CENTRAL BUREAU OF INVESTIGATIONversusRATHIN DANDAPAT AND OTHERS

                   [2015] 10 S.C.R. 295


         CENTRAL BUREAU OF INVESTIGATION                         A
                             V.
            RATHIN DANDAPAT AND OTHERS
            (Criminal Appeal No.1081 of 2015)
                                                                 B
                     AUGUST 21, 2015
     [DIPAK MISRA AND PRAFULLA C. PANT, JJ.]

      Code of Criminal Procedure, 1973: s.167(2)- Power of
Magistrate to authorise detention of accused in police custody   C
- Killing of 9 persons and injuring large number of villagers
- Investigation transfen-ed to CBI- Charge sheet against 21
accused including arrested ones and absconders - CBI
seeking remand of accused in police custody- Whether no
remand in police custody can be given to the investigating       D
agency in respect of the absconding accused who is arrested
only after filing of the charge sheet - Held: Police remand
can be sought uls. 167(2) in respect of an accused arrested
at the stage of further investigation if the interrogation is
needed by the investigating agency- Expression 'accused          E
if in custody' in s.309 does not include the accused who is
arrested on further investigation before supplementary charge
sheet is filed - Refusal of police remand against principle of
law- Impugned orders declining the police remand set aside
- Penal Code, 1860 - ss. 148, 149, 307, 302.                     F

     State through CBI v. Dawood Ibrahim Kaskar and
     Ors. (2000) 10 SCC 438: 1997 (1) Suppl. SCR
     212; Dinesh Dalmia it. CBI (2007) 8 SCC 770:
     2007 (9) SCR 1124- relied on.                               G
                   Case Law Reference

    1997 (1) Suppl. SCR 212 relied on.           Para 11
    2007 (9) SCR 1124             relied on.     Para 12
                                                                 H
                            295
296         SUPREME COURT REPORTS                 [2015] 10 S.C.R.


 A        CRIMINALAPPELLATE JURISDICTION: CriminalAppeal
      No. 1081 of2015.

          From the Judgment and Order dated 15.5.2014 of the
      High Court of Cal.::utta in Criminal Revision No. 1510 of 2014.
 B
                                  WITH

          CRL. A. NOS. 1082 and 1083 OF 2015.

           Maninder Singh, ASG, Neeraj Kishan Kaul, Atreyi
 C    Chatterjee, Binu Tamta, B. Raghunath, B.V. Balaram Das for
      the Appellant.

         Pradip Kumar Ghosh, Biswajit Manna, Debarpita Basu
      Mukherjee, Sarla Chandra forthe Respondents.
 D
          The Judgment of the Court was delivered by

            PRAFULLA C. PANT, J. 1. 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
 E    respect of the absconding accused who is arrested only after
      filing of the charge sheet.

          2. We have heard learned counsel for the parties and
      perused the papers on record.
 F
         3. 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
· G 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,
  H 302 of Indian Penal Code (IPC), and also in respect of offences
   CENTRAL BUREAU OF INVESTIGATION v. RATHIN                 297
   DANDAPAT AND OTHERS [PRAFULLA C. PANT, J.]

punishable under Section 25/27 of Arms Act. The investigation A
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)of2011and1181(W)of2011, the investigation was B
transferred to Central Bureau of Investigation (for short "the
CBI"), the appellant before us.

      4. During investigation accused, namelyAbhani Bhusan
Singha, Subhendu Mondal,Aswani Chalak, Nabagopal Sanki, C
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 D
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.                            E

     5. 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 F
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 of2011), and one Kanai Dey, were declared proclaimed
offenders. Meanwhile, the trial proceeded and, after providing
necessary copies to the accused, as required under Section G
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 H
framed charge against accused Abhani Bhusan S!ngha,
298       SUPREME COURT REPORTS                 [2015) 10S.C.R.


A 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
B 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.LP. No.. 5699 of2014. In
  respect of other accused against whom charge was framed,
  trial further proceeded and ten Prosecution Witnesses were
C examined. However, their cross-examination was deferred at
  the instance of arrested accused persons, other than the
  juveniles.

       6. Out of eight proclaimed offenders, five, namely, Rathin
D Dandapat, Md. Khaliluddin, Dalim Pandey, Joydeb Giri and
  Tapan Dey, were arrested on 29.4.2014, whereafter on
  30.4.2014 the CBI soughttheirremand in police custody. The
  Additional Chief Judicial Magistrate, Jhargram rejected the
  prayer of the CBI, aggrieved by which said investigating agency
E submitted RevisionalApplication (C.R.R. No. 1510 of2014)
  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
F 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 RevisionalApplication (C.R.R. No. 1641 of2014)
G 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
H police custody but the same was also refused. Aggrieved by
   CENTRAL BUREAU OF INVESTIGATION v. RATHIN                       299
   DANDAPAT AND OTHERS [PRAFULLA C. PANT, J.]

said order dated 8.5.2014, passed by the Additional Chief A
Judicial Magistrate, RevisionalApplication (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.                B

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

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

       "Provided that, -

       (a)    The Magistrate may authorize the detention of D
              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 E
              in custody under this paragraph for a total period
              exceeding, -

       (i)     Ninety days, where the investigation relates to
              an offence punishable with death, imprisonment F
              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 G
              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 H
300         SUPREME COURT REPORTS                   [2015) 10 S.C.R.


A                   the provisions of Chapter XXXlll for the purposes
                    of that Chapter;

             (b)    No Magistrate shall authorize detention of the
                    accused in custody of the police under this
B                   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
c                   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
 D                  authorize detention in the custody of the police."

          9. Sub-section (8) of Section 173, under which
      investigating agency has power to further investigate the matter
      in which the reporVcharge sheet has already been filed, is
 E    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
 F
           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)
 G         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)."

           10. Relevant provision of sub-section (2) of Section 309
           CrPC, empowering remand of an accused, provides as
 H
           under:-
    CENTRAL BUREAU OF INVESTIGATIONv. RATHIN                      301
    DANDAPAT AND OTHERS [PRAFULLAC. PANT, J.]

      "(2)      If the Court after taking cognizance of an offence, A
    . 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, B
      and may by a warrant remand the accused if in custody:

      xxx                     xxx                   xxx
      Explanation 1. - If sufficient evidence has been obtained    c
      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."
                                                                   D
     11. 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: -               E

      "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
                                                                    F
      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 G
      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

' (2000) 10   sec 438                                              H
302              SUPREME COURT REPORTS              [2015) 10 S.C.R.


A            would not apply to a person who comes to be later
             arrested by the police in course ofsuch 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
B            (Born)], -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 forthat purpose. We are,
             therefore, of the opinion that the words "accused if in
             custody" appearing in Section 309(2) refer and relate to
D
             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
E            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
 F           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 ."

G         12. The case of Dine'sh Dalmia v. CB/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
H     2 (2007)   a sec no
   CENTRAL BUREAU OF INVESTIGATION v. RATHIN                   303
   DANDAPAT AND OTHERS [PRAFULLAC. PANT, J.]

14.2.2006 till 24.2.2006, whereafter on another application A
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 B
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 C
this Court also affirmed the view taken by the High Court.

     13. 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 D
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 1.67(2) E
CrPC in respect of an accused arrested at the stage of further
investigation, ifthe 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 F
does not include the accused who is arrested on further
investigation before supplementary charge sheet is filed.

     14. For the reasons, as discussed above, we find thatthe
refusal of police remand in the present case i$ against the
settled principle of law laid down by this Court. Therefore, the   G
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              H
Magistrate, declining the police remand, are set aside. The
304          SUPREME COURT REPORTS              (2015] 10 S.C.R.


A Magistrate is 'directed to pass fresh orders on the applications
  made by !he appellant before it relating to granting of police
  remand of the respondents in accordance with law.

           15.All thethree appeals stand allowed.
B
      Devika Gujral                                 Appeals allowed.