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2009 (5) TMI 1004 - SC - Indian LawsValidity of Bail granted already - 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? - HELD THAT - The power of remand in terms of the aforementioned provision is to be exercised when investigation is not complete. Once charge-sheet is filed and cognizance of the offence is taken the court cannot exercise its power under Sub-section (2) of Section 167 of the Code. 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 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. 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. No sufficient or cogent material has been placed on record by the State or the Special Investigating Team in this behalf. Thus the impugned judgment cannot be sustained which is set aside accordingly. The appeal is allowed.
Issues Involved:
1. Whether police custody of the accused on remand can be sought with the change of an investigating authority after cognizance of the offence has been taken. 2. Applicability of Section 167(2) and Section 309(2) of the Code of Criminal Procedure, 1973 in the context of further investigation and re-investigation. 3. Validity of the High Court's direction for custodial remand of the appellants. 4. Distinction between further investigation and re-investigation under the Code. Detailed Analysis: 1. Whether police custody of the accused on remand can be sought with the change of an investigating authority after cognizance of the offence has been taken: The Supreme Court examined whether the Special Investigation Team (SIT) could seek police custody of the accused after the Sessions Judge had taken cognizance of the offence. The Court noted that the appellants were initially remanded to police custody under Section 167(2) of the Code and were later granted bail. The High Court had directed the appellants to be remanded to custody, which was challenged. 2. Applicability of Section 167(2) and Section 309(2) of the Code of Criminal Procedure, 1973 in the context of further investigation and re-investigation: The Court highlighted the distinction between Sections 167(2) and 309(2) of the Code. Section 167(2) applies when the investigation is incomplete and allows for police custody up to 15 days. Section 309(2) applies post-cognizance and permits judicial custody. The Court emphasized that once cognizance is taken, Section 167(2) cannot be invoked, and the power of remand must be exercised under Section 309(2). 3. Validity of the High Court's direction for custodial remand of the appellants: The Supreme Court found that the High Court erred in directing custodial remand under Section 167(2) after cognizance had been taken. The Court clarified that the appellants, being on bail, could not be taken into custody without bail cancellation. The High Court's reliance on Section 167(2) was misplaced as further investigation does not automatically warrant police custody. 4. Distinction between further investigation and re-investigation under the Code: The Court differentiated between further investigation and re-investigation, noting that further investigation is permissible under Section 173(8) of the Code, while re-investigation is generally not allowed. The Court cited precedents to underscore that further investigation continues the earlier investigation and does not start afresh. The Court also noted that the SIT's role was to conduct further investigation, not re-investigation. Conclusion: The Supreme Court set aside the High Court's judgment, ruling that the appellants could not be remanded to police custody under Section 167(2) after cognizance was taken. The Court emphasized the correct application of Sections 167(2) and 309(2) and the distinction between further investigation and re-investigation. The appeal was allowed, and the interim direction was made absolute, subject to further orders by the Sessions Judge.
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