CR.RA/48220/2008 1/26 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 482 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE H.B.ANTANI ================================================= ====================== 1 Whether Reporters of Local Papers may be allowed to see the judgment? NO 2 To be referred to the Reporter or not? NO 3 Whether Their Lordships wish to see the fair copy of the judgment? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any Order made thereunder? NO 5 Whether it is to be circulated to the Civil Judge? NO ================================================= ====================== STATE OF GUJARAT - Applicant Versus MITHABHAI PASHABHAI PATEL AND OTHERS - Respondents ================================================= ======================Appearance : MR JM PANCHAL, SPECIAL PUBLIC PROSECUTOR WITH MR UA TRIVEDI, ADDITIONAL SPECIAL PUBLIC PROSECUTOR for the Applicant. MR HL PATEL FOR M/S HL PATEL ADVOCATES for the Respondents. ================================================= ====================== CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 05/09/2008 CAV JUDGMENT 1. RULE. Learned Advocate Mr. H. L. Patel waives service of Rule for the respondents. CR.RA/48220/2008 2/26 JUDGMENT 2. This is an application preferred under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (“Cr. P. C.”, for short) against the order passed by the learned Second Additional Sessions Judge, Himatnagar dated 23-05- 2008 passed below Exh. 34 in Sessions Case No. 70 of 2002. 3. Learned Special Public Prosecutor Mr. J. M. Panchal submitted that the accused are on bail in connection with FIR registered as CR bearing No. I-26 of 2002 registered with Prantij Police Station and facing trial for the offences punishable under Sections 302, 307, 395, 396, 397, 201, 435, 324, 143, 147, 148, 149, 153A, 341, 337, 427 and 120B of the Indian Penal Code (“IPC”, for short) as well as under Section 135 of the Bombay Police Act. It is submitted that the incident in question took place on 20-08-2002 near Vadvasa Patia Village near Prantij. The complaint was lodged on the same day. During the course of investigation, six persons were arrested and the application for remand being made by the Investigating Agency, the learned Magistrate granted the remand. After the completion of the investigation, charge- sheet was filed on 14-06-2002 and the same was registered as Sessions Case No. 70 of 2002. By passage of time, the accused persons preferred the bail application bearing Criminal CR.RA/48220/2008 3/26 JUDGMENT Miscellaneous Application No. 4115 of 2008 before the High Court and the High Court granted the bail to all the six persons on 30-08-2002. 4. It is submitted by the learned Prosecutor that considering the sensitive nature of the cases involved, the Hon'ble Apex Court formed Special Investigation Team (“SIT”, for short) to conduct the investigation, including further investigation by order dated 26-03-2008 passed in Writ Petition (Criminal) No. 109 of 2003 and the State Government gave effect to the directions vide notification dated 01-04-2008. Thus, the SIT is empowered to seek re-investigation of the matters referred to by the Apex Court. 5. It is submitted by the learned Prosecutor that during the course of re-investigation, the SIT felt that fresh police remand of the accused is necessary in connection with the offences punishable under Sections 307, 395, 396, 397, 188, 341, 201 and 120B of IPC, as, at the time when the remand was granted by the learned Magistrate, these sections were not invoked but were added subsequently and, therefore, investigation with respect to these charges could not be conducted and the earlier investigation was carried out in slip- CR.RA/48220/2008 4/26 JUDGMENT shod manner. Therefore, the application under Exh. 34 was given by the Investigating Agency seeking 14 days remand of the persons on the grounds mentioned therein to the learned 2nd Additional Sessions Judge, Himatnagar. However, the learned Judge rejected the application for remand of the accused persons by order dated 23-05-2008 against which the State has preferred the present Criminal Revision Application. 6. The learned Prosecutor submitted that the learned Sessions Judge has erred in holding that since the accused are on regular bail granted by the Hon'ble High Court in Criminal Miscellaneous Application No. 4115 of 2002 by order dated 30- 08-2002, it requires to be cancelled first and, thereafter, the remand can be granted. The learned Judge has also erroneously held that the remand can only be granted by the Magistrate. While rejecting the application for remand, the SIT is denied the powers of the Investigating Agency or Investigating Officers to seek remand in order to gather more material in the matter. The learned Prosecutor also submitted that the order granting police remand is not revisable but when the order of the refusal of the remand is passed, then the same stands on a different footing. When the order itself affects the right of the person, then it can never be said to be an CR.RA/48220/2008 5/26 JUDGMENT interlocutory order. Chapter XII of Cr. P. C. deals with the information to the police and their powers to investigate and Sections 154 to 173 are relevant. Though the charge is already framed and the trial is pending before the concerned Judge, further investigation is ordered by the Apex Court and as it is done in the exceptional circumstances, if the prayer for remand is not granted, then the entire purpose of the investigation and collecting necessary material during the remand would get frustrated. The learned Prosecutor submitted that as substantial change has taken place and considering the serious charges which are required to be added, further investigation is required to be conducted by the SIT in the matter and there is no need to cancel the bail application granted on earlier occasion while granting remand of the accused. 7. The learned Prosecutor placed reliance on the judgment in case of Prahlad Singh Bhatti Vs. NCT Delhi and Another, 2001 Cr. L. J. 1730 and Haryana Land Reclamation And Development Corporation Limited Vs. State of haryana And Another, 1990 3 SCC 588 in support submissions canvassed at the Bar that it is fit case wherein the revisional powers can be exercised by this Court under Section 397 read CR.RA/48220/2008 6/26 JUDGMENT with Section 401 of Cr. P. C. and the prayer, as set out in the application for remand, be granted. 8. Learned Advocate Mr. Vijay Patel appearing for the respondents submitted that the investigation which was entrusted to the Investigating Agency when the charge-sheet was filed against the respondents is of a continuous nature. However, in view of the direction given by the Hon'ble Supreme Court, further inquiry / investigation is required to be made in CR bearing No. I-26 of 2002. The learned Advocate submitted that no fresh investigation can be made at this stage since the trial has already commenced and even if fresh investigation is made then the respondents cannot be remanded to police custody as they were already remanded to the police custody when the initial investigation was carried out in the matter. Thereafter, the charge was framed and the trial has proceeded. The learned Advocate submitted that no separate offence is required to be investigated and even though certain sections such as Sections 307, 395, 396, 397, 188, 341, 201 and 120B of IPC were added subsequently, it cannot be said that the cognizance of the offences was not taken by the Court. The newly added sections are relating to lesser offences while the respondents are already charged for CR.RA/48220/2008 7/26 JUDGMENT the offences punishable under Sections 302, 323, 324, 435, 147, 148, 149 of IPC and Section 135 of the Bombay Police Act. The learned Advocate further submitted that custody of accused persons is referred to in Section 309 of Cr. P. C. Section 309 deals with the power to postpone the proceedings. It is stated in Section 309 (1) that in every inquiry or trial, the proceedings shall be held as expeditiously as possible and particularly when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. It is mentioned in the proviso to sub-section (2) that no Magistrate shall remand an accused person to the custody under this Section for a term exceeding 15 days at a time. Thus, the learned Advocate submitted that when the trial has commenced and cognizance of the offences is already taken by the Court, then the Court has to remand the accused to the police custody after recording the reasons for the same and, therefore, the provisions of Section 167 (2) of the Cr. P. C. cannot be invoked in the facts and circumstances of the present case. The learned Advocate submitted that at the post-cognizance stage of the matter, no case is made out by CR.RA/48220/2008 8/26 JUDGMENT the prosecution for the remand of the accused persons and, therefore, the remand application preferred by the State was rightly rejected by the learned Judge with the observations that the bail which was granted in the matter was required to be cancelled first and thereafter the application for remand can be considered. In view of the aforesaid facts and circumstances, the prayer made by the prosecution with regard to police remand cannot be entertained and even the default bail if at all is granted to the accused, then the same cannot be cancelled. When the bail was granted in the year 2002, it was granted after hearing both the sides on merits of the case and, therefore, the bail which was granted in 2002 is required to be cancelled and, thereafter, the present application for remand in pursuance of further investigation can be entertained. Thus, the learned Advocate submitted that the prosecution has not made out a case for grant of remand and, therefore, the application deserves to be dismissed. The learned Advocate further submitted that even on perusal of the grounds which are mentioned in the application, they do not warrant remand of the accused to the police custody. 9. The learned Advocate submitted that the Revision Application preferred by the prosecution is under Section 397 CR.RA/48220/2008 9/26 JUDGMENT read with 401 of the Cr. P. C. and the power of this Court to entertain the Revision Application is very narrow and limited. The order of rejection of remand application by the learned Additional Sessions Judge does not call for any interference by this Court while exercising powers under Section 397 of the Cr. P. C. and as the order is of a interlocutory nature, the same cannot be entertained and even on that ground the Revision Application deserves to be dismissed. Thus, the learned Advocate submitted that on overall perusal of the grounds mentioned in the application for remand and reasoning given by the learned Additional Sessions Judge while passing the order below Exh. 34 in Sessions Case No. 70 of 2002, the present Revision Application does not call for any interference and the same is liable to be dismissed. 10. The learned Advocate has placed reliance on the following judgments in support of the submissions canvassed at the Bar: (i) Raghubir Singh Vs. State of Bihar, AIR 1987 SC 149. Citing this judgment, the learned Advocate submitted that the Supreme Court, while dealing with the provisions of Section 167 (2), Proviso, Section 309, Section 437 CR.RA/48220/2008 10/26 JUDGMENT (5) and Section 439 (2), held as under:- “An order for release on bail made under the proviso to S. 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under S. 309(2). The order for release on bail may however be cancelled under S. 437(5) or S. 439(2). Generally the grounds for cancellation of bail, broadly, are, interference or attempt to interfere with the due course of administration of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by creating or causing disappearance of evidence etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts. Where bail has been granted under the proviso to S. 167(2) for the default of the prosecution in not completing the investigation in sixty days, after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non- bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed.” (ii) Central Bureau of Investigation, Special Investigation Cell-I, New Delhi Vs. Anupam J. Kulkarni, AIR 1992 SC 1768. In this case cited by the learned Advocate, the Supreme Court considered the provisions of Section 167 (2) of the Cr. P. C. and held: “In one occurrence it may so happen that the accused might have committed several offences and the police may arrest him in connection with one or CR.RA/48220/2008 11/26 JUDGMENT two offences on the basis of the available information and obtain police custody. If during the investigation his complicity in more serious offences during the same occurrence is disclosed that does not authorise the police to ask for police custody for a further period after the expiry of the first fifteen days. If that is permitted then the police can go on adding some offence or the other of a serious nature at various stages and seek further detention in police custody repeatedly, this would defeat the very object underlying S.167. However, this limitation shall not apply to a different occurrence in which complicity of the arrested accused is disclosed. That would be a different transaction and if an accused is in judicial custody in connection with one case and to enable the police to complete their investigation of the other case they can require his detention in police custody for the purpose of associating him with the investigation of the other case. In such a situation he must be formally arrested in connection with other case and then obtain the order of the magistrate for detention in police custody. If best must be made in this connection explicit that such re-arrest or second arrest and seeking police custody after the expiry of the period of first fifteen days should be with regard to the investigation of a different case other than the specific one in respect of which the accused is already in custody. A literal construction of S.167(2) to the effect that a fresh remand for police custody of a person already in judicial custody during investigation of a specific case cannot under any circumstances be issued would seriously hamper the very investigation or the other case the importance of which needs no special emphasis. The procedural law is meant to further the ends of justice and not to frustrate the same.” (iii) State of Gujarat Vs. Virbhadrasinh Govubha Gohil And Another, 1997 (1) GLR 860. The learned Advocate submitted that our High Court dealt with the provisions of Sections 167, 397 and 439 (2) of the Cr. P. C. in this judgment and held: CR.RA/48220/2008 12/26 JUDGMENT “To grant the remand and to consider the application of the accused for enlarging them on bail are two different things. The remand period has not been extended and that action may be challenged by the State Government before this Court but, the challenge to the action in the criminal revision application will not preclude the Sessions Court to consider the application of the accused under Section 439 of the Criminal Procedure Code, 1973, to enlarge him on bail. In case the the proper case is made out, Court fails to see how it is not open to the Sessions Court not to enlarge the accused on the bail. Much emphasis has been laid upon the question that without remand it is difficult to recover the currency note of Rs. 50/- which is the amount of bribe accepted by the accused but, Court fails to see how this ground is sufficient to cancel the bail of the accused granted by the Sessions Court to him. Even if the accused is enlarged on bail, he has to make himself available for interrogation to the investigation or police officer in charge of the investigation as the case may be. When the accused is available for interrogation, he can be interrogated for investigation purposes which include recovery of the muddamal amount. However, on this ground the bail cannot be cancelled. There is no bar that the investigating officer or the police officer concerned has no power to proceed with the investigation without remand and without keeping the accused in police custody which includes power to make necessary recoveries at the instance of the accused.” (iv) State Vs. Dawood Ibrahim Kaskar, AIR 1997 SC 2494. Citing this judgment, the learned Advocate submitted that the Apex Court considered the provisions of Sections 309 (2) and Section 167 in this case and held as under:- CR.RA/48220/2008 13/26 JUDGMENT “There cannot be any manner of doubt that the remand and the custody referred to in the first proviso to S. 309(2) are different from detention in custody under Section 167. While remand under the former relates to a stage after cognizance and can only be to judicial custody, detention under the latter relates to the stage of investigation and can initially be either in police custody or judicial custody. Since, however, even after cognizance is taken of an offence the police has a power to investigate into it further, which can be exercised only in accordance with Chapter XII, there is no reason whatsoever why the provisions of Section 167 thereof would not apply to a person who comes to be later arrested by the police in course of such investigation. If Section 309(2) is interpreted - to mean that after the Court takes cognizance of an offence it cannot exercise its power of detention in police custody under Section 167, the Investigating Agency would be deprived of an opportunity to interrogate a person arrested during further investigation, even if it can on production of sufficient materials, convince the Court that his detention in its (police) custody was essential for that purpose. Therefore the words "accused if in custody" appearing in Section 309(2) refer and relate to an accused who was before the Court when cognizance was taken or when enquiry or trial was being held in respect of him and not to an accused who is subsequently arrested in course of further investigation. So far as the accused in the first category is concerned he can be remanded to judicial custody only in view of Section 309 (2), but he who comes under the second category will be governed by Section 167 so long as further investigation continues. That necessarily means that in respect of the latter the Court which has taken cognizance of the offence may exercise its power to detain him in police custody, subject to the fulfilment of the requirements and the limitation of Section 167.” (v) Jairajsinh Temubha Jadeja Vs. State of Gujarat, 2002 (1) GLR 215. This judgment is cited by the learned Advocate in CR.RA/48220/2008 14/26 JUDGMENT support of the submission that remand under Section 167 (2) of the Cr. P. C. cannot be granted to obtain confessional statement or to discover the material used by the other accused. The principles laid down in the aforesaid judgment are required to be followed while considering the case for the remand of the accused. (vi) Dinesh Dalmia Vs. CBI, (2007) 8 SCC 770. The learned Advocate cited this judgment wherein the Apex Court considered the provisions of Sections 167, 309, 173 and 190 of the Cr. P. C. and the applicability and scope of Sections 167 (2) and 309 (2) of the Cr. P. C. and held that the remand of the accused is contemplated at two stage: pre- cognizance and post-cognizance. Whereas under Section 167 (2) is attracted where cognizance has not been taken, Section 309 (2) is attracted only after cognizance has been taken. The right under Section 167 (2) proviso is conditional one being conditional on the investigation having remained pending i.e. on the charge-sheet not having been presented. Once the charge-sheet is filed, the right under Section 167 (2) proviso ceases and does not revive only because a further investigation remains pending within meaning of Section 173 (8). CR.RA/48220/2008 15/26 JUDGMENT 11. Heard learned Special Public Prosecutor Mr. J. M. Panchal for the revisionist-State and learned Advocate Mr. Vijay Patel for the respondents at length and in great detail. I have also perused the averments made in the Revision Application as well as the order passed by the learned Judge below Exh. 34 in remand application in connection with C. R. bearing No. I-26 of 2002 for the offences punishable under Sections 302, 307, 395, 396, 397, 201, 435, 324, 143, 147, 148, 149, 153A, 341, 337, 427 and 120B of the IPC as well as under Section 135 of the Bombay Police Act. I have also perused the directions given by the Apex Court in the order dated 26-03-2008 passed in Writ Petition (Criminal) No. 109 of 2003. 12. At this juncture, it would be expedient to refer to the following observations made by the Supreme Court in the order dated 26-03-2008 which relate to the purpose of constituting the SIT as also its functions and powers: “After having heard learned Counsel for the parties, we feel that considering the sensitive nature of the cases involved, appointment of a Special Investigation Team (in short 'SIT') is warranted....... ***** If any person wants to make statement before the CR.RA/48220/2008 16/26 JUDGMENT SIT for giving his or her version of the alleged incidents, the SIT shall record it. Those who want to give their version shall in writing intimate the convenor of the Committee so that the SIT can call him or her for the purpose of recording his / her statement. It is needless to say that the SIT shall not confine the investigation by recording statement of those who come forward to give his or her version and shall be free to make such inquiries / investigation as felt necessary by it. The State Government shall provide necessary infrastructure and provide resources for effective working of the SIT. The report of the SIT shall be furnished to this Court in a sealed cover after completion of the inquiry / investigation for which three months time is granted. After the report is submitted, the further action required to be taken shall be dealt with by this Court..... ***** .......So far as SLP (Cri.) No. 284/03 and T.P. (Crl.) 43/2004 are concerned, the case is commonly known as 'British Nationals Case' and relates to Himmat Nagar, Prantij P.S. District Sabarkantha and relates to FIR 1/26/2002. We make it clear that SIT shall be free to work out the modalities and the norms required to be followed for the purpose of inquiry/investigation including further investigation. Needless to say the sole object of the Criminal Justice System is to ensure that a person who is guilty of an offence is punished............” 13. In pursuance of the directions given by the Apex Court in the aforesaid matter, the State Government issued a notification dated 01-04-2008. While exercising powers conferred under the said directions, it was thought fit to add various sections to the FIR bearing No. I-26 of 2002 already CR.RA/48220/2008 17/26 JUDGMENT lodged at Prantij Police Station in connection with the incident that took place on 28-02-2002 at 1800 Hours near Vadvasa Patia Village on National Highway No. 8. As per