Pradeep Ram vs The State of Jharkhand & Anr.

Further investigation – By National Investigation Agency (NIA) – On addition of further offences under Unlawful Activities (Prevention) Act, 1967 in the FIR – After investigation in the previous FIR was over – Permissibility – Held: Investigation by NIA was permissible as offences under 1967 Act were not added when charges were framed in the previous FIR – Even u/s. 173(2) of Cr.P.C., it is open to the police authorities to conduct further investigation and submit a report u/s. 173(8) – There was no lack of jurisdiction in NIA to carry on further investigation and submit a supplementary report in the facts of the present case – Criminal Procedure Code, 1973 – s. 173(2) and (8).

Dismissing the appeals, the Court

HELD : 1.1 Both Sections 437(5) and 439(2) of Cr.P.C. empowers the Court to arrest an accused and commit him to custody, who has been released on bail under Chapter XXXIII. There may be numerous grounds for exercise of power under Sections 437(5) and 439(2). A person against whom serious offences have been added, who is already on bail can very well be directed to be arrested and committed to custody by the Court in exercise of power under Sections 437(5) and 439(2). Cancelling the bail granted to an accused and directing him to arrest and taken into custody can be one course of the action, which can be adopted while exercising power under Sections 437(5) and 439(2), but there may be cases where without cancelling the bail granted to an accused, on relevant consideration, Court can direct the accused to be arrested and committed to custody. The addition of serious offences is one of such circumstances, under which the Court can direct 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. [Para 21] [841-D-G]

1.2 Sub-section (5) of Section 437 of Cr.P.C uses expression ‘if it considers it necessary so to do, direct that such person be arrested and commit him to custody’. Similarly, sub-section (2) of Section 439 of Cr.P.C. provides: ‘may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody’. A plain reading of the aforesaid provisions indicates that provision does not mandatorily provide that the Court before directing arrest of such accused who has already been granted bail must necessary cancel his earlier bail. A discretion has been given to the Court to pass such orders to direct for such person be arrested and commit him to the custody which direction may be with an order for cancellation of earlier bail or permission to arrest such accused due to addition of graver and non-cognizable offences. [Para 25] [843-H; 844-A-D]

1.3 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, bail application of the accused for newly added offences is rejected, the accused can very well be arrested. In all cases, where accused is bailed out under orders of the Court and new offences are added including offences of serious nature, it is not necessary that in all cases earlier bail should be cancelled by the Court before granting permission to arrest an accused on the basis of new offences. The power under Sections 437(5) and 439(2) are wide powers granted to the court by the Legislature under which Court can permit an accused to be arrested and commit him to custody without even cancelling the bail with regard to earlier offences. Sections 437(5) and 439(2) cannot be read into restricted manner that order for arresting the accused and commit him to custody can only be passed by the Court after cancelling the earlier bail. [Para 27] [845-C-F]

1.4 The appellant in the present case was already into jail custody with regard to another case and the investigating agency applied before Special Judge, NIA Court to grant production warrant to produce the accused before the Court. The Special Judge having accepted the prayer of grant of production warrant, the accused was produced before the Court on 26.06.2018 and remanded to custody. Thus, in the present case, production of the accused was with the permission of the Court. Thus, the present is not a case where investigating agency itself has taken into custody the appellant after addition of new offences rather accused was produced in the Court in pursuance of production warrant obtained from the Court by the investigating agency. Thus there is no error in the procedure which was adopted by the Special Judge, NIA Court with regard to production of appellant before the Court. In the facts of the present case, it was not necessary for the Special Judge to pass an order cancelling the bail dated 10.03.2016 granted to the appellant before permitting the accused appellant to be produced before it or remanding him to the judicial custody. [Para 28] [845-F-H; 846-A-B]

1.5 In 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 Cr.P.C. for arrest of the accused and his custody. (iii) The Court, in exercise of power under Section 437(5) or 439(2) of Cr.P.C., 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. [Para 29] [846-B-G] Prahlad Singh Bhati v. NCT, Delhi and Another (2001)

4 SCC 280 : [2001] 2 SCR 684 ; Hamida v. Rashid alias Rasheed and Others (2008) 1 SCC 474 : [2007] 5 SCR 937 – relied on.

Sukhpal v. State of Rajasthan 1988 (1) RLW 283 ; Dhivan v. State (2010) 2 MWN (Cr.) ; Dhivan v. State (2010) 2 MWN (Cr.) ; Bijendra and Ors. v. State of U.P. and Ors. (2006) CriLJ 2253 ; Bankey Lal Sharma v. State of U.P. and Ors. (2008) CriLJ 3779 – approved.

Sita Ram Singh and Anr. v. State of Bihar 2002 (2) BLJR

859 ; Fayaz Ahmad Khan and Ors. v. State CRMC No. 270/2018 ; Mithabhai Pashabhai Patel and others v. State of Gujarat (2009) 6 SCC 332 : [2009] 7 SCR 1126 ; Manoj Suresh Jadhav & Ors. v. The State of Maharashtra SLP (Crl.) No. 10179 of 2017 – referred to.

2.1 There cannot be any dispute to the proposition that second FIR with regard to same offences is barred. In the present case, the charge-sheet in the case Crime No.02/2016 (earlier FIR) was submitted by the investigating agency on 10.03.2016 and cognizance was taken on 11.03.2016. Charges were framed on 19.09.2016. The offences under Unlawful Activities (Prevention) Act, 1967 were added for the first time on 09.04.2017. Thus, there was no occasion for investigation of offences under Unlawful Activities (Prevention) Act, 1967 prior to April, 2017. The charge-sheet dated 10.03.2016 and charges framed on 19.09.2016 were not with respect to offences under Unlawful Activities (Prevention) Act, 1967, thus, when the Central Government directed the NIA to investigate the offence under scheduled offences, NIA was fully competent to investigate the offences and submit a supplementary report. Present is not a case where any charges for offences punishable under the Unlawful Activities (Prevention) Act, 1967 were available prior to April, 2017. Thus, NIA was fully competent to investigate further in the case as per the directions issued by the Central Government vide order dated 13.02.2018. [Para 42] [855-C-E]

T.T. Antony v. State of Kerala and Others (2001) 6 SCC

181 : [2001] 3 SCR 942 ; Babubhai v. State of Gujarat and Others (2010) 12 SCC 254 : [2010] 10 SCR 651 ; Chirra Shivraj v. State of Andhra Pradesh (2010) 14 SCC 444 : [2010] 15 SCR 673 ; Amitbhai Anilchandra Shah v. Central Bureau of Investigation & Anr. (2013)

6 SCC 348 : [2013] 6 SCR 623 – referred to.

2.2 Sub-section (6) of Section 6 of the NIA Act Section 6 prohibits State Government or any police officer of the State Government to proceed with the investigation. In the present case, when order was issued by Central Government on 13.02.2018, it was not competent for police officer of the State Government to proceed with the investigation. Therefore, the 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 reregistration 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. [Para 43] [855-F-G]

3. It cannot be said that NIA cannot conduct any investigation or submit any report, since investigation was already completed and charge sheet was submitted, because 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. The Scheme as delineated by Section 173 Cr.P.C. 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). Thus, there is no lack of jurisdiction in NIA to carry on further investigation and submit a supplementary report in the facts of the present case. [Paras 44 and 47] [856-A-C; 858-E]

Vinay Tyagi v. Irshad Ali alias Deepak and Others (2013) 5 SCC 762 : [2012] 13 SCR 1005 ; Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel and Others (2017) 4 SCC 177 : [2017] 4 SCR 105 – relied on.

4.1 The accused can be remanded under Section 167(2) Cr.P.C during investigation till cognizance has not been taken by the Court. Even after taking cognizance when an accused is subsequently arrested during further investigation, the accused can be remanded under Section 167(2) Cr.P.C. 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. Thus, in the present case, accused could have been remanded only under Section 309(2) Cr.P.C. [Paras

63 (i) (ii) (iii) and 63] [866-H; 867-B]

Gouri Shankar Jha v. State of Bihar and others 1972

(1) SCC 564 : [1972] 3 SCR 129 ; Central Bureau of Investigation, Special Investigation Cell-I, New D e l h i v. Anupam J. Kulkarni (1992) 3 SCC 141 : [1992] 3 SCR 158 ; Dinesh Dalmia v. Central Bureau of Investigation (2007) 8 SCC 770 : [2007] 9 SCR 1124 ; Mithabhai Pashabhai Patel and Others v. State of Gujarat (2009) 6 SCC 332 : [2009] 7 SCR 1126 – relied on.

State through CBI v. Dawood Ibrahim Kaskar and Others (2000) 10 SCC 438 : [1997] 1 Suppl. SCR 212 – distinguished.

Mohd. Ahmed Yasin Mansuri v. State of Maharashtra 1994 Crl.LJ 1854 (Bom.) – referred to.

4.2 In the present case, the special Judge in his remand order has neither referred to Section 309 nor Section 167 Cr.P.C. 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 the special Judge could have only exercised power under Section 309(2), 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. The High Court, thus, committed error in holding that the order of remand dated 25.06.2018 was in exercise of power under Section 167 Cr.P.C. [Paras 65 and 66] [867-G-H; 868-A-B]