1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 816-817 OF 2019

(arising out of SLP(CRL.) No s.10051-10052 of 2018)

PRADEEP RAM .... APPELLANT(S)

VERSUS

THE STATE OF JHARKHAND & ANR. .... RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

These appeals have been filed against the judgment

dated 26.09.2018 of High Court of Jharkhand dismissing

the Writ Petition (Crl.) No. 277 of 2018 and Crl. Misc.

Petition No. 1114 of 2016 under Section 482 Cr.P.C.

filed by the appellant.

2. Brief facts of the case and sequence of events

are:-

2.1 On 11.01.2016, a First Information Report No.

02/2016, Police Station Tandwa was lodged for

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offences under Sections 414, 384, 386, 387,

120-B I.P.C. 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. Apart

from petitioner, there were 11 other named

accused. The allegations made against the

accused were that applicant by showing fear

of extremist of TPC Group recovered levy from

the contractors , transporte rs 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,

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384, 386, 387, 120-B I.P.C. read with Sections

25(1-B)(a), 26, 35 of the A rms 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 I.P.C. 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 Cr.P.C. praying for quashing the entire

criminal proceeding including the order

taking cognizance dated 11.03.2016. On

19.09.2016, the Chief Judicial Magistrate

framed charges against the appellant under

Sections 414, 384, 386, 387, 120 -B I.P.C.

Charges were also framed under

Sections 25(1-B)(a), 26, 35 of the Arms Act

as well as under Section 17(1) and (2) of the

Criminal Law Amendment Act . The High Court

passed an interim order on 15.12.2016 staying

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the further proceedings in Tandwa P.S. Case

No.2/2016.

2.3 On the prayer made by the Investigating

Officer on 09.04.2017 , offences under

Sections 16, 17, 20 and 23 of the Unlawful

Activities (Prevention) Act, 1967 were added

against the accused. Central Government

issued an order dated 13.02.2018 in exercise

of power conferred under sub -section 5 of

Section 6 read with Sec tion 8 of the National

Investigation Agency Act, 2008 suo -moto

directing the National Investigation Agency

to take up investigation of case F.I.R.

No.02/2016, in which Sections 16, 17, 20 and

23 of the Unlawful Activities (Prevention)

Act, 1967 were added, which were scheduled

offences. In pursuance of the order of the

Central Government dated 13.02.2018, National

Investigation Agency re -registered the First

Information Report as FIR No.RC -

06/2018/NIA/DLI dated 16.02.2018 under the

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above noted sections. The appellant being

under custody in some other case, request was

made on behalf of the National Investigating

Agency before the Special Judge, NIA, Ranchi

on 22.06.2018 praying for issuance of

production warrant. The Special Judge allowed

the prayer. Consequently, the appellant was

produced from Chatra Jail on 25.06.2018 and

was remanded to judicial custody by order of

Special Judge dated 25.06.2018.

2.4 A Writ Petition (Crl.) No.277 of 2018 was

filed by the appellant praying for quashing

the entire criminal proceedings in connection

with Special NIA Case No.03 of 2018 including

the First Information Report being No.RC -

06/2018/NIA/DLI. A further prayer was also

made for quashing the order dated 25.06.2018

remanding the appellant to the judicial

custody by order of the Judicial Commissioner -

cum-Special Judge, NIA, Ranchi . The High

Court by the impugned judgment dated

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26.09.2018 dismissed both , the Writ Petition

(Crl.) No.277 of 2018 as well as Crl.M.P.

No.1114 of 2016, aggrieved against which

judgment, these appeals have been filed by the

appellant.

3. We have heard Shri Abhinav Mukherji, learned

counsel 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 erro r

in passing the order dated 25.06.2018 remanding the

appellant to judicial custody under Section 167

Cr.P.C. When cognizance has already been taken on

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11.03.2016, order could have only been passed under

Section 309 Cr.P.C. 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 cancellation of the bail dated

10.03.2016. It was only after cancellation of the

bail that appellant could have be en re-arrested or

taken into judicial custody.

5. Learned ASG refuting the submissions of the

counsel for the appellant co ntends that present is not

a case of registration of any second F.I.R. It is

submitted that NIA has only re -registered the F.I.R.

as per the provisions of National Investigation Agency

Act, 2008. The re -registration of the F.I.R. by NIA

cannot be said to be a second F.I.R. It is further

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submitted that the mere fact that charge sheet has

been submitted in P.S. Case No.02 of 2016 and

cognizance has been taken by the Chief Judicial

Magistrate shall not preclude the NIA from carrying

out further investigatio n and submit a supplementary

report. It is submitted that by virtue of Section

173(8) of Cr.P.C., even when report under Section

173(2) is submitted, the investigation agency can

carry on further investigation and collect oral or

documentary evidence and submit a supplementary

report. It is further submitted that as per the NIA

Act, when scheduled offence is committed, the

investigation is handed over to different

investigation agency. Present is a case where

scheduled offences were committed and ha ve already

been added in P.S. Case No.02/2016 for which it is

NIA, which has to carry on the investigation as per

the order of the Central Government dated 13.02.2018.

There is no lack of jurisdiction in the NIA to conduct

further investigation and submit a supplementary

report. It is further submitted that NIA has concluded

the investigation and already submitted a charge sheet

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on 21.12.2018. Whenever a scheduled offence is

reported, the Central Government has a wide amplitude

of power to direct the NIA to investigate into such

offence and while taking over the investigation, the

FIR is re -registered, as only the nomenclature

changes. It is further submitted that the bail granted

to the appellant on 10.03.2016 in P.S. Case No. 02 of

2016 cannot enure to the benefit of the appellant in

reference to offences under Sections 16, 17, 20 and 23

of the Unlawful Activities (Prevention) Act, 1967. The

appellant had to apply for grant of fresh bail in

respect of newly added offences. It is further

submitted that the Special Judge has rightly remanded

the appellant exercising power under Section 167

Cr.P.C., 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 Cr.P.C. for

further investigation by NIA.

6. Learned counsel for the parties in support of

their respective submissions placed reliance on

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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 ear lier 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 incid ent?

(iii) Whether N.I.A. could conduct any further

investigation in the matter when

investigation in the P.S. Case No.02/2016

having already been completed and charge

sheet has been submitted on 10.03.2016 with

regard to which cognizance has already been

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taken by Chief Judicial Magistrate, Chatra

on 11.03.2016?

(iv) Whether the order dated 25.06.2018 passed

by Judicial Commissioner -cum-Special Judge,

NIA, Ranchi remanding the appellant to

judicial custody is in accordance with law ?

(v) Whether the power under Section 167 Cr.P.C.

can be exercised in the present case, where

the cognizance has already been taken by

Chief Judicial Magistrate on 11.03.2016 or

the accused could have been remanded only

under Section 309(2) Cr .P.C.?

Issue No.1

8. In the facts of the present case, appellant was

granted bail on 10.03.2016 in F.I.R. No.02/2016 under

Sections 414, 384, 386, 387, 120 -B I.P.C. 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. In

the present case, the appellant was not arrested by

the investigation agency after addition of Sections

16, 17, 20 and 23 of the Unlawful Activities

(Prevention) Act, 1967, rather he was already in jail

in connection with some other case and an application

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was filed in the Court of Special Judge by the

prosecution praying for production warrant, which

application having been allowed, the appellant was

produced in the Court on 26.06.2018 and was remanded

in judicial custody.

9. The question, as to whether when an accused is

bailed out in a criminal case, in which new offences

have been added, whether for arresting the accused, it

is necessary to get the bail cancelled, has arisen

time and again, there are divergent views of different

High Courts on the above question. On o ne side, the

High Courts have taken the view that for arresting the

accused, who is already on bail, in event of addition

of new offences, the earlier bail need to be cancelled

whereas the other line of opinion is that for new

offences accused has to obtai n a fresh bail order and

the earlier bail order shall not enure to the benefit

of the accused.

10. Learned counsel for the parties have also relied

on several judgments of different High Courts in regard

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to the circumstance when new cognizable and non -

bailable offences are added. We may briefly refer to

few of the decisions of the High Courts in the ab ove

regard. Patna High Court in Sita Ram Singh and Anr.

Vs. State of Bihar, 2002 (2) BLJR 859 had considered

the case where case was initially instituted under

Section 307 I.P.C. FIR was lodged on 24.08.2000 under

Section 307 I.P.C. The accused was grante d bail on

01.09.2000. Thereafter, due to death of the injured

on 06.09.2000, Section 302 I.P.C. was added. Informant

had applied for cancellation of the bail. The bail

earlier granted was cancelled in view of subsequent

development. In the above contex t, Patna High Court

relying on judgment of this Court in Prahlad Singh

Bhati Vs. 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.

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11. Rajasthan High Court in Sukhpal Vs. 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 ordered to be released on bail

under any of the Section of Chapter XXXIII

of the Cr.P.C. the police had no power to

arrest him by merely adding another section

which may be non -bailable. The police must

seek an order from the Court for cancellation

of bail granted to a person………………………….”

12. Another judgment of Madras High Court in Dhivan

Vs. State, (2010) 2 MWN (Cr.) also took the same view.

In paragraph No.11, following was observed: -

“11. In view of the above discussions, I have

no hesitation to hold that simply because a

penal provision is added in the case in

respect of a serious non -bailable offence,

the bail granted earlier shall not

automatically stand cancelled and therefore,

the police shall not have the power to re -

arrest the accused until the bail granted

earlier is cancelled by way of a positive

order by the appropriate court…………………………..”

13. There are few decisions of Allahabad High Court

also where the issue has been addressed. One judgment

of the High Court namely Bijendra and Ors. Vs. State

of U.P. and Ors., (2006) CriLJ 2253 has also been

referred to and relie d in the impugned judgment. In

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paragraph No.25, following observations have been made

by Allahabad High Court: -

“25. After hearing the learned Counsels for

the both sides at a great length and after

analyzing Section 437 Cr. P. C. it transpires

that Section 437 relates with bail in cases

of non-bailable offence by the magistrate.

So far as the first contention which the

learned Counsel for the applicants advanced,

that because the bail has been granted in the

same crime number and therefore by mere

change of section accused cannot be sent to

jail is concerned it is to be noted that case

crime number is nowhere mentioned in the

aforesaid section, which is the number of

police for identification of the case and is

a procedural number of the police station.

Crime number has no relation with bail under

Cr. P. C. In this view of the matter the

contention of learned Counsel for the

applicant cannot be accepted and is therefore

rejected.

Coming to the second contention of the

learned Counsel for the applicant that there

is no bar for this Court to direct the

Magistrate to accept fresh bail bonds for the

newly added offence 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 Cr.P.C. 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,

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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 Vs. 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 p aragraph

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. (LVIII)2007 ACC 577, wherein it has

been mentioned that without surrender prayer

for bail in the newly added Section cannot

be considered.”

15. Learned counsel for the appellant has also relied

on judgment of High Court of Jamm u & Kashmir in CRMC

No.270/2018 - Fayaz Ahmad Khan and Ors. Vs. State,

decided on 03.10.2018, where Jammu and Kashmir High

Court relying on judgment of this Court in Manoj Suresh

Jadhav & Ors. (supra) took the view that simply because

a penal provision is added in respect of a serious

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non-bailable offence, the bail granted earlier shall

not automatically stand cancelled and therefore, the

police shall not have the power to re -arrest the

accused until the bail granted earlier is cancelled by

way of a positive order by the appropriate court.

16. We may also notice a pertinent observation made

by this Court in Prahlad Singh Bhati (supra). In the

above case, a case was registered under Sections 306

and 498-A I.P.C. Application for anticipatory bail

was dismissed, however, while dismissing the

application, the Additional Sessions Judge had

observed that if on facts a case under Section 302 is

made out against the accused, State shall be at liberty

to arrest the ac cused. After investigation, charge

sheet was filed under Sections 302 , 406 and 498-A. The

accused was directed to appear before the Magistrate

since he did not appear, non -bailable warrants were

issued. The accused had filed an application under

Section 482 Cr.P.C. in the High Court. Subsequently,

the accused appeared before the Magistrate, he was

admitted on bail even in a case under Section 302 IPC.

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The revision petition was dismissed by the High Court

against the order releasing the accused on bail. T he

complainant had approached this Court. In paragraph

Nos. 4 and 9, following observations have been made by

this Court:-

“4. From the facts, as narrated in the

appeal, it appears that even for an offence

punishable under Section 302 IPC, the

respondent-accused was never arrested and he

manipulated the prevention of his arrest

firstly, by obtaining an order in terms of

Section 438 of the Code and subsequently by

a regular bail under Section 437 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 Vs. 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

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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

authorities had made an application before the Court

for issue of production warrant since the accused was

already in custody in jail in reference to another

case.

19. We may refer to the relevant provisions of the

Cr.P.C. regarding grant of bail. Chapter XXXIII of

20

the Code of Criminal Procedure, Sections 436 to 439

deals with bail. Section 437 deals with the provision

when bails can be taken in case of non -bailable

offence. Section 437(5), which is relevant for the

present controversy is as follows: -

“(5) Any Court which has released a person

on bail under sub - section (1) or sub -

section (2), may, if it considers i t

necessary so to do, direct that such person

be arrested and commit him to custody.”

20. Section 439 deals with special powers of High

Court or Court of Session regarding bail. Section

439(2) is to the following effect: -

“(2) A High Court or Court of Session may

direct that any person who has been released

on bail under this Chapter be arrested and

commit him to custody.”

21. Both Sections 437(5) and 439(2) 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). The principles an d grounds

for cancelling a bail are well settled, but in the

present case, we are concerned only with one aspect of

the matter, i.e., a case where after accused has been

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granted the bail, new and serious offences are added

in the case. A person against wh om 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.

22. One of the judgment s, which needs to be noticed

in the above reference is Hamida Vs. Rashid alias

Rasheed and Others ( supra). In the above case, the

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accused was granted bail for offences under Sections

324, 352 and 506 IPC. 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 IPC. 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 IPC , 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 IPC. This Court laid down following in

paragraph Nos. 10, 11 and 12: -

“10. In the case in hand, the respondents -

accused could apply for bail afresh after the

offence had been converted into one under

Section 304 IPC. They deliberately did not do

so and filed a petition under Section 482

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CrPC in order to circumvent the procedure

whereunder they would have been required to

surrender as the bail application could be

entertained and heard only if the accused

were in custody. It is important to note that

no order adverse to the respondents -accused

had been passed by any court nor was there

any miscarriage of justice or any illegality.

In such circumstances, the High Court

committed manifest error of law in

entertaining a petition under Section 482

CrPC and issuing a direction to the

subordinate court to accept the sureties and

bail bonds for the offence under Section 304

IPC. The effect of the order passed by the

High Court is that the accused after getting

bail in an offence under Sections 324, 352

and 506 IPC on the very day on which they

were taken into custody, got an order of bail

in their favour even after the injured had

succumbed to his injuries and the case had

been converted into one under Section 304 IPC

without any court examining the case on

merits, as it stood after conversion of the

offence. The procedure laid down for grant of

bail under Section 439 CrPC, though available

to the respondents-accused, having not been

availed of, the exercise of power by the High

Court under Section 482 CrPC is clearly

illegal and the impugned order passed by it

has to be set aside.

11. Learned counsel for the appellant has

submitted that charge under Section 302 IPC

has been framed against the respondents -

accused by the trial court and some

subsequent orders were passed by the High

Court by which the accused were ordered to

remain on bail for the offence under Section

302 read with Section 34 IPC on furnishing

fresh sureties and bail bonds only on the

ground that they were on bail in the offence

under Section 304 IPC. These orders also

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deserve to be set 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 IPC 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 befo re

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 vs.

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

25

their bail was not cancelled . Can from the above

observation it can be held that unless the bail earlier

granted is cancelled the Court has no po wer to direct

the accused to be taken into custody.

25. We may have again to look into provisions of

Sections 437(5) and 439(2) of Cr.P.C. 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 d irecting

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 b e with an order

for cancellation of earlier bail or permission to

26

arrest such accused due to addition of graver and non -

cognizable offences. Two Judge Bench judgment in

Mithabhai Pashabhai Patel (supra) uses the word

‘ordinarily’ in paragraph 18 of the jud gment which

cannot be read as that mandatorily bail earlier granted

to the accused has to be cancelled before Investigating

Officer to arrest him due to addition of graver and

non-cognizable offences.

26. Learned counsel for the appellant has relied on

an order of this Court dated 07.05.2018 in SLP (Crl.)

No.10179 of 2017 – Manoj Suresh Jadhav & Ors. Vs. The

State of Maharashtra . In the above case, the

petitioners were granted bail for offence punishable

under Section 509 read with Section 34 IPC. During

the course of investigation, the police added another

offence under Section 376 IPC and re -arrested the

accused. The petitioners filed writ petition before

the High Court, which was dismissed. This Court in

the above case while disposing the special leave

petition observed as under: -

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“………………

We have heard learned counsel appearing

for the parties and perused 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.

28

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 accuse d

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 offence s

are added including offences of serious nature, it is

not necessary that in all cases earlie r 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 po wers

granted to the court by the Legislature under which

Court can permit an accuse d 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.

29

28. Coming back to the present case, the appellant 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 be fore 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. We, thus do not find any 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

30

judicial custody.

29. In view of the foregoing discussions, we arrive

at following conclusions in respect of a circumstance

where after grant of bail to an accused, further

cognizable and non-bailable offences are a dded:-

(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

31

addition of graver and non -cognizable

offences which may not be necessary alwa ys

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 i n exercise of its power

under sub-section 5 of Section 6 read with Section 8

of the National Investigation Agency Act, 2008 passed

following order:-

“F. No. 11011/08/2018/NIA

Government of India

Ministry of Home Affairs

CTCR Division

North Block,

New Delhi

Dated, the 13th February, 2018

32

ORDER

Whereas, the Central Government has

received information regarding registration

of a Case FIR No. 02/2016 dated 11.01.2016

at Tandwa PS, District Chatra, Jharkhand u/s

414, 384, 386, 387, 120B of the Indian Penal

Code, sections 25(1-B)(a), 26, 35 of Arms Act

and section 17(1)(2) of Criminal Law

Amendment Act relating to incidents of

extortion/levy collection/money laundering

by the Maoist cadres in the LWE affected

States like Jharkhand and Bihar.

And whereas, sections 16,17,20,23 of the

Unlawful Activities (Prevention) Act, 1967

were added later during the course of

investigation.

And whereas, the Central Government

having regard to the gravity of the said

offence is of the opinion that the offence

involved is a scheduled offence which is

required to be investigated by the National

Investigation Agency in accordance with the

National Investigation Agency Act, 2008.

Now, therefore, in exercise of the powers

conferred under sub -section 5 of section 6

read with section 8 of the National

Investigation Agency Act, 2008, the Central

Government hereby suo -motu directs the

National Investigation Agency to take up

investigation of the aforesaid case.

Sd/- Illegible

(Dharmender Kumar)

Under Secretary to the Government of India”

32. The NIA, which registered the FIR No.RC-

06/2018/NIA/DLI dated 16.02.2018, in pursuance of the

33

order of the Central Government dated 13.02.2018, the

submission which has been made by the learned counsel

for the appellant is that the FIR dated 16.02.2018 is

a second FIR, hence could not have been registered.

It is submitted that with regard to one incident only

one FIR can be registered and registration of second

FIR is illegal. Learned counsel for the appellant in

support of his submission has placed reliance on

judgments of this Court in T.T. Antony Vs. State of

Kerala and Others, (2001) 6 SCC 181; Babubhai Vs. State

of Gujarat and Others, (2010) 12 SCC 254; Chirra

Shivraj Vs. State of Andhra Pradesh, (2010) 14 SCC 444

and Amitbhai Anilchandra Shah Vs. Central Bureau of

Investigation & Anr., (2013) 6 SCC 348.

33. In T.T. Antony (supra) with regard to an

occurrence which took place on 25.11.19 94 – Crime No.

353 of 1994 and Crime N o. 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

34

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 orde rs 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

a writ petition before the Kerala High Court. Learned

Single Judge directed for re -investigation by CBI. The

Division Bench on appeal directed fresh investigation

by the State police headed by one of the three senior

35

officers instead of investigation by CBI. Appeal was

filed against the said judgment in this Court. One of

the questions, which was noted for consideration by

this Court in para 15(i) is as follows: -

“15. On these contentions, four points arise

for determination:

(i) whether registration of a fresh case,

Crime No. 268 of 1997, Kuthuparamba

Police Station on the basis of the

letter of the DGP dated 2 -7-1997 which

is in the nature of the second FIR

under Section 154 CrPC, is valid and

it can form the basis of a fresh

investigation;

xxxxxxxxxxx”

34. This Court laid down that as per the scheme of

Code of Criminal Procedure only the earliest or the

first information report in regard to the commission

of a cognizable offence satisfies the requirements of

FIR and there can be no second F.I.R. In par agraph

No.20, following has been laid down: -

“20. From the above discussion it follows

that under the scheme of the provisions of

Sections 154, 155, 156, 157, 162, 169, 170

and 173 CrPC only the earliest or the first

information in regard to the commission of a

cognizable offence satisfies the

requirements of Section 154 CrPC. Thus there

can be no second FIR and consequently there

36

can be no fresh investigation on receipt of

every subsequent information in respect of

the same cognizable offence or the same

occurrence or incident giving 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 CrPC.”

35. The same principle has been reiterated in Babubhai

Vs. State of Gujarat (supra) and Chirra Shivraj Vs.

State of Andhra Pradesh (supra). This Court in

Amitbhai Anilchandra Shah Vs. 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 ince ption of entrustment of

37

investigation to CBI by order dated 12 -1-

20104 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 su ch

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

impermissible but it violates Article 21 of

the Constitution. In T.T. Antony3, this Court

has categorically held that registration of

second FIR (which is not a cross -case) is

violative of Article 21 of the Constitution.

The following conclusion in paras 19, 20 and

27 of that judgment are relevant which read

as under: (SCC pp. 196-97 & 200)

“19. The scheme of CrPC is that an

officer in charge of a police station

has to commence investigation as

provided in Section 156 or 157 CrPC on

the basis of entry of the first

information report, on coming to know

of the commission of a cognizable

offence. On completion of

investigation and on the basis of the

evidence collected, he has to form an

opinion under Section 169 or 170 CrPC,

as the case may be, and forward his

report to the Magistrate concerned

under Section 173(2) CrPC. However,

even after filing such a report, if he

38

comes into possession of further

information or material, he need not

register a fresh FIR; he is empowered

to make further investigation,

normally with the leave of the court,

and where during further investigation

he collects further evidence, oral or

documentary, he is obliged to forward

the same with one or more further

reports; this is the import of sub -

section (8) of Section 173 CrPC.

20. From the above discussion it

follows that under the scheme of the

provisions of Sections 154, 155, 156,

157, 162, 169, 170 and 173 CrPC only

the earliest or the first information

in regard to the commission of a

cognizable offence satisfies the

requirements of Section 154 CrPC. Thus

there can be no second FIR and

consequently there can be no fresh

investigation on receipt of every

subsequent information in respect of

the same cognizable offence or the

same occurrence or incident giving

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

CrPC.

* * *

39

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 CrPC 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 approp riate

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 o r more

cognizable offences, consequent upon

filing of successive FIRs whether

before or after filing the final

report under Section 173(2) CrPC. It

would clearly be beyond the purview of

Sections 154 and 156 CrPC, nay, a case

of abuse of the statutory powe r of

investigation in a given case. In our

view 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 under way or

final report under Section 173(2) has

been forwarded to the Magistrate, may

be a fit case for exercise of power

40

under Section 482 CrPC or under

Articles 226/227 of the Constitution.”

The above referred declaration of law by this

Court has never been diluted in any

subsequent judicial pronouncements even

while carving out exceptions.”

36. Paragraph 58.1 to 58.10 contains the summary of

judgments. In paragraph Nos.58.3 and 58.4 following

has been laid down:-

“58.3. Even after filing of such a report,

if he comes into possession of further

information or material, there is no need to

register a fresh FIR, he is empowered to make

further investigation normally with the leave

of the court and where during further

investigation, he collects further evidence,

oral or documentary, he is obliged to forward

the same with one or more further reports

which is evident from sub -section (8) of

Section 173 of the Code. Under the scheme of

the provisions of Sections 154, 155, 156,

157, 162, 169, 170 and 173 of the Code, only

the earliest or the first information in

regard to the commission of a cognizable

offence satisfies the requirements of Section

154 of the Code. Thus, there can be no second

FIR and, consequently, there can be n o fresh

investigation on receipt of every subsequent

information in respect of the same cognizable

offence or the same occurrence or incident

giving rise to one or more cognizable

offences.

58.4. Further, on receipt of information

about a cognizable offen ce or an incident

giving rise to a cognizable offence or

offences and on entering FIR in the station

41

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 investiga tion, 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 cogni zable 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.

42

38. NIA Act, 2008 was ena cted 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

offences under Acts enacted to implement international

treaties, agreements, conventions and resolutions of

the United Nations, its agencies and other

international organisations and for matters connected

therewith or incidental thereto.

39. Sections 3 to 5 of the Act deal with National

Investigation Agency. Chapter III deals with

investigation by the National Investigation Agency.

Sections 6 to 8, which are relevant for the present

case are as follows:-

“6. Investigation of Scheduled Offences. —(1)

On receipt of information and recording

thereof under section 154 of the Code

relating to any Scheduled Offence the

officer-in-charge of the police station shall

forward the report to the State Government

forthwith.

(2) On receipt of the report under sub-

section (1), the State Government shall

forward the report to the Central Government

as expeditiously as possible.

43

(3) On receipt of report from the State

Government, the Central Government shall

determine on the basis of information made

available by the State Government or received

from other sources, within fifteen days from

the date of receipt of the report, whether

the offence is a Scheduled Offence or not and

also whether, having regard to the gravity

of the offence and other relevant factors,

it is a fit case to be investigated by the

Agency.

(4) Where the Central Government is of the

opinion that the offence is a Scheduled

Offence and it is a fit case to be

investigated by the Agency, it shall direct

the Agency to investigate the said offenc e.

(5) Notwithstanding anything contained in

this section, if the Central Government is

of the opinion that a Scheduled Offence has

been committed which is required to be

investigated under this Act, it may, suo

motu, direct the Agency to investigate the

said offence.

(6) Where any direction has been given 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 tra nsmit 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

44

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 jurisdicti on 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 added in case Crime No.02/2016 and th at the

45

Central Government order issued in exercise of its

power under sub-section 5 of Section 6 by entrusting

the investigation to NIA , NIA is competent to

investigate the offence and submit a supplementary

report.

42. Before proceeding further, we may notice few

features of the present case, which are necessary to

be noticed. As noticed above, a charge sheet in the

case Crime No.02/2016 was submitted by the

investigating agency on 10.03.2016 and cognizance was

taken on 11.03.2016. The offences under Unlawful

Activities (Prevention) Act, 1967 were added on

09.04.2017. Charges were framed on 19.09.2016,

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

46

NIA to investigate the offence under scheduled

offences, NIA was fully competent to investigate the

offences and submit a supplementary r eport. 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.

43. Sub-section (6) of 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 Governm ent 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

47

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 w ere 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 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). In this context,

reference is made to judgment of this Court in Vinay

Tyagi Vs. Irshad A li alias Deepak and Others, (2013)

5 SCC 762, in which case after examining the provisions

48

and elaborating the scheme as delineated by Section

173 Cr.P.C., 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 used the expression “nothing

in this section shall be deemed to preclude

further investigation in respect of an

offence after a report under Section 173(2)

has been forwarded to the Magistrate”, which

unambiguously indicates the legislative

intent that even after filing of a report

before the court of competent jurisdiction,

the investigating officer can still conduct

further investigation and where, upon such

investigation, the officer in charge of a

police station gets further evidence, oral

or documentary, he shall forward to the

Magistrate a further report or reports

regarding such evidence in the prescribed

form. In other words, the investigating

agency is competent to file a supplementary

report to its primary report in terms of

Section 173(8). The supplementary report has

to be treated by the court in continuation

of the primary report and the same provisions

of law i.e. sub -section (2) to sub -section

(6) of Section 173 shall apply when the court

deals with such report.”

45. This Court again in Amrutbhai Shambhubhai Patel

Vs. Sumanbhai Kantibhai Patel and Others, (2017) 4 SCC

177 statutorily noticed the provisions of Section

173(8) as added in the Cr.P.C., 1973. After noticing

49

the 41st Report of the Law Commission of India in

reference to Section 173, this Court laid down

following in paragraph Nos. 20 and 21: -

“20. The newly added sub-section (8), as its

text evinces, permits further investigation

by the officer in charge of the police

station concerned in respect of an offence

after a report under sub-section (2) had been

forwarded to the Magistrate and also to lay

before the Magistrate a further report, in

the form prescribed, whereupon such

investigation, he obtains further evidence,

oral or documentary. It 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 signif icance, 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

50

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 ab sence 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 to light. In paragraph No.31, follo wing

has been laid down:-

“31. This Court also recounted its

observations in Ram Lal Narang, (1979) 2 SCC

332, to the effect that on the Magistrate

taking cognizance upon a police report, the

right of the police to further investigate

even under the 1898 C ode was not exhausted

and it could exercise such right often as

necessary, when fresh information would come

to light. That this proposition was

integrated in explicit terms in sub -section

(8) of Section 173 of the new Code, was

noticed. The desirability o f the police to

ordinarily inform the Court and seek its

formal permission to make further

investigation, when fresh facts come to

light, was stressed upon to maintain the

independence of the judiciary, the interest

of the purity of administration of crimi nal

51

justice and the interest of the comity of the

various agencies and institutions entrusted

with different stages of such dispensation.

47. We, thus, do not find any lack of jurisdiction in

NIA to carry on further investigation and submit a

supplementary report. In the counter affidavit, it

has been stated by the Union of India that NIA has

concluded investigation and already a charge sheet h as

been submitted on 21.12.2018 vide first supplementary

charge sheet. We, thus, do not find any lack of

jurisdiction in the NIA to carry on further

investigation in the facts of the present case.

Issue Nos. 4 and 5

48. Both the issues being interrelated are being taken

together.

49. We may recapitulate the essential facts for

deciding the above issues. F.I.R. No. 2 of 2016 dated

11.01.2016 was registered on 11.01.2016. The appellant

was taken into custody on 11.01.2016 itself. On

10.03.2016, the appellant was granted bail by the order

52

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) I.P.C., 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 Gov ernment

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

53

custody on which order was pa ved 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)

Cr.P.C., 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 hours fixed by section

57, and there are grounds for believing that

the accusation or information is well -

founded, the officer in charge of the police

station or the police officer making the

investigation, if he is not be low the rank

of sub- inspector, shall forthwith transmit

to the nearest Judicial Magistrate a copy of

the entries in the diary hereinafter

prescribed relating to the case, and shall

at the same time forward the accused to such

Magistrate.

(2) The Magistrate to whom an accused person

is forwarded under this section may, whether

he has or has no jurisdiction to try the case,

from time to time, authorise the detention

54

of the accused in such custody as such

Magistrate thinks fit, for a term not

exceeding fifteen days in the whole; and if

he has no jurisdiction to try the case or

commit it for trial, and considers further

detention unnecessary, he may order the

accused to be forwarded to a Magistrate

having such jurisdiction:

Provided that-

(a)

the Magistrate may authorise the

detention of 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 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

so released under the provisions

of Chapter XXXIII for the purposes

of that Chapter;

(b) no Magistrate shall authori se

55

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

proved by his signature on the o rder

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 det ention

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

56

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 sa me beyond the

following day to be necessary for reasons to

be recorded:

Provided that when the inquiry or trial

relates to an offence under section 376,

section 376A, section 376AB, section 376B,

section 376C, section 376D, section 376DA or

section 376DB of the Indian Penal Code (45

of 1860), the inquiry or trial shall be

completed within a period of two months from

the date of filing of the charge sheet.

(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 su ch 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:

Provided further that when witnesses are

in attendance, no adjournment or postponement

shall be granted, without examining them,

except for special reasons to be recorded in

writing:

Provided also that no adjournment shall

be granted for the purpose only of enabling

the accused person to show cause against the

57

sentence proposed to be imposed on him.

Provided also that –

(a) no adjournment shall be granted at the

request of a party, except where the

circumstances are beyond the control of

that party;

(b) the fact that the pleader of a part y is

engaged in another Court, shall not be a

ground for adjournment;

(c) where a witness is present 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 postpon ement 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) Cr.P.C. could have been resort ed to by

58

the Special Judge or remand could have been done only

under Section 309(2) Cr .P.C. This Court had occasion

to consider the provisions of Section 167 and Section

309 Cr.P.C. 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 s. 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 enable

the police to do which, a remand to jail

custody is necessary. “

53. This Court in Central Bureau of Investigation,

Special Investigation Cell -I, New Delhi Vs. Anupam J.

Kulkarni, (1992) 3 SCC 141, had occasion to consider

59

Section 309 Cr.P.C. This Court held that Section 309

comes into operation after taking cognizance and not

during the period of investigation. Remand order under

this provision (Section 309) ca n only be with judicial

custody.

54. We may refer to a Three -Judge Bench Judgment of

this Court in State through CBI Vs. Dawood Ibrahim

Kaskar and Others, (2000) 10 SCC 438 . In the above

case, the Government of India, with the consent of the

Government of Maharashtra, issued a notification

entrusting further investigation in the above cases to

Delhi Special Police Establishment (CBI). The CBI

filed applications before the designated Court praying

for issuance of non -bailable warrant s of arrests

against several accused and the applications were

rejected by the Designated Court relying on a Bombay

High Court judgment in Mohd. Ahmed Yasin Mansuri v.

State of Maharashtra, 1994 Crl.LJ 1854 (Bom.). In

paragraph No.6 of the judgment, this Court has n oticed

the judgment of Bombay High Court in Mohd. Ahmed Yasin

Mansuri v. State of Maharashtra (supra) and

60

observations made by the Bombay High Court. Bombay

High Court has observed in the said case that in the

Code, no power is conferred for police custod y after

cognizance of an offence is taken.

55. The observations made by the High Court as quoted

in para 6 of the judgment were not approved by this

Court. This Court also noticed the provisions of

Sections 167 and 309 Cr.P.C. 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, wh o 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 adjournm ent 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

61

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 further

investigation, even if it can on production

of sufficient materials, convince the Court

that his detention in its (police) custody

was essential for that purpose. We are,

therefore, of the opinion that the words

“accused if in custody” appearing in Section

309(2) refer and relate to 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…………………………….”

56. This Court clearly held that Section 309(2) does

62

not refer to an accused, who is subsequently arrested

in course of further investigation. This Court in

paragraph No. 11, as noted above, clearly held that

even after cognizance is taken of an offence the police

has a power to investigate into it further and there

is no reason 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.

57. In above Three Judge Bench judgment the accused

was subsequently arrested during investigation after

cognizance was taken. Three Judge Bench explained the

words “accused if in custody” to relate to an accused

who was before the court when cognizance was taken or

when inquiry or trial was being held in respect of him

and not to an accused who is subsequently arrested in

course of further investigation. T here cannot be any

dispute to the above proposition laid down by this

Court but the above judgment does not help the

appellant in facts 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

63

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 Vs. 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 Vs.

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

Cr.P.C vis-à-vis sub-Section (2) of Section 309

64

Cr.P.C. 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 contemplated under sub-section

(8) thereof. Whereas only when a charge -sheet

is not filed and investigation is kept

pending, benefit of proviso appended to sub -

section (2) of Section 167 of the Code would

be available to an offender; once, however,

a charge-sheet is filed, t he said right

ceases. Such a right does not revive only

because a further investigation remains

pending within the meaning of sub -section (8)

of Section 173 of the Code.”

60. Learned counsel for the appellant has relied on a

Two Judge Bench judgment of this Court in Mithabhai

Pashabhai Patel and Others Vs. State of Gujarat, (2009)

6 SCC 332 . In paragraph No. 17, this Court made

65

following observations: -

“17. The power of remand in terms of the

aforementioned provision is to be exercised

when investigation is not complete. Once the

charge-sheet is filed and cognizance of the

offence is taken, the court cannot exercise

its power under sub -section (2) of Section

167 of the Code. Its power of remand can then

be exercised in terms of sub -section (2) of

Section 309 which reads as under:

“309. Power to postpone or adjourn

proceedings.—

(1) * * * ”

61. The above observations do support the submissions

raised by the learned counsel for the appellant .

62. After having noticed, the relevant provisions of

Section 167(2) and Section 309, Cr .P.C and law laid

down by this Court, we arrive at following

conclusions: -

(i) The accused can be remanded under Section

167(2) Cr.P.C during investigation till

cognizance has not been taken by th e Court.

(ii) That even after taking cognizance when an

accused is subsequently arrested during

66

further investigation , the accused can be

remanded under Section 167(2) Cr .P.C.

(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)

Cr.P.C.

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) Cr.P.C. The submission which was taken on behalf

of the CBI before us was that the accused was remanded

under Section 167(2 ) Cr.P.C. 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

67

Judicial Commissioner -cum-Special Judge NIA, Ranchi,

which is to the following effect: -

“………25.06.2018 On strength of issued

production warrant superintend Chatra Jail,

Chatra produced accused namely Pradeep Ram @

Pradeep verma S/ o Devki Ram, R/o Village.

Winglat, P.S. Tandwa, District -Chatra. Let

accused Pradeep Ram remanded in the case and

sent to B.M.C. Jail, Ranchi to be produced

on 26.06.2018. Learned Spl.P.P. is present.

Issued Custody warrant.

Dictated

Ad/- Illegible

Spl. Judge(NIA)

..”

65. The special Judge in his order has neither

referred to Section 309 nor Section 167 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 held above, the special Judge could have only

exercised power under Section 309(2), hence, 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

68

is no illegality in the remand order dated 25.06.2018

when the accused was remanded to the judicial custody.

66. We, thus, do not find any error in the order dated

25.06.2018 but for the reasons as indicated above. 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. We, however, hold that

the remand order dated 25.06.2018 was in e xercise of

power under Section 309(2). The remand order is upheld

for the reasons as indicated above.

67. The issue Nos.4 and 5 are decided accordingly.

68. In view of the foregoing discussions, we do not

find any merit in the appeals and the appeals are

dismissed.

...............................J.

( ASHOK BHUSHAN )

...............................J.

( K.M.JOSEPH)

NEW DELHI,

July 01, 2019.