Whether for remanding the accused (appellant), Section 167(2) Cr.P.C. could have been resorted to by the Special Judge or remand could have been done only under Section 309(2) Cr.P.C.
whether Section 309(2) of the Code stands in the way of a Court, which has taken cognizance of an offence, to authorise the detention of a person, who is subsequently brought before it by the police under arrest during further investigation, in police custody in exercise of its power under Section 167 of the Code.
- This Court clearly held that Section 309(2) does not refer to an accused, who is subsequently arrested in course of further investigation.
This Court in paragraph No. 11, as noted above, clearly held that even after cognizance is taken of an offence the police has a power to investigate into it further and there is no reason 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.
in Dinesh Dalmia Vs. Central Bureau of Investigation, (2007) 8 SCC 770, is relevant for the present case where this Court had occasion to interpret sub-Section (2) of Section 167 Cr.P.C vis-à-vis sub-Section (2) of Section 309 Cr.P.C.
In paragraph No. 29, this Court laid down: – “29. The power of a court to direct remand of an accused either in terms of sub-section (2) of Section 167 of the Code or sub-section (2) of Section 309 thereof will depend on the stages of the trial. Whereas sub-section (2) of Section 167 of the Code would be attracted in a case where cognizance has not been taken, sub-section (2) of Section 309 of the Code would be attracted only after cognizance has been taken.”
Anupan J. Kulkarni(supra) and Dawood Ibrahim (Supra), this court laid down following in paragraph No. 39: –
“39. The statutory scheme does not lead to a conclusion in regard to an investigation leading to filing of final form under subsection (2) of Section 173 and further investigation contemplated under sub-section (8) thereof. Whereas only when a charge-sheet is not filed and investigation is kept pending, benefit of proviso appended to subsection (2) of Section 167 of the Code would be available to an offender; once, however, a charge-sheet is filed, the said right ceases. Such a right does not revive only because a further investigation remains pending within the meaning of sub-section (8) of Section 173 of the Code.”
in Mithabhai Pashabhai Patel and Others Vs. State of Gujarat, (2009) 6 SCC 332. In paragraph No. 17, this Court made 65 following observations:-
“17. The power of remand in terms of the aforementioned provision is to be exercised when investigation is not complete. Once the charge-sheet is filed and cognizance of the offence is taken, the court cannot exercise its power under sub-section (2) of Section 167 of the Code. Its power of remand can then be exercised in terms of sub-section (2) of Section 309 which reads as under: “309. Power to postpone or adjourn proceedings.— (1) * * * ”
- 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 at following conclusions: – (i) The accused can be remanded under Section 167(2) Cr.P.C during investigation till cognizance has not been taken by the Court. (ii) That even after taking cognizance when an accused is subsequently arrested during 66 further investigation, the accused can be remanded under Section 167(2) Cr.P.C. (iii) When cognizance has been taken and the accused was in custody at the time of taking cognizance or when inquiry or trial was being held in respect of him, he can be remanded to judicial custody only under Section 309(2) Cr.P.C. 63. We, thus, find substance in submission of learned counsel for the appellant that in the present case accused could have been remanded only under Section 309(2) Cr.P.C. The submission which was taken on behalf of the CBI before us was that the accused was remanded under Section 167(2) Cr.P.C. Since he was produced before Special Judge during further investigation. The stand taken by the CBI is not correct.
- The special Judge in his order has neither
referred to Section 309 nor Section 167 under which
accused was remanded. When the Court has power to pass
a particular order, non-mention of provision of law or
wrong mention of provision of law is inconsequential.
As held above, the special Judge could have only
exercised power under Section 309(2), hence, the
remand order dated 25.06.2018 has to be treated as
remand order under Section 309(2) Cr.P.C. The special
Judge being empowered to remand the accused under
Section 309(2) in the facts of the present case, there
is no illegality in the remand order dated 25.06.2018
when the accused was remanded to the judicial custody.
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 816-817 OF 2019 (arising out of SLP(CRL.) Nos.10051-10052 of 2018) PRADEEP RAM …. APPELLANT(S) VERSUS THE STATE OF JHARKHAND & ANR. …. RESPONDENT(S)