court
after taking cognizance of an offence, or commencement of trial, finds it
necessary or advisable to postpone the commencement of, or adjourn, any inquiry
or trial, it may, from time to time, for reasons to be recorded, postpone or
adjourn the same on such terms as it thinks fit, for such time as it considers
reasonable, and may by a warrant remand the accused if in custody:
Provided that no
Magistrate shall remand an accused person to custody under this section for a
term exceeding fifteen days at a time:
Provided further that
when witnesses are in attendance no adjournment or postponement shall be
granted, without examining them, except for, special reasons to be recorded in
Provided also that no
adjournment shall be granted for the purpose only of enabling the accused
person to show cause against the sentence proposed to be imposed on him.
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
had been granted bail. They are not in custody of the court. They could not be
taken in custody ordinarily unless their bail was not cancelled. The High
Court, in our opinion, was not correct in holding that as further investigation
was required, sub-section (2) of Section 167 of the Code gives ample power for
grant of police remand.
distinction between the power of remand in terms of sub-section (2) of Section
167 and sub-section (2) of Section 309 of the Code is apparent.
may notice a few precedents in this behalf :- In Raghubir Singh and others v.
State of Bihar, [(1986) 4 SCC 481], this Court held :- "22. The result of
our discussion and the case-law is this: An order for release on bail made
under the proviso to Section 167(2) is not defeated by lapse of time, the
filing of the charge-sheet or by remand to custody under Section 309(2). The
order for release on bail may however be cancelled under Section 437(5) or
Section 439(2). Generally the grounds for cancellation of bail, broadly, are,
interference or attempt to interfere with the due course of administration of
justice, or evasion or attempt to evade the course of justice, or abuse of the
liberty granted to him. The due administration of justice may be interfered
with by intimidating or suborning witnesses, by interfering with investigation,
by creating or causing disappearance of evidence etc. The course of justice may
be evaded or attempted to be evaded by leaving the country or going underground
or otherwise placing himself beyond the reach of the sureties. He may abuse the
liberty granted to him by indulging in similar or other unlawful acts. Where
bail has been granted under the proviso to Section 167(2) for the default of
the prosecution in not completing the investigation in 60 days, after the
defect is cured by the filing of a charge-sheet, the prosecution may seek to
have the bail cancelled on the ground that there are reasonable grounds to
believe that the accused has committed a non-bailable offence and that it is
necessary to arrest him and commit him to custody. In the last mentioned case,
one would expect very strong grounds indeed."
Yet again in CBI v.
Anupam J. Kulkarni, [ (1992) 3 SCC 141], K. Jayachandra Reddy, J. speaking for
the Bench held as under :- "We may, however, like to make it explicit that
such re-arrest or second arrest and seeking police custody after the expiry of
the period of first fifteen days should be with regard to the investigation of
a different case other than the specific one in respect of which the accused is
already in custody. A literal construction of Section 167(2) to the effect that
a fresh remand for police custody of a person already in judicial custody
during investigation of a specific case cannot under any circumstances be
issued, would seriously hamper the very investigation of the other case the
importance of which needs no special emphasis. The procedural law is meant to
further the ends of justice and not to frustrate the same. It is an accepted
rule that an interpretation which furthers the ends of justice should be preferred.
It is true that the police custody is not the be-all and end-all of the whole
investigation but yet it is one of its primary requisites particularly in the
investigation of serious and heinous crimes. The legislature also noticed this
and permitted limited police custody. The period of first fifteen days should
naturally apply in respect of the investigation of that specific case for which
the accused is held in custody. But such custody cannot further held to be a
bar for invoking a fresh remand to such custody like police custody in respect
of an altogether different case involving the same accused.
We may also notice that in State v. Dawood Ibrahim Kaskar, [AIR 1997 SC 2494 ],
a Three Judge Bench held as under :- "The manner in which a person
arrested during investigation has to be dealt with by the Investigating Agency,
and by the Magistrate on his production before him, is provided in Section 167
of the Code. The said section contemplates that when the investigation cannot be
completed within 24 hours fixed by Section 57 and there are grounds to believe
that the charge levelled against the person arrested is well founded it is
obligatory on the part of the Investigation Officer to produce the accused
before the nearest Magistrate. On such production the Magistrate may authorise
the detention of the accused initially for a term not exceeding 15 days either
in police custody, or in judicial custody. On expiry of the said period of 15
days the Magistrate may also authorise his further detention otherwise than in
police custody if he is satisfied that adequate grounds exist for such
This Court in Dinesh
Dalmia v. CBI, [ (2007) 8 SCC 770 ], opined:- 15 "38. It is a
well-settled principle of interpretation of statute that it is to be read in
Construction of a
statute should be made in a manner so as to give effect to all the provisions
thereof. Remand of an accused is contemplated by Parliament at two stages;
pre-cognizance and post- cognizance. Even in the same case, depending upon the
nature of charge-sheet filed by the investigating officer in terms of Section
173 of the Code, a cognizance may be taken as against the person against whom
an offence is said to have been made out and against whom no such offence has
been made out even when investigation is pending. So long a charge-sheet is not
filed within the meaning of sub-section (2) of Section 173 of the Code,
investigation remains pending. It, however, does not preclude an investigating
officer, as noticed hereinbefore, to carry on further investigation despite
filing of a police report, in terms of sub-section (8) of Section 173 of the
In Rama Chaudhary v.
State of Bihar, [2009 (5) SCC 366], it was held:
"9. The above
said provision also makes it clear that further investigation is permissible,
however, reinvestigation is prohibited. The law does not mandate taking of
prior permission from the Magistrate for further investigation. Carrying out a
further investigation even after filing of the charge-sheet is a statutory
right of the police.
without prior permission is prohibited. On the other hand, further
investigation is permissible.
10. From a plain
reading of Sub-section (2) and Sub-section (8) of Section 173, it is evident
that even after submission of police report under Sub- section (2) on
completion of investigation, the police has a right to "further"
investigation under Sub-section (8) of Section 173 but not "fresh
investigation" or "reinvestigation". The meaning of
"Further" is additional; more; or supplemental.
investigation, therefore, is the continuation of the earlier investigation and
not a fresh investigation or reinvestigation to be started ab initio wiping out
the earlier investigation altogether. Sub-section (8) of Section 173 clearly
envisages that on completion of further investigation, the investigating agency
has to forward to the Magistrate a "further" report and not fresh
report regarding the "further" evidence obtained during such investigation.
in this case the Special Investigating Team has already submitted its report to
this Court. Nothing has been pointed out before us as to why even the bail
granted to the appellants should be cancelled so as to enable us to consider that
sufficient or cogent material has been placed on record by the State or the
Special Investigating Team in this behalf.
the reasons aforementioned the impugned judgment cannot be sustained which is
set aside accordingly. The appeal is allowed.
however, in the peculiar facts and circumstances of this case, in exercise of
our jurisdiction under Article 142 of the Constitution of India, make the
interim direction absolute subject to any other or further orders that may be
passed by the Sessions Judge till an additional charge sheet, if any, is filed
by the Special Investigating Agency before the learned Sessions Judge.
[ S.B. Sinha ]