Supreme Court of India
PRADEEP RAMversusTHE STATE OF JHARKHAND & ANR.
- Citation
- 2019 INSC 706
- Decided
- 1 July 2019
- Disposal
- Dismissed
- Bench
- ASHOK BHUSHAN
Holding
Sections 437(5) and 439(2) empower the court to arrest a bailed accused after addition of serious offences without cancelling the bail, the NIA’s re‑registered FIR is not a second FIR, the NIA may investigate further and file a supplementary report, and the remand order must be treated as made under Section 309(2) CrPC and is valid.
Summary
The appellant, Pradeep Ram, was granted bail in 2016 for offences under the IPC, Arms Act and Criminal Law Amendment Act. Subsequent addition of serious offences under the Unlawful Activities (Prevention) Act led the investigating agency to seek his arrest and the Special NIA Judge remanded him to judicial custody. The Supreme Court held that Sections 437(5) and 439(2) of the CrPC allow a court to order arrest of a bailed accused after addition of graver offences without cancelling the earlier bail, that the re‑registration of the FIR by the NIA was not a prohibited second FIR, and that the NIA could lawfully conduct further investigation and file a supplementary report under Section 173(8). The Court also clarified that, because cognizance had already been taken and the accused was in custody, the remand could only be made under Section 309(2) CrPC, not Section 167, and upheld the remand order. Consequently, the appeals were dismissed.
Issues considered
- Whether a court may arrest an accused already on bail under Sections 437(5) and 439(2) of the CrPC after addition of further cognizable and non‑bailable offences without cancelling the earlier bail.
- Whether the re‑registration of the FIR by the NIA constitutes a prohibited second FIR.
- Whether the National Investigation Agency can conduct further investigation and submit a supplementary report under Section 173(8) CrPC after an earlier charge‑sheet has been filed.
- Whether the Special Judge could remand the accused under Section 167(2) CrPC after cognizance had been taken, or whether only Section 309(2) CrPC was applicable.
- Whether the remand order dated 25‑06‑2018 was valid.
Legislation cited
- Arms Acts. 25(1‑B)(a), s. 26, s. 35
- Code of Criminal Procedure, 1973s. 167(2), s. 173(2), s. 173(8), s. 309(2), s. 437(5), s. 439(2)
- Criminal Law Amendment Acts. 17(1), s. 17(2)
- National Investigation Agency Act, 2008s. 3, s. 4, s. 5, s. 6(5), s. 6(6), s. 7, s. 8
- Unlawful Activities (Prevention) Act, 1967s. 16, s. 17, s. 20, s. 23
Subjects
bailarrestSection 437 CrPCSection 439 CrPCaddition of offencessecond FIRNIA investigationSection 173(8) CrPCremandSection 167 CrPCSection 309 CrPCcriminal procedure
Judgment
824 [2019]
SUPREME COURT 8 S.C.R. 824
REPORTS [2019] 8 S.C.R.
A PRADEEP RAM
v.
THE STATE OF JHARKHAND & ANR.
(Criminal Appeal Nos. 816-817 of 2019)
B JULY 01, 2019
[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
Code of Criminal Procedure, 1973:
ss. 437(5) and 439(2) – Arrest of accused who was on bail –
C After addition of further cognizable and non-bailable offence –
Whether permissible without seeking cancellation of the bail earlier
granted – Held: The court in exercise of power u/ss. 437(5) and
439(2) can direct arrest of accused who was already on bail, after
addition of graver and non-cognizable offences, even without
cancelling earlier bail – It is not open to the investigating authority
D
to proceed to arrest without the permission of the Court, on addition
of further offences – In the present case, the investigating agency
had approached the Court seeking arrest of the accused after
addition of further offences – There was no error in the procedure
adopted by Special Judge in remanding the accused to judicial
E custody.
s. 167 and 309(2) – Remand of accused to judicial custody –
In a case where cognizance has already been taken by the Chief
Judicial Magistrate – Whether has to be in exercise of power u/s.
167 or u/s. 309(2) – Held: Accused can be remanded u/s. 167(2)
F during investigation till cognizance is taken by the Court – After
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 u/s.
309(2) – Thus, in the present case, accused could have been
remanded only u/s. 309(2)– However, the remand order in the present
G case, does not mention the provision under which remand was
granted – Therefore, the remand order has to be treated as order
passed in exercise of power u/s. 309(2).
H
824
PRADEEP RAM v. THE STATE OF JHARKHAND & ANR. 825
FIR: A
Re-registration of FIR – After addition of offences under
Unlawful Activities (Prevention) Act, to the FIR – Whether barred
being a second FIR – Held: Second FIR with regard to the same
offences is barred – But, in the facts of the present case, re-
registration of the FIR cannot be called second FIR – It was, in B
fact, re-registration of FIR to give effect to the provisions of National
Investigation Agency Act – Therefore, re-registration of FIR was
not barred.
Investigation:
Further investigation – By National Investigation Agency C
(NIA) – On addition of further offences under Unlawful Activities
(Prevention) Act, 1967 in the FIR – After investigation in the previous
FIR was over – Permissibility – Held: Investigation by NIA was
permissible as offences under 1967 Act were not added when charges
were framed in the previous FIR – Even u/s. 173(2) of Cr.P.C., it is D
open to the police authorities to conduct further investigation and
submit a report u/s. 173(8) – There was no lack of jurisdiction in
NIA to carry on further investigation and submit a supplementary
report in the facts of the present case – Criminal Procedure Code,
1973 – s. 173(2) and (8).
E
Dismissing the appeals, the Court
HELD : 1.1 Both Sections 437(5) and 439(2) of Cr.P.C.
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 F
Sections 437(5) and 439(2). 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 G
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
H
826 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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. [Para 21] [841-D-G]
1.2 Sub-section (5) of Section 437 of Cr.P.C uses expression
B ‘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
C 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
D bail or permission to arrest such accused due to addition of graver
and non-cognizable offences. [Para 25] [843-H; 844-A-D]
1.3 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
E to obtain an order from the Court, which has released the accused
on the bail. 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
F 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
G 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.
H
PRADEEP RAM v. THE STATE OF JHARKHAND & ANR. 827
Sections 437(5) and 439(2) cannot be read into restricted manner A
that order for arresting the accused and commit him to custody
can only be passed by the Court after cancelling the earlier bail.
[Para 27] [845-C-F]
1.4 The appellant in the present case was already into jail
custody with regard to another case and the investigating agency B
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 C
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.
Thus there is no error in the procedure which was adopted by D
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 judicial custody. [Para 28] [845-F-H; E
846-A-B]
1.5 In 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, F
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 G
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 addition ‘of’ graver
and non-cognizable offences which may not be necessary always
H
828 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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. [Para 29] [846-B-G]
B
Prahlad Singh Bhati v. NCT, Delhi and Another (2001)
4 SCC 280 : [2001] 2 SCR 684 ; Hamida v. Rashid
alias Rasheed and Others (2008) 1 SCC 474 : [2007] 5
SCR 937 – relied on.
C Sukhpal v. State of Rajasthan 1988 (1) RLW 283 ;
Dhivan v. State (2010) 2 MWN (Cr.) ; Dhivan v. State
(2010) 2 MWN (Cr.) ; Bijendra and Ors. v. State of
U.P. and Ors. (2006) CriLJ 2253 ; Bankey Lal
Sharma v. State of U.P. and Ors. (2008) CriLJ 3779
D – approved.
Sita Ram Singh and Anr. v. State of Bihar 2002 (2) BLJR
859 ; Fayaz Ahmad Khan and Ors. v. State CRMC
No. 270/2018 ; Mithabhai Pashabhai Patel and others
v. State of Gujarat (2009) 6 SCC 332 : [2009] 7 SCR
E 1126 ; Manoj Suresh Jadhav & Ors. v. The State of
Maharashtra SLP (Crl.) No. 10179 of 2017 – referred
to.
2.1 There cannot be any dispute to the proposition that
second FIR with regard to same offences is barred. In the present
F case, the charge-sheet in the case Crime No.02/2016 (earlier
FIR) was submitted by the investigating agency on 10.03.2016
and cognizance was taken on 11.03.2016. Charges were framed
on 19.09.2016. The 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
G 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 NIA to investigate the offence under
H scheduled offences, NIA was fully competent to investigate the
PRADEEP RAM v. THE STATE OF JHARKHAND & ANR. 829
offences and submit a supplementary report. Present is not a 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. [Para 42] [855-C-E]
B
T.T. Antony v. State of Kerala and Others (2001) 6 SCC
181 : [2001] 3 SCR 942 ; Babubhai v. State of Gujarat
and Others (2010) 12 SCC 254 : [2010] 10 SCR 651 ;
Chirra Shivraj v. State of Andhra Pradesh (2010) 14
SCC 444 : [2010] 15 SCR 673 ; Amitbhai Anilchandra
Shah v. Central Bureau of Investigation & Anr. (2013) C
6 SCC 348 : [2013] 6 SCR 623 – referred to.
2.2 Sub-section (6) of Section 6 of the NIA Act 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 D
13.02.2018, it was not competent for police officer of the State
Government to proceed with the investigation. Therefore, the
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- E
registration of the FIR is only procedural act to initiate the
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. [Para 43] [855-F-G]
3. It cannot be said that NIA cannot conduct any F
investigation or submit any report, since investigation was already
completed and charge sheet was submitted, because 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. The Scheme as
delineated by Section 173 Cr.P.C. itself indicates that even after G
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). Thus, there is no lack of jurisdiction in NIA to
H
830 SUPREME COURT REPORTS [2019] 8 S.C.R.
A carry on further investigation and submit a supplementary report
in the facts of the present case. [Paras 44 and 47] [856-A-C;
858-E]
Vinay Tyagi v. Irshad Ali alias Deepak and Others
(2013) 5 SCC 762 : [2012] 13 SCR 1005 ; Amrutbhai
B Shambhubhai Patel v. Sumanbhai Kantibhai Patel and
Others (2017) 4 SCC 177 : [2017] 4 SCR 105 – relied
on.
4.1 The accused can be remanded under Section 167(2)
Cr.P.C during investigation till cognizance has not been taken by
C the Court. Even after taking cognizance when an accused is
subsequently arrested during further investigation, the accused
can be remanded under Section 167(2) Cr.P.C. 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
D Section 309(2) Cr.P.C. Thus, in the present case, accused could
have been remanded only under Section 309(2) Cr.P.C. [Paras
63 (i) (ii) (iii) and 63] [866-H; 867-B]
Gouri Shankar Jha v. State of Bihar and others 1972
(1) SCC 564 : [1972] 3 SCR 129 ; Central Bureau of
E Investigation, Special Investigation Cell-I, New D e l h i
v. Anupam J. Kulkarni (1992) 3 SCC 141 : [1992] 3
SCR 158 ; Dinesh Dalmia v. Central Bureau of
Investigation (2007) 8 SCC 770 : [2007] 9 SCR 1124 ;
Mithabhai Pashabhai Patel and Others v. State of
F Gujarat (2009) 6 SCC 332 : [2009] 7 SCR 1126
– relied on.
State through CBI v. Dawood Ibrahim Kaskar and
Others (2000) 10 SCC 438 : [1997] 1 Suppl. SCR 212
– distinguished.
G Mohd. Ahmed Yasin Mansuri v. State of Maharashtra
1994 Crl.LJ 1854 (Bom.) – referred to.
4.2 In the present case, the special Judge in his remand
order has neither referred to Section 309 nor Section 167 Cr.P.C.
under which accused was remanded. When the Court has power
H to pass a particular order, non-mention of provision of law or
PRADEEP RAM v. THE STATE OF JHARKHAND & ANR. 831
wrong mention of provision of law is inconsequential. As the special A
Judge could have only exercised power under Section 309(2),
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 is no illegality in the remand order
B
dated 25.06.2018 when the accused was remanded to the judicial
custody. 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. [Paras 65 and 66] [867-G-H;
868-A-B]
Case Law Reference C
2002 (2) BLJR 859 referred to Para 10
[2001] 2 SCR 684 relied on Para 10
1988 (1) RLW 283 approved Para 11
D
(2010) 2 MWN (Cr.) approved Para 12
(2006) CriLJ 2253 approved Para 13
(2008) CriLJ 3779 approved Para 14
CRMC No. 270/2018 referred to Para 15
E
[2007] 5 SCR 937 relied on Para 17
[2009] 7 SCR 1126 referred to Para 23
SLP (Crl.) No.10179 of 2017 referred to Para 26
[2001] 3 SCR 942 referred to Para 32 F
[2010] 10 SCR 651 referred to Para 32
[2010] 15 SCR 673 referred to Para 32
[2013] 6 SCR 623 referred to Para 32
[2012] 13 SCR 1005 relied on Para 44 G
[2017] 4 SCR 105 relied on Para 45
[1972] 3 SCR 129 relied on Para 52
[1992] 3 SCR 158 relied on Para 53
H
832 SUPREME COURT REPORTS [2019] 8 S.C.R.
A [1997] 1 Suppl. SCR 212 distinguished Para 54
1994 Crl.LJ 1854 (Bom.) referred to Para 54
[2007] 9 SCR 1124 relied on Para 58
[2009] 7 SCR 1126 relied on Para 60
B CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 816-817 of 2019.
From the Judgment and Order dated 26.09.2018 of the High Court
of Jharkhand at Ranchi in W.P. (Crl.) No. 277 of 2018 and Cr.M.P. No.
1114 of 2016.
C
Abhinav Mukerji, Ms. Bihu Sharma, Siddharth Garg,
Ms. Pratishtha Vij, Advs. for the Appellant.
Aman Lekhi, ASG, Tapesh Kumar Singh, Aditya N. Das,
Aditya Pratap Singh, Ms. Suhasini Sen, Rajat Nair, Ms. Kanu Agarwal
(for B. V. Balaram Das), Advs. for the Respondents.
D
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. These appeals have been filed against the judgment dated
26.09.2018 of High Court of Jharkhand dismissing the Writ Petition (Crl.)
E 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,
F Police Station Tandwa was lodged for 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
G 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
H
PRADEEP RAM v. THE STATE OF JHARKHAND & ANR. 833
[ASHOK BHUSHAN, J.]
room of the appellant alongwith four mobiles. No A
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, 384, 386, 387, 120-B I.P.C. read with Sections 25(1- B
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 C
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 D
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
the further proceedings in Tandwa P.S. Case No.2/2016. E
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- F
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 G
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.RC-06/2018/NIA/DLI dated
16.02.2018 under the above noted sections. The appellant
being under custody in some other case, request was made H
834 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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.
B
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.RC-
06/2018/NIA/DLI. A further prayer was also made for
C quashing the order dated 25.06.2018 remanding the appellant
to the judicial custody by order of the Judicial Commissioner-
cum-Special Judge, NIA, Ranchi. The High Court by the
impugned judgment dated 26.09.2018 dismissed both, the
Writ Petition (Crl.) No.277 of 2018 as well as Crl.M.P.
D 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
E 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
F 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 11.03.2016, order could have only
been passed under Section 309 Cr.P.C. It is submitted that by re-
registration of the F.I.R., NIA cannot carry on any re-investigation into
G 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
H cancellation of the bail dated 10.03.2016. It was only after cancellation
PRADEEP RAM v. THE STATE OF JHARKHAND & ANR. 835
[ASHOK BHUSHAN, J.]
of the bail that appellant could have been re-arrested or taken into judicial A
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- B
registration of the F.I.R. by NIA cannot be said to be a second F.I.R. It
is further 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 C
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 D
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 on E
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 F
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 G
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 various judgments of this Court as well H
836 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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:-
B (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.RC-06/2018/NIA/DLI
C 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
D having already been completed and charge sheet has been
submitted on 10.03.2016 with regard to which cognizance
has already been taken by Chief Judicial Magistrate, Chatra
on 11.03.2016?
(iv) Whether the order dated 25.06.2018 passed by Judicial
E 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
F 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-
G 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
H some other case and an application was filed in the Court of Special
PRADEEP RAM v. THE STATE OF JHARKHAND & ANR. 837
[ASHOK BHUSHAN, J.]
Judge by the prosecution praying for production warrant, which A
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 B
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. C
10. Learned counsel for the parties have also relied on several
judgments of different High Courts in regard to the circumstance when
new cognizable and non-bailable 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, D
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 E
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 F
Court concerned would be to apply its mind afresh as to whether the
accused is entitled for grant of bail, in the changed circumstances.
11. Rajasthan High Court in Sukhpal Vs. State of Rajasthan,
1988 (1) RLW 283 has also made following observations in paragraph
No.4:- G
“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 H
838 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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:-
B “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 re-arrest the accused until the bail granted
C 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
D has also been referred to and relied in the impugned judgment. In
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
E 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
F 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.
G 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
H
PRADEEP RAM v. THE STATE OF JHARKHAND & ANR. 839
[ASHOK BHUSHAN, J.]
offence, therefore, on addition of a new offence, the accused is A
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
B
added offence and is not on bail, 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 C
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 D
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 E
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 non-bailable offence, the F
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 G
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
H
840 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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. The
B
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
C 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.
D 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
E 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
F concerned and he 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
G 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
H an application before the Court for issue of production warrant since the
PRADEEP RAM v. THE STATE OF JHARKHAND & ANR. 841
[ASHOK BHUSHAN, J.]
accused was already in custody in jail in reference to another case. A
19. We may refer to the relevant provisions of the Cr.P.C. regarding
grant of bail. Chapter XXXIII of 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:- B
“(5) Any Court which has released a person on bail under sub-
section (1) or sub- section (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 C
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.”
D
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 E
accused has been 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 F
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 G
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). H
842 SUPREME COURT REPORTS [2019] 8 S.C.R.
A In the above case, the 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
B
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
C 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 respondents-accused could apply
D 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 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
E 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
F 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
G 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
H
PRADEEP RAM v. THE STATE OF JHARKHAND & ANR. 843
[ASHOK BHUSHAN, J.]
power by the High Court under Section 482 CrPC is clearly illegal A
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 respondents-
accused by the trial court and some subsequent orders were passed
by the High Court by which the accused were ordered to remain B
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 deserve to be set aside on the same ground.
12. In the result, the appeal is allowed. The impugned order dated C
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 D
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 E
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, F
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 their bail was not cancelled. Can from the above G
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
H
844 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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
B
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 arrest such accused due to addition of graver and
C non-cognizable 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.
D 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
E 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:-
“………………
F We have heard learned counsel appearing for the parties and
perused the record.
It is not permissible for the respondent-State 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
G 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
H of Criminal Procedure, the respondent-State is at liberty to apply
PRADEEP RAM v. THE STATE OF JHARKHAND & ANR. 845
[ASHOK BHUSHAN, J.]
for cancellation of bail and seek the custody of the petitioners- A
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 B
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. It is also C
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 D
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 E
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.
F
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. G
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 H
846 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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
B
him to the 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:-
C (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
D 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
E 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 addition of graver and non-cognizable offences
which may not be necessary always with order of cancelling
of earlier bail.
F (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.
G
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
H Agency Act, 2008 passed following order:-
PRADEEP RAM v. THE STATE OF JHARKHAND & ANR. 847
[ASHOK BHUSHAN, J.]
“F. No. 11011/08/2018/NIA A
Government of India
Ministry of Home Affairs
CTCR Division
North Block, B
New Delhi
Dated, the 13th February, 2018
ORDER
C
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 D
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. E
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. F
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. G
Sd/- Illegible
(Dharmender Kumar)
Under Secretary to the Government of India”
32. The NIA, which registered the FIR No.RC-06/2018/NIA/DLI
dated 16.02.2018, in pursuance of the order of the Central Government
H
848 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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
B
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.
C 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
D 27.05.1997. The Government 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
E 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
F 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 officers instead of investigation
G 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:
H (i) whether registration of a fresh case, Crime No. 268 of
PRADEEP RAM v. THE STATE OF JHARKHAND & ANR. 849
[ASHOK BHUSHAN, J.]
1997, Kuthuparamba Police Station on the basis of the A
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 B
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 C
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 D
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 E
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 F
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”. G
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 investigation to CBI by order dated
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850 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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
B
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
C 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
D 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
E 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 comes into
possession of further information or material, he need not
F 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 sub-section (8) of
G 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
H requirements of Section 154 CrPC. Thus there can be no second
PRADEEP RAM v. THE STATE OF JHARKHAND & ANR. 851
[ASHOK BHUSHAN, J.]
FIR and consequently there can be no fresh investigation on A
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
B
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. C
* * *
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 D
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 E
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 F
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 G
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 under Section 482 CrPC or
H
852 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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.
B 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,
C 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
D 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.
E
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 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
F 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
G 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
H been forwarded to the Magistrate, is liable to be interfered with
PRADEEP RAM v. THE STATE OF JHARKHAND & ANR. 853
[ASHOK BHUSHAN, J.]
by the High Court by exercise of power under Section 482 of the A
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 B
above question, we need to look into the scheme of the NIA Act, 2008.
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 C
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 D
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 E
police station shall forward the report to the State Government
forthwith.
(2) On receipt of the report under sub-section (1), the State
Government shall forward the report to the Central Government
as expeditiously as possible. F
(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
G
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
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854 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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.
B (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.
C (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.—
D While investigating any offence under this Act, the Agency, having
regard to the gravity of the offence and other relevant factors,
may—
(a) if it is expedient to do so, request the State Government to
associate itself with the investigation; or
E
(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
F
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
G 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.”
H 41. The Schedule of the Act, Item No.2 mentioned “The Unlawful
PRADEEP RAM v. THE STATE OF JHARKHAND & ANR. 855
[ASHOK BHUSHAN, J.]
Activities (Prevention) Act, 1967”. Thus, any offence under Unlawful A
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 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
B
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, C
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 D
framed on 19.09.2016 were not with respect to offences under Unlawful
Activities (Prevention) Act, 1967, thus, when the Central Government
directed the 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 E
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 F
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- G
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
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 H
856 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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
B
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
C 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 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
D 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
E 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
F 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
G 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 the 41st Report of the Law Commission of India in
H
PRADEEP RAM v. THE STATE OF JHARKHAND & ANR. 857
[ASHOK BHUSHAN, J.]
reference to Section 173, this Court laid down following in paragraph A
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 B
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.
C
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 D
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 E
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 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 F
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 G
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
H
858 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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
B 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
C to maintain the independence of the judiciary, the interest of the
purity of administration of criminal 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
D 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
E 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
F 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 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),
G 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
H
PRADEEP RAM v. THE STATE OF JHARKHAND & ANR. 859
[ASHOK BHUSHAN, J.]
Judicial Commissioner-cum-Special Judge NIA, Ranchi. The appellant A
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
B
Ranchi and directed to be produced on 26.06.2018. On 26.06.2018, the
appellant was produced from Jail 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 C
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, D
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 well-
founded, the officer in charge of the police station or the police
officer making the investigation, if he is not below the rank of E
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 F
under this section may, whether he has or has no jurisdiction to try
the case, from time to time, authorise the detention 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 G
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
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860 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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
B 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
C 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;
D (b) no Magistrate shall authorise 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
E 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.
F 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
G
(b), the production of the accused person may be proved by his
signature on the order authorising detention or by the order certified
H
PRADEEP RAM v. THE STATE OF JHARKHAND & ANR. 861
[ASHOK BHUSHAN, J.]
by the Magistrate as to production of the accused person through A
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 learned B
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
day-to-day until all the witnesses in attendance have been
examined, unless the Court finds the adjournment of the same C
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 D
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 E
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: F
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 G
them, except for special reasons to be recorded in writing:
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862 SUPREME COURT REPORTS [2019] 8 S.C.R.
A Provided also that no adjournment shall be granted for the
purpose only of enabling the accused person to show cause against
the sentence proposed to be imposed on him.
Provided also that –
(a) no adjournment shall be granted at the request of a party,
B 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 (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
D examination-in-chief or cross-examination 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.
E
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
F for remanding the accused (appellant), Section 167(2) Cr.P.C. could have
been resorted to by 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
G 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
H arrested and either an investigation has started or is yet to
PRADEEP RAM v. THE STATE OF JHARKHAND & ANR. 863
[ASHOK BHUSHAN, J.]
start, but is such that it cannot be completed within 24 hours. A
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
B
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 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 C
(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 D
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 E
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 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 F
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:- G
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,
H
864 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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:
B
“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 terms as it thinks fit, for such time
C 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:”
D
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
E 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
F 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
G 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 not refer to
H an accused, who is subsequently arrested in course of further investigation.
PRADEEP RAM v. THE STATE OF JHARKHAND & ANR. 865
[ASHOK BHUSHAN, J.]
This Court in paragraph No. 11, as noted above, clearly held that even A
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 B
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 C
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 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 D
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 E
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. F
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-à-vis sub-Section (2) of Section 309 Cr.P.C. In paragraph
No. 29, this Court laid down: - G
“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 H
866 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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
B regard to an investigation leading to filing of final form under
sub-section (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 sub-section (2) of
C 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.”
D 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 following observations:-
“17. The power of remand in terms of the aforementioned
E 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:
F
“309. Power to postpone or adjourn proceedings.—
(1) * * *“
62. The above observations do support the submissions raised by
the learned counsel for the appellant.
G 63. 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
H the Court.
PRADEEP RAM v. THE STATE OF JHARKHAND & ANR. 867
[ASHOK BHUSHAN, J.]
(ii) That even after taking cognizance when an accused is A
subsequently arrested during 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 B
to judicial custody only under Section 309(2) Cr.P.C.
64. 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 C
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.
65. 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 Judicial Commissioner-cum-Special Judge NIA, D
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 E
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 F
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
G
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
H
868 SUPREME COURT REPORTS [2019] 8 S.C.R.
A the present case, there 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
B 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
C in the appeals and the appeals are dismissed.
Kalpana K. Tripathy Appeals dismissed.
D
E
F
G
H
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