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Tuesday, August 25, 2015

whether no remand in police custody can be given to the investigating agency in respect of the absconding accused who is arrested only after filing of the charge sheet

           
whether no remand in police  custody  can  be  given  to  the  investigating agency in respect of the absconding  accused  who  is  arrested  only  after filing of the charge sheet  

Out of eight  proclaimed  offenders,  five,  namely,  Rathin  Dandapat,  Md.
Khaliluddin, Dalim Pandey, Joydeb Giri  and  Tapan  Dey,  were  arrested  on
29.4.2014, whereafter on 30.4.2014 the CBI sought  their  remand  in  police
custody.  The Additional Chief Judicial Magistrate,  Jhargram  rejected  the
prayer of the CBI, aggrieved by which said  investigating  agency  submitted
Revisional Application (C.R.R. No. 1510 of 2014) before  the  Calcutta  High
Court.  Absconder-accused Chandi Karan was arrested on 9.5.2014  by  CID  of
the State, which informed the CBI about his arrest  and  meanwhile  vacation
Magistrate remanded judicial custody of said accused up to  12.5.2014.   The
CBI on 12.5.2014 sought remand  in  police  custody  in  respect  of  Chandi
Karan, but the same was also  rejected  by  the  Additional  Chief  Judicial
Magistrate, Jhargram, against which Revisional Application (C.R.R. No.  1641
of 2014) was filed before the High Court.  As to the absconder-accused  Anuj
Pandey too, CID, West Bengal, on 7.5.2014 informed the CBI about his  arrest
from Chandrapura in Jharkhand, and he was produced on  8.5.2014  before  the
Additional Chief Judicial Magistrate, Jhargram where CBI  sought  remand  in
police custody but the same was  also  refused.   Aggrieved  by  said  order
dated  8.5.2014,  passed  by  the  Additional  Chief  Judicial   Magistrate,
Revisional Application (C.R.R. No. 1640 of 2014) was filed before  the  High
Court.  All the three Criminal Revisions were disposed of by the High  Court
by separate orders of the same date, i.e., 15.10.2014, against  which  these
criminal appeals are filed through special leave.


law position

Proviso to sub-section (2) of Section 167 CrPC, which empowers a  Magistrate
to authorize detention of an accused in the  custody  of  police,  reads  as
under: -
“Provided that, -

The Magistrate may authorize the detention of the accused person,  otherwise
than in the custody of the police, beyond the period of fifteen days, if  he
is satisfied that adequate grounds exist for doing  so,  but  no  Magistrate
shall authorize the detention of the accused person in  custody  under  this
paragraph for a total period exceeding, -

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;

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;

No Magistrate shall authorize detention of the accused  in  custody  of  the
police under this section unless the  accused  is  produced  before  him  in
person for the first time and  subsequently  every  time  till  the  accused
remains in the custody of the police, but the Magistrate may extend  further
detention in judicial custody on production of the accused either in  person
or through the medium of electronic video linkage;

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.”


Sub-section (8) of Section 173, under which investigating agency  has  power
to further investigate the matter  in  which  the  report/charge  sheet  has
already been filed, is reproduced hereunder: -
“(8)   Nothing  in  this  section  shall  be  deemed  to  preclude   further
investigation in respect of an offence after a report under sub-section  (2)
has been forwarded to the Magistrate and,  where  upon  such  investigation,
the officer in charge of the police station obtains further  evidence,  oral
or documentary, he shall forward to  the  Magistrate  a  further  report  or
reports regarding such evidence in the form prescribed; and  the  provisions
of sub-sections (2) to (6) shall, as far as may be,  apply  in  relation  to
such report or reports as they apply  in  relation  to  a  report  forwarded
under sub-section (2).”

Relevant provision of  sub-section  (2)  of  Section  309  CrPC,  empowering
remand of an accused, provides as under: -
“(2)  If the Court after taking cognizance of an  offence,  or  commencement
of trial, finds it necessary or advisable to postpone the  commencement  of,
or adjourn, any inquiry or trial, it may, from time to time, for reasons  to
be recorded, postpone or adjourn the same on such terms as  it  thinks  fit,
for such time as it considers reasonable, and may by a  warrant  remand  the
accused if in custody:

            xxx              xxx             xxx

Explanation 1. – If  sufficient  evidence  has  been  obtained  to  raise  a
suspicion that the accused may have committed an  offence,  and  it  appears
likely that further evidence  may  be  obtained  by  a  remand,  this  is  a
reasonable cause for a remand.”

conclusion

 police  remand
can be sought under Section 167(2) CrPC in respect of  an  accused  arrested
at the stage of further investigation, if the  interrogation  is  needed  by
the investigating agency.
This Court has further  clarified  in  said  case
that expression ‘accused if in custody’ in  Section  309(2)  CrPC  does  not
include  the  accused  who  is  arrested  on  further  investigation  before
supplementary charge sheet is filed.

For the reasons, as discussed above, we find  that  the  refusal  of  police
remand in the present case is against the  settled  principle  of  law  laid
down by this Court.  Therefore, the  impugned  orders  passed  by  the  High
Court, affirming the orders of the  Additional  Chief  Judicial  Magistrate,
Jhargram, are liable to be set  aside.   Accordingly,  the  impugned  orders
passed by the High Court and the orders passed by the Magistrate,  declining
the police remand, are set aside.  The Magistrate is directed to pass  fresh
orders on the applications made by  the  appellant  before  it  relating  to
granting of police remand of the respondents in accordance with law.

All the three appeals stand allowed. 2015 S.C.MSKLAWREPORTS

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