Remand of accused on change of investigating agency

Whether with the change of an investigating authority, police custody of the accused on remand can be sought for, although cognizance of theoffence had already been taken ?

In Mithabhai pashabhai patel v. State of Gujrat (Crl. Appeal no 941 of 2009) decided by supreme court on 06/05/2009, the accused were remanded to police custody in terms of sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973. Upon completion of investigation, a charge sheet was submitted. The matter was committed to the Sessions Court and cognizance of the offence was taken by the Sessions Judge. They

were granted bail by the HighCourt .                                                                          

   The matter had came up before the supreme Court and the supreme court appointed a Special Investigation Team. Pursuant to or in furtherance of the said direction the State of Gujarat issued a Notification on 1st April, 2008 constituting a Special Investigation Team to investigate into cases arising out of Godhra incident and communal riots erupted thereafter in the year 2002.

  Thereafter An application was filed sessions judge by Assistant Superintendent of Police, seeking remand of the

accused for a period of 14 days. The reasons assigned therefor were that that offences under some provisions were added and investigation with respect to

the said offences from the accused could not be carried out therefor in respect of certain points mentioned therein.

By reason of a judgment and order dated 23rd May, 2008 the said application was rejected by the learned Sessions Judge, on the ground that Police remand can  be granted only by the committal court. Therefore, after getting cancellation of bail order, applicant  member of Special Investigation Team is also

            directed to first of all approach the learned Judicial

            Magistrate First Class Prantij-committal court for

            Police custody in the present case because this

            court is a Sessions Court not competent to grant

            remand order unless and until that prayer is

            rejected by Magistrate.

Against the order of sessions judge, the State preferred a revision application before the

High Court and the High Court reversed

the decision of the Sessions Judge and directed that the appellants be remanded to custody. The High Court in support of its order opined :

 a)    Having regard to the constitution of the Special InvestigatingTeam, further investigation is required to be made and Section 167(2) of the Code gives ample power for further investigation.

      b)    Further investigation is required to be made in the facts and  circumstances of the case as earlier investigation was carried  out in a most perfunctory manner.

      c)    Since new sections are added, further enquiry/investigation would be required to be conducted in the matter and the  investigating agency cannot be denied such a right and to have the custody of the appellants. For the said purpose, the fact that     the appellants had been granted bail would be of no relevance.

      d)    Section 167 (2) and not the proviso appended to Section 309 (2) of the Code would be applicable in a case of this nature.

      e)    As the Special Investigating Team has the power to reinvestigate, it is not necessary to seek for cancellation of bail.

      f)    The committal order having been passed, the Sessions Judge should have exercised its jurisdiction under Section 397 of the   Code.

On appeal the supreme court held that :

Indisputably the investigating agency in terms of sub-section (8) of Section

173 of the Code can pray before the Court and may be granted permission to investigate into the matter further. There are, however, certain situations, where such a formal request may not be insisted upon. It is, however, beyond any cavil that `further investigation' and `re-

investigation' stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely under Articles

226 and 32 of the Constitution of India could direct a `State' to get an offence investigated and/or further investigated by a different agency.Direction of a re-investigation, however, being forbidden in law, no superior

could would ordinarily issue such a direction.

Besides discussing the case law elaborately, the  supreme court cited in Ramachandran v. R. Udhayakumar, [(2008) 5 SCC 413] wherein Pasayat, J

opined as under :-

         "7. At this juncture it would be necessary to take

             note of Section 173 of the Code. From a plain

             reading of the above section it is evident that even

             after completion of investigation under sub-sectio (2) of Section 173 of the Code, the police has right

             to further investigate under sub-section (8), but not   fresh investigation or reinvestigation..."                                                                    

The supreme court held that “a distinction, therefore, exists between a re-investigation and further investigation.

The pre-     cognizance jurisdiction to remand vested in the subordinate courts, therefore, must be exercised within the four-corners of the Code.            The power to

remand, indisputably, is vested in a Magistrate in terms of sub-section (2) of Section 167 of the Code -------

The power of remand in terms of the aforementioned provision is to be exercised when investigation is not complete. Once charge-sheet is filed

and cognizance of the offence is taken, the court cannot exercise its power

under sub-section (2) of Section 167 of the Code. Its power of remand can

then be exercised in terms of sub-section (2) of Section 309

Appellants had been granted bail. They are not in custody of the

court. They could not be taken in custody ordinarily unless their bail was

not cancelled. The High Court, in our opinion, was not correct in holding

that as further investigation was required, sub-section (2) of Section 167 of

the Code gives ample power for grant of police remand.