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
