PRADEEP RAM versus THE STATE OF JHARKHAND & ANR.

[2019] 8 S.C.R. 824

[2019] 8 S.C.R.

PRADEEP RAM

THE STATE OF JHARKHAND & ANR.

(Criminal Appeal Nos. 816-817 of 2019)

BJULY 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 –CAfter addition of further cognizable and non-bailable offence –Whether permissible without seeking cancellation of the bail earliergranted – Held: The court in exercise of power u/ss. 437(5) and439(2) can direct arrest of accused who was already on bail, afteraddition of graver and non-cognizable offences, even withoutcancelling earlier bail – It is not open to the investigating authorityDto proceed to arrest without the permission of the Court, on additionof further offences – In the present case, the investigating agencyhad approached the Court seeking arrest of the accused afteraddition of further offences – There was no error in the procedureadopted by Special Judge in remanding the accused to judicialEcustody.

s. 167 and 309(2) – Remand of accused to judicial custody –In case where cognizance has already been taken by the ChiefJudicial 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)Fduring investigation till cognizance is taken by the Court – Aftercognizance has been taken and the accused was in custody at thetime of taking cognizance or when inquiry or trial was being heldin respect of him, he can be remanded to judicial custody only u/s.309(2) – Thus, in the present case, accused could have beenremanded only u/s. 309(2)– However, the remand order in the presentGcase, does not mention the provision under which remand wasgranted – Therefore, the remand order has to be treated as orderpassed in exercise of power u/s. 309(2).

FIR:

Re-registration of FIR – After addition of offences underUnlawful Activities (Prevention) Act, to the FIR – Whether barredbeing second FIR – Held: Second FIR with regard to the sameoffences is barred – But, in the facts of the present case, re-registration of the FIR cannot be called second FIR – It was, infact, re-registration of FIR to give effect to the provisions of NationalInvestigation Agency Act – Therefore, re-registration of FIR wasnot barred.

Investigation:

Further investigation – By National Investigation Agency(NIA) – On addition of further offences under Unlawful Activities(Prevention) Act, 1967 in the FIR – After investigation in the previousFIR was over – Permissibility – Held: Investigation by NIA waspermissible as offences under 1967 Act were not added when chargeswere framed in the previous FIR – Even u/s. 173(2) of Cr.P.C., it isopen to the police authorities to conduct further investigation andsubmit report u/s. 173(8) – There was no lack of jurisdiction inNIA to carry on further investigation and submit supplementaryreport in the facts of the present case – Criminal Procedure Code,1973 – s. 173(2) and (8).

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 tocustody, who has been released on bail under Chapter XXXIII.There may be numerous grounds for exercise of power underSections 437(5) and 439(2). person against whom seriousoffences have been added, who is already on bail can very well bedirected to be arrested and committed to custody by the Court inexercise of power under Sections 437(5) and 439(2). Cancellingthe bail granted to an accused and directing him to arrest andtaken into custody can be one course of the action, which can beadopted while exercising power under Sections 437(5) and 439(2),but there may be cases where without cancelling the bail grantedto an accused, on relevant consideration, Court can direct theaccused to be arrested and committed to custody. The additionof serious offences is one of such circumstances, under which

Athe Court can direct the accused to be arrested and committedto custody despite the bail having been granted with regard tothe offences with which he was charged at the time when bail wasconsidered and granted. [Para 21] [841-D-G]

1.2 Sub-section (5) of Section 437 of Cr.P.C uses expressionB‘if it considers it necessary so to do, direct that such person bearrested and commit him to custody’. Similarly, sub-section (2)of Section 439 of Cr.P.C. provides: ‘may direct that any personwho has been released on bail under this Chapter be arrestedand commit him to custody’. plain reading of the aforesaidprovisions indicates that provision does not mandatorily provideCthat the Court before directing arrest of such accused who hasalready been granted bail must necessary cancel his earlier bail.A discretion has been given to the Court to pass such orders todirect for such person be arrested and commit him to the custodywhich direction may be with an order for cancellation of earlier

Dbail or permission to arrest such accused due to addition of graverand non-cognizable offences. [Para 25] [843-H; 844-A-D]

1.3 It may be true that by mere addition of an offence in acriminal case, in which accused is bailed out, investigatingauthorities itself may not proceed to arrest the accused and needEto obtain an order from the Court, which has released the accusedon the bail. It is also open for the accused, who is already on bailand with regard to whom serious offences have been added toapply for bail in respect of new offences added and the Courtafter applying the mind may either refuse the bail or grant thebail with regard to new offences. In case, bail application of theFaccused for newly added offences is rejected, the accused canvery well be arrested. In all cases, where accused is bailed outunder orders of the Court and new offences are added includingoffences of serious nature, it is not necessary that in all casesearlier bail should be cancelled by the Court before grantingGpermission to arrest an accused on the basis of new offences.The power under Sections 437(5) and 439(2) are wide powersgranted to the court by the Legislature under which Court canpermit an accused to be arrested and commit him to custodywithout even cancelling the bail with regard to earlier offences.

Sections 437(5) and 439(2) cannot be read into restricted mannerthat order for arresting the accused and commit him to custodycan 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 jailcustody with regard to another case and the investigating agencyapplied before Special Judge, NIA Court to grant productionwarrant to produce the accused before the Court. The SpecialJudge having accepted the prayer of grant of production warrant,the accused was produced before the Court on 26.06.2018 andremanded to custody. Thus, in the present case, production ofthe accused was with the permission of the Court. Thus, thepresent is not case where investigating agency itself has takeninto custody the appellant after addition of new offences ratheraccused was produced in the Court in pursuance of productionwarrant obtained from the Court by the investigating agency.Thus there is no error in the procedure which was adopted bythe Special Judge, NIA Court with regard to production ofappellant before the Court. In the facts of the present case, itwas not necessary for the Special Judge to pass an ordercancelling the bail dated 10.03.2016 granted to the appellantbefore permitting the accused appellant to be produced before itor remanding him to the judicial custody. [Para 28] [845-F-H;846-A-B]1.5 In circumstance where, after grant of bail to an accused,further cognizable and non-bailable offences are added:- (i) Theaccused can surrender and apply for bail for newly addedcognizable and non-bailable offences. In event of refusal of bail,the accused can certainly be arrested. (ii) The investigatingagency can seek order from the court under Section 437(5) or439(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 hasalready been granted bail after cancellation of his bail. The Courtin exercise of power under Section 437(5) as well as Section439(2) can direct the person who has already been granted bailto be arrested and commit him to custody on addition ‘of’ graverand non-cognizable offences which may not be necessary always

Awith order of cancelling of earlier bail. (iv) In case where anaccused has already been granted bail, the investigating authorityon addition of an offence or offences may not proceed to arrestthe accused, but for arresting the accused on such addition ofoffence or offences it need to obtain an order to arrest the accusedfrom 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. Rashidalias Rasheed and Others (2008) 1 SCC 474 : [2007] 5SCR 937 – relied on.CSukhpal 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 ofU.P. and Ors. (2006) CriLJ 2253 ; Bankey LalSharma v. State of U.P. and Ors. (2008) CriLJ 3779D– approved.

Sita Ram Singh and Anr. v. State of Bihar 2002 (2) BLJR859 ; Fayaz Ahmad Khan and Ors. v. State CRMCNo. 270/2018 ; Mithabhai Pashabhai Patel and othersv. State of Gujarat (2009) 6 SCC 332 : [2009] 7 SCRE1126 ; Manoj Suresh Jadhav & Ors. v. The State ofMaharashtra SLP (Crl.) No. 10179 of 2017 – referred

2.1 There cannot be any dispute to the proposition thatsecond FIR with regard to same offences is barred. In the presentFcase, the charge-sheet in the case Crime No.02/2016 (earlierFIR) was submitted by the investigating agency on 10.03.2016and cognizance was taken on 11.03.2016. Charges were framedon 19.09.2016. The offences under Unlawful Activities(Prevention) Act, 1967 were added for the first time on09.04.2017. Thus, there was no occasion for investigation ofGoffences under Unlawful Activities (Prevention) Act, 1967 priorto April, 2017. The charge-sheet dated 10.03.2016 and chargesframed on 19.09.2016 were not with respect to offences underUnlawful Activities (Prevention) Act, 1967, thus, when the CentralGovernment directed the NIA to investigate the offence underHscheduled offences, NIA was fully competent to investigate the

offences and submit supplementary report. Present is not acase where any charges for offences punishable under theUnlawful Activities (Prevention) Act, 1967 were available priorto April, 2017. Thus, NIA was fully competent to investigatefurther in the case as per the directions issued by the CentralGovernment vide order dated 13.02.2018. [Para 42] [855-C-E]

T.T. Antony v. State of Kerala and Others (2001) 6 SCC181 : [2001] 3 SCR 942 ; Babubhai v. State of Gujaratand Others (2010) 12 SCC 254 : [2010] 10 SCR 651 ;Chirra Shivraj v. State of Andhra Pradesh (2010) 14SCC 444 : [2010] 15 SCR 673 ; Amitbhai AnilchandraShah v. Central Bureau of Investigation & Anr. (2013)

6 SCC 348 : [2013] 6 SCR 623 – referred to.

2.2 Sub-section (6) of Section 6 of the NIA Act Section 6prohibits State Government or any police officer of the StateGovernment to proceed with the investigation. In the presentcase, when order was issued by Central Government on13.02.2018, it was not competent for police officer of the StateGovernment to proceed with the investigation. Therefore, theFIR, which was re-registered by NIA on 16.02.2018 cannot beheld to be second FIR of the offences rather it was re-registrationof the FIR to give effect to the provisions of the NIA Act and re-registration of the FIR is only procedural act to initiate theinvestigation and the trial under the NIA Act. The re-registrationof the FIR, thus, is neither barred nor can be held that it is secondFIR. [Para 43] [855-F-G]

3. It cannot be said that NIA cannot conduct anyinvestigation or submit any report, since investigation was alreadycompleted and charge sheet was submitted, because the chargesheet was submitted on 16.03.2016 and charges were framed on19.09.2016 by which date offences under Unlawful Activities(Prevention) Act, 1967 were not even added. The Scheme asdelineated by Section 173 Cr.P.C. itself indicates that even afterreport under Section 173(2) is submitted, it is always open forthe police authorities to conduct further investigation and collectboth documentary and oral evidence and submit report underSection 173(8). Thus, there is no lack of jurisdiction in NIA to

[2019] 8 S.C.R.

Acarry on further investigation and submit supplementary reportin 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 ; AmrutbhaiBShambhubhai Patel v. Sumanbhai Kantibhai Patel andOthers (2017) 4 SCC 177 : [2017] 4 SCR 105 – reliedon.

4.1 The accused can be remanded under Section 167(2)Cr.P.C during investigation till cognizance has not been taken byCthe Court. Even after taking cognizance when an accused issubsequently arrested during further investigation, the accusedcan be remanded under Section 167(2) Cr.P.C. When cognizancehas been taken and the accused was in custody at the time oftaking cognizance or when inquiry or trial was being held inrespect of him, he can be remanded to judicial custody only underDSection 309(2) Cr.P.C. Thus, in the present case, accused couldhave been remanded only under Section 309(2) Cr.P.C. [Paras63 (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 ofEInvestigation, Special Investigation Cell-I, NewDe l hiv. Anupam J. Kulkarni (1992) 3 SCC 141 : [1992] 3SCR 158 ; Dinesh Dalmia v. Central Bureau ofInvestigation (2007) 8 SCC 770 : [2007] 9 SCR 1124 ;Mithabhai Pashabhai Patel and Others v. State ofFGujarat (2009) 6 SCC 332 : [2009] 7 SCR 1126– relied on.

State through CBI v. Dawood Ibrahim Kaskar andOthers (2000) 10 SCC 438 : [1997] 1 Suppl. SCR 212– distinguished.

GMohd. Ahmed Yasin Mansuri v. State of Maharashtra1994 Crl.LJ 1854 (Bom.) – referred to.

4.2 In the present case, the special Judge in his remandorder has neither referred to Section 309 nor Section 167 Cr.P.C.under which accused was remanded. When the Court has powerHto pass particular order, non-mention of provision of law or

wrong mention of provision of law is inconsequential. As the specialJudge could have only exercised power under Section 309(2),the remand order dated 25.06.2018 has to be treated as remandorder under Section 309(2) Cr.P.C. The special Judge beingempowered to remand the accused under Section 309(2) in thefacts of the present case, there is no illegality in the remand orderdated 25.06.2018 when the accused was remanded to the judicialcustody. The High Court, thus, committed error in holding thatthe order of remand dated 25.06.2018 was in exercise ofpower under Section 167 Cr.P.C. [Paras 65 and 66] [867-G-H;868-A-B]

Case Law Reference

BCRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 816-817 of 2019.

From the Judgment and Order dated 26.09.2018 of the High Courtof 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 dated26.09.2018 of High Court of Jharkhand dismissing the Writ Petition (Crl.)ENo. 277 of 2018 and Crl. Misc. Petition No. 1114 of 2016 under Section482 Cr.P.C. filed by the appellant.

2. Brief facts of the case and sequence of events are:-

2.1 On 11.01.2016, First Information Report No. 02/2016,FPolice Station Tandwa was lodged for offences underSections 414, 384, 386, 387, 120-B I.P.C. read with Sections25(1-B)(a), 26, 35 of the Arms Act and Section 17(1) and(2) of the Criminal Law Amendment Act. Apart frompetitioner, there were 11 other named accused.The allegations made against the accused were thatGapplicant by showing fear of extremist of TPC Grouprecovered levy from the contractors, transporters and coalbusinessman. It was also alleged that on informationreceived from co-accused, search was also conductedin the house of the appellant, during which search, an amountof Rs.57,57,510/- was recovered from the bag kept in the

room of the appellant alongwith four mobiles. Nosatisfactory explanation was given by the appellant.

2.2 By order dated 10.03.2016, the appellant was granted regularbail by the High Court after he was taken into custody. On10.03.2016, charge sheet was submitted under Sections414, 384, 386, 387, 120-B I.P.C. read with Sections 25(1-B)(a), 26, 35 of the Arms Act and Sections 17(1) and (2) ofthe Criminal Law Amendment Act. Chief JudicialMagistrate, Chatra took cognizance of the offences underSections 414, 384, 386, 387, 120-B I.P.C. read with Sections25(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. ACrl.M.P. No. 1114 of 2016 was filed by the appellant on10.05.2016 in the High Court under Section 482 Cr.P.C.praying for quashing the entire criminal proceeding includingthe order taking cognizance dated 11.03.2016. On19.09.2016, the Chief Judicial Magistrate framed chargesagainst 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 Section17(1) and (2) of the Criminal Law Amendment Act. TheHigh Court passed an interim order on 15.12.2016 stayingthe further proceedings in Tandwa P.S. Case No.2/2016.2.3 On the prayer made by the Investigating Officer on09.04.2017, offences under Sections 16, 17, 20 and 23 ofthe Unlawful Activities (Prevention) Act, 1967 were addedagainst the accused. Central Government issued an orderdated 13.02.2018 in exercise of power conferred under sub-section 5 of Section 6 read with Section 8 of the NationalInvestigation Agency Act, 2008 suo-moto directing theNational Investigation Agency to take up investigation ofcase F.I.R. No.02/2016, in which Sections 16, 17, 20 and23 of the Unlawful Activities (Prevention) Act, 1967 wereadded, which were scheduled offences. In pursuance ofthe order of the Central Government dated 13.02.2018,National Investigation Agency re-registered the FirstInformation Report as FIR No.RC-06/2018/NIA/DLI dated16.02.2018 under the above noted sections. The appellantbeing under custody in some other case, request was made

on behalf of the National Investigating Agency before theSpecial Judge, NIA, Ranchi on 22.06.2018 praying forissuance of production warrant. The Special Judge allowedthe prayer. Consequently, the appellant was produced fromChatra Jail on 25.06.2018 and was remanded to judicialcustody by order of Special Judge dated 25.06.2018.

2.4 Writ Petition (Crl.) No.277 of 2018 was filed by theappellant praying for quashing the entire criminalproceedings in connection with Special NIA Case No.03 of2018 including the First Information Report being No.RC-06/2018/NIA/DLI. further prayer was also made forquashing the order dated 25.06.2018 remanding the appellantto the judicial custody by order of the Judicial Commissioner-cum-Special Judge, NIA, Ranchi. The High Court by theimpugned judgment dated 26.09.2018 dismissed both, theWrit Petition (Crl.) No.277 of 2018 as well as Crl.M.P.No.1114 of 2016, aggrieved against which judgment, theseappeals have been filed by the appellant.

3. We have heard Shri Abhinav Mukherji, learned counselappearing for the appellant and Shri Aman Lekhi, learned AdditionalSolicitor General for the Union of India. We have also heard learnedEcounsel appearing for the State of Jharkhand.

4. Learned counsel for the appellant submits that investigationagainst the appellant in P.S. Case No.02 of 2016 having been completedand charge sheet having been submitted by the investigating agency on10.03.2016, NIA could not have registered second F.I.R. on 16.02.2018Fbeing FIR No.RC-06/2018/NIA/DLI. It is submitted that the SpecialJudge committed error in passing the order dated 25.06.2018 remandingthe appellant to judicial custody under Section 167 Cr.P.C. Whencognizance has already been taken on 11.03.2016, order could have onlybeen 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 intoGthe offence incorporated in the F.I.R. dated 10.03.2016. It is furthersubmitted that appellant having been already granted bail on 10.03.2016,he cannot be re-arrested by virtue of addition of new offences underSections 16, 17, 20 and 23 of the Unlawful Activities (Prevention) Act,1967. The only course open for the NIA was to file an application forHcancellation of the bail dated 10.03.2016. It was only after cancellation

of the bail that appellant could have been re-arrested or taken into judicialcustody.

5. Learned ASG refuting the submissions of the counsel for theappellant contends that present is not case of registration of any secondF.I.R. It is submitted that NIA has only re-registered the F.I.R. as perthe provisions of National Investigation Agency Act, 2008. The re-registration of the F.I.R. by NIA cannot be said to be second F.I.R. Itis further submitted that the mere fact that charge sheet has beensubmitted in P.S. Case No.02 of 2016 and cognizance has been taken bythe Chief Judicial Magistrate shall not preclude the NIA from carryingout further investigation and submit supplementary report. It is submittedthat by virtue of Section 173(8) of Cr.P.C., even when report underSection 173(2) is submitted, the investigation agency can carry on furtherinvestigation and collect oral or documentary evidence and submit asupplementary report. It is further submitted that as per the NIA Act,when scheduled offence is committed, the investigation is handed overto different investigation agency. Present is case where scheduledoffences were committed and have already been added in P.S. CaseNo.02/2016 for which it is NIA, which has to carry on the investigationas per the order of the Central Government dated 13.02.2018. There isno lack of jurisdiction in the NIA to conduct further investigation andsubmit supplementary report. It is further submitted that NIA hasconcluded the investigation and already submitted charge sheet on21.12.2018. Whenever scheduled offence is reported, the CentralGovernment has wide amplitude of power to direct the NIA to investigateinto such offence and while taking over the investigation, the FIR is re-registered, as only the nomenclature changes. It is further submittedthat the bail granted to the appellant on 10.03.2016 in P.S. Case No. 02of 2016 cannot enure to the benefit of the appellant in reference tooffences under Sections 16, 17, 20 and 23 of the Unlawful Activities(Prevention) Act, 1967. The appellant had to apply for grant of freshbail in respect of newly added offences. It is further submitted that theSpecial Judge has rightly remanded the appellant exercising power underSection 167 Cr.P.C., during further investigation by NIA. The mere factthat the cognizance was taken earlier by Chief Judicial Magistrate cannotpreclude 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 respectivesubmissions placed reliance on various judgments of this Court as well

Aas judgments of High Courts, which shall be considered while consideringthe submissions in detail.

7. From the submissions of the learned counsel for the parties andthe pleadings on the record, following are the issues, which arise forconsideration in these appeals:-

(i)Whether in case where an accused has been bailed out ina criminal case, in which case, subsequently new offencesare added, is it necessary that bail earlier granted should becancelled for taking the accused in custody?

(ii)Whether re-registration of F.I.R. No.RC-06/2018/NIA/DLICis second F.I.R. and is not permissible there being alreadya FIR No. 02/2016 registered at P.S. Tandwa arising out ofsame incident?

(iii) Whether N.I.A. could conduct any further investigation inthe matter when investigation in the P.S. Case No.02/2016Dhaving already been completed and charge sheet has beensubmitted on 10.03.2016 with regard to which cognizancehas already been taken by Chief Judicial Magistrate, Chatraon 11.03.2016?

(iv) Whether the order dated 25.06.2018 passed by JudicialECommissioner-cum-Special Judge, NIA, Ranchi remandingthe appellant to judicial custody is in accordance with law?

(v) Whether the power under Section 167 Cr.P.C. can beexercised in the present case, where the cognizance hasalready been taken by Chief Judicial Magistrate onF11.03.2016 or the accused could have been remanded onlyunder Section 309(2) Cr.P.C.?

Issue No.1

8. In the facts of the present case, appellant was granted bail on10.03.2016 in F.I.R. No.02/2016 under Sections 414, 384, 386, 387, 120-GB I.P.C. read with Sections 25(1-B)(a), 26, 35 of the Arms Act andSection 17(1) and (2) of the Criminal Law Amendment Act. In thepresent case, the appellant was not arrested by the investigation agencyafter addition of Sections 16, 17, 20 and 23 of the Unlawful Activities(Prevention) Act, 1967, rather he was already in jail in connection withHsome other case and an application was filed in the Court of Special

Judge by the prosecution praying for production warrant, whichapplication having been allowed, the appellant was produced in the Courton 26.06.2018 and was remanded in judicial custody.

9. The question, as to whether when an accused is bailed out in acriminal case, in which new offences have been added, whether forarresting the accused, it is necessary to get the bail cancelled, has arisentime and again, there are divergent views of different High Courts onthe above question. On one side, the High Courts have taken the viewthat for arresting the accused, who is already on bail, in event of additionof new offences, the earlier bail need to be cancelled whereas the otherline of opinion is that for new offences accused has to obtain fresh bailorder and the earlier bail order shall not enure to the benefit of the accused.

10. Learned counsel for the parties have also relied on severaljudgments of different High Courts in regard to the circumstance whennew cognizable and non-bailable offences are added. We may brieflyrefer 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,2002 (2) BLJR 859 had considered the case where case was initiallyinstituted under Section 307 I.P.C. FIR was lodged on 24.08.2000 underSection 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 bailearlier granted was cancelled in view of subsequent development. Inthe above context, Patna High Court relying on judgment of this Court inPrahlad Singh Bhati Vs. NCT, Delhi and Another, (2001) 4 SCC280 held that on serious change in the nature of the offence, theaccused becomes disentitled to the liberty granted to him in relation to aminor offence and in such circumstances, the correct approach of theCourt concerned would be to apply its mind afresh as to whether theaccused 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 paragraphNo.4:-

“4. I am, therefore, of the opinion that the legal position is beyonddoubt that once an accused is ordered to be released on bail underany of the Section of Chapter XXXIII of the Cr.P.C. the policehad no power to arrest him by merely adding another sectionwhich may be non-bailable. The police must seek an order from

[2019] 8 S.C.R.

Athe Court for cancellation of bail granted to aperson………………………….”

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:-

“11. In view of the above discussions, I have no hesitation to holdthat simply because penal provision is added in the case in respectof serious non-bailable offence, the bail granted earlier shall notautomatically stand cancelled and therefore, the police shall nothave the power to re-arrest the accused until the bail grantedearlier is cancelled by way of positive order by the appropriatecourt…………………………..”

13. There are few decisions of Allahabad High Court also wherethe issue has been addressed. One judgment of the High Court namelyBijendra and Ors. Vs. State of U.P. and Ors., (2006) CriLJ 2253Dhas also been referred to and relied in the impugned judgment. Inparagraph No.25, following observations have been made by AllahabadHigh Court:-

“25. After hearing the learned Counsels for the both sides at agreat length and after analyzing Section 437 Cr. P. C. it transpiresthat Section 437 relates with bail in cases of non-bailable offenceEby the magistrate. So far as the first contention which the learnedCounsel for the applicants advanced, that because the bail hasbeen granted in the same crime number and therefore by merechange of section accused cannot be sent to jail is concerned it isto be noted that case crime number is nowhere mentioned in theFaforesaid section, which is the number of police for identificationof the case and is procedural number of the police station. Crimenumber has no relation with bail under Cr. P. C. In this view of thematter the contention of learned Counsel for the applicant cannotbe accepted and is therefore rejected.

Coming to the second contention of the learned Counsel for theapplicant that there is no bar for this Court to direct the Magistrateto accept fresh bail bonds for the newly added offence triable byCourt of Session’s it is noted that this direction will amount toasking the Magistrate to do something de-hors the law. Thecontention is devoid of merit. Section 437 Cr.P.C. relates to an

offence, therefore, on addition of new offence, the accused isrequired to appear before the court and seek bail. His bail cannotbe considered unless and until he surrenders and is in custody inthat offence. Any accused who is not in custody in an offencecannot be granted bail. Custody is sine qua non for considerationof bail prayer. Consequently when the accused is guilty of anadded offence and is not on bail, he cannot be allowed to furnishbond without being in custody in that offence. For getting bail innewly added offences the accused has to surrendered in thatoffence………………………..”

14. In another case of Allahabad High Court in Bankey LalSharma Vs. State of U.P. and Ors., (2008) CriLJ 3779 rejecting thesubmission that the applicant should not be required to obtain fresh bailon addition of new offences, following was observed in paragraph No.14:-

“14. At this stage, learned Counsel for the applicant submits thatthe applicant should not be required to obtain fresh bail under thenewly added section. This relief cannot be granted in view of thedecision of the Apex Court in Hamida v. Rashid alias Rasheedand Ors. (LVIII)2007 ACC 577, wherein it has been mentionedthat without surrender prayer for bail in the newly added Sectioncannot be considered.”

15. Learned counsel for the appellant has also relied on judgmentof High Court of Jammu & Kashmir in CRMC No.270/2018 - FayazAhmad Khan and Ors. Vs. State, decided on 03.10.2018, where Jammuand Kashmir High Court relying on judgment of this Court in ManojSuresh Jadhav & Ors. (supra) took the view that simply because apenal provision is added in respect of serious non-bailable offence, thebail granted earlier shall not automatically stand cancelled and therefore,the police shall not have the power to re-arrest the accused until the bailgranted earlier is cancelled by way of positive order by the appropriatecourt.

16. We may also notice pertinent observation made by this Courtin Prahlad Singh Bhati (supra). In the above case, case wasregistered under Sections 306 and 498-A I.P.C. Application foranticipatory bail was dismissed, however, while dismissing the application,the Additional Sessions Judge had observed that if on facts case underSection 302 is made out against the accused, State shall be at liberty to

Aarrest the accused. After investigation, charge sheet was filed underSections 302, 406 and 498-A. The accused was directed to appear beforethe Magistrate since he did not appear, non-bailable warrants were issued.The accused had filed an application under Section 482 Cr.P.C. in theHigh Court. Subsequently, the accused appeared before the Magistrate,he was admitted on bail even in case under Section 302 IPC. TheBrevision petition was dismissed by the High Court against the orderreleasing the accused on bail. The complainant had approached thisCourt. In paragraph Nos. 4 and 9, following observations have beenmade by this Court:-

“4. From the facts, as narrated in the appeal, it appears that evenCfor an offence punishable under Section 302 IPC, the respondent-accused was never arrested and he manipulated the preventionof his arrest firstly, by obtaining an order in terms of Section 438of the Code and subsequently by regular bail under Section 437of the Code from Magistrate.D9. ……………………..With the change of the nature of theoffence, the accused becomes disentitled to the liberty granted tohim in relation to minor offence, if the offence is altered for anaggravated crime……………………..”

17. This Court in Hamida Vs. Rashid alias Rasheed andEOthers, (2008) 1 SCC 474 held that an accused after addition ofserious non-cognizable offence is required to surrender and apply forbail for newly added offences. It is, thus, clear that the bail granted toan accused earlier to addition of new non-bailable offence shall not enureto the benefit of the accused insofar as newly added offences areFconcerned and he is required to surrender and obtain bail with regardto newly added offences to save him from arrest.

18. Whether after addition of new non-bailable offence, policeauthority can straightaway arrest the accused, who is already grantedbail by the Court, in reference to offences prior to addition of new offencesGor the police is to necessarily obtain an order from the Court either ofcancellation of the bail or permission to arrest the accused in changedcircumstances are questions where different views have been expressedby different High Courts. In the present case, the appellant was notarrested by the police after addition of offences under the UnlawfulActivities (Prevention) Act, 1967, rather the police authorities had madeHan application before the Court for issue of production warrant since the

accused was already in custody in jail in reference to another case.

19. We may refer to the relevant provisions of the Cr.P.C. regardinggrant of bail. Chapter XXXIII of the Code of Criminal Procedure,Sections 436 to 439 deals with bail. Section 437 deals with the provisionwhen bails can be taken in case of non-bailable offence. Section 437(5),which is relevant for the present controversy is as follows:-

“(5) Any Court which has released person on bail under sub-section (1) or sub- section (2), may, if it considers it necessary soto do, direct that such person be arrested and commit him tocustody.”

20. Section 439 deals with special powers of High Court or Courtof Session regarding bail. Section 439(2) is to the following effect:-

“(2) High Court or Court of Session may direct that any personwho has been released on bail under this Chapter be arrested andcommit him to custody.”

21. Both Sections 437(5) and 439(2) empowers the Court to arrestan accused and commit him to custody, who has been released on bailunder Chapter XXXIII. There may be numerous grounds for exerciseof power under Sections 437(5) and 439(2). The principles and groundsfor cancelling bail are well settled, but in the present case, we areconcerned only with one aspect of the matter, i.e., case where afteraccused has been granted the bail, new and serious offences are addedin the case. person against whom serious offences have been added,who is already on bail can very well be directed to be arrested andcommitted to custody by the Court in exercise of power under Sections437(5) and 439(2). Cancelling the bail granted to an accused and directinghim 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 bailgranted to an accused, on relevant consideration, Court can direct theaccused to be arrested and committed to custody. The addition of seriousoffences is one of such circumstances, under which the Court can directthe accused to be arrested and committed to custody despite the bailhaving been granted with regard to the offences with which he wascharged at the time when bail was considered and granted.

22. One of the judgments, which needs to be noticed in the abovereference is Hamida Vs. Rashid alias Rasheed and Others (supra).

AIn the above case, the accused was granted bail for offences underSections 324, 352 and 506 IPC. The victim succumbed to his injuries inthe night intervening 16.06.2005 and 17.06.2005. The offence thereafterwas converted into Section 304 IPC. An application was filed in theHigh Court by the accused to permit them to remain on same bail evenafter conversion of the offence into one under Section 304 IPC, whichBwas allowed by the High Court. The complainant filed an appeal byspecial leave in this Court against the judgment of the Allahabad HighCourt. This Court allowed the appeal and set aside the order of theHigh Court and directed the accused to be taken into custody with libertyto apply for bail for the offences for which he was charged before properCCourt in accordance with law. This Court further held that accusedcould apply for bail afresh after the offence had been converted into oneunder Section 304 IPC. This Court laid down following in paragraphNos. 10, 11 and 12:-“10. In the case in hand, the respondents-accused could applyDfor bail afresh after the offence had been converted into one underSection 304 IPC. They deliberately did not do so and filed petitionunder Section 482 CrPC in order to circumvent the procedurewhereunder they would have been required to surrender as thebail application could be entertained and heard only if the accusedwere in custody. It is important to note that no order adverse toEthe respondents-accused had been passed by any court nor wasthere any miscarriage of justice or any illegality. In suchcircumstances, the High Court committed manifest error of lawin entertaining petition under Section 482 CrPC and issuing adirection to the subordinate court to accept the sureties and bailFbonds for the offence under Section 304 IPC. The effect of theorder passed by the High Court is that the accused after gettingbail in an offence under Sections 324, 352 and 506 IPC on thevery day on which they were taken into custody, got an order ofbail in their favour even after the injured had succumbed to hisinjuries and the case had been converted into one under SectionG304 IPC without any court examining the case on merits, as itstood after conversion of the offence. The procedure laid downfor grant of bail under Section 439 CrPC, though available to therespondents-accused, having not been availed of, the exercise of

power by the High Court under Section 482 CrPC is clearly illegaland the impugned order passed by it has to be set aside.

11. Learned counsel for the appellant has submitted that chargeunder Section 302 IPC has been framed against the respondents-accused by the trial court and some subsequent orders were passedby the High Court by which the accused were ordered to remainon bail for the offence under Section 302 read with Section 34IPC on furnishing fresh sureties and bail bonds only on the groundthat 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 dated1-7-2005 passed by the High Court and all other subsequent orderswhereby the respondents-accused were directed to remain onbail for the offence under Section 302 read with Section 34 IPCon furnishing fresh sureties and bail bonds are set aside. Therespondents-accused shall be taken into custody forthwith. It is,however, made clear that it will be open to the accused-respondentsto apply for bail for the offences for which they are charged beforethe appropriate court and in accordance with law.”

23. We may notice one more judgment of this Court reported inMithabhai Pashabhai Patel and others vs. State of Gujarat, (2009)6 SCC 332. Two Judge Bench of this Court in paragraph 18 laid downfollowing:

“18. The appellants had been granted bail. They are not in custodyof the court. They could not be taken in custody ordinarily unlesstheir bail was not (sic) 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 forgrant of police remand.”

24. What this Court said in the above case is that accused whohave been granted bail and are not in custody could not be taken incustody ordinarily unless their bail was not cancelled. Can from the aboveobservation it can be held that unless the bail earlier granted is cancelledthe 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

Aexpression ‘if it considers it necessary so to do, direct that such personbe arrested and commit him to custody’. Similarly, sub-section (2) ofSection 439 of Cr.P.C. provides: ‘may direct that any person who hasbeen released on bail under this Chapter be arrested and commit him tocustody’. plain reading of the aforesaid provisions indicates thatprovision does not mandatorily provide that the Court before directingBarrest of such accused who has already been granted bail must necessarycancel his earlier bail. discretion has been given to the Court to passsuch orders to direct for such person be arrested and commit him to thecustody which direction may be with an order for cancellation of earlierbail or permission to arrest such accused due to addition of graver andCnon-cognizable offences. Two Judge Bench judgment in MithabhaiPashabhai Patel (supra) uses the word ‘ordinarily’ in paragraph 18 ofthe judgment which cannot be read as that mandatorily bail earlier grantedto the accused has to be cancelled before Investigating Officer to arresthim due to addition of graver and non-cognizable offences.

D26. Learned counsel for the appellant has relied on an order ofthis Court dated 07.05.2018 in SLP (Crl.) No.10179 of 2017 – ManojSuresh Jadhav & Ors. Vs. The State of Maharashtra. In the abovecase, the petitioners were granted bail for offence punishable underSection 509 read with Section 34 IPC. During the course of investigation,the police added another offence under Section 376 IPC and re-arrestedEthe accused. The petitioners filed writ petition before the High Court,which was dismissed. This Court in the above case while disposing thespecial leave petition observed as under:-

“………………

We have heard learned counsel appearing for the parties andperused the record.

It is not permissible for the respondent-State to simply re-arrestthe petitioners by ignoring order dated 02.06.2016 passed by thelearned Additional Sessions Judge, Pune, which was in force atthat time.G

We direct that the petitioners shall be released on bail on thesame condition/s as imposed in the aforesaid order dated02.06.2016 by the learned Sessions Judge, Pune.

Having regard to the provision of Section 439(2) of the CodeHof Criminal Procedure, the respondent-State is at liberty to apply

for cancellation of bail and seek the custody of the petitioners-accused.

With the aforesaid directions, the special leave petition isdisposed of.”

27. Relying on the above said order, learned counsel for theappellant submits that respondent State ought to get first the order dated10.03.2016 granting bail to appellant cancelled before seeking custodyof the appellant. It may be true that by mere addition of an offence in acriminal case, in which accused is bailed out, investigating authoritiesitself may not proceed to arrest the accused and need to obtain an orderfrom the Court, which has released the accused on the bail. It is alsoopen for the accused, who is already on bail and with regard to whomserious offences have been added to apply for bail in respect of newoffences added and the Court after applying the mind may either refusethe bail or grant the bail with regard to new offences. In case, bailapplication of the accused for newly added offences is rejected, theaccused can very well be arrested. In all cases, where accused is bailedout under orders of the Court and new offences are added includingoffences of serious nature, it is not necessary that in all cases earlier bailshould be cancelled by the Court before granting permission to arrest anaccused on the basis of new offences. The power under Sections 437(5)and 439(2) are wide powers granted to the court by the Legislatureunder which Court can permit an accused to be arrested and commithim to custody without even cancelling the bail with regard to earlieroffences. Sections 437(5) and 439(2) cannot be read into restrictedmanner that order for arresting the accused and commit him to custodycan only be passed by the Court after cancelling the earlier bail.

28. Coming back to the present case, the appellant was alreadyinto jail custody with regard to another case and the investigating agencyapplied before Special Judge, NIA Court to grant production warrant toproduce the accused before the Court. The Special Judge havingaccepted the prayer of grant of production warrant, the accused wasproduced before the Court on 26.06.2018 and remanded to custody.Thus, in the present case, production of the accused was with thepermission of the Court. Thus, the present is not case whereinvestigating agency itself has taken into custody the appellant afteraddition of new offences rather accused was produced in the Court inpursuance of production warrant obtained from the Court by the

Ainvestigating agency. We, thus do not find any error in the procedurewhich was adopted by the Special Judge, NIA Court with regard toproduction of appellant before the Court. In the facts of the presentcase, it was not necessary for the Special Judge to pass an ordercancelling the bail dated 10.03.2016 granted to the appellant beforepermitting the accused appellant to be produced before it or remandingBhim to the judicial custody.

29. In view of the foregoing discussions, we arrive at followingconclusions in respect of circumstance where after grant of bail to anaccused, further cognizable and non-bailable offences are added:-

(i)The accused can surrender and apply for bail for newly addedcognizable and non-bailable offences. In event of refusal ofbail, the accused can certainly be arrested.

(ii)The investigating agency can seek order from the court underSection 437(5) or 439(2) of Cr.P.C. for arrest of the accusedDand his custody.

(iii) The Court, in exercise of power under Section 437(5) or439(2) of Cr.P.C., can direct for taking into custody theaccused who has already been granted bail after cancellationof his bail. The Court in exercise of power under SectionE437(5) as well as Section 439(2) can direct the person whohas already been granted bail to be arrested and commit himto custody on addition of graver and non-cognizable offenceswhich may not be necessary always with order of cancellingof earlier bail.

(iv) In case where an accused has already been granted bail,Fthe investigating authority on addition of an offence oroffences may not proceed to arrest the accused, but forarresting the accused on such addition of offence or offencesit need to obtain an order to arrest the accused from theCourt 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 InvestigationHAgency Act, 2008 passed following order:-

Government of IndiaMinistry of Home Affairs

CTCR Division

North Block,

New Delhi

Dated, the 13th February, 2018

ORDER

Whereas, the Central Government has received informationregarding registration of Case FIR No. 02/2016 dated 11.01.2016at Tandwa PS, District Chatra, Jharkhand u/s 414, 384, 386, 387,120B of the Indian Penal Code, sections 25(1-B)(a), 26, 35 ofArms Act and section 17(1)(2) of Criminal Law Amendment Actrelating to incidents of extortion/levy collection/money launderingby the Maoist cadres in the LWE affected States like Jharkhandand Bihar.

And whereas, sections 16,17,20,23 of the Unlawful Activities(Prevention) Act, 1967 were added later during the course ofinvestigation.

And whereas, the Central Government having regard to thegravity of the said offence is of the opinion that the offenceinvolved is scheduled offence which is required to be investigatedby the National Investigation Agency in accordance with theNational Investigation Agency Act, 2008.

Now, therefore, in exercise of the powers conferred undersub-section 5 of section 6 read with section 8 of the NationalInvestigation Agency Act, 2008, the Central Government herebysuo-motu directs the National Investigation Agency to take upinvestigation of the aforesaid case.

Sd/- Illegible(Dharmender Kumar)

Under Secretary to the Government of India”32. The NIA, which registered the FIR No.RC-06/2018/NIA/DLIdated 16.02.2018, in pursuance of the order of the Central Government

Adated 13.02.2018, the submission which has been made by the learnedcounsel for the appellant is that the FIR dated 16.02.2018 is secondFIR, hence could not have been registered. It is submitted that withregard to one incident only one FIR can be registered and registration ofsecond FIR is illegal. Learned counsel for the appellant in support of hissubmission has placed reliance on judgments of this Court in T.T. AntonyBVs. State of Kerala and Others, (2001) 6 SCC 181; Babubhai Vs.State of Gujarat and Others, (2010) 12 SCC 254; Chirra ShivrajVs. State of Andhra Pradesh, (2010) 14 SCC 444 and AmitbhaiAnilchandra Shah Vs. Central Bureau of Investigation & Anr.,(2013) 6 SCC 348.

33. In T.T. Antony (supra) with regard to an occurrence whichtook place on 25.11.1994 – Crime No. 353 of 1994 and Crime No. 354of 1994 were registered at Kuthuparamba Police Station in DistrictKannur. The State Government appointed the commission of inquiryunder Commissions of Inquiry Act, 1952, which submitted report onD27.05.1997. The Government accepted the report of the Commission.As follow up action, the Additional Chief Secretary to the Governmentof Kerala wrote to the Director General of Police regarding acceptanceof the report of the Commission by the Government and directed thatlegal action be taken against those responsible on the basis of the findingsof the Commission. The Director General of Police issued orders to theEInspector General of Police on 02.07.1997 to register case immediatelyand have the same investigated by senior officer. On 04.07.1997 theInspector General of Police noted that firing without jurisdiction by whichpeople were killed amounted to murder and issued direction to the StationHouse Officer to register case under the appropriate sections andFforward the investigation copy of the FIR to the Deputy Inspector Generalof Police. Subsequently, another case was registered as Crime No.268of 1997, which was challenged by filing writ petition before the KeralaHigh Court. Learned Single Judge directed for re-investigation by CBI.The Division Bench on appeal directed fresh investigation by the Statepolice headed by one of the three senior officers instead of investigationGby CBI. Appeal was filed against the said judgment in this Court. Oneof the questions, which was noted for consideration by this Court in para15(i) is as follows:-

“15. On these contentions, four points arise for determination:

H(i)whether registration of fresh case, Crime No. 268 of

1997, Kuthuparamba Police Station on the basis of theletter of the DGP dated 2-7-1997 which is in the natureof the second FIR under Section 154 CrPC, is valid and itcan form the basis of fresh investigation;

xxxxxxxxxxx”

34. This Court laid down that as per the scheme of Code of CriminalProcedure only the earliest or the first information report in regard to thecommission of cognizable offence satisfies the requirements of FIRand there can be no second F.I.R. In paragraph No.20, following hasbeen laid down:-

“20. From the above discussion it follows that under the schemeof the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and173 CrPC only the earliest or the first information in regard to thecommission of cognizable offence satisfies the requirements ofSection 154 CrPC. Thus there can be no second FIR andconsequently there can be no fresh investigation on receipt ofevery subsequent information in respect of the same cognizableoffence or the same occurrence or incident giving rise to one ormore cognizable offences. On receipt of information about acognizable offence or an incident giving rise to cognizable offenceor offences and on entering the FIR in the station house diary, theofficer in charge of police station has to investigate not merelythe cognizable offence reported in the FIR but also other connectedoffences found to have been committed in the course of the sametransaction or the same occurrence and file one or more reportsas provided in Section 173 CrPC.”

35. The same principle has been reiterated in Babubhai Vs. Stateof Gujarat (supra) and Chirra Shivraj Vs. State of Andhra Pradesh(supra). This Court in Amitbhai Anilchandra Shah Vs. CentralBureau of Investigation (supra) had again occasion to consider thelegality of second FIR. After reviewing the earlier decisions under theheading “legal aspects as to permissibility/impermissibility of second FIR”.This Court laid down following in paragraph Nos. 36 and 37:-

“36. Now, let us consider the legal aspects raised by the petitionerAmit Shah as well as CBI. The factual details which we havediscussed in the earlier paragraphs show that right from theinception of entrustment of investigation to CBI by order dated

12-1-2010[4] till filing of the charge-sheet dated 4-9-2012, this Courthas also treated the alleged fake encounter of Tulsiram Prajapatito be an outcome of one single conspiracy alleged to have beenhatched in November 2005 which ultimately culminated in 2006.In such circumstances, the filing of the second FIR and freshcharge-sheet for the same is contrary to the provisions of theCode 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 issueinterpreting the Code, that second FIR in respect of an offenceor different offences committed in the course of the sametransaction is not only impermissible but it violates Article 21 ofthe Constitution. In T.T. Antony[3], this Court has categorically heldthat registration of second FIR (which is not cross-case) isviolative of Article 21 of the Constitution. The following conclusionin paras 19, 20 and 27 of that judgment are relevant which read asunder: (SCC pp. 196-97 & 200)

“19. The scheme of CrPC is that an officer in charge of apolice station has to commence investigation as provided inSection 156 or 157 CrPC on the basis of entry of the firstinformation report, on coming to know of the commission of acognizable offence. On completion of investigation and on thebasis of the evidence collected, he has to form an opinion underSection 169 or 170 CrPC, as the case may be, and forward hisreport to the Magistrate concerned under Section 173(2) CrPC.However, even after filing such report, if he comes intopossession of further information or material, he need notregister fresh FIR; he is empowered to make furtherinvestigation, normally with the leave of the court, and whereduring further investigation he collects further evidence, oralor documentary, he is obliged to forward the same with one ormore further reports; this is the import of sub-section (8) ofSection 173 CrPC.

20. From the above discussion it follows that under the schemeof the provisions of Sections 154, 155, 156, 157, 162, 169, 170and 173 CrPC only the earliest or the first information in regardto the commission of cognizable offence satisfies therequirements of Section 154 CrPC. Thus there can be no second

FIR and consequently there can be no fresh investigation onreceipt of every subsequent information in respect of the samecognizable offence or the same occurrence or incident givingrise to one or more cognizable offences. On receipt ofinformation about cognizable offence or an incident givingrise to cognizable offence or offences and on entering theFIR in the station house diary, the officer in charge of policestation has to investigate not merely the cognizable offencereported in the FIR but also other connected offences found tohave been committed in the course of the same transaction orthe same occurrence and file one or more reports as providedin Section 173 CrPC.27. just balance between the fundamental rights of the citizensunder Articles 19 and 21 of the Constitution and the expansivepower of the police to investigate cognizable offence has tobe struck by the court. There cannot be any controversy thatsub-section (8) of Section 173 CrPC empowers the police tomake further investigation, obtain further evidence (both oraland documentary) and forward further report or reports tothe Magistrate. In Narang case it was, however, observedthat it would be appropriate to conduct further investigationwith the permission of the court. However, the sweeping powerof investigation does not warrant subjecting citizen each timeto fresh investigation by the police in respect of the sameincident, giving rise to one or more cognizable offences,consequent upon filing of successive FIRs whether before orafter filing the final report under Section 173(2) CrPC. It wouldclearly be beyond the purview of Sections 154 and 156 CrPC,nay, case of abuse of the statutory power of investigation ina given case. In our view case of fresh investigation basedon the second or successive FIRs, not being counter-case,filed in connection with the same or connected cognizableoffence alleged to have been committed in the course of thesame transaction and in respect of which pursuant to the firstFIR either investigation is under way or final report underSection 173(2) has been forwarded to the Magistrate, may bea fit case for exercise of power under Section 482 CrPC or

under Articles 226/227 of the Constitution.”

The above referred declaration of law by this Court has neverbeen diluted in any subsequent judicial pronouncements even whilecarving out exceptions.”

36. Paragraph 58.1 to 58.10 contains the summary of judgments.In paragraph Nos.58.3 and 58.4 following has been laid down:-

“58.3. Even after filing of such report, if he comes into possessionof further information or material, there is no need to register afresh FIR, he is empowered to make further investigation normallywith the leave of the court and where during further investigation,he collects further evidence, oral or documentary, he is obliged toforward the same with one or more further reports which is evidentfrom sub-section (8) of Section 173 of the Code. Under the schemeof the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and173 of the Code, only the earliest or the first information in regardto the commission of cognizable offence satisfies therequirements of Section 154 of the Code. Thus, there can be nosecond FIR and, consequently, there can be no fresh investigationon receipt of every subsequent information in respect of the samecognizable offence or the same occurrence or incident giving riseto one or more cognizable offences.

58.4. Further, on receipt of information about cognizable offenceor an incident giving rise to cognizable offence or offences andon entering FIR in the station house diary, the officer in charge ofthe police station has to investigate not merely the cognizableoffence reported in the FIR but also other connected offencesfound to have been committed in the course of the same transactionor the same occurrence and file one or more reports as providedin Section 173 of the Code. Sub-section (8) of Section 173 of theCode empowers the police to make further investigation, obtainfurther evidence (both oral and documentary) and forward afurther report(s) to the Magistrate. case of fresh investigationbased on the second or successive FIRs not being counter-case, filed in connection with the same or connected cognizableoffence alleged to have been committed in the course of the sametransaction and in respect of which pursuant to the first FIR eitherinvestigation is underway or final report under Section 173(2) hasbeen forwarded to the Magistrate, is liable to be interfered with

by the High Court by exercise of power under Section 482 of theCode or under Articles 226/227 of the Constitution.”

37. Thus, from the above discussions, it is clear that there cannotbe any dispute to the proposition that second FIR with regard to sameoffences is barred. But whether in the present case, FIR dated 16.02.2018registered by NIA, can be said to be second FIR. Before answering theabove question, we need to look into the scheme of the NIA Act, 2008.

38. NIA Act, 2008 was enacted to constitute an investigation agencyat the national level to investigate and prosecute offences affecting thesovereignty, security and integrity of India, security of State, friendlyrelations with foreign States and offences under Acts enacted toimplement international treaties, agreements, conventions and resolutionsof the United Nations, its agencies and other international organisationsand for matters connected therewith or incidental thereto.

39. Sections 3 to 5 of the Act deal with National InvestigationAgency. Chapter III deals with investigation by the National InvestigationAgency. Sections 6 to 8, which are relevant for the present case are asfollows:-

“6. Investigation of Scheduled Offences.—(1) On receipt ofinformation and recording thereof under section 154 of the Coderelating to any Scheduled Offence the officer-in-charge of thepolice station shall forward the report to the State Governmentforthwith.

(2) On receipt of the report under sub-section (1), the StateGovernment shall forward the report to the Central Governmentas expeditiously as possible.

(3) On receipt of report from the State Government, the CentralGovernment shall determine on the basis of information madeavailable by the State Government or received from other sources,within fifteen days from the date of receipt of the report, whetherthe offence is Scheduled Offence or not and also whether, havingregard to the gravity of the offence and other relevant factors, itis fit case to be investigated by the Agency.

(4) Where the Central Government is of the opinion that the offenceis Scheduled Offence and it is fit case to be investigated bythe Agency, it shall direct the Agency to investigate the said

Aoffence.

(5) Notwithstanding anything contained in this section, if the CentralGovernment is of the opinion that Scheduled Offence has beencommitted which is required to be investigated under this Act, itmay, suo motu, direct the Agency to investigate the said offence.

(6) Where any direction has been given under sub-section (4) orsub-section (5), the State Government and any police officer ofthe State Government investigating the offence shall not proceedwith the investigation and shall forthwith transmit the relevantdocuments and records to the Agency.

(7) For the removal of doubts, it is hereby declared that till theAgency takes up the investigation of the case, it shall be the dutyof the officer-in-charge of the police station to continue theinvestigation.

—7. Power to transfer investigation to State Government.While investigating any offence under this Act, the Agency, havingregard to the gravity of the offence and other relevant factors,may—

(a) if it is expedient to do so, request the State Government toassociate itself with the investigation; or

(b) with the previous approval of the Central Government,transfer the case to the State Government for investigationand trial of the offence.

8. Power to investigate connected offences.—Whileinvestigating any Scheduled Offence, the Agency may alsoinvestigate any other offence which the accused is alleged to havecommitted if the offence is connected with the ScheduledOffence.”

40. Further, under Section 6, Central Government has to constitutesuch Courts and by virtue of sub-section (1) of Section 13 providesGthat:-

“Notwithstanding anything contained in the Code, every ScheduledOffence investigated by the Agency shall be tried only by theSpecial Court within whose local jurisdiction it was committed.”

41. The Schedule of the Act, Item No.2 mentioned “The Unlawful

Activities (Prevention) Act, 1967”. Thus, any offence under UnlawfulActivities (Prevention) Act, 1967 is scheduled offence. When theoffences under the Unlawful Activities (Prevention) Act, 1967 wereadded in case Crime No.02/2016 and that the Central Government orderissued in exercise of its power under sub-section 5 of Section 6 byentrusting the investigation to NIA, NIA is competent to investigate theoffence and submit supplementary report.

42. Before proceeding further, we may notice few features of thepresent case, which are necessary to be noticed. As noticed above, acharge sheet in the case Crime No.02/2016 was submitted by theinvestigating agency on 10.03.2016 and cognizance was taken on11.03.2016. The offences under Unlawful Activities (Prevention) Act,1967 were added on 09.04.2017. Charges were framed on 19.09.2016,offences under Unlawful Activities (Prevention) Act, 1967 were addedfor the first time on 09.04.2017, thus, there was no occasion forinvestigation of offences under Unlawful Activities (Prevention) Act,1967 prior to April, 2017. The charge sheet dated 10.03.2016 and chargesframed on 19.09.2016 were not with respect to offences under UnlawfulActivities (Prevention) Act, 1967, thus, when the Central Governmentdirected the NIA to investigate the offence under scheduled offences,NIA was fully competent to investigate the offences and submit asupplementary report. Present is not case where any charges foroffences punishable under the Unlawful Activities (Prevention) Act, 1967were available prior to April, 2017, thus, NIA was fully competent toinvestigate further in the case as per the directions issued by the CentralGovernment vide order dated 13.02.2018.

43. Sub-section (6) of Section 6 prohibits State Government orany police officer of the State Government to proceed with theinvestigation. In the present case, when order was issued by CentralGovernment on 13.02.2018, it was not competent for police officer ofthe State Government to proceed with the investigation. We, thus, are ofthe opinion that FIR, which was re-registered by NIA on 16.02.2018cannot 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 Actand re-registration of the FIR is only procedural Act to initiate theinvestigation and the trial under the NIA Act. The re-registration of theFIR, 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

Aappellant that NIA cannot conduct any investigation or submit any report,since investigation was already completed and charge sheet wassubmitted, the charge sheet was submitted on 16.03.2016 and chargeswere framed on 19.09.2016 by which date offences under UnlawfulActivities (Prevention) Act, 1967 were not even added, since for thefirst time the offences under Unlawful Activities (Prevention) Act, 1967Bwere added on 09.04.2017. The Scheme as delineated by Section 173Cr.P.C. itself indicates that even after report under Section 173(2) issubmitted, it is always open for the police authorities to conduct furtherinvestigation and collect both documentary and oral evidence and submita report under Section 173(8). In this context, reference is made toCjudgment of this Court in Vinay Tyagi Vs. Irshad Ali alias Deepakand Others, (2013) 5 SCC 762, in which case after examining theprovisions and elaborating the scheme as delineated by Section 173Cr.P.C., following was laid down by this Court in paragraph No.15:-“15. very wide power is vested in the investigating agency toDconduct further investigation after it has filed the report in termsof Section 173(2). The legislature has specifically used theexpression “nothing in this section shall be deemed to precludefurther investigation in respect of an offence after report underSection 173(2) has been forwarded to the Magistrate”, whichunambiguously indicates the legislative intent that even after filingEof report before the court of competent jurisdiction, theinvestigating officer can still conduct further investigation andwhere, upon such investigation, the officer in charge of policestation gets further evidence, oral or documentary, he shall forwardto the Magistrate further report or reports regarding suchFevidence in the prescribed form. In other words, the investigatingagency is competent to file supplementary report to its primaryreport in terms of Section 173(8). The supplementary report hasto be treated by the court in continuation of the primary reportand the same provisions of law i.e. sub-section (2) to sub-section(6) of Section 173 shall apply when the court deals with suchGreport.”

45. This Court again in Amrutbhai Shambhubhai Patel Vs.Sumanbhai Kantibhai Patel and Others, (2017) 4 SCC 177statutorily 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 inH

reference to Section 173, this Court laid down following in paragraphNos. 20 and 21:-

“20. The newly added sub-section (8), as its text evinces, permitsfurther investigation by the officer in charge of the police stationconcerned in respect of an offence after report under sub-section(2) had been forwarded to the Magistrate and also to lay beforethe Magistrate further report, in the form prescribed, whereuponsuch 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 applyalso in relation to all such report or reports.

21. The integration of sub-section (8) is axiomatically subsequentto the 41st Report of the Law Commission Report of Indiaconveying its recommendation that after the submission of finalreport under Section 173, competent police officer, in the eventof availability of evidence bearing on the guilt or innocence of theaccused ought to be permitted to examine the same and submit afurther report to the Magistrate concerned. This assumessignificance, having regard to the language consciously applied todesign Section 173(8) in the 1973 Code. Noticeably, though theofficer in charge of police station, in categorical terms, has beenempowered thereby to conduct further investigation and to lay asupplementary report assimilating the evidence, oral ordocumentary, obtained in course of the said pursuit, no suchauthorisation has been extended to the Magistrate as the Court isin seisin of the proceedings. It is, however no longer res integrathat Magistrate, if exigent to do so, to espouse the cause ofjustice, can trigger further investigation even after final report issubmitted under Section 173(8). Whether such power is availablesuo motu or on the prayer made by the informant, in the absenceof request by the investigating agency after cognizance has beentaken and the trial is in progress after the accused has appearedin response to the process issued is the issue seeking scrutinyherein.”

46. In paragraph No.31, it was reiterated that the right of thepolice to further investigate even under the 1898 Code was not exhaustedand it could exercise such right often as necessary, when fresh information

Awould come to light. In paragraph No.31, following has been laid down:-

“31. This Court also recounted its observations in Ram LalNarang, (1979) 2 SCC 332, to the effect that on the Magistratetaking cognizance upon police report, the right of the police tofurther investigate even under the 1898 Code was not exhaustedBand it could exercise such right often as necessary, when freshinformation would come to light. That this proposition wasintegrated in explicit terms in sub-section (8) of Section 173 of thenew Code, was noticed. The desirability of the police to ordinarilyinform the Court and seek its formal permission to make furtherinvestigation, when fresh facts come to light, was stressed uponCto maintain the independence of the judiciary, the interest of thepurity of administration of criminal justice and the interest of thecomity of the various agencies and institutions entrusted withdifferent stages of such dispensation.

47. We, thus, do not find any lack of jurisdiction in NIA to carryDon further investigation and submit supplementary report. In the counteraffidavit, it has been stated by the Union of India that NIA has concludedinvestigation and already charge sheet has been submitted on21.12.2018 vide first supplementary charge sheet. We, thus, do not findany lack of jurisdiction in the NIA to carry on further investigation in theEfacts 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 aboveissues. F.I.R. No. 2 of 2016 dated 11.01.2016 was registered onF11.01.2016. 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 11.03.2016under Sections 414, 384, 386, 387, 120(B) I.P.C., Sections 25(1-B)(a),G26, 35 Arms Act and 17(1)(2) Criminal Law Amendment Act. The prayerof 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 transferringthe investigation to NIA, NIA took over the investigation and re-registeredFIR No.RC-06/2018/NIL/DLI. The case stood transferred to court ofH

Judicial Commissioner-cum-Special Judge NIA, Ranchi. The appellantbeing in custody in some other case, NIA prayed before Special Judgefor issue of production warrant. On 25.06.2018 on the strength ofproduction warrant appellant was produced before the Special Judge on25.06.2018 by superintendent, Chatra Jail, Chatra. The Special Judgevide his order dated 25.06.2018 remanded the appellant to B.M.C. JailRanchi and directed to be produced on 26.06.2018. On 26.06.2018, theappellant was produced from Jail custody on which order was paved toput up on 11.07.2018.

50. The submission made by the learned counsel for the appellantis that in the present case the cognizance having already been taken bythe Chief Judicial Magistrate on 11.03.2016, Section 167 could not havebeen resorted to by the Special Judge and provision, which was applicablein the facts of the present case, was Section 309. At this juncture, wemay 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,and it appears that the investigation cannot be completed withinthe period of twenty-four hours fixed by section 57, and there aregrounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the policeofficer making the investigation, if he is not below the rank ofsub- inspector, shall forthwith transmit to the nearest JudicialMagistrate copy of the entries in the diary hereinafter prescribedrelating to the case, and shall at the same time forward the accusedto such Magistrate.

(2) The Magistrate to whom an accused person is forwardedunder this section may, whether he has or has no jurisdiction to trythe case, from time to time, authorise the detention of the accusedin such custody as such Magistrate thinks fit, for term notexceeding fifteen days in the whole; and if he has no jurisdictionto try the case or commit it for trial, and considers further detentionunnecessary, he may order the accused to be forwarded to aMagistrate having such jurisdiction:

Provided that-

(a)the Magistrate may authorise the detention of the accusedperson, otherwise than in the custody of the police, beyond

the period of fifteen days; if he is satisfied that adequategrounds exist for doing so, but no Magistrate shall authorisethe detention of the accused person in custody under thisparagraph for total period exceeding,-

(i)ninety days, where the investigation relates to anoffence punishable with death, imprisonment for lifeor imprisonment for term of not less than ten years;

(ii) sixty days, where the investigation relates to any otheroffence, and, on the expiry of the said period of ninetydays, or sixty days, as the case may be, the accusedperson shall be released on bail if he is prepared toand does furnish bail, and every person released onbail under this sub- section shall be deemed to be soreleased under the provisions of Chapter XXXIII forthe purposes of that Chapter;

D(b) no Magistrate shall authorise detention in custody of the policeunder this section unless the accused is produced before himin person for the first time and subsequently every time till theaccused remained in the custody of the police, but theMagistrate may extend further detention in judicial custodyon production of the accused either in person or through theEmedium of electronic video linkage;

(c) no Magistrate of the second class, not specially empoweredin this behalf by the High Court, shall authorise detention inthe custody of the police.

Explanation I.- For the avoidance of doubts, it is hereby declaredthat, notwithstanding the expiry of the period specified in paragraph(a), the accused shall be detained in custody so long as he doesnot furnish bail;.

Explanation II.- If any question arises whether an accused personwas produced before the Magistrate as required under clause(b), the production of the accused person may be proved by hissignature on the order authorising detention or by the order certified

by the Magistrate as to production of the accused person throughthe medium of electronic video linkage, as the case may be.

Provided further that in case of woman under eighteen yearsof age, the detention shall be authorized to be in the custody of aremand home or recognized social institution.”

51. Section 309 on which reliance has been placed by learnedcounsel for the appellant is as follows:-

“309. Power to postpone or adjourn proceedings.—(1)Inevery inquiry or trial, the proceedings shall be continued fromday-to-day until all the witnesses in attendance have beenexamined, unless the Court finds the adjournment of the samebeyond the following day to be necessary for reasons to berecorded:

Provided that when the inquiry or trial relates to an offenceunder section 376, section 376A, section 376AB, section 376B,section 376C, section 376D, section 376DA or section 376DB ofthe Indian Penal Code (45 of 1860), the inquiry or trial shall becompleted within period of two months from the date of filing ofthe charge sheet.

(2) If the Court, after taking cognizance of an offence, orcommencement of trial, finds it necessary or advisable to postponethe commencement of, or adjourn, any inquiry or trial, it may,from time to time, for reasons to be recorded, postpone or adjournthe same on such terms as it thinks fit, for such time as it considersreasonable, and may by warrant remand the accused if incustody:

Provided that no Magistrate shall remand an accused personto custody under this section for term exceeding fifteen days ata time :

Provided further that when witnesses are in attendance, noadjournment or postponement shall be granted, without examiningthem, except for special reasons to be recorded in writing:

AProvided also that no adjournment shall be granted for thepurpose only of enabling the accused person to show cause againstthe sentence proposed to be imposed on him.

Provided also that –

(a)no adjournment shall be granted at the request of party,Bexcept where the circumstances are beyond the control ofthat party;

(b)the fact that the pleader of party is engaged in anotherCourt, shall not be ground for adjournment;

(c)where witness is present in Court but party or his pleader

is not present or the party or his pleader though present inCourt, is not ready to examine or cross-examine the witness,the Court may, if thinks fit, record the statement of the witnessand pass such orders as it thinks fit dispensing with theexamination-in-chief or cross-examination of the witness, asDthe case may be.

Explanation 1.- If sufficient evidence has been obtained to raise asuspicion that the accused may have committed an offence, andit appears likely that further evidence may be obtained by remand,this is reasonable cause for remand.EExplanation 2.- The terms on which an adjournment orpostponement may be granted include, in appropriate cases, thepayment of costs by the prosecution or the accused.”

52. The issue to be answered in the present case is as to whetherFfor remanding the accused (appellant), Section 167(2) Cr.P.C. could havebeen resorted to by the Special Judge or remand could have been doneonly under Section 309(2) Cr.P.C. This Court had occasion to considerthe provisions of Section 167 and Section 309 Cr.P.C. in large number ofcases. In the old code, there was provision namely Section 344 whichwas akin to Section 309 of present Code. Section 167 of Code of CriminalGProcedure, 1973, corresponds to Section 167 of the old Code. This Courthad occasion to consider Section 167 and Section 344 of the old Code inGouri Shankar Jha vs. State of Bihar and others, 1972 (1) SCC564. This Court in paragraph No. 12 laid down following: -

“12. Thus, Section 167 operates at stage when person isHarrested and either an investigation has started or is yet to

start, but is such that it cannot be completed within 24 hours.Section 344, on the other hand, shows that investigation hasalready begun and sufficient evidence has been obtainedraising suspicion that the accused person may havecommitted the offence and further evidence may be obtained,to enable the police to do which, remand to jail custody isnecessary. “

53. This Court in Central Bureau of Investigation, SpecialInvestigation Cell-I, New Delhi Vs. Anupam J. Kulkarni, (1992) 3SCC 141, had occasion to consider Section 309 Cr.P.C. This Court heldthat Section 309 comes into operation after taking cognizance and notduring the period of investigation. Remand order under this provision(Section 309) can only be with judicial custody.

54. We may refer to Three-Judge Bench Judgment of this Courtin State through CBI Vs. Dawood Ibrahim Kaskar and Others,(2000) 10 SCC 438. In the above case, the Government of India, withthe consent of the Government of Maharashtra, issued notificationentrusting further investigation in the above cases to Delhi Special PoliceEstablishment (CBI). The CBI filed applications before the designatedCourt praying for issuance of non-bailable warrants of arrests againstseveral accused and the applications were rejected by the DesignatedCourt relying on Bombay High Court judgment in Mohd. AhmedYasin Mansuri v. State of Maharashtra, 1994 Crl.LJ 1854 (Bom.).In paragraph No.6 of the judgment, this Court has noticed the judgmentof Bombay High Court in Mohd. Ahmed Yasin Mansuri v. State ofMaharashtra (supra) and observations made by the Bombay HighCourt. Bombay High Court has observed in the said case that in theCode, no power is conferred for police custody after cognizance of anoffence is taken.

55. The observations made by the High Court as quoted in para 6of the judgment were not approved by this Court. This Court also noticedthe provisions of Sections 167 and 309 Cr.P.C. In paragraph Nos. 10and 11, following has been laid down:-

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 Court, which has takencognizance of an offence, to authorise the detention of person,

who is subsequently brought before it by the police under arrestduring further investigation, in police custody in exercise of itspower under Section 167 of the Code. Section 309 relates to thepower of the Court to postpone the commencement of oradjournment of any inquiry or trial and sub-section (2) thereofreads as follows:

“309. (2) If the Court, after taking cognizance of an offence,or commencement of trial, finds it necessary or advisable topostpone the commencement of, or adjourn, any inquiry or trial,it may, from time to time, for reasons to be recorded, postponeor adjourn the same on such terms as it thinks fit, for such timeas it considers reasonable, and may by warrant remand theaccused if in custody:

Provided that no Magistrate shall remand an accused personto custody under this section for term exceeding fifteen days ata time:”

11. …………………..Since, however, even after cognizance istaken of an offence the police has power to investigate into itfurther, which can be exercised only in accordance with ChapterXII, we see no reason whatsoever why the provisions of Section167 thereof would not apply to person who comes to be laterarrested by the police in course of such investigation. If Section309(2) is to be interpreted — as has been interpreted by theBombay High Court in Mansuri — to mean that after the Courttakes cognizance of an offence it cannot exercise its power ofdetention in police custody under Section 167 of the Code, theInvestigating Agency would be deprived of an opportunity tointerrogate person arrested during further investigation, even ifit can on production of sufficient materials, convince the Courtthat his detention in its (police) custody was essential for thatpurpose. We are, therefore, of the opinion that the words “accusedif in custody” appearing in Section 309(2) refer and relate to anaccused who was before the Court when cognizance was takenor when enquiry or trial was being held in respect of him and notto an accused who is subsequently arrested in course of furtherinvestigation…………………………….”

56. This Court clearly held that Section 309(2) does not refer toHan accused, who is subsequently arrested in course of further investigation.

This Court in paragraph No. 11, as noted above, clearly held that evenafter cognizance is taken of an offence the police has power toinvestigate into it further and there is no reason why the provisions ofSection 167 thereof would not apply to person who comes to be laterarrested by the police in course of such investigation.

57. In above Three Judge Bench judgment the accused wassubsequently arrested during investigation after cognizance was taken.Three Judge Bench explained the words “accused if in custody” to relateto an accused who was before the court when cognizance was taken orwhen inquiry or trial was being held in respect of him and not to anaccused who is subsequently arrested in course of further investigation.There cannot be any dispute to the above proposition laid down by thisCourt but the above judgment does not help the appellant in facts of thepresent case. In the present case as noticed above, the accused wasbefore the Court when cognizance was taken or when inquiry or trialwas being held in respect of him. In the facts of present case as notedabove, the accused was produced in the Court of Special Judge on25.06.2018, he was produced under production warrant from jail custody.The accused was thus very well in custody on the date when he wasproduced in the Court. Thus, this was not case that accused wassubsequently arrested during the investigation and was produced beforethe Court. The accused was arrested on 11.01.2016 immediately afterlodging of the FIR and was granted bail on 10.03.2016. Thus, in view ofthe law as laid down by this Court in State through CBI Vs. DawoodIbrahim Kaskar(Supra), the appellant was in custody and the Courtcould have remanded him in exercise of jurisdiction under Section 309(2)and the present was not case where Section 167(2) could have beenresorted to.

58. Two Judge Bench judgment in Dinesh Dalmia Vs. CentralBureau of Investigation, (2007) 8 SCC 770, is relevant for the presentcase where this Court had occasion to interpret sub-Section (2) of Section167 Cr.P.C vis-à-vis sub-Section (2) of Section 309 Cr.P.C. In paragraphNo. 29, this Court laid down: -

“29. The power of court to direct remand of an accusedeither in terms of sub-section (2) of Section 167 of the Codeor sub-section (2) of Section 309 thereof will depend on thestages of the trial. Whereas sub-section (2) of Section 167 ofthe Code would be attracted in case where cognizance has

866SUPREME COURT REPORTS

[2019] 8 S.C.R.

Anot been taken, sub-section (2) of Section 309 of the Codewould be attracted only after cognizance has been taken.”59. After referring to Anupan J. Kulkarni(supra) and DawoodIbrahim (Supra), this court laid down following in paragraph No. 39: -

“39. The statutory scheme does not lead to conclusion inBregard to an investigation leading to filing of final form undersub-section (2) of Section 173 and further investigationcontemplated under sub-section (8) thereof. Whereas onlywhen charge-sheet is not filed and investigation is keptpending, benefit of proviso appended to sub-section (2) ofCSection 167 of the Code would be available to an offender;once, however, charge-sheet is filed, the said right ceases.Such right does not revive only because furtherinvestigation remains pending within the meaning of sub-section (8) of Section 173 of the Code.”

D60. Learned counsel for the appellant has relied on Two JudgeBench judgment of this Court in Mithabhai Pashabhai Patel andOthers 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 aforementionedEprovision is to be exercised when investigation is not complete.Once the charge-sheet is filed and cognizance of the offence istaken, the court cannot exercise its power under sub-section (2)of Section 167 of the Code. Its power of remand can then beexercised in terms of sub-section (2) of Section 309 which readsas under:F

“309. Power to postpone or adjourn proceedings.—

(1)*** “

62. The above observations do support the submissions raised bythe learned counsel for the appellant.G63. 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 atfollowing conclusions: -

(i)The accused can be remanded under Section 167(2) Cr.P.Cduring investigation till cognizance has not been taken byHthe Court.

(ii)That even after taking cognizance when an accused isAsubsequently arrested during further investigation, theaccused can be remanded under Section 167(2) Cr.P.C.

(iii)When cognizance has been taken and the accused was incustody at the time of taking cognizance or when inquiry ortrial was being held in respect of him, he can be remandedBto judicial custody only under Section 309(2) Cr.P.C.

64. We, thus, find substance in submission of learned counsel forthe appellant that in the present case accused could have been remandedonly under Section 309(2) Cr.P.C. The submission which was taken onbehalf of the CBI before us was that the accused was remanded underSection 167(2) Cr.P.C. Since he was produced before Special Judgeduring further investigation. The stand taken by the CBI is not correct.

65. We, however, have to decide the issue as per law irrespectiveof the stand taken by CBI. We may notice the order dated 25.06.2018passed by the Court of Judicial Commissioner-cum-Special Judge NIA,Ranchi, which is to the following effect: -

“………25.06.2018 On strength of issued production warrantsuperintend Chatra Jail, Chatra produced accused namely PradeepRam @ Pradeep verma S/o Devki Ram, R/o Village. Winglat,P.S. Tandwa, District-Chatra. Let accused Pradeep Ramremanded in the case and sent to B.M.C. Jail, Ranchi to beproduced on 26.06.2018. Learned Spl.P.P. is present.

Issued Custody warrant.

DictatedAd/- IllegibleSpl. Judge(NIA)

65. The special Judge in his order has neither referred to Section309 nor Section 167 under which accused was remanded. When theCourt has power to pass particular order, non-mention of provision oflaw or wrong mention of provision of law is inconsequential. As heldabove, the special Judge could have only exercised power under Section309(2), hence, the remand order dated 25.06.2018 has to be treated asremand order under Section 309(2) Cr.P.C. The special Judge beingempowered to remand the accused under Section 309(2) in the facts of

Athe present case, there is no illegality in the remand order dated 25.06.2018when the accused was remanded to the judicial custody.

66. We, thus, do not find any error in the order dated 25.06.2018but for the reasons as indicated above. The High Court, thus, committederror in holding that the order of remand dated 25.06.2018 was in exerciseBof power under Section 167 Cr.P.C. We, however, hold that the remandorder 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 meritCin the appeals and the appeals are dismissed.

Kalpana K. Tripathy

Appeals dismissed.