TaxTMI 
TaxTMI 
2019 (7) TMI 1815
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....n. It was also alleged that on information received from a co-Accused, a search was also conducted in the house of the Appellant, during which search, an amount of Rs. 57,57,510/- was recovered from the bag kept in the room of the Appellant alongwith four mobiles. No satisfactory explanation was given by the Appellant. 2.2 By order dated 10.03.2016, the Appellant was granted regular bail by the High Court after he was taken into custody. On 10.03.2016, a charge sheet was submitted Under Sections 414, 384, 386, 387, 120-B Indian Penal Code read with Sections 25(1-B)(a), 26, 35 of the Arms Act and Sections 17(1) and (2) of the Criminal Law Amendment Act. Chief Judicial Magistrate, Chatra took cognizance of the offences Under Sections 414, 384, 386, 387, 120-B Indian Penal Code read with Sections 25(1-B)(a), 26, 35 of the Arms Act and Section 17(1) and (2) of the Criminal Law Amendment Act on 11.03.2016. A Crl. M.P. No. 1114 of 2016 was filed by the Appellant on 10.05.2016 in the High Court Under Section 482 Code of Criminal Procedure praying for quashing the entire criminal proceeding including the order taking cognizance dated 11.03.2016. On 19.09.2016, the Chief Judicial Magistra....
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....icitor General for the Union of India. We have also heard learned Counsel appearing for the State of Jharkhand. 4. Learned Counsel for the Appellant submits that investigation against the Appellant in P.S. Case No. 02 of 2016 having been completed and charge sheet having been submitted by the investigating agency on 10.03.2016, NIA could not have registered second F.I. R. on 16.02.2018 being FIR No. RC-06/2018/NIA/DLI. It is submitted that the Special Judge committed error in passing the order dated 25.06.2018 remanding the Appellant to judicial custody Under Section 167 Code of Criminal Procedure When cognizance has already been taken on 11.03.2016, order could have only been passed Under Section 309 Code of Criminal Procedure It is submitted that by re-registration of the F.I. R., NIA cannot carry on any re-investigation into the offence incorporated in the F.I. R. dated 10.03.2016. It is further submitted that Appellant having been already granted bail on 10.03.2016, he cannot be re-arrested by virtue of addition of new offences Under Sections 16, 17, 20 and 23 of the Unlawful Activities (Prevention) Act, 1967. The only course open for the NIA was to file an application for can....
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....ure, during further investigation by NIA. The mere fact that the cognizance was taken earlier by Chief Judicial Magistrate cannot preclude the Special Judge to exercise power Under Section 167 Code of Criminal Procedure for further investigation by NIA. 6. Learned Counsel for the parties in support of their respective submissions placed reliance on various judgments of this Court as well as judgments of High Courts, which shall be considered while considering the submissions in detail. 7. From the submissions of the learned Counsel for the parties and the pleadings on the record, following are the issues, which arise for consideration in these appeals: (i) Whether in a case where an Accused has been bailed out in a criminal case, in which case, subsequently new offences are added, is it necessary that bail earlier granted should be cancelled for taking the Accused in custody? (ii) Whether re-registration of F.I.R. No. RC-06/2018/NIA/DLI is a second F.I. R. and is not permissible there being already a FIR No. 02/2016 registered at P.S. Tandwa arising out of same incident? (iii) Whether N.I. A. could conduct any further investigation in the matter when investigation in the P.....
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....ngh and Anr. v. State of Bihar, 2002 (2) BLJR 859 had considered the case where case was initially instituted Under Section 307 Indian Penal Code FIR was lodged on 24.08.2000 Under Section 307 Indian Penal Code. The Accused was granted bail on 01.09.2000. Thereafter, due to death of the injured on 06.09.2000, Section 302 Indian Penal Code was added. Informant had applied for cancellation of the bail. The bail earlier granted was cancelled in view of subsequent development. In the above context, Patna High Court relying on judgment of this Court in Prahlad Singh Bhati v. NCT, Delhi and Another, (2001) 4 SCC 280 held that on a serious change in the nature of the offence, the Accused becomes disentitled to the liberty granted to him in relation to a minor offence and in such circumstances, the correct approach of the Court concerned would be to apply its mind afresh as to whether the Accused is entitled for grant of bail, in the changed circumstances. 11. Rajasthan High Court in Sukhpal v. State of Rajasthan, 1988 (1) RLW 283 has also made following observations in paragraph No. 4: 4. I am, therefore, of the opinion that the legal position is beyond doubt that once an Accused is or....
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....oid of merit. Section 437 Code of Criminal Procedure relates to an offence, therefore, on addition of a new offence, the Accused is required to appear before the court and seek bail. His bail cannot be considered unless and until he surrenders and is in custody in that offence. Any Accused who is not in custody in an offence cannot be granted bail. Custody is sine qua non for consideration of bail prayer. Consequently when the Accused is guilty of an added offence and is not on bail, he cannot be allowed to furnish bond without being in custody in that offence. For getting bail in newly added offences the Accused has to surrendered in that offence.. 14. In another case of Allahabad High Court in Bankey Lal Sharma v. State of U.P. and Ors., (2008) CriLJ 3779 rejecting the submission that the Applicant should not be required to obtain fresh bail on addition of new offences, following was observed in paragraph No. 14: 14. At this stage, learned Counsel for the Applicant submits that the Applicant should not be required to obtain fresh bail under the newly added section. This relief cannot be granted in view of the decision of the Apex Court in Hamida v. Rashid alias Rasheed and Ors....
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....if the offence is altered for an aggravated crime.. 17. This Court in Hamida v. Rashid alias Rasheed and Others, (2008) 1 SCC 474 held that an Accused after addition of serious non-cognizable offence is required to surrender and apply for bail for newly added offences. It is, thus, clear that the bail granted to an Accused earlier to addition of new non-bailable offence shall not enure to the benefit of the Accused insofar as newly added offences are concerned and he is required to surrender and obtain a bail with regard to newly added offences to save him from arrest. 18. Whether after addition of new non-bailable offence, police authority can straightaway arrest the Accused, who is already granted bail by the Court, in reference to offences prior to addition of new offences or the police is to necessarily obtain an order from the Court either of cancellation of the bail or permission to arrest the Accused in changed circumstances are questions where different views have been expressed by different High Courts. In the present case, the Appellant was not arrested by the police after addition of offences under the Unlawful Activities (Prevention) Act, 1967, rather the police autho....
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....f the judgments, which needs to be noticed in the above reference is Hamida v. Rashid alias Rasheed and Others (supra). In the above case, the Accused was granted bail for offences Under Sections 324, 352 and 506 Indian Penal Code. The victim succumbed to his injuries in the night intervening 16.06.2005 and 17.06.2005. The offence thereafter was converted into Section 304 Indian Penal Code. An application was filed in the High Court by the Accused to permit them to remain on same bail even after conversion of the offence into one Under Section 304 Indian Penal Code, which was allowed by the High Court. The complainant filed an appeal by special leave in this Court against the judgment of the Allahabad High Court. This Court allowed the appeal and set aside the order of the High Court and directed the Accused to be taken into custody with liberty to apply for bail for the offences for which he was charged before proper Court in accordance with law. This Court further held that Accused could apply for bail afresh after the offence had been converted into one Under Section 304 Indian Penal Code. This Court laid down following in paragraph Nos. 10, 11 and 12: 10. In the case in hand,....
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....for the offence Under Section 302 read with Section 34 Indian Penal Code on furnishing fresh sureties and bail bonds are set aside. The Respondents-Accused shall be taken into custody forthwith. It is, however, made clear that it will be open to the Accused-Respondents to apply for bail for the offences for which they are charged before the appropriate court and in accordance with law. 23. We may notice one more judgment of this Court reported in Mithabhai Pashabhai Patel and others v. State of Gujarat, (2009) 6 SCC 332. Two Judge Bench of this Court in paragraph 18 laid down following: 18. The 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 not (sic) 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. What this Court said in the above case is that Accused who have been granted bail and are not in custody could not be taken in custody ordinarily unless their bail was not cancelled. Can from the above observation it can be held that unl....
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....ners shall be released on bail on the same condition/s as imposed in the aforesaid order dated 02.06.2016 by the learned Sessions Judge, Pune. Having regard to the provision of Section 439(2) of the Code of Criminal Procedure, the Respondent-State is at liberty to apply for cancellation of bail and seek the custody of the Petitioners-Accused. With the aforesaid directions, the special leave petition is disposed of. 27. Relying on the above said order, learned Counsel for the Appellant submits that Respondent State ought to get first the order dated 10.03.2016 granting bail to Appellant cancelled before seeking custody of the Appellant. It may be true that by mere addition of an offence in a criminal case, in which Accused is bailed out, investigating authorities itself may not proceed to arrest the Accused and need to obtain an order from the Court, which has released the Accused on the bail. It is also open for the Accused, who is already on bail and with regard to whom serious offences have been added to apply for bail in respect of new offences added and the Court after applying the mind may either refuse the bail or grant the bail with regard to new offences. In a case, ba....
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....(ii) The investigating agency can seek order from the court Under Section 437(5) or 439(2) of Code of Criminal Procedure for arrest of the Accused and his custody. (iii) The Court, in exercise of power Under Section 437(5) or 439(2) of Code of Criminal Procedure, can direct for taking into custody the Accused who has already been granted bail after cancellation of his bail. The Court in exercise of power Under Section 437(5) as well as Section 439(2) can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non-cognizable offences which may not be necessary always with order of cancelling of earlier bail. (iv) In a case where an Accused has already been granted bail, the investigating authority on addition of an offence or offences may not proceed to arrest the Accused, but for arresting the Accused on such addition of offence or offences it need to obtain an order to arrest the Accused from the Court which had granted the bail. 30. The issue No. 1 is answered accordingly. Issue Nos. 2 and 3 31. The Central Government in exercise of its power under Sub-section 5 of Section 6 read with Section 8 of the National ....
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....353 of 1994 and Crime No. 354 of 1994 were registered at Kuthuparamba Police Station in District Kannur. The State Government appointed the commission of inquiry under Commissions of Inquiry Act, 1952, which submitted a report on 27.05.1997. The Government accepted the report of the Commission. As a follow up action, the Additional Chief Secretary to the Government of Kerala wrote to the Director General of Police regarding acceptance of the report of the Commission by the Government and directed that legal action be taken against those responsible on the basis of the findings of the Commission. The Director General of Police issued orders to the Inspector General of Police on 02.07.1997 to register a case immediately and have the same investigated by a senior officer. On 04.07.1997 the Inspector General of Police noted that firing without jurisdiction by which people were killed amounted to murder and issued direction to the Station House Officer to register a case under the appropriate Sections and forward the investigation copy of the FIR to the Deputy Inspector General of Police. Subsequently, another case was registered as Crime No. 268 of 1997, which was challenged by filing ....
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....ion to consider the legality of second FIR. After reviewing the earlier decisions under the heading "legal aspects as to permissibility/impermissibility of second FIR". This Court laid down following in paragraph Nos. 36 and 37: 36. Now, let us consider the legal aspects raised by the Petitioner Amit Shah as well as CBI. The factual details which we have discussed in the earlier paragraphs show that right from the inception of entrustment of investigation to CBI by order dated 12-1-2010 till filing of the charge-sheet dated 4-9-2012, this Court has also treated the alleged fake encounter of Tulsiram Prajapati to be an outcome of one single conspiracy alleged to have been hatched in November 2005 which ultimately culminated in 2006. In such circumstances, the filing of the second FIR and a fresh charge-sheet for the same is contrary to the provisions of the Code suggesting that the Petitioner was not being investigated, prosecuted and tried "in accordance with law". 37. This Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an offence or different offences committed in the course of the same transaction is not only imper....
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....ovided in Section 173 Code of Criminal Procedure. * * * 27. A just balance between the fundamental rights of the citizens Under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that Sub-section (8) of Section 173 Code of Criminal Procedure empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report Under Section 173(2) Code of Criminal Procedure It would clearly be beyond the purview of Sections 154 and 156 Code of Criminal Procedure, nay, a case of abuse of the statutory power of investigation in a given case. In our view ....
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....ry) and forward a further report(s) to the Magistrate. A case of fresh investigation based on the second or successive FIRs not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is underway or final report Under Section 173(2) has been forwarded to the Magistrate, is liable to be interfered with by the High Court by exercise of power Under Section 482 of the Code or Under Articles 226/227 of the Constitution. 37. Thus, from the above discussions, it is clear that there cannot be any dispute to the proposition that second FIR with regard to same offences is barred. But whether in the present case, FIR dated 16.02.2018 registered by NIA, can be said to be second FIR. Before answering the above question, we need to look into the scheme of the NIA Act, 2008. 38. NIA Act, 2008 was enacted to constitute an investigation agency at the national level to investigate and prosecute offences affecting the sovereignty, security and integrity of India, security of State, friendly relations with foreign States and offen....
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....his Act, the Agency, having regard to the gravity of the offence and other relevant factors, may- (a) if it is expedient to do so, request the State Government to associate itself with the investigation; or (b) with the previous approval of the Central Government, transfer the case to the State Government for investigation and trial of the offence. 8. Power to investigate connected offences.- While investigating any Scheduled Offence, the Agency may also investigate any other offence which the Accused is alleged to have committed if the offence is connected with the Scheduled Offence. 40. Further, Under Section 6, Central Government has to constitute such Courts and by virtue of Sub-section (1) of Section 13 provides that: Notwithstanding anything contained in the Code, every Scheduled Offence investigated by the Agency shall be tried only by the Special Court within whose local jurisdiction it was committed. 41. The Schedule of the Act, Item No. 2 mentioned "The Unlawful Activities (Prevention) Act, 1967". Thus, any offence under Unlawful Activities (Prevention) Act, 1967 is a scheduled offence. When the offences under the Unlawful Activities (Prevention) Act, 1967 were ....
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....ubmit any report, since investigation was already completed and charge sheet was submitted, the charge sheet was submitted on 16.03.2016 and charges were framed on 19.09.2016 by which date offences under Unlawful Activities (Prevention) Act, 1967 were not even added, since for the first time the offences under Unlawful Activities (Prevention) Act, 1967 were added on 09.04.2017. The Scheme as delineated by Section 173 Code of Criminal Procedure itself indicates that even after report Under Section 173(2) is submitted, it is always open for the police authorities to conduct further investigation and collect both documentary and oral evidence and submit a report Under Section 173(8). In this context, reference is made to judgment of this Court in Vinay Tyagi v. Irshad Ali alias Deepak and Others, (2013) 5 SCC 762, in which case after examining the provisions and elaborating the scheme as delineated by Section 173 Code of Criminal Procedure, following was laid down by this Court in paragraph No. 15: 15. A very wide power is vested in the investigating agency to conduct further investigation after it has filed the report in terms of Section 173(2). The legislature has specifically use....
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....ce, having regard to the language consciously applied to design Section 173(8) in the 1973 Code. Noticeably, though the officer in charge of a police station, in categorical terms, has been empowered thereby to conduct further investigation and to lay a supplementary report assimilating the evidence, oral or documentary, obtained in course of the said pursuit, no such authorisation has been extended to the Magistrate as the Court is in seisin of the proceedings. It is, however no longer res integra that a Magistrate, if exigent to do so, to espouse the cause of justice, can trigger further investigation even after a final report is submitted Under Section 173(8). Whether such a power is available suo motu or on the prayer made by the informant, in the absence of request by the investigating agency after cognizance has been taken and the trial is in progress after the Accused has appeared in response to the process issued is the issue seeking scrutiny herein. 46. In paragraph No. 31, it was reiterated that the right of the police to further investigate even under the 1898 Code was not exhausted and it could exercise such right often as necessary, when fresh information would come t....
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....t of Judicial Commissioner-cum-Special Judge NIA, Ranchi. The Appellant being in custody in some other case, NIA prayed before Special Judge for issue of production warrant. On 25.06.2018 on the strength of production warrant Appellant was produced before the Special Judge on 25.06.2018 by superintendent, Chatra Jail, Chatra. The Special Judge vide his order dated 25.06.2018 remanded the Appellant to B.M.C. Jail Ranchi and directed to be produced on 26.06.2018. On 26.06.2018, the Appellant was produced from Jail custody on which order was paved to put up on 11.07.2018. 50. The submission made by the learned Counsel for the Appellant is that in the present case the cognizance having already been taken by the Chief Judicial Magistrate on 11.03.2016, Section 167 could not have been resorted to by the Special Judge and provision, which was applicable in the facts of the present case, was Section 309. At this juncture, we may notice the provisions of Section 167(1) and Sub-section (2) Code of Criminal Procedure, which are as follows: (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four ....
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....ourt, shall authorise detention in the custody of the police. Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the Accused shall be detained in custody so long as he does not furnish bail;. Explanation II.- If any question arises whether an Accused person was produced before the Magistrate as required under Clause (b), the production of the Accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the Accused person through the medium of electronic video linkage, as the case may be. Provided further that in case of a woman under eighteen years of age, the detention shall be authorized to be in the custody of a remand home or recognized social institution. 51. Section 309 on which reliance has been placed by learned Counsel for the Appellant is as follows: 309. Power to postpone or adjourn proceedings.--(1) In every inquiry or trial, the proceedings 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....
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.... present case is as to whether for remanding the Accused (Appellant), Section 167(2) Code of Criminal Procedure could have been resorted to by the Special Judge or remand could have been done only Under Section 309(2) Code of Criminal Procedure This Court had occasion to consider the provisions of Section 167 and Section 309 Code of Criminal Procedure in large number of cases. In the old code, there was a provision namely Section 344 which was akin to Section 309 of present Code. Section 167 of Code of Criminal Procedure, 1973, corresponds to Section 167 of the old Code. This Court had occasion to consider Section 167 and Section 344 of the old Code in Gouri Shankar Jha v. State of Bihar and others, 1972 (1) SCC 564. This Court in paragraph No. 12 laid down following: - 12. Thus, Section 167 operates at a stage when a person is arrested and either an investigation has started or is yet to start, but is such that it cannot be completed within 24 hours. Section 344, on the other hand, shows that investigation has already begun and sufficient evidence has been obtained raising a suspicion that the Accused person may have committed the offence and further evidence may be obtained, to....
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....n 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: Provided that no Magistrate shall remand an Accused person to custody under this Section for a term exceeding fifteen days at a time: 11. ..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 Mansuri - 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 ....
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....tion Under Section 309(2) and the present was not a case where Section 167(2) could have been resorted to. 58. A Two Judge Bench judgment in Dinesh Dalmia v. 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 Code of Criminal Procedure vis-à-vis sub-Section (2) of Section 309 Code of Criminal Procedure 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. 59. After referring to 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 Sub-section (2) of Section 173 and further investigation con....