Can remand in police custody be given to the investigating agency in respect of the absconding accused who is arrested only after filing of the charge sheet?
This was the legal question that arose for consideration of the Apex Court recently in a case which related to killing of nine persons and injuries to large number of villagers of Village Netai of District Paschim Medinipore in West Bengal.
The Court was hearing an appeal by special leave filed by the CBI Central Bureau of Iinvestigation vs. Rathin Dandapath & Ors.] against the orders passed by the Calcutta High Court upholding the orders passed by the Magistrate refusing CBI's request for police remand of certain absconding accused who had been arrested after the filing of charge sheet in the case.
The allegation of the appellant CBI was that the respondents in the appeals before the Court and other accused, on 07.01.2011, after forming an unlawful assembly in the rooftop of respondent No. 1, Rathin Dandapat, committed the crime.
First Information Report was lodged on the same day at Police Station Lalgarh in respect of offences punishable under Sections 148, 149, 326, 307, 302 of Indian Penal Code (IPC), and also in respect of offences punishable under Section 25/27 of Arms Act. The investigation of the case was initially done by regular police, but later transferred to Criminal Investigation Department (CID) of the State.
Vide order dated 18.2.2011, passed by the High Court of Judicature at Calcutta in Writ Petition Nos. 1170(W) of 2011, 1172(W) of 2011 and 1181(W) of 2011, the investigation was transferred to Central Bureau of Investigation (for short "the CBI").
During investigation, several accused, namely Abhani Bhusan Singha, Subhendu Mondal, Aswani Chalak, Nabagopal Sanki, Pintu Roy, Gandib Ban Roy, Lob Duley, Banamali Duley, Niranjan Kotal, Rupchand Ahir, Raju Roy and Swapan Roy were arrested. On completion of investigation, the CBI submitted charge sheet dated 4.4.2011 against 21 accused, including the arrested ones and the absconders.
It was mentioned in the charge sheet that further investigation of the case was kept open for the purposes of collection of further evidence and the arrest of the absconders. It was also mentioned that further collected evidence during investigation would be forwarded by filing supplementary charge sheet.
The respondents, namely, Rathin Dandapat, Md. Khaliluddin, Dalim Pandey, Joydeb Giri, Tapan De, Chandi Karan, Anuj Pandey and one Kanai Dey, were declared proclaimed offenders.
Meanwhile, the trial proceeded and, after providing necessary copies to the accused,
as required under Section 207 of the Code of Criminal Procedure, 1973 (for short "CrPC"), the Additional Chief Judicial Magistrate, Jhargram, on 9.8.2011, committed the case to the Court of Sessions, Paschim Medinipore.
The Court of Sessions on 10.12.2011 framed charge against accused Abhani Bhusan Singha, Subhendu Mondal, Aswani Chalak, Nabagopal Sanki, Pintu Roy, Gandib Ban Roy, Lob Duley, Banamali Duley, Niranjan Kotal, Rupchand Ahir, Raju Roy and Swapan Roy.
The last two accused, namely, Raju Roy and Swapan Roy were later declared juveniles and their cases were sent to Juvenile Justice Board, Paschim Medinipore.
In respect of other accused against whom charge was framed, trial further proceeded and ten Prosecution Witnesses were examined. However, their cross-examination was deferred at the instance of arrested accused persons, other than the juveniles.
Out of eight proclaimed offenders, five, namely, Rathin Dandapat, Md. Khaliluddin, Dalim Pandey, Joydeb Giri and Tapan Dey, were arrested on 29.4.2014, whereafter on 30.4.2014 the CBI sought their remand in police custody.
The Additional Chief Judicial Magistrate, Jhargram rejected the prayer of the CBI, aggrieved by which said investigating agency preferred a revision before the Calcutta High Court.
Absconder-accused Chandi Karan was arrested on 9.5.2014 by CID of the State, which informed the CBI about his arrest and meanwhile vacation Magistrate remanded the said accused to judicial custody till 12.5.2014.
The CBI on 12.5.2014 sought remand in police custody in respect of Chandi Karan, but the same was also rejected by the Additional Chief Judicial Magistrate, Jhargram, against which a revision was filed by the CBI before the High Court.
As regards the other absconder-accused Anuj Pandey too, CID, West Bengal, on 7.5.2014 informed the CBI about his arrest from Chandrapura in Jharkhand, and he was produced on 8.5.2014 before the Additional Chief Judicial Magistrate, Jhargram where CBI sought remand in police custody but the same was also refused.
Aggrieved by said order dated 8.5.2014, passed by the Additional Chief Judicial Magistrate, revision was filed by the CBI before the High Court.
All the three Criminal Revisions were disposed of by the High Court by separate orders of the same date, i.e., 15.10.2014, against which criminal appeals were filed through special leave before the Supreme Court.
The Apex Court after surveying the statutory provisions in the Code of Criminal Procedure, referred to its earlier judgment in State through CBI v. Dawood Ibrahim Kaskar and others wherein a three judge bench laid down the law on the issue relating to grant of police custody of a person arrested during further investigation. In
paragraph 11 of said case, the Supreme Court had held that since, 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 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 Mohd. Ahmed Yasin Mansuri v. State of Maharashtra [1994 Cri LJ 1854 (Bom)], — 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 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 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. So far as the accused in the first category is concerned he can be remanded to judicial custody only in view of Section 309(2), but he who comes under the second category will be governed by Section 167 so long as further investigation continues. That necessarily means that in respect of the latter the Court which had taken cognizance of the offence may exercise its power to detain him in police custody, subject to the fulfilment of the requirements and the limitation of Section 167."
The SC held that the High Court erred in placing reliance on the case of Dinesh Dalmia v. CBI. It said "In view of the above facts, in the present case, in our opinion, the High Court is not justified on the basis of Dinesh Dalmia (supra) in upholding
refusal of remand in police custody by the Magistrate, on the ground that accused stood in custody after his arrest under Section 309 CrPC. We have already noted above the principle of law laid down by the three judge bench of this Court in State v. Dawood Ibrahim Kaskar (supra) that police remand can be sought under Section 167(2) CrPC in respect of an accused arrested at the stage of further investigation, if the interrogation is needed by the investigating agency. This Court has further clarified in said case that expression 'accused if in custody' in Section 309(2) CrPC does not include the accused who is arrested on further investigation before supplementary charge sheet is filed."
The Supreme Court accordingly held that the refusal of police remand in the present case is against the settled principle of law laid down by it in earlier cases. Accordingly, the Apex Court allowed the appeals and set aside the impugned orders passed by the High Court, affirming the orders of the Additional Chief Judicial Magistrate, Jhargram, and directed the Magistrate to pass fresh orders on the applications made by the appellant before it relating to granting of police remand of the respondents in accordance with law.
Read the Judgment here.