IMPORTANT POINT
Police remand of an absconding accused arrested thereafter at the stage of further investigation by CBI but before filing of supplementary charge sheet can be sought u/s 167(2).

Judgment

Prafulla C. Pant, J.

A common question of law is involved in these three appeals as to whether no remand in police custody can be given to the investigating agency in respect of the absconding accused who is arrested only after filing of the charge sheet.

2. We have heard learned counsel for the parties and perused the papers on record.

3. The instant case from which these appeals have arisen, relates to killing of nine persons and injuring large number of villagers of Village Netai of District Paschim Medinipore in West Bengal. It is alleged that the respondents in the present appeals and other accused, on 07.01.2011, after forming an unlawful assembly in the rooftop of respondent No. 1, Rathin Dandapat, committed the crime. First Information Report was lodged on the same day at Police Station Lalgarh in respect of offences punishable under Sections 148, 149, 326, 307, 302 of Indian Penal Code (IPC), and also in respect of offences punishable under Section 25/27 of Arms Act. The investigation of the case was initially done by regular police, but later transferred to Criminal Investigation Department (CID) of the State. Vide order dated 18.2.2011, passed by the High Court of Judicature at Calcutta in Writ Petition Nos. 1170(W) of 2011, 1172(W) of 2011 and 1181(W) of 2011, the investigation was transferred to Central Bureau of Investigation (for short “the CBI”), the appellant before us.

4. During investigation accused, namely Abhani Bhusan Singha, Subhendu Mondal, Aswani Chalak, Nabagopal Sanki, Pintu Roy, Gandib Ban Roy, Lob Duley, Banamali Duley, Niranjan Kotal, Rupchand Ahir, Raju Roy and Swapan Roy were arrested. On completion of investigation, the CBI submitted charge sheet dated 4.4.2011 against 21 accused, including the arrested ones and the absconders. It was mentioned in 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.

5. The respondents, namely, Rathin Dandapat, Md. Khaliluddin, Dalim Pandey, Joydeb Giri, Tapan Dey (all respondents in Criminal Appeal arising out of S.L.P. (Crl.) No. 3611 of 2015), Chandi Karan (respondent in Criminal Appeal arising out of S.L.P. (Crl.) No. 3612 of 2015), Anuj Pandey (respondent in Criminal Appeal arising out of S.L.P. (Crl.) No. 4241 of 2011), and one Kanai Dey, were declared proclaimed offenders. Meanwhile, the trial proceeded and, after providing necessary copies to the accused, as required under Section 207 of the Code of Criminal Procedure, 1973 (for short “CrPC”), the Additional Chief Judicial Magistrate, Jhargram, on 9.8.2011, committed the case to the Court of Sessions, Paschim Medinipore. The Court of Sessions on 10.12.2011 framed charge against accused Abhani Bhusan Singha, Subhendu Mondal, Aswani Chalak, Nabagopal Sanki, Pintu Roy, Gandib Ban Roy, Lob Duley, Banamali Duley, Niranjan Kotal, Rupchand Ahir, Raju Roy and Swapan Roy. The last two accused, namely, Raju Roy and Swapan Roy were later declared juveniles and their cases were sent to Juvenile Justice Board, Paschim Medinipore. The present case, as against said two juveniles, is said to be lying stayed vide order dated 8.9.2014, passed by this Court in S.L.P. No. 5699 of 2014. In respect of other accused against whom charge was framed, trial further proceeded and ten Prosecution Witnesses were examined. However, their cross-examination was deferred at the instance of arrested accused persons, other than the juveniles.

6. Out of eight proclaimed offenders, five, namely, Rathin Dandapat, Md. Khaliluddin, Dalim Pandey, Joydeb Giri and Tapan Dey, were arrested on 29.4.2014, whereafter on 30.4.2014 the CBI sought their remand in police custody. The Additional Chief Judicial Magistrate, Jhargram rejected the prayer of the CBI, aggrieved by which said investigating agency submitted Revision