TaxTMI 
TaxTMI 
2019 (7) TMI 1815
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.... the contractors, transporters and coal businessman. 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 dat....
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....l appearing for the Appellant and Shri Aman Lekhi, learned Additional Solicitor 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....
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....nded the Appellant exercising power Under Section 167 Code of Criminal Procedure, 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? (i....
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.... added. We may briefly refer to few of the decisions of the High Courts in the above regard. Patna High Court in Sita Ram Singh 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 observatio....
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.... triable by Court of Session's it is noted that this direction will amount to asking the Magistrate to do something de-hors the law. The contention is devoid 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 require....
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....of the Code from a Magistrate. 9. ..With the change of the nature of the offence, the Accused becomes disentitled to the liberty granted to him in relation to a minor offence, 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 diff....
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....irect the Accused to be arrested and committed to custody despite the bail having been granted with regard to the offences with which he was charged at the time when bail was considered and granted. 22. One of 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 tha....
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....aside on the same ground. 12. In the result, the appeal is allowed. The impugned order dated 1-7-2005 passed by the High Court and all other subsequent orders whereby the Respondents-Accused were directed to remain on bail 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. ....
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....rused the record. It is not permissible for the Respondent-State to simply re-arrest the Petitioners by ignoring order dated 02.06.2016 passed by the learned Additional Sessions Judge, Pune, which was in force at that time. We direct that the Petitioners 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....
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.... a circumstance where after grant of bail to an Accused, further cognizable and non-bailable offences are added: (i) The Accused can surrender and apply for bail for newly added cognizable and non-bailable offences. In event of refusal of bail, the Accused can certainly be arrested. (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 s....
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....on has placed reliance on judgments of this Court in T.T. Antony v. State of Kerala and Others, (2001) 6 SCC 181; Babubhai v. State of Gujarat and Ors., (2010) 12 SCC 254; Chirra Shivraj v. State of Andhra Pradesh, (2010) 14 SCC 444 and Amitbhai Anilchandra Shah v. Central Bureau of Investigation & Anr., (2013) 6 SCC 348. 33. In T.T. Antony (supra) with regard to an occurrence which took place on 25.11.1994 - Crime No. 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 off....
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....in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 Code of Criminal Procedure. 35. The same principle has been reiterated in Babubhai v. State of Gujarat (supra) and Chirra Shivraj v. State of Andhra Pradesh (supra). This Court in Amitbhai Anilchandra Shah v. Central Bureau of Investigation (supra) had again occasion 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 ....
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....ing rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided 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....
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....le offence or offences and on entering FIR in the station house diary, the officer in charge of the police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 of the Code. Sub-section (8) of Section 173 of the Code empowers the police to make further investigation, obtain further evidence (both oral and documentary) 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 ....
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....en under Sub-section (4) or Sub-section (5), the State Government and any police officer of the State Government investigating the offence shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the Agency. (7) For the removal of doubts, it is hereby declared that till the Agency takes up the investigation of the case, it shall be the duty of the officer-in-charge of the police station to continue the investigation. 7. Power to transfer investigation to State Government.-While investigating any offence under this 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 Offen....
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....ce officer of the State Government to proceed with the investigation. We, thus, are of the opinion that FIR, which was re-registered by NIA on 16.02.2018 cannot be held to be second FIR of the offences rather it was re-registration of the FIR to give effect to the provisions of the NIA Act and re-registration of the FIR is only procedural Act to initiate the investigation and the trial under the NIA Act. The re-registration of the FIR, thus, is neither barred nor can be held that it is second FIR. 44. As far as the submissions of the learned Counsel for the Appellant that NIA cannot conduct any investigation or submit 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 conduc....
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....t is further ordained that on submission of such further report, the essentialities engrafted in Sub-sections (2) to (6) would apply also in relation to all such report or reports. 21. The integration of Sub-section (8) is axiomatically subsequent to the 41st Report of the Law Commission Report of India conveying its recommendation that after the submission of a final report Under Section 173, a competent police officer, in the event of availability of evidence bearing on the guilt or innocence of the Accused ought to be permitted to examine the same and submit a further report to the Magistrate concerned. This assumes significance, 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....
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....he order of High Court. Charge sheet dated 10.03.2016 was submitted before the Court of C.J. M., Chatra, on which chargesheet C.J. M. took cognizance on 11.03.2016 Under Sections 414, 384, 386, 387, 120(B) Indian Penal Code, Sections 25(1-B)(a), 26, 35 Arms Act and 17(1)(2) Criminal Law Amendment Act. The prayer of investigation officer on 09.04.2017 to add offences Under Section 16, 17, 20 and 23 of Unlawful Activities (Prevention) Act was allowed. After notification of Central Government dated 13.02.2018 transferring the investigation to NIA, NIA took over the investigation and re-registered FIR No. RC-06/2018/NIL/DLI. The case stood transferred to court 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 or....
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....e 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; (b) no Magistrate shall authorise detention 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 remained 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; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, 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 pro....
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....esent in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be. 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. 52. The issue to be answered in the 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 ....
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.... of the judgment were not approved by this Court. This Court also noticed the provisions of Sections 167 and 309 Code of Criminal Procedure In paragraph Nos. 10 and 11, following has been laid down: 10. In keeping with the provisions of Section 173(8) and the above-quoted observations, it has now to be seen 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. Section 309 relates to the power of the Court to postpone the commencement of or adjournment of any inquiry or trial and Sub-section (2) thereof reads as follows: 309. (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 cus....
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.... of the present case. In the present case as noticed above, the Accused was before the Court when cognizance was taken or when inquiry or trial was being held in respect of him. In the facts of present case as noted above, the Accused was produced in the Court of Special Judge on 25.06.2018, he was produced under production warrant from jail custody. The Accused was thus very well in custody on the date when he was produced in the Court. Thus, this was not a case that Accused was subsequently arrested during the investigation and was produced before the Court. The Accused was arrested on 11.01.2016 immediately after lodging of the FIR and was granted bail on 10.03.2016. Thus, in view of the law as laid down by this Court in State through CBI v. Dawood Ibrahim Kaskar(Supra), the Appellant was in custody and the Court could have remanded him in exercise of jurisdiction 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 o....
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....f Criminal Procedure during investigation till cognizance has not been taken by the Court. (ii) That even after taking cognizance when an Accused is subsequently arrested during further investigation, the Accused can be remanded Under Section 167(2) Code of Criminal Procedure. (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) Code of Criminal Procedure. 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) Code of Criminal Procedure The submission which was taken on behalf of the CBI before us was that the Accused was remanded Under Section 167(2) Code of Criminal Procedure Since he was produced before Special Judge during further investigation. The stand taken by the CBI is not correct. 64. We, however, have to decide the issue as per law irrespective of the stand taken by CBI. We may notice the order dated 25.06.2018 passed by the Court of Judicial Commissioner-cum-Special Jud....