TMI Blog2009 (5) TMI 1004X X X X Extracts X X X X X X X X Extracts X X X X ..... to this Court. Nothing has been pointed out before us as to why even the bail granted to the appellants should be cancelled so as to enable us to consider that question independently. No sufficient or cogent material has been placed on record by the State or the Special Investigating Team in this behalf. Thus, the impugned judgment cannot be sustained which is set aside accordingly. The appeal is allowed. - S.B. Sinha and Mukundakam Sharma, JJ. For Appellant: Nikhil Goel, Sayid Marzook Bafaki and Sheela Goel, Advs For Respondents: K. Enatoli Sema and Hemantika Wahi, Advs. JUDGMENT S.B. Sinha, J. Leave granted. 1. Whether with the change of an investigating authority, police custody of the accused on remand can be sought for, although cognizance of the offence had already been taken, is the question involved herein. 2. It arises out of a judgment and order dated 5th September, 2009 passed by the High Court of Gujarat at Ahmedabad in Criminal Revision Application No. 482 of 2008 setting aside an order dated 23rd May, 2008 passed by the learned Second Additional Sessions Judge, Himatnagar in Sessions Case No. 70 of 2002. 3. Shorn of all unnecessary details the fact of the matter is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il vide Criminal Miscellaneous Application No. 4115/2002 dated 30/08/2002 and in that bail order imposed certain conditions. Hence without getting cancelled the said regular bail granted by the Hon'ble High Court, this Court cannot grant Police remand as the present accused are on bail, hence first of all Special Investigation Team is required to resort the Hon'ble High Court for cancellation of said bail order for Police custody for the purpose of further investigation as directed by the Hon'ble Highest Court of our Land. 14. therefore, applicant-member of Special Investigation Team directed to approach the Hon'ble High Court to set aside/cancel the said regular bail order passed by the Hon'ble High Court. 15. It is pertinent to note that Police remand can be granted only by the committal court. therefore, after getting cancellation of bail order, applicant- member of Special Investigation Team is also directed to first of all approach the learned Judicial Magistrate First Class Prantij-committal court for Police custody in the present case because this court is a Sessions Court not competent to grant remand order unless and until that prayer is rejected by Mag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r interrogation shall be done only during day time. One or more members of the Special Investigation Team only would interrogate the petitioners and nobody else. 15. It is stated at the Bar that pursuant to the said order appellants had appeared before the concerned Sessions Judge as also the Special Investigating Team. They had visited Police Station, Prantij on 13 th September, 2008 and submitted a written representation expressing their willingness to cooperate with the further investigation by the Special Investigating Team but they were not examined. Their presence, however, was required on 14th September, 2008 wherefor a letter dated 12th September, 2008 was sent by fax on 13th September, 2008. Appellants appeared before the Sessions Judge and the on 14th September, 2008 and the matter was adjourned to 22nd September, 2008. They visited the police station also on 14th and 15th September, 2008. 16. This Court while passing the order in exercise of its jurisdiction under Article 32 of Constitution of India did not direct re-investigation. This Court exercised its jurisdiction which was within the realm of the Code. Indisputably the investigating agency in terms of Sub-section ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inherent power under Section 482 of the Code of Criminal Procedure or otherwise. The pre- cognizance jurisdiction to remand vested in the subordinate courts, therefore, must be exercised within the four-corners of the Code. The power to remand, indisputably, is vested in a Magistrate in terms of Sub-section (2) of Section 167 of the Code which reads as under: 167. Procedure when investigation cannot be completed in twenty-four hours. (1)... (2) The Magistrate to whom all accused person is forwarded under this section may, whether he has or not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that- (a) The Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the deten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attendance no adjournment or postponement shall be granted, without examining them, except for, special reasons to be recorded in writing: Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him. Explanation-1. If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand. Explanation 2. The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused. 23. Appellants had been granted bail. They are not in custody of the court. They could not be taken in custody ordinarily unless their bail was cancelled. The High Court, in our opinion, was not correct in holding that as further investigation was required, Sub-section (2) of Section 167 of the Code gives ample power for grant of police remand. 24. The distinction between the power of remand in terms of Sub-section (2) of Section 167 and Sub-section (2) of Section 309 of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... needs no special emphasis. The procedural law is meant to further the ends of justice and not to frustrate the same. It is an accepted rule that an interpretation which furthers the ends of justice should be preferred. It is true that the police custody is not the be-all and end-all of the whole investigation but yet it is one of its primary requisites particularly in the investigation of serious and heinous crimes. The legislature also noticed this and permitted limited police custody. The period of first fifteen days should naturally apply in respect of the investigation of that specific case for which the accused is held in custody. But such custody cannot further held to be a bar for invoking a fresh remand to such custody like police custody in respect of an altogether different case involving the same accused. [Emphasis supplied] We may also notice that in State v. Dawood Ibrahim Kaskar 1997CriLJ2989 a Three Judge Bench held as under: The manner in which a person arrested during investigation has to be dealt with by the Investigating Agency, and by the Magistrate on his production before him, is provided in Section 167 of the Code. The said section contemplates that when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he police has a right to further investigation under Sub-section (8) of Section 173 but not fresh investigation or reinvestigation . The meaning of Further is additional; more; or supplemental. Further investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. Sub-section (8) of Section 173 clearly envisages that on completion of further investigation, the investigating agency has to forward to the Magistrate a further report and not fresh report regarding the further evidence obtained during such investigation. 26. Furthermore in this case the Special Investigating Team has already submitted its report to this Court. Nothing has been pointed out before us as to why even the bail granted to the appellants should be cancelled so as to enable us to consider that question independently. 27. No sufficient or cogent material has been placed on record by the State or the Special Investigating Team in this behalf. 28. For the reasons aforementioned the impugned judgment cannot be sustained which is set aside accordingly. The appeal is allowed. 29. We, h ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
