Whether with the change of an investigating authority, police custody of the accused on remand can be sought for, although cognizance of theoffence had already been taken ?
In Mithabhai pashabhai patel v. State of Gujrat (Crl. Appeal no 941 of 2009) decided by supreme court on 06/05/2009, the accused were remanded to police custody in terms of sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973. Upon completion of investigation, a charge sheet was submitted. The matter was committed to the Sessions Court and cognizance of the offence was taken by the Sessions Judge. They
were granted bail by the HighCourt .
The matter had came up before the supreme Court and the supreme court 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.
Thereafter An application was filed sessions judge by 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 mentioned therein.
By reason of a judgment and order dated 23rd May, 2008 the said application was rejected by the learned Sessions Judge, on the ground 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 Magistrate.
Against the order of sessions judge, the State preferred a revision application before the High Court and the High Court reversed the decision of the Sessions Judge and directed that the appellants be remanded to custody. The High Court in support of its order opined :
a) Having regard to the constitution of the Special InvestigatingTeam, further investigation is required to be made and Section 167(2) of the Code gives ample power for further investigation.
b) Further 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.
On appeal the supreme court held that : Indisputably the 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. It 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. Besides discussing the case law elaborately, the supreme court cited in Ramachandran v. R. Udhayakumar, [(2008) 5 SCC 413] wherein Pasayat, J 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-sectio (2) of Section 173 of the Code, the police has rightto further investigate under sub-section (8), but not fresh investigation or reinvestigation..."
The supreme court held that “a distinction, therefore, exists between a re-investigation and further investigation.
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 of criminal procedure."
The 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 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 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.
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