Mithabhai Pashabhai Patel & Ors vs State Of Gujarat
| Case name : Mithabhai Pashabhai Patel & Ors vs State Of Gujarat |
| Equivalent citations : 6 scc 332 |
| Date of judgement : 6 May, 2009 |
| Case no : Criminal appeal No. 941 OF 2009 |
| Case type : Criminal appeal |
| Petitioner : Mithabhi Pashabhai Patel |
| Respondent : State of Gujarat |
| Bench : S.B. Sinha, Mukundakam Sharma |
| Statutes referred : Criminal Procedure code, Indian penal code |
Facts of the case
An FIR was filed against the appellant on the incident that happened in Pratanji. The Police investigated the FIR and arrested the appellant during the course of investigation. He was charged with offences 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 and Section 135 of the Bombay Police Act. After the investigation, police submitted a charge sheet before the court and the court took cognizance of the offense. But the High Court granted bail to the accused. The case came before the supreme court for consideration. The supreme court appointed a special investigation agency to investigate it. During the course of investigation, SIT found a new offence against the accused. Thus, they filed an application for remand of the accused for a period of 14 days. But the application was rejected by the court. It was stated that the accused cannot be taken into custody before cancelling the bail granted by the high court. Thus they approached the High Court. The High Court held that since the SIT is conducting further investigation and new offences were added, they have the right to remand the accused in custody. This judgment of the High court was challenged before the supreme court by the appellant.
Issue of the case
Whether the investigating agency can remand the accused in custody after taking cognizance of the offense?
Arguments raised by the appellant and the respondent
- The learned counsel for the appellant contended that the judgement rendered by the high court allowing the accused to be remanded in custody cannot be sustained. As per the sections 167(3) and 309(2) of code of Criminal Procedures the judgement of the court is not justifiable.
- The learned counsel for the respondent supported the High court judgement. It was submitted that the order of the high court should not be interfered with considering the special facts and circumstances of the case.
Judgement of the case
The court allowed the appeal as the High Court judgement cannot be sustained. There is no sufficient material to cancel the bail of the appellant nor to remand him in custody. So, the supreme court allowed the appeal by setting aside the High Court judgement.
Reason
- The supreme court appointed SIT to further investigate the case, not to re-investigate it. Under section 173(8) of CRPC investigating officer is empowered to conduct further investigation. Further investigation means continuation of an early investigation not a fresh investigation. After completion of investigation a further report should be submitted before the magistrate.
- Remand of the accused can be divided into two stages. Pre-cognizance and post-cognizance stage. The power to order the remand of the accused in the pre-cognizance stage is vested with subordinate courts under section 167(2) of Criminal procedure code.
- The court can only remand the accused under section 167(2) if the investigation is not completed. Once the investigation is completed the accused can be remanded in custody under section 309(2) of code of Criminal procedure. As per this section the accused can be remanded in custody on reasonable ground.
- In Raghubir Singh and others v. State of Bihar the supreme court held that if the accused is granted bail for the default in the part of prosecution in not completing the investigation within 60 days, the prosecution may file for cancellation of the bail after submitting the charge sheet. The bail can be cancelled on reasonable grounds.
- In CBI v. Anupam J. Kulkarni the court held that an accused person who was in police custody can be re-arrested for a different case.
- But, the court set aside the judgement of the High court. The report submitted by SIT lacked the sufficient material to cancel the bail of the accused. So, the court allowed the appeal.
References
https://indiankanoon.org/doc/475211/
written by Poornima Rajasekaran a student of Government Law College, Thrissur, third semester, an intern under Legal Vidhiya
