2009 (5) TMI 1004

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....fence 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 as also under Section 135 of the Bombay Police Act. 4. The occurrence in which the appellant is involved is said to have taken place on 20th August, 2002 at Vadvasa Patia Village near Prantij. A first information report was lodged on the same date. During course of investigation all the six appellants were arrested. 5. Indisputably, they were remanded to police custody in terms of Sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code'). Upon completion of investigation, a charge sheet was submitted. The matter was committed to the Sessions Court. Cognizance of the offence was taken by the Sessions Judge. They were granted bail by the High Court by an order dated 30th August, 2003. 6. The matter, however, came up before this Court. A Bench of this Court by an order dated 26th March, 2008 passed by in Writ Petition (Crl.) No. 109 of 2003 appointed a Special Investigation Team. Pursuant to or in furtherance of the said direction the State of Gujarat issued a Notification on 1st April, 2008 constitut....

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....ndent preferred a revision application there against before the High Court. By reason of the impugned judgment the High Court reversed the decision of the Sessions Judge and directed that the appellants be remanded to custody. 10. Mr. Nikhil Goel, learned Counsel appearing on behalf of the appellants would contend that having regard to the provisions contained in Section 167(2) as well Section 309(2) of the Code the impugned judgment cannot be sustained. 11. Ms. K. Enatoli Sema, learned Counsel appearing on behalf of the respondent-State, on the other hand, urged that keeping in view the special facts and circumstances of this case, the order of the High Court should not be interfered with. 12. The short question which arises for consideration is whether in the facts and circumstances of the case the High Court was correct in directing custodial remand of the appellants. 13. The High Court in support of its order opined: a) Having regard to the constitution of the Special Investigating Team, further investigation is required to be made and Section 167(2) of the Code gives ample power for further investigation. b) Further investigation is required to be....

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....he realm of the Code. Indisputably the investigating agency in terms of Sub-section (8) of Section 173 of the Code can pray before the Court and may be granted permission to investigate into the matter further. There are, however, certain situations, where such a formal request may not be insisted upon. 17. It is, however, beyond any cavil that `further investigation' and `re- investigation' stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely under Articles 226 and 32 of the Constitution of India could direct a `State' to get an offence investigated and/or further investigated by a different agency. Direction of a re-investigation, however, being forbidden in law, no superior could would ordinarily issue such a direction. Pasayat, J. in Ramachandran v. R. Udhayakumar 2008CriLJ4309 , opined as under: 7. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under Sub-section (2) of Section 173 of the Code, the police has right to further investigate under Su....

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....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 detention of the accused person in custody under this paragraph for a total period exceeding- (i) 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; (ii) 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 to released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) No Magistrate shall authorize detention in any custody under this section unless the accused is produced before him; (c) 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. Explanation I. For the avoidance of doubts, it ....

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....n, 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 is apparent. 25. We may notice a few precedents in this behalf : In Raghubir Singh and Ors. v. State of Bihar 1987CriLJ157 , this Court held: 22. The result of our discussion and the case-law is this: An order for release on bail made under the proviso to Section 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under Section 309(2). The order for release on bail may however be cancelled under Section 437(5) or Section 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 evasion or attempt to evade the course 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 interfering with investigation, by creating or causing ....

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.... 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 investigation cannot be completed within 24 hours fixed by Section 57 and there are grounds to believe that the charge levelled against the person arrested is well founded it is obligatory on the part of the Investigation Officer to produce the accused before the nearest Magistrate. On such production the Magistrate may authorise the detention of the accused initially for a term not exceeding 15 days either in police custody, or in judicial custody. On expiry of the said period of 15 days the Magistrate may also authorise his further detention otherwise than in police custody if he is satisfied that adequate grounds exist for such detention. This Court in Dinesh Dalmia v. CBI 2008CriLJ337 , opined: 38. It is a well-settled principle of interpretation of statute that it is to be read in its entirety. Construction ....