1
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.RC06/2018/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.RC06/2018/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 Commissionercum-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 reregistration 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.RC06/2018/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 nonbailable 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 rearrest 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 subsection (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 respondentsaccused 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 respondentsaccused 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
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arrest such accused due to addition of graver and noncognizable 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:-
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“………………
We have heard learned counsel appearing
for the parties and perused the record.
It is not permissible for the respondentState 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.RC06/2018/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 subsection (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 subsection (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
53
custody on which order was paved to put up on
11.07.2018.
50. The submission made by the learned counsel for the
appellant is that in the present case the cognizance
having already been taken by the Chief Judicial
Magistrate on 11.03.2016, Section 167 could not have
been resorted to by the Special Judge and provision,
which was applicable in the facts of the present case,
was Section 309. At this juncture, we may notice the
provisions of Section 167(1) and sub-section (2)
Cr.P.C., which are as follows:-
“(1) Whenever any person is arrested and
detained in custody, and it appears that the
investigation cannot be completed within the
period of twenty-four hours fixed by section
57, and there are grounds for believing that
the accusation or information is wellfounded, the officer in charge of the police
station or the police officer making the
investigation, if he is not below the rank
of sub- inspector, shall forthwith transmit
to the nearest Judicial Magistrate a copy of
the entries in the diary hereinafter
prescribed relating to the case, and shall
at the same time forward the accused to such
Magistrate.
(2) The Magistrate to whom an accused person
is forwarded under this section may, whether
he has or has no jurisdiction to try the case,
from time to time, authorise the detention
54
of the accused in such custody as such
Magistrate thinks fit, for 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 authorise 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, and, on the expiry of the
said period of ninety days, or
sixty days, as the case may be, the
accused person shall be released
on bail if he is prepared to and
does furnish bail, and every
person released on bail under this
sub- section shall be deemed to be
so released under the provisions
of Chapter XXXIII for the purposes
of that Chapter;
(b) no Magistrate shall authorise
55
detention in custody of the police
under this section unless the accused
is produced before him in person for
the first time and subsequently every
time till the accused remained in the
custody of the police, but the
Magistrate may extend further
detention in judicial custody on
production of the accused either in
person or through the medium of
electronic video linkage;
(c) no Magistrate of the second class,
not specially empowered in this
behalf by the High Court, shall
authorise 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 clause (b),
the production of the accused person may be
proved by his signature on the order
authorising detention or by the order
certified by the Magistrate as to production
of the accused person through the medium of
electronic video linkage, as the case may be.
Provided further that in case of a woman
under eighteen years of age, the detention
shall be authorized to be in the custody of
a remand home or recognized social
institution.”
51. Section 309 on which reliance has been placed by
56
learned counsel for the appellant is as follows:-
“309. Power to postpone or adjourn
proceedings.--(1) In every inquiry or trial,
the proceedings shall be continued from dayto-day until all the witnesses in attendance
have been examined, unless the Court finds
the adjournment of the same beyond the
following day to be necessary for reasons to
be recorded:
Provided that when the inquiry or trial
relates to an offence under section 376,
section 376A, section 376AB, section 376B,
section 376C, section 376D, section 376DA or
section 376DB of the Indian Penal Code (45
of 1860), the inquiry or trial shall be
completed within a period of two months from
the date of filing of the charge sheet.
(2) If the Court, after taking cognizance of
an offence, or commencement of trial, finds
it necessary or advisable to postpone the
commencement of, or adjourn, any inquiry or
trial, it may, from time to time, for reasons
to be recorded, postpone or adjourn the same
on such terms as it thinks fit, for such time
as it considers reasonable, and may by a
warrant remand the accused if in custody:
Provided that no Magistrate shall remand
an accused person to custody under this
section for a term exceeding fifteen days at
a time:
Provided further that when witnesses are
in attendance, no adjournment or postponement
shall be granted, without examining them,
except for special reasons to be recorded in
writing:
Provided also that no adjournment shall
be granted for the purpose only of enabling
the accused person to show cause against the
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 crossexamination 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-Ã -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 subsection (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 subsection (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.
