INTRODUCTION :
Name of the case: Mithabhai Pashabhai Patel & Ors vs State Of Gujarat
Date of judgment: 6 May, 2009
Bench : S.B. Sinha, Mukundakam Sharma
With the introduction of a look into positions of power, the issue at hand is whether the police’s custody of the person charged on remand can be requested despite the fact that cognizance of the crime in question had already been taken.
It comes from a ruling and order dated September 5, 2009, handed down by the High Court of Gujarat in Ahmedabad in Criminal Revision Application No.482 of 2008, which set aside an order dated May 23, 2008, announced in Sessions Case No.70 of 2002 by the eminent Second Additional Sessions Judge, Himatnagar.
FACTS OF THE CASE :
The Indian Penal Code’s Sections 302/307/395/396/397/201/435/324/143/147/148/149/153-A/341/337/427 and 120-B, as well as Section 135 of the Bombay Police Act, had been utilized in order to prosecute the appellants for the commission of an offense.
The incident in which the complainant is charged is alleged to have taken place on August 20, 2002, in the Vadvasa Patia Village surrounding area near Prantij. On the same day, an initial report of information was filed. Throughout the course of the investigation, all six appellants were taken into custody.
In compliance with subsection (2) of Section 167 of the Code of Criminal Procedure, 1973 (from here on out referred to as “the Code”), they were unquestionably remanded to police custody. After the investigation concluded an accusations sheet was presented. The Sessions Court was designated to hear the case. The Sessions Judge acknowledged accountability for the offense. By order dated August 30, 2003, the High Court granted them bail.
But the issue had been brought before this Court. A Special Investigation Team has been established by an order dated March 26, 2008, handed down by a Bench of this Court in Writ Petition (Crl.) No. 109 of 2003. The State of Gujarat made a Notification on April 1st, 2008 pursuant to or in furtherance of the previously mentioned direction, determining a Special Investigation Team to look into cases pertaining to the Godhra incident and the following communal riots that were created during the year 2002.
The SIT might establish the rules and regulations that must be subsequently followed for the goal of the mentioned previously notification’s investigation, including additional investigation.
The request for the accused’s 14-day remand had been submitted approximately on May 22, 2008, by one Himanshu Shukla, the assistant superintendent of police. The reasons considered were that new violations under particular laws had been added and that it was impractical to conduct an investigation into the newly introduced offenses from the perspective of the accused due to an assortment of components.
CONTENTIONS FROM BOTH THE PARTIES :
Before the High Court, the respondent submitted a revision petition in opposition to the government. Due to the decision being challenged, the High Court invalidated the Sessions Judge’s ruling and ordered that the the applicants be remanded in custody.
In his appearance as a representative of the appellants, Mr. Nikhil Goel, an experienced attorney, would argue that the impugned judgment cannot be upheld in light of the provisions in Sections 167(2) and 309(2) of the Criminal Code.
On the other hand, Ms. K. Enatoli Sema, felt counsel appearing on behalf of the respondent-State, urged that the decision of the High Court shouldn’t be tampered with given the particular circumstances and facts of the present matter.
HIGH COURT’s OPINION :
Further investigation must be conducted given the makeup of the Special Investigating Team, and Section 167(2) of the Code offers ample responsibility for a further investigation.
Given the specifics and circumstances of the case, further investigation will be required because the initial examination was done in the most naive way necessary.
Since new sections have been stated that more research or investigation into the matter would need to be done, and the agency conducting the investigation cannot be denied the right to do so or to have custody regarding the appellants. It should be noted that the applicants had been provided bail would not matter for the aforementioned purpose.
In a situation like this, the Code’s Section 167 (2) would apply as opposed to the proviso attached to Section 309 (2).
POWER TO POSTPONE TO ADJOURN PROCEEDINGS :
If the court determines that it is appropriate or necessary to delay the commencement of an inquiry or trial after implementing awareness of the offense or the start of the trial, it may occasionally, for explanations to be written down, postpone or adjourn the same on the terms it sees appropriate, for an amount of time it considers reasonable, and may, by a warrant, remand the accused person if in custody:
With the caveat that no Magistrate is allowed to keep an accused person in custody pursuant to this section for a period longer than fifteen days at a duration:
Furthermore, no adjournment or postponement will be granted when witnesses are present without their examination, unless there are special reasons that must be specified in writing: Furthermore, no adjournment will be allowed solely to allow the accused to raise disagreements to the proposed punishment that would have been handed down to him.
Explanation 1: It is an adequate justification for a remand if there has been sufficient evidence to raise the possibility that the accused person may have carried out an offense and it shows up likely that more confirmation will be acquired through a remand.
Explanation 2: In the appropriate situation, the terms of an adjournment or postponement may include the reimbursement of costs by the accused or the prosecution.
It seems like there is a discrepancy between the power of remand according to subsection (2) of Section 167 and subsection (2) of Section 309 of the Code.
FINAL VERDICT :
It is clear from a plain reading of Subsection (2) and Subsection (8) of Section 173 that the police have the right to “further” investigation under Subsection (8) of Section 173, but not “fresh investigation” or “reinvestigation” even after submission of the police report under Subsection (2) upon completion of the investigation.
The word “Further” has the connotations of additional, more, or supplemental. Therefore, a “further” investigation is the continuation of an earlier investigation rather than a new investigation or reinvestigation that would start from scratch and completely overwrite the earlier investigation.
According to Subsection (8) of Section 173, the investigating agency must provide the Magistrate with a “further” report, not a new report, regarding the “further” evidence discovered during the investigation.
Additionally, the Special Investigating Team has already turned in its report to the Court in this case. Nothing has been presented to us as a reason why even the bail granted to the appellants should be revoked so that we may independently consider that issue.
Neither the State nor the Special Investigating Team have submitted any adequate or convincing evidence in this regard.
The contested judgment is overturned because it cannot be upheld for the aforementioned reasons. Appellation is accepted.
The interim directive is, however, made absolute subject to any other or subsequent orders that may be passed by the Sessions Judge until an additional charge sheet, if any, is filed by the Special Investigating Agency before the learned Sessions Judge in accordance with the peculiar facts and circumstances of this case, as per our authority under Article 142 of the Constitution of India.
CONCLUSION :
No Second Class Magistrate, unless specifically authorized in this regard by the High Court, shall authorize detention in police custody. For the sake of clarity, it is hereby stated that the accused will remain in custody as long as he does not post bail, even after the time frame outlined in paragraph (a) has passed.
When an investigation is ongoing, the right to remand under the aforementioned provision must be used. The court cannot exercise its authority under Section 167 of the Code’s subsection (2) once a charge sheet has been filed and cognizance of the offense has been granted. Then, it can use its remand authority in accordance with Section 309’s subsection (2).
This article is written by Rimi Aggarwal of Manipal University, Jaipur, an intern under Legal Vihdiya
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