Police Remand After Filing Of Charge Sheet – Yes Or No

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In the above case, on completion of investigation, the CBI submitted charge sheet against 21 accused, including the arrested ones and the absconders.
India Criminal Law
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Article by Vijay Pal Dalmia, Advocate, Supreme Court of India and Delhi High Court, Partner & Head of Intellectual Property Laws Division, Vaish Associates Advocates, India

A common question of law in three appeals before the Supreme Court in ( Central Bureau of Investigation
Vs. Rathin Dandapat and Ors. [judgment can be accessed from https://www.sci.gov.in/jonew/judis/42871.pdf ]) arose as to whether no remand in police custody can be given to the investigating agency in respect of the absconding accused who is arrested only after filing of the charge sheet.

In the above case, on completion of investigation, the CBI submitted charge sheet against 21 accused, including the arrested ones and the absconders. It was mentioned in the charge sheet that further investigation of the case was kept open for the purposes of collection of further evidence and the arrest of the absconders. It was also mentioned that further collected evidence during investigation would be forwarded by filing supplementary charge sheet.

The Respondents in this case were declared proclaimed offenders. Meanwhile, the trial proceeded. Some proclaimed offenders the case were subsequently arrested after filing of the charge sheets. CBI wanted remand of these apprehended proclaimed offenders, however, ACJM refused the request of CBI for remand of the accused persons. The High Court also refused to grant remand to CBI of these accused persons.

Proviso to Sub-section (2) of Section 167 Code of Criminal Procedure, which empowers a Magistrate to authorize detention of an accused in the custody of police, reads as under:

Provided that,-

(a) The Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person 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;


Sub-section (8) of Section 173, under which investigating agency has power to further investigate the matter in which the report/charge sheet has already been filed, is reproduced hereunder:

(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report Under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded Under Sub-section (2).

Relevant provision of Sub-section (2) of Section 309 Code of Criminal Procedure, empowering remand of an accused, provides as under:

(2) If the Court after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:

xxx xxx xxx

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.

In State through CBI v. Dawood Ibrahim Kaskar and Ors. (2000) 10 SCC 438, a three judge bench of the Supreme Court has laid down the law on the issue relating to grant of police custody of a person arrested during further investigation. In paragraph 11 of said case, the Supreme Court has held as follows:

"11. There cannot be any manner of doubt that the remand and the custody referred to in the first proviso to the above Sub-section are different from detention in custody Under Section 167. While remand under the former relates to a stage after cognizance and can only be to judicial custody, detention under the latter relates to the stage of investigation and can initially be either in police custody or judicial custody. Since, however, even after cognizance is taken of an offence the police has a power 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 Mohd. Ahmed Yasin Mansuri v. State of Maharashtra MANU/MH/0130/1994 : 1994 Cri.LJ 1854 (Bom),--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. So far as the accused in the first category is concerned he can be remanded to judicial custody only in view of Section 309(2), but he who comes under the second category will be governed by Section 167 so long as further investigation continues. That necessarily means that in respect of the latter the Court which had taken cognizance of the offence may exercise its power to detain him in police custody, subject to the fulfilment of the requirements and the limitation of Section 167."

The case of Dinesh Dalmia v. CBI (2007) 8 SCC 770, which was relied upon by the High Court, relates to granting of bail Under Section 167(2) Code of Criminal Procedure. In said case, the accused/absconder (Dinesh Dalmia) after his arrest was produced before the Magistrate, and on the request of CBI police custody was granted on 14.2.2006 till 24.2.2006, whereafter on another application further police custody was granted till 8.3.2006. Said accused was remanded to judicial custody, and the accused sought statutory bail Under Sub-section (2) of Section 167 Code of Criminal Procedure as no charge sheet was filed against him by CBI within sixty days of his arrest. The Magistrate rejected the application for statutory bail on the ground that it was a case of further investigation after filing of the charge sheet, and the remand of the accused to judicial custody was Under Section 309 Code of Criminal Procedure, after police remand came to an end, granted Under Section 167(2) Code of Criminal Procedure. The High Court upheld said order and the Supreme Court also affirmed the view taken by the High Court.

In this case, the Supreme Court held that the High Court was not justified on the basis of Dinesh Dalmia in upholding refusal of remand in police custody by the Magistrate, on the ground that accused stood in custody after his arrest Under Section 309 Code of Criminal Procedure.

Further, the Supreme Court upheld and reaffirmed the principle of law laid down by the three judge bench of this Court in State v. Dawood Ibrahim Kaskar that police remand can be sought Under Section 167(2) Code of Criminal Procedure in respect of an accused arrested at the stage of further investigation, if the interrogation is needed by the investigating agency. The Supreme Court further clarified in said case that expression 'accused if in custody' in Section 309(2) Code of Criminal Procedure does not include the accused who is arrested on further investigation before supplementary charge sheet is filed.

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The content of this article is intended to provide a general guide to the subject matter. Specialist professional advice should be sought about your specific circumstances. The views expressed in this article are solely of the authors of this article.

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