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2009 (3) GCD 1753 (SC)
Hon’ble Mr. Justice S.B. Sinha &
Hon’ble Mr. Justice Dr. Mukundakam Sharma
Mithabhai Pashabhai Patel & Others
Versus
State of Gujarat
Criminal Appeal No. 941 of 20091—Decided on 06/05/2009
Criminal Procedure Code, 1973 — Sections 167(2) and 309(2) — [Indian] Penal Code, 1860 — Sections 302, 307, 395, 396, 397, 201, 435, 324, 143, 147 to 149, 153-A, 341, 337, 427 and 120-B — Bombay Police Act — Section 135 — Offences under investigation completed and challan presented — Bail granted by High Court — Special investigation team (SIT) constituted — Further investigation to follow — Application for police remand — Sustainability — Finding of — Matter relates to Godhra incident — Investigation was made and challan was presented and cognizance of offence taken by Session Court — Subsequently a Bench of the Court (S.C.) ordered to constitute special investigation team for further investigation — On that behalf application was presented seeking remand of accused for 14 days — Sessions Judge rejected the application on ground that accused are on bail in pursuance of High Court order and unless High cancels the bail, no such application of police remand can be established — However, High Court granted the remand of police remand, holding that Section 167(2) of the Criminal Procedure Code, given enough power for further investigation Court held that power of remand in terms of Section 167(2) can be exercised only when investigation is not complete — It further held that appellants had been granted bail — They are not in custody of the Court — They could not be taken in custody ordinarily unless their bail is cancelled and High Court was not correct while holding that a further investigation was required and Section 167(2) gives ample power for grant of police custody — Further in the case SIT has already submitted it’s report to the Court — Nothing has been pointed out as to why even the bail granted to appellant should be cancelled — Court, therefore, set aside the order of High Court.
Held :
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 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. [Para 23]
Furthermore in this case the Special Investigating Team has already submitted its report to this Court. Nothing has been pointed out before us as to why even the bail granted to the appellants should be cancelled so as to enable us to consider that question independently. [Para 26]
Law Laid Down :
Once accused are granted bail they can not be taken in custody unless their bail was not cancelled.
S.B. SINHA, J.—Leave granted.
1. Whether with the change of an investigating authority, police custody of the accused on remand can be sought for, although cognizance of the offence had already been taken, is the question involved herein.
2. It arises out of a judgment and order dated 05.09.2009 passed by the High Court of Gujarat at Ahmedabad in Criminal Revision Application No.482 of 2008 setting aside an order dated 23.05.2008 passed by the learned Second Additional Sessions Judge, Himatnagar in Sessions Case No.70 of 2002.
3. Shorn of all unnecessary details the fact of the matter is as under :—
Appellants had been prosecuted for commission of an offence under Sections 302/307/395/396/397/201/435/324/143/147/148/149/153-A/341/337/427 and 120-B of the Indian Penal Code as also under Section 135 of the Bombay Police Act.
4. The occurrence in which the appellant is involved is said to have taken place on 20.08.2002 at Vadvasa Patia Village near Prantij. A first information report was lodged on the same date. During course of investigation all the six appellants were arrested.
5. Indisputably, they were remanded to police custody in terms of Sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’). Upon completion of investigation, a charge sheet was submitted. The matter was committed to the Sessions Court. Cognizance of the offence was taken by the Sessions Judge. They were granted bail by the High Court by an order dated 30th August, 2003.
6. The matter, however, came up before this Court. A Bench of this Court by an order dated 26th March, 2008 passed by in Writ Petition (Crl.) No. 109 of 2003 appointed a Special Investigation Team. Pursuant to or in furtherance of the said direction the State of Gujarat issued a Notification on 1st April, 2008 constituting a Special Investigation Team to investigate into cases arising out of Godhra incident and communal riots erupted thereafter in the year 2002.
In terms of the said Notification the SIT could work out the modalities and the norms required to be followed for the purpose of inquiry/investigation including further investigation.
7. An application was filed on or about 22.05.2008 by one Himanshu Shukla, Assistant Superintendent of Police, seeking remand of the accused for a period of 14 days. The reasons assigned, therefor, were that that offences under some provisions were added and investigation with respect to the said offences from the accused could not be carried out, therefor, in respect of certain points mentioned therein.
8. By reason of a judgment and order dated 23.05.2008 the said application was rejected by the learned Sessions Judge, relevant portion whereof which reads as under:—
“. . . . However at present, this Court cannot entrust the physical custody of accused to the Special Investigation Team for custodial interrogation because in the presence offence, the Hon’ble Gujarat High Court had granted regular bail vide Criminal Miscellaneous Application No. 4115/2002 dated 30/08/2002 and in that bail order imposed certain conditions. Hence without getting cancelled the said regular bail granted by the Hon’ble High Court, this court cannot grant Police remand as the present accused are on bail, hence first of all Special Investigation Team is required to resort the Hon’ble High Court for cancellation of said bail order for Police custody for the purpose of further investigation as directed by the Hon’ble Highest Court of our Land.
14. Therefore, applicant-member of Special Investigation Team directed to approach the Hon’ble High Court to set aside/cancel the said regular bail order passed by the Hon’ble High Court.
15. It is pertinent to note that Police remand can be granted only by the committal court. Therefore, after getting cancellation of bail order, applicant- member of Special Investigation Team is also directed to first of all approach the learned Judicial Magistrate First Class Prantij-committal court for
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