CENTRAL BUREAU OF INVESTIGATION Vs. RATHIN DANDAPATH & ORS.

Tags Murder Interpretation

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 1081-1083 of 2015, Judgment Date: Aug 21, 2015

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1081 OF 2015
(Arising out of S.L.P. (Crl.) No. 3611 of 2015)

Central Bureau of Investigation … Appellant

Versus

Rathin Dandapat and others … Respondents

WITH

CRIMINAL APPEAL NO.1082 OF 2015
(Arising out of S.L.P. (Crl.) No. 3612 of 2015)

Central Bureau of Investigation … Appellant

Versus

Chandi Karan … Respondent

WITH

CRIMINAL APPEAL NO.1083 OF 2015
(Arising out of S.L.P. (Crl.) No. 4241 of 2015)

Central Bureau of Investigation … Appellant

Versus

Anuj Pandey … Respondent

J U D G M E N T

Prafulla C. Pant, J.

A common question of law is involved in these three appeals as to
whether no remand in police custody can be given to the investigating
agency in respect of the absconding accused who is arrested only after
filing of the charge sheet.

We have heard learned counsel for the parties and perused the papers on
record.

The instant case from which these appeals have arisen, relates to killing
of nine persons and injuring large number of villagers of Village Netai of
District Paschim Medinipore in West Bengal. It is alleged that the
respondents in the present appeals and other accused, on 07.01.2011, after
forming an unlawful assembly in the rooftop of respondent No. 1, Rathin
Dandapat, committed the crime. First Information Report was lodged on the
same day at Police Station Lalgarh in respect of offences punishable under
Sections 148, 149, 326, 307, 302 of Indian Penal Code (IPC), and also in
respect of offences punishable under Section 25/27 of Arms Act. The
investigation of the case was initially done by regular police, but later
transferred to Criminal Investigation Department (CID) of the State. Vide
order dated 18.2.2011, passed by the High Court of Judicature at Calcutta
in Writ Petition Nos. 1170(W) of 2011, 1172(W) of 2011 and 1181(W) of 2011,
the investigation was transferred to Central Bureau of Investigation (for
short “the CBI”), the appellant before us.

During investigation accused, namely Abhani Bhusan Singha, Subhendu Mondal,
Aswani Chalak, Nabagopal Sanki, Pintu Roy, Gandib Ban Roy, Lob Duley,
Banamali Duley, Niranjan Kotal, Rupchand Ahir, Raju Roy and Swapan Roy were
arrested. On completion of investigation, the CBI submitted charge sheet
dated 4.4.2011 against 21 accused, including the arrested ones and the
absconders. It was mentioned in the charge sheet that further
investigation of the case was kept open for the purposes of collection of
further evidence and the arrest of the absconders. It was also mentioned
that further collected evidence during investigation would be forwarded by
filing supplementary charge sheet.

The respondents, namely, Rathin Dandapat, Md. Khaliluddin, Dalim Pandey,
Joydeb Giri, Tapan Dey (all respondents in Criminal Appeal arising out of
S.L.P. (Crl.) No. 3611 of 2015), Chandi Karan (respondent in Criminal
Appeal arising out of S.L.P. (Crl.) No. 3612 of 2015), Anuj Pandey
(respondent in Criminal Appeal arising out of S.L.P. (Crl.) No. 4241 of
2011), and one Kanai Dey, were declared proclaimed offenders. Meanwhile,
the trial proceeded and, after providing necessary copies to the accused,
as required under Section 207 of the Code of Criminal Procedure, 1973 (for
short “CrPC”), the Additional Chief Judicial Magistrate, Jhargram, on
9.8.2011, committed the case to the Court of Sessions, Paschim Medinipore.
The Court of Sessions on 10.12.2011 framed charge against accused Abhani
Bhusan Singha, Subhendu Mondal, Aswani Chalak, Nabagopal Sanki, Pintu Roy,
Gandib Ban Roy, Lob Duley, Banamali Duley, Niranjan Kotal, Rupchand Ahir,
Raju Roy and Swapan Roy. The last two accused, namely, Raju Roy and Swapan
Roy were later declared juveniles and their cases were sent to Juvenile
Justice Board, Paschim Medinipore. The present case, as against said two
juveniles, is said to be lying stayed vide order dated 8.9.2014, passed by
this Court in S.L.P. No. 5699 of 2014. In respect of other accused against
whom charge was framed, trial further proceeded and ten Prosecution
Witnesses were examined. However, their cross-examination was deferred at
the instance of arrested accused persons, other than the juveniles.

Out of eight proclaimed offenders, five, namely, Rathin Dandapat, Md.
Khaliluddin, Dalim Pandey, Joydeb Giri and Tapan Dey, were arrested on
29.4.2014, whereafter on 30.4.2014 the CBI sought their remand in police
custody. The Additional Chief Judicial Magistrate, Jhargram rejected the
prayer of the CBI, aggrieved by which said investigating agency submitted
Revisional Application (C.R.R. No. 1510 of 2014) before the Calcutta High
Court. Absconder-accused Chandi Karan was arrested on 9.5.2014 by CID of
the State, which informed the CBI about his arrest and meanwhile vacation
Magistrate remanded judicial custody of said accused up to 12.5.2014. The
CBI on 12.5.2014 sought remand in police custody in respect of Chandi
Karan, but the same was also rejected by the Additional Chief Judicial
Magistrate, Jhargram, against which Revisional Application (C.R.R. No. 1641
of 2014) was filed before the High Court. As to the absconder-accused Anuj
Pandey too, CID, West Bengal, on 7.5.2014 informed the CBI about his arrest
from Chandrapura in Jharkhand, and he was produced on 8.5.2014 before the
Additional Chief Judicial Magistrate, Jhargram where CBI sought remand in
police custody but the same was also refused. Aggrieved by said order
dated 8.5.2014, passed by the Additional Chief Judicial Magistrate,
Revisional Application (C.R.R. No. 1640 of 2014) was filed before the High
Court. All the three Criminal Revisions were disposed of by the High Court
by separate orders of the same date, i.e., 15.10.2014, against which these
criminal appeals are filed through special leave.

Before further discussion, we think it just and proper to quote the
relevant provisions of law.

Proviso to sub-section (2) of Section 167 CrPC, which empowers a Magistrate
to authorize detention of an accused in the custody of police, reads as
under: -
“Provided that, -

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 authorize the detention of the accused person in custody under this
paragraph for a total period exceeding, -

Ninety days, where the investigation relates to an offence punishable with
death, imprisonment for life or imprisonment for a term of not less than
ten years;

Sixty days, where the investigation relates to any other offence, and, on
the expiry of the said period of ninety days, or sixty days, as the case
may be, the accused person shall be released on bail if he is prepared to
and does furnish bail, and every person released on bail under this sub-
section shall be deemed to be so released under the provisions of Chapter
XXXIII for the purposes of that Chapter;

No Magistrate shall authorize detention of the accused in custody of the
police under this section unless the accused is produced before him in
person for the first time and subsequently every time till the accused
remains in the custody of the police, but the Magistrate may extend further
detention in judicial custody on production of the accused either in person
or through the medium of electronic video linkage;

No Magistrate of the second class, not specially empowered in this behalf
by the High Court, shall authorize detention in the custody of the police.”

Sub-section (8) of Section 173, under which investigating agency has power
to further investigate the matter in which the report/charge sheet has
already been filed, is reproduced hereunder: -
“(8) Nothing in this section shall be deemed to preclude further
investigation in respect of an offence after a report under sub-section (2)
has been forwarded to the Magistrate and, where upon such investigation,
the officer in charge of the police station obtains further evidence, oral
or documentary, he shall forward to the Magistrate a further report or
reports regarding such evidence in the form prescribed; and the provisions
of sub-sections (2) to (6) shall, as far as may be, apply in relation to
such report or reports as they apply in relation to a report forwarded
under sub-section (2).”

Relevant provision of sub-section (2) of Section 309 CrPC, empowering
remand of an accused, provides as under: -
“(2) If the Court after taking cognizance of an offence, or commencement
of trial, finds it necessary or advisable to postpone the commencement of,
or adjourn, any inquiry or trial, it may, from time to time, for reasons to
be recorded, postpone or adjourn the same on such terms as it thinks fit,
for such time as it considers reasonable, and may by a warrant remand the
accused if in custody:

xxx xxx xxx

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.”

In State through CBI v. Dawood Ibrahim Kaskar and others[1], a three judge
bench of this Court has laid down the law on the issue relating to grant of
police custody of a person arrested during further investigation. In
paragraph 11 of said case, this Court has held as follows: -
“11. There cannot be any manner of doubt that the remand and the custody
referred to in the first proviso to the above sub-section 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, we see no reason whatsoever why the provisions of Section 167
thereof would not apply to a person who comes to be later arrested by the
police in course of such investigation. If Section 309(2) is to be
interpreted — as has been interpreted by the Bombay High Court in Mohd.
Ahmed Yasin Mansuri v. State of Maharashtra [1994 Cri LJ 1854 (Bom)], — to
mean that after the Court takes cognizance of an offence it cannot exercise
its power of detention in police custody under Section 167 of the Code, the
Investigating Agency would be deprived of an opportunity to interrogate a
person arrested during further investigation, even if it can on production
of sufficient materials, convince the Court that his detention in its
(police) custody was essential for that purpose. We are, therefore, of the
opinion that the words “accused if in custody” appearing in Section 309(2)
refer and relate to an accused who was before the Court when cognizance was
taken or when enquiry or trial was being held in respect of him and not to
an accused who is subsequently arrested in course of further investigation.
So far as the accused in the first category is concerned he can be remanded
to judicial custody only in view of Section 309(2), but he who comes under
the second category will be governed by Section 167 so long as further
investigation continues. That necessarily means that in respect of the
latter the Court which had taken cognizance of the offence may exercise its
power to detain him in police custody, subject to the fulfilment of the
requirements and the limitation of Section 167.”

The case of Dinesh Dalmia v. CBI[2], which is relied upon by the High
Court, relates to granting of bail under Section 167(2) CrPC. In said
case, the accused/absconder (Dinesh Dalmia) after his arrest was produced
before the Magistrate, and on the request of CBI police custody was granted
on 14.2.2006 till 24.2.2006, whereafter on another application further
police custody was granted till 8.3.2006. Said accused was remanded to
judicial custody, and the accused sought statutory bail under sub-section
(2) of Section 167 CrPC as no charge sheet was filed against him by CBI
within sixty days of his arrest. The Magistrate rejected the application
for statutory bail on the ground that it was a case of further
investigation after filing of the charge sheet, and the remand of the
accused to judicial custody was under Section 309 CrPC, after police remand
came to an end, granted under Section 167(2) CrPC. The High Court upheld
said order and this Court also affirmed the view taken by the High Court.
In view of the above facts, in the present case, in our opinion, the High
Court is not justified on the basis of Dinesh Dalmia (supra) in upholding
refusal of remand in police custody by the Magistrate, on the ground that
accused stood in custody after his arrest under Section 309 CrPC. We have
already noted above the principle of law laid down by the three judge bench
of this Court in State v. Dawood Ibrahim Kaskar (supra) that police remand
can be sought under Section 167(2) CrPC in respect of an accused arrested
at the stage of further investigation, if the interrogation is needed by
the investigating agency. This Court has further clarified in said case
that expression ‘accused if in custody’ in Section 309(2) CrPC does not
include the accused who is arrested on further investigation before
supplementary charge sheet is filed.

For the reasons, as discussed above, we find that the refusal of police
remand in the present case is against the settled principle of law laid
down by this Court. Therefore, the impugned orders passed by the High
Court, affirming the orders of the Additional Chief Judicial Magistrate,
Jhargram, are liable to be set aside. Accordingly, the impugned orders
passed by the High Court and the orders passed by the Magistrate, declining
the police remand, are set aside. The Magistrate is directed to pass fresh
orders on the applications made by the appellant before it relating to
granting of police remand of the respondents in accordance with law.

All the three appeals stand allowed.

………………………………J.
[Dipak Misra]

………………………………J.
[Prafulla C. Pant]
New Delhi;
August 21, 2015.

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[1] (2000) 10 SCC 438

[2] (2007) 8 SCC 770

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