# PRADEEP RAM v. THE STATE OF JHARKHAND & ANR

- **Citation:** [2019] 8 S.C.R. 824
- **Court:** Supreme Court of India
- **Decided:** 2019-07-01
- **Case number:** Criminal Appeal Nos. 816-817 of 2019
- **Bench:** Ashok Bhushan, K. M. Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pradeep-ram-v-the-state-of-jharkhand-anr-33951
- **Pages:** 45

## Headnote

Code of Criminal Procedure, 1973:
ss. 437(5) and 439(2) - Arrest of accused who was on bail -
After addition of further cognizable and non-bailable offence -
Whether permissible without seeking cancellation of the bail earlier
granted - Held: The court in exercise of power u/ss. 437(5) and
439(2) can direct arrest of accused who was already on bail, after
addition of graver and non-cognizable offences, even without
cancelling earlier bail - It is not open to the investigating authority
to proceed to arrest without the permission of the Court, on addition
of further offences - In the present case, the investigating agency
had approached the Court seeking arrest of the accused after
addition of further offences - There was no error in the procedure
adopted by Special Judge in remanding the accused to judicial
custody.
s. 167 and 309(2) - Remand of accused to judicial custody -
In a case where cognizance has already been taken by the Chief
Judicial Magistrate - Whether has to be in exercise of power u/s.
167 or u/s. 309(2) - Held: Accused can be remanded u/s. 167(2)
during investigation till cognizance is taken by the Court - After
cognizance has been taken and the accused was in custody at the
time of taking cognizance or when inquiry or trial was being held
in respect of him, he can be remanded to judicial custody only u/s.
309(2) - Thus, in the present case, accused could have been
remanded only u/s. 309(2)- However, the remand order in the present
case, does not mention the provision under which remand was
granted - Therefore, the remand order has to be treated as order
passed in exercise of power u/s. 309(2).
 [2019] 8 S.C.R. 824
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FIR:
Re-registration of FIR - After addition of offences under
Unlawful Activities (Prevention) Act, to the FIR - Whether barred
being a second FIR - Held: Second FIR with regard to the same
offences is barred - But, in the facts of the present case, reregistration of the FIR cannot be called second FIR - It was, in
fact, re-registration of FIR to give effect to the provisions of National
Investigation Agency Act - Therefore, re-registration of FIR was
not barred.
Investigation:
Further investigation - By National Investigation Agency
(NIA) - On addition of further offences under Unlawful Activities
(Prevention) Act, 1967 in the FIR - After investigation in the previous
FIR was over - Permissibility - Held: Investigation by NIA was
permissible as offences under 1967 Act were not added when charges
were framed in the previous FIR - Even u/s. 173(2) of Cr.P.C., it is
open to the police authorities to conduct further investigation and
submit a report u/s. 173(8) - There was no lack of jurisdiction in
NIA to carry on further investigation and submit a supplementary
report in the facts of the present case - Criminal Procedure Code,
1973 - s. 173(2) and (8).
Dismissing the appeals, the Court
HELD : 1.1 Both Sections 437(5) and 439(2) of Cr.P.C.
empowers the Court to arrest an accused and commit him to
custody, who has been released on bail under Chapter XXXIII.
There may be numerous grounds for exercise of power under
Sections 437(5) and 439(2). A person against whom serious
offences have been added, who is already on bail can very well be
directed to be arrested and committed to custody by the Court in
exercise of power under Sections 437(5) and 439(2). Cancelling
the bail granted to an accused and directing him to arrest and
taken into custody can be one course of the action, which can be
adopted while exercising power under Sections 437(5) and 439(2),
but there may be cases where without cancelling the bail granted
to an accused, on relevant consideration, Court can direct the
accused to be arrested and committed to custody. The addition
of serious offences is one of such circumstances, under which
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the Court can direct the accused to be arrested and committed
to cu

## Text

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PRADEEP RAM
v.
THE STATE OF JHARKHAND & ANR.
(Criminal Appeal Nos. 816-817 of 2019)
JULY 01, 2019
[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
Code of Criminal Procedure, 1973:
ss. 437(5) and 439(2) - Arrest of accused who was on bail -
After addition of further cognizable and non-bailable offence -
Whether permissible without seeking cancellation of the bail earlier
granted - Held: The court in exercise of power u/ss. 437(5) and
439(2) can direct arrest of accused who was already on bail, after
addition of graver and non-cognizable offences, even without
cancelling earlier bail - It is not open to the investigating authority
to proceed to arrest without the permission of the Court, on addition
of further offences - In the present case, the investigating agency
had approached the Court seeking arrest of the accused after
addition of further offences - There was no error in the procedure
adopted by Special Judge in remanding the accused to judicial
custody.
s. 167 and 309(2) - Remand of accused to judicial custody -
In a case where cognizance has already been taken by the Chief
Judicial Magistrate - Whether has to be in exercise of power u/s.
167 or u/s. 309(2) - Held: Accused can be remanded u/s. 167(2)
during investigation till cognizance is taken by the Court - After
cognizance has been taken and the accused was in custody at the
time of taking cognizance or when inquiry or trial was being held
in respect of him, he can be remanded to judicial custody only u/s.
309(2) - Thus, in the present case, accused could have been
remanded only u/s. 309(2)- However, the remand order in the present
case, does not mention the provision under which remand was
granted - Therefore, the remand order has to be treated as order
passed in exercise of power u/s. 309(2).
 [2019] 8 S.C.R. 824
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FIR:
Re-registration of FIR - After addition of offences under
Unlawful Activities (Prevention) Act, to the FIR - Whether barred
being a second FIR - Held: Second FIR with regard to the same
offences is barred - But, in the facts of the present case, reregistration of the FIR cannot be called second FIR - It was, in
fact, re-registration of FIR to give effect to the provisions of National
Investigation Agency Act - Therefore, re-registration of FIR was
not barred.
Investigation:
Further investigation - By National Investigation Agency
(NIA) - On addition of further offences under Unlawful Activities
(Prevention) Act, 1967 in the FIR - After investigation in the previous
FIR was over - Permissibility - Held: Investigation by NIA was
permissible as offences under 1967 Act were not added when charges
were framed in the previous FIR - Even u/s. 173(2) of Cr.P.C., it is
open to the police authorities to conduct further investigation and
submit a report u/s. 173(8) - There was no lack of jurisdiction in
NIA to carry on further investigation and submit a supplementary
report in the facts of the present case - Criminal Procedure Code,
1973 - s. 173(2) and (8).
Dismissing the appeals, the Court
HELD : 1.1 Both Sections 437(5) and 439(2) of Cr.P.C.
empowers the Court to arrest an accused and commit him to
custody, who has been released on bail under Chapter XXXIII.
There may be numerous grounds for exercise of power under
Sections 437(5) and 439(2). A person against whom serious
offences have been added, who is already on bail can very well be
directed to be arrested and committed to custody by the Court in
exercise of power under Sections 437(5) and 439(2). Cancelling
the bail granted to an accused and directing him to arrest and
taken into custody can be one course of the action, which can be
adopted while exercising power under Sections 437(5) and 439(2),
but there may be cases where without cancelling the bail granted
to an accused, on relevant consideration, Court can direct the
accused to be arrested and committed to custody. The addition
of serious offences is one of such circumstances, under which
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the Court can direct the accused to be arrested and committed
to custody despite the bail having been granted with regard to
the offences with which he was charged at the time when bail was
considered and granted. [Para 21] [841-D-G]
1.2 Sub-section (5) of Section 437 of Cr.P.C uses expression
'if it considers it necessary so to do, direct that such person be
arrested and commit him to custody'. Similarly, sub-section (2)
of Section 439 of Cr.P.C. provides: 'may direct that any person
who has been released on bail under this Chapter be arrested
and commit him to custody'. A plain reading of the aforesaid
provisions indicates that provision does not mandatorily provide
that the Court before directing arrest of such accused who has
already been granted bail must necessary cancel his earlier bail.
A discretion has been given to the Court to pass such orders to
direct for such person be arrested and commit him to the custody
which direction may be with an order for cancellation of earlier
bail or permission to arrest such accused due to addition of graver
and non-cognizable offences. [Para 25] [843-H; 844-A-D]
1.3 It may be true that by mere addition of an offence in a
criminal case, in which accused is bailed out, investigating
authorities itself may not proceed to arrest the accused and need
to obtain an order from the Court, which has released the accused
on the bail. It is also open for the accused, who is already on bail
and with regard to whom serious offences have been added to
apply for bail in respect of new offences added and the Court
after applying the mind may either refuse the bail or grant the
bail with regard to new offences. In a case, bail application of the
accused for newly added offences is rejected, the accused can
very well be arrested. In all cases, where accused is bailed out
under orders of the Court and new offences are added including
offences of serious nature, it is not necessary that in all cases
earlier bail should be cancelled by the Court before granting
permission to arrest an accused on the basis of new offences.
The power under Sections 437(5) and 439(2) are wide powers
granted to the court by the Legislature under which Court can
permit an accused to be arrested and commit him to custody
without even cancelling the bail with regard to earlier offences.
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Sections 437(5) and 439(2) cannot be read into restricted manner
that order for arresting the accused and commit him to custody
can only be passed by the Court after cancelling the earlier bail.
[Para 27] [845-C-F]
1.4 The appellant in the present case was already into jail
custody with regard to another case and the investigating agency
applied before Special Judge, NIA Court to grant production
warrant to produce the accused before the Court. The Special
Judge having accepted the prayer of grant of production warrant,
the accused was produced before the Court on 26.06.2018 and
remanded to custody. Thus, in the present case, production of
the accused was with the permission of the Court. Thus, the
present is not a case where investigating agency itself has taken
into custody the appellant after addition of new offences rather
accused was produced in the Court in pursuance of production
warrant obtained from the Court by the investigating agency.
Thus there is no error in the procedure which was adopted by
the Special Judge, NIA Court with regard to production of
appellant before the Court. In the facts of the present case, it
was not necessary for the Special Judge to pass an order
cancelling the bail dated 10.03.2016 granted to the appellant
before permitting the accused appellant to be produced before it
or remanding him to the judicial custody. [Para 28] [845-F-H;
846-A-B]
1.5 In a circumstance where, after grant of bail to an accused,
further cognizable and non-bailable offences are added:- (i) The
accused can surrender and apply for bail for newly added
cognizable and non-bailable offences. In event of refusal of bail,
the accused can certainly be arrested. (ii) The investigating
agency can seek order from the court under Section 437(5) or
439(2) of Cr.P.C. for arrest of the accused and his custody. (iii)
The Court, in exercise of power under Section 437(5) or 439(2)
of Cr.P.C., can direct for taking into custody the accused who has
already been granted bail after cancellation of his bail. The Court
in exercise of power under Section 437(5) as well as Section
439(2) can direct the person who has already been granted bail
to be arrested and commit him to custody on addition 'of' graver
and non-cognizable offences which may not be necessary always
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with order of cancelling of earlier bail. (iv) In a case where an
accused has already been granted bail, the investigating authority
on addition of an offence or offences may not proceed to arrest
the accused, but for arresting the accused on such addition of
offence or offences it need to obtain an order to arrest the accused
from the Court which had granted the bail. [Para 29] [846-B-G]
Prahlad Singh Bhati v. NCT, Delhi and Another (2001)
4 SCC 280 : [2001] 2 SCR 684 ; Hamida v. Rashid
alias Rasheed and Others (2008) 1 SCC 474 : [2007] 5
SCR 937 - relied on.
Sukhpal v. State of Rajasthan 1988 (1) RLW 283 ;
Dhivan v. State (2010) 2 MWN (Cr.) ; Dhivan v. State
(2010) 2 MWN (Cr.) ; Bijendra and Ors. v. State of
U.P. and Ors. (2006) CriLJ 2253 ; Bankey Lal
Sharma v. State of U.P. and Ors. (2008) CriLJ 3779
- approved.
Sita Ram Singh and Anr. v. State of Bihar 2002 (2) BLJR
859 ; Fayaz Ahmad Khan and Ors. v. State CRMC
No. 270/2018 ; Mithabhai Pashabhai Patel and others
v. State of Gujarat (2009) 6 SCC 332 : [2009] 7 SCR
1126 ; Manoj Suresh Jadhav & Ors. v. The State of
Maharashtra SLP (Crl.) No. 10179 of 2017 - referred
to.
2.1 There cannot be any dispute to the proposition that
second FIR with regard to same offences is barred. In the present
case, the charge-sheet in the case Crime No.02/2016 (earlier
FIR) was submitted by the investigating agency on 10.03.2016
and cognizance was taken on 11.03.2016. Charges were framed
on 19.09.2016. The offences under Unlawful Activities
(Prevention) Act, 1967 were added for the first time on
09.04.2017. Thus, there was no occasion for investigation of
offences under Unlawful Activities (Prevention) Act, 1967 prior
to April, 2017. The charge-sheet dated 10.03.2016 and charges
framed on 19.09.2016 were not with respect to offences under
Unlawful Activities (Prevention) Act, 1967, thus, when the Central
Government directed the NIA to investigate the offence under
scheduled offences, NIA was fully competent to investigate the
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offences and submit a supplementary report. Present is not a
case where any charges for offences punishable under the
Unlawful Activities (Prevention) Act, 1967 were available prior
to April, 2017. Thus, NIA was fully competent to investigate
further in the case as per the directions issued by the Central
Government vide order dated 13.02.2018. [Para 42] [855-C-E]
T.T. Antony v. State of Kerala and Others (2001) 6 SCC
181 : [2001] 3 SCR 942 ; Babubhai v. State of Gujarat
and Others (2010) 12 SCC 254 : [2010] 10 SCR 651 ;
Chirra Shivraj v. State of Andhra Pradesh (2010) 14
SCC 444 : [2010] 15 SCR 673 ; Amitbhai Anilchandra
Shah v. Central Bureau of Investigation & Anr. (2013)
6 SCC 348 : [2013] 6 SCR 623 - referred to.
2.2 Sub-section (6) of Section 6 of the NIA Act Section 6
prohibits State Government or any police officer of the State
Government to proceed with the investigation. In the present
case, when order was issued by Central Government on
13.02.2018, it was not competent for police officer of the State
Government to proceed with the investigation. Therefore, the
FIR, which was re-registered by NIA on 16.02.2018 cannot be
held to be second FIR of the offences rather it was re-registration
of the FIR to give effect to the provisions of the NIA Act and reregistration of the FIR is only procedural act to initiate the
investigation and the trial under the NIA Act. The re-registration
of the FIR, thus, is neither barred nor can be held that it is second
FIR. [Para 43] [855-F-G]
3. It cannot be said that NIA cannot conduct any
investigation or submit any report, since investigation was already
completed and charge sheet was submitted, because the charge
sheet was submitted on 16.03.2016 and charges were framed on
19.09.2016 by which date offences under Unlawful Activities
(Prevention) Act, 1967 were not even added. The Scheme as
delineated by Section 173 Cr.P.C. itself indicates that even after
report under Section 173(2) is submitted, it is always open for
the police authorities to conduct further investigation and collect
both documentary and oral evidence and submit a report under
Section 173(8). Thus, there is no lack of jurisdiction in NIA to
PRADEEP RAM v. THE STATE OF JHARKHAND & ANR.
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carry on further investigation and submit a supplementary report
in the facts of the present case. [Paras 44 and 47] [856-A-C;
858-E]
Vinay Tyagi v. Irshad Ali alias Deepak and Others
(2013) 5 SCC 762 : [2012] 13 SCR 1005 ; Amrutbhai
Shambhubhai Patel v. Sumanbhai Kantibhai Patel and
Others (2017) 4 SCC 177 : [2017] 4 SCR 105 - relied
on.
4.1 The accused can be remanded under Section 167(2)
Cr.P.C during investigation till cognizance has not been taken by
the Court. Even after taking cognizance when an accused is
subsequently arrested during further investigation, the accused
can be remanded under Section 167(2) Cr.P.C. When cognizance
has been taken and the accused was in custody at the time of
taking cognizance or when inquiry or trial was being held in
respect of him, he can be remanded to judicial custody only under
Section 309(2) Cr.P.C. Thus, in the present case, accused could
have been remanded only under Section 309(2) Cr.P.C. [Paras
63 (i) (ii) (iii) and 63] [866-H; 867-B]
Gouri Shankar Jha v. State of Bihar and others 1972
(1) SCC 564 : [1972] 3 SCR 129 ; Central Bureau of
Investigation, Special Investigation Cell-I, NewDe l hi
v. Anupam J. Kulkarni (1992) 3 SCC 141 : [1992] 3
SCR 158 ; Dinesh Dalmia v. Central Bureau of
Investigation (2007) 8 SCC 770 : [2007] 9 SCR 1124 ;
Mithabhai Pashabhai Patel and Others v. State of
Gujarat (2009) 6 SCC 332 : [2009] 7 SCR 1126
- relied on.
State through CBI v. Dawood Ibrahim Kaskar and
Others (2000) 10 SCC 438 : [1997] 1 Suppl. SCR 212
- distinguished.
Mohd. Ahmed Yasin Mansuri v. State of Maharashtra
1994 Crl.LJ 1854 (Bom.) - referred to.
4.2 In the present case, the special Judge in his remand
order has neither referred to Section 309 nor Section 167 Cr.P.C.
under which accused was remanded. When the Court has power
to pass a particular order, non-mention of provision of law or
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wrong mention of provision of law is inconsequential. As the special
Judge could have only exercised power under Section 309(2),
the remand order dated 25.06.2018 has to be treated as remand
order under Section 309(2) Cr.P.C. The special Judge being
empowered to remand the accused under Section 309(2) in the
facts of the present case, there is no illegality in the remand order
dated 25.06.2018 when the accused was remanded to the judicial
custody. The High Court, thus, committed error in holding that
the order of remand dated 25.06.2018 was in exercise of
power under Section 167 Cr.P.C. [Paras 65 and 66] [867-G-H;
868-A-B]
Case Law Reference
2002 (2) BLJR 859
referred to
Para 10
[2001] 2 SCR 684
relied on
Para 10
1988 (1) RLW 283
approved
Para 11
(2010) 2 MWN (Cr.)
approved
Para 12
(2006) CriLJ 2253
approved
Para 13
(2008) CriLJ 3779
approved
Para 14
CRMC No. 270/2018
referred to
Para 15
[2007] 5 SCR 937
relied on
Para 17
[2009] 7 SCR 1126
referred to
Para 23
SLP (Crl.) No.10179 of 2017 referred to
Para 26
[2001] 3 SCR 942
referred to
Para 32
[2010] 10 SCR 651
referred to
Para 32
[2010] 15 SCR 673
referred to
Para 32
[2013] 6 SCR 623
referred to
Para 32
[2012] 13 SCR 1005
relied on
Para 44
[2017] 4 SCR 105
relied on
Para 45
[1972] 3 SCR 129
relied on
Para 52
[1992] 3 SCR 158
relied on
Para 53
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[1997] 1 Suppl. SCR 212
distinguished
Para 54
1994 Crl.LJ 1854 (Bom.)
referred to
Para 54
[2007] 9 SCR 1124
relied on
Para 58
[2009] 7 SCR 1126
relied on
Para 60
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 816-817 of 2019.
From the Judgment and Order dated 26.09.2018 of the High Court
of Jharkhand at Ranchi in W.P. (Crl.) No. 277 of 2018 and Cr.M.P. No.
1114 of 2016.
Abhinav Mukerji, Ms. Bihu Sharma, Siddharth Garg,
Ms. Pratishtha Vij, Advs. for the Appellant.
Aman Lekhi, ASG, Tapesh Kumar Singh, Aditya N. Das,
Aditya Pratap Singh, Ms. Suhasini Sen, Rajat Nair, Ms. Kanu Agarwal
(for B. V. Balaram Das), Advs. for the Respondents.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. These appeals have been filed against the judgment dated
26.09.2018 of High Court of Jharkhand dismissing the Writ Petition (Crl.)
No. 277 of 2018 and Crl. Misc. Petition No. 1114 of 2016 under Section
482 Cr.P.C. filed by the appellant.
2. Brief facts of the case and sequence of events are:-
2.1 On 11.01.2016, a First Information Report No. 02/2016,
Police Station Tandwa was lodged for offences under
Sections 414, 384, 386, 387, 120-B I.P.C. read with Sections
25(1-B)(a), 26, 35 of the Arms Act and Section 17(1) and
(2) of the Criminal Law Amendment Act. Apart from
petitioner, there were 11 other named accused.
The allegations made against the accused were that
applicant by showing fear of extremist of TPC Group
recovered levy from the contractors, transporters and coal
businessman. It was also alleged that on information
received from a co-accused, a search was also conducted
in the house of the appellant, during which search, an amount
of Rs.57,57,510/- was recovered from the bag kept in the
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room of the appellant alongwith four mobiles. No
satisfactory explanation was given by the appellant.
2.2 By order dated 10.03.2016, the appellant was granted regular
bail by the High Court after he was taken into custody. On
10.03.2016, a charge sheet was submitted under Sections
414, 384, 386, 387, 120-B I.P.C. read with Sections 25(1B)(a), 26, 35 of the Arms Act and Sections 17(1) and (2) of
the Criminal Law Amendment Act. Chief Judicial
Magistrate, Chatra took cognizance of the offences under
Sections 414, 384, 386, 387, 120-B I.P.C. read with Sections
25(1-B)(a), 26, 35 of the Arms Act and Section 17(1) and
(2) of the Criminal Law Amendment Act on 11.03.2016. A
Crl.M.P. No. 1114 of 2016 was filed by the appellant on
10.05.2016 in the High Court under Section 482 Cr.P.C.
praying for quashing the entire criminal proceeding including
the order taking cognizance dated 11.03.2016. On
19.09.2016, the Chief Judicial Magistrate framed charges
against the appellant under Sections 414, 384, 386, 387, 120B I.P.C. Charges were also framed under Sections 25(1B)(a), 26, 35 of the Arms Act as well as under Section
17(1) and (2) of the Criminal Law Amendment Act. The
High Court passed an interim order on 15.12.2016 staying
the further proceedings in Tandwa P.S. Case No.2/2016.
2.3 On the prayer made by the Investigating Officer on
09.04.2017, offences under Sections 16, 17, 20 and 23 of
the Unlawful Activities (Prevention) Act, 1967 were added
against the accused. Central Government issued an order
dated 13.02.2018 in exercise of power conferred under subsection 5 of Section 6 read with Section 8 of the National
Investigation Agency Act, 2008 suo-moto directing the
National Investigation Agency to take up investigation of
case F.I.R. No.02/2016, in which Sections 16, 17, 20 and
23 of the Unlawful Activities (Prevention) Act, 1967 were
added, which were scheduled offences. In pursuance of
the order of the Central Government dated 13.02.2018,
National Investigation Agency re-registered the First
Information Report as FIR No.RC-06/2018/NIA/DLI dated
16.02.2018 under the above noted sections. The appellant
being under custody in some other case, request was made
PRADEEP RAM v. THE STATE OF JHARKHAND & ANR.
[ASHOK BHUSHAN, J.]
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on behalf of the National Investigating Agency before the
Special Judge, NIA, Ranchi on 22.06.2018 praying for
issuance of production warrant. The Special Judge allowed
the prayer. Consequently, the appellant was produced from
Chatra Jail on 25.06.2018 and was remanded to judicial
custody by order of Special Judge dated 25.06.2018.
2.4 A Writ Petition (Crl.) No.277 of 2018 was filed by the
appellant praying for quashing the entire criminal
proceedings in connection with Special NIA Case No.03 of
2018 including the First Information Report being No.RC06/2018/NIA/DLI. A further prayer was also made for
quashing the order dated 25.06.2018 remanding the appellant
to the judicial custody by order of the Judicial Commissionercum-Special Judge, NIA, Ranchi. The High Court by the
impugned judgment dated 26.09.2018 dismissed both, the
Writ Petition (Crl.) No.277 of 2018 as well as Crl.M.P.
No.1114 of 2016, aggrieved against which judgment, these
appeals have been filed by the appellant.
3. We have heard Shri Abhinav Mukherji, learned counsel
appearing for the appellant and Shri Aman Lekhi, learned Additional
Solicitor General for the Union of India. We have also heard learned
counsel appearing for the State of Jharkhand.
4. Learned counsel for the appellant submits that investigation
against the appellant in P.S. Case No.02 of 2016 having been completed
and charge sheet having been submitted by the investigating agency on
10.03.2016, NIA could not have registered second F.I.R. on 16.02.2018
being FIR No.RC-06/2018/NIA/DLI. It is submitted that the Special
Judge committed error in passing the order dated 25.06.2018 remanding
the appellant to judicial custody under Section 167 Cr.P.C. When
cognizance has already been taken on 11.03.2016, order could have only
been passed under Section 309 Cr.P.C. It is submitted that by reregistration of the F.I.R., NIA cannot carry on any re-investigation into
the offence incorporated in the F.I.R. dated 10.03.2016. It is further
submitted that appellant having been already granted bail on 10.03.2016,
he cannot be re-arrested by virtue of addition of new offences under
Sections 16, 17, 20 and 23 of the Unlawful Activities (Prevention) Act,
1967. The only course open for the NIA was to file an application for
cancellation of the bail dated 10.03.2016. It was only after cancellation
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of the bail that appellant could have been re-arrested or taken into judicial
custody.
5. Learned ASG refuting the submissions of the counsel for the
appellant contends that present is not a case of registration of any second
F.I.R. It is submitted that NIA has only re-registered the F.I.R. as per
the provisions of National Investigation Agency Act, 2008. The reregistration of the F.I.R. by NIA cannot be said to be a second F.I.R. It
is further submitted that the mere fact that charge sheet has been
submitted in P.S. Case No.02 of 2016 and cognizance has been taken by
the Chief Judicial Magistrate shall not preclude the NIA from carrying
out further investigation and submit a supplementary report. It is submitted
that by virtue of Section 173(8) of Cr.P.C., even when report under
Section 173(2) is submitted, the investigation agency can carry on further
investigation and collect oral or documentary evidence and submit a
supplementary report. It is further submitted that as per the NIA Act,
when scheduled offence is committed, the investigation is handed over
to different investigation agency. Present is a case where scheduled
offences were committed and have already been added in P.S. Case
No.02/2016 for which it is NIA, which has to carry on the investigation
as per the order of the Central Government dated 13.02.2018. There is
no lack of jurisdiction in the NIA to conduct further investigation and
submit a supplementary report. It is further submitted that NIA has
concluded the investigation and already submitted a charge sheet on
21.12.2018. Whenever a scheduled offence is reported, the Central
Government has a wide amplitude of power to direct the NIA to investigate
into such offence and while taking over the investigation, the FIR is reregistered, as only the nomenclature changes. It is further submitted
that the bail granted to the appellant on 10.03.2016 in P.S. Case No. 02
of 2016 cannot enure to the benefit of the appellant in reference to
offences under Sections 16, 17, 20 and 23 of the Unlawful Activities
(Prevention) Act, 1967. The appellant had to apply for grant of fresh
bail in respect of newly added offences. It is further submitted that the
Special Judge has rightly remanded the appellant exercising power under
Section 167 Cr.P.C., during further investigation by NIA. The mere fact
that the cognizance was taken earlier by Chief Judicial Magistrate cannot
preclude the Special Judge to exercise power under Section 167 Cr.P.C.
for further investigation by NIA.
6. Learned counsel for the parties in support of their respective
submissions placed reliance on various judgments of this Court as well
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as judgments of High Courts, which shall be considered while considering
the submissions in detail.
7. From the submissions of the learned counsel for the parties and
the pleadings on the record, following are the issues, which arise for
consideration in these appeals:-
(i)
Whether in a case where an accused has been bailed out in
a criminal case, in which case, subsequently new offences
are added, is it necessary that bail earlier granted should be
cancelled for taking the accused in custody?
(ii)
Whether re-registration of F.I.R. No.RC-06/2018/NIA/DLI
is a second F.I.R. and is not permissible there being already
a FIR No. 02/2016 registered at P.S. Tandwa arising out of
same incident?
(iii) Whether N.I.A. could conduct any further investigation in
the matter when investigation in the P.S. Case No.02/2016
having already been completed and charge sheet has been
submitted on 10.03.2016 with regard to which cognizance
has already been taken by Chief Judicial Magistrate, Chatra
on 11.03.2016?
(iv) Whether the order dated 25.06.2018 passed by Judicial
Commissioner-cum-Special Judge, NIA, Ranchi remanding
the appellant to judicial custody is in accordance with law?
(v) Whether the power under Section 167 Cr.P.C. can be
exercised in the present case, where the cognizance has
already been taken by Chief Judicial Magistrate on
11.03.2016 or the accused could have been remanded only
under Section 309(2) Cr.P.C.?
Issue No.1
8. In the facts of the present case, appellant was granted bail on
10.03.2016 in F.I.R. No.02/2016 under Sections 414, 384, 386, 387, 120B I.P.C. read with Sections 25(1-B)(a), 26, 35 of the Arms Act and
Section 17(1) and (2) of the Criminal Law Amendment Act. In the
present case, the appellant was not arrested by the investigation agency
after addition of Sections 16, 17, 20 and 23 of the Unlawful Activities
(Prevention) Act, 1967, rather he was already in jail in connection with
some other case and an application was filed in the Court of Special
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Judge by the prosecution praying for production warrant, which
application having been allowed, the appellant was produced in the Court
on 26.06.2018 and was remanded in judicial custody.
9. The question, as to whether when an accused is bailed out in a
criminal case, in which new offences have been added, whether for
arresting the accused, it is necessary to get the bail cancelled, has arisen
time and again, there are divergent views of different High Courts on
the above question. On one side, the High Courts have taken the view
that for arresting the accused, who is already on bail, in event of addition
of new offences, the earlier bail need to be cancelled whereas the other
line of opinion is that for new offences accused has to obtain a fresh bail
order and the earlier bail order shall not enure to the benefit of the accused.
10. Learned counsel for the parties have also relied on several
judgments of different High Courts in regard to the circumstance when
new cognizable and non-bailable offences are added. We may briefly
refer to few of the decisions of the High Courts in the above regard.
Patna High Court in Sita Ram Singh and Anr. Vs. State of Bihar,
2002 (2) BLJR 859 had considered the case where case was initially
instituted under Section 307 I.P.C. FIR was lodged on 24.08.2000 under
Section 307 I.P.C. The accused was granted bail on 01.09.2000.
Thereafter, due to death of the injured on 06.09.2000, Section 302 I.P.C.
was added. Informant had applied for cancellation of the bail. The bail
earlier granted was cancelled in view of subsequent development. In
the above context, Patna High Court relying on judgment of this Court in
Prahlad Singh Bhati Vs. NCT, Delhi and Another, (2001) 4 SCC
280 held that on a serious change in the nature of the offence, the
accused becomes disentitled to the liberty granted to him in relation to a
minor offence and in such circumstances, the correct approach of the
Court concerned would be to apply its mind afresh as to whether the
accused is entitled for grant of bail, in the changed circumstances.
11. Rajasthan High Court in Sukhpal Vs. State of Rajasthan,
1988 (1) RLW 283 has also made following observations in paragraph
No.4:-
"4. I am, therefore, of the opinion that the legal position is beyond
doubt that once an accused is ordered to be released on bail under
any of the Section of Chapter XXXIII of the Cr.P.C. the police
had no power to arrest him by merely adding another section
which may be non-bailable. The police must seek an order from
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the Court for cancellation of bail granted to a
person..............................."
12. Another judgment of Madras High Court in Dhivan Vs. State,
(2010) 2 MWN (Cr.) also took the same view. In paragraph No.11,
following was observed:-
"11. In view of the above discussions, I have no hesitation to hold
that simply because a penal provision is added in the case in respect
of a serious non-bailable offence, the bail granted earlier shall not
automatically stand cancelled and therefore, the police shall not
have the power to re-arrest the accused until the bail granted
earlier is cancelled by way of a positive order by the appropriate
court................................"
13. There are few decisions of Allahabad High Court also where
the issue has been addressed. One judgment of the High Court namely
Bijendra and Ors. Vs. State of U.P. and Ors., (2006) CriLJ 2253
has also been referred to and relied in the impugned judgment. In
paragraph No.25, following observations have been made by Allahabad
High Court:-
"25. After hearing the learned Counsels for the both sides at a
great length and after analyzing Section 437 Cr. P. C. it transpires
that Section 437 relates with bail in cases of non-bailable offence
by the magistrate. So far as the first contention which the learned
Counsel for the applicants advanced, that because the bail has
been granted in the same crime number and therefore by mere
change of section accused cannot be sent to jail is concerned it is
to be noted that case crime number is nowhere mentioned in the
aforesaid section, which is the number of police for identification
of the case and is a procedural number of the police station. Crime
number has no relation with bail under Cr. P. C. In this view of the
matter the contention of learned Counsel for the applicant cannot
be accepted and is therefore rejected.
Coming to the second contention of the learned Counsel for the
applicant that there is no bar for this Court to direct the Magistrate
to accept fresh bail bonds for the newly added offence triable by
Court of Session's it is noted that this direction will amount to
asking the Magistrate to do something de-hors the law. The
contention is devoid of merit. Section 437 Cr.P.C. relates to an
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offence, therefore, on addition of a new offence, the accused is
required to appear before the court and seek bail. His bail cannot
be considered unless and until he surrenders and is in custody in
that offence. Any accused who is not in custody in an offence
cannot be granted bail. Custody is sine qua non for consideration
of bail prayer. Consequently when the accused is guilty of an
added offence and is not on bail, he cannot be allowed to furnish
bond without being in custody in that offence. For getting bail in
newly added offences the accused has to surrendered in that
offence............................."
14. In another case of Allahabad High Court in Bankey Lal
Sharma Vs. State of U.P. and Ors., (2008) CriLJ 3779 rejecting the
submission that the applicant should not be required to obtain fresh bail
on addition of new offences, following was observed in paragraph No.14:-
"14. At this stage, learned Counsel for the applicant submits that
the applicant should not be required to obtain fresh bail under the
newly added section. This relief cannot be granted in view of the
decision of the Apex Court in Hamida v. Rashid alias Rasheed
and Ors. (LVIII)2007 ACC 577, wherein it has been mentioned
that without surrender prayer for bail in the newly added Section
cannot be considered."
15. Learned counsel for the appellant has also relied on judgment
of High Court of Jammu & Kashmir in CRMC No.270/2018 - Fayaz
Ahmad Khan and Ors. Vs. State, decided on 03.10.2018, where Jammu
and Kashmir High Court relying on judgment of this Court in Manoj
Suresh Jadhav & Ors. (supra) took the view that simply because a
penal provision is added in respect of a serious non-bailable offence, the
bail granted earlier shall not automatically stand cancelled and therefore,
the police shall not have the power to re-arrest the accused until the bail
granted earlier is cancelled by way of a positive order by the appropriate
court.
16. We may also notice a pertinent observation made by this Court
in Prahlad Singh Bhati (supra). In the above case, a case was
registered under Sections 306 and 498-A I.P.C. Application for
anticipatory bail was dismissed, however, while dismissing the application,
the Additional Sessions Judge had observed that if on facts a case under
Section 302 is made out against the accused, State shall be at liberty to
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arrest the accused. After investigation, charge sheet was filed under
Sections 302, 406 and 498-A. The accused was directed to appear before
the Magistrate since he did not appear, non-bailable warrants were issued.
The accused had filed an application under Section 482 Cr.P.C. in the
High Court. Subsequently, the accused appeared before the Magistrate,
he was admitted on bail even in a case under Section 302 IPC. The
revision petition was dismissed by the High Court against the order
releasing the accused on bail. The complainant had approached this
Court. In paragraph Nos. 4 and 9, following observations have been
made by this Court:-
"4. From the facts, as narrated in the appeal, it appears that even
for an offence punishable under Section 302 IPC, the respondentaccused was never arrested and he manipulated the prevention
of his arrest firstly, by obtaining an order in terms of Section 438
of the Code and subsequently by a regular bail under Section 437
of the Code from a Magistrate.
9. ..........................With the change of the nature of the
offence, the accused becomes disentitled to the liberty granted to
him in relation to a minor offence, if the offence is altered for an
aggravated crime.........................."
17. This Court in Hamida Vs. Rashid alias Rasheed and
Others, (2008) 1 SCC 474 held that an accused after addition of
serious non-cognizable offence is required to surrender and apply for
bail for newly added offences. It is, thus, clear that the bail granted to
an accused earlier to addition of new non-bailable offence shall not enure
to the benefit of the accused insofar as newly added offences are
concerned and he is required to surrender and obtain a bail with regard
to newly added offences to save him from arrest.
18. Whether after addition of new non-bailable offence, police
authority can straightaway arrest the accused, who is already granted
bail by the Court, in reference to offences prior to addition of new offences
or the police is to necessarily obtain an order from the Court either of
cancellation of the bail or permission to arrest the accused in changed
circumstances are questions where different views have been expressed
by different High Courts. In the present case, the appellant was not
arrested by the police after addition of offences under the Unlawful
Activities (Prevention) Act, 1967, rather the police authorities had made
an application before the Court for issue of production warrant since the
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accused was already in custody in jail in reference to another case.
19. We may refer to the relevant provisions of the Cr.P.C. regarding
grant of bail. Chapter XXXIII of the Code of Criminal Procedure,
Sections 436 to 439 deals with bail. Section 437 deals with the provision
when bails can be taken in case of non-bailable offence. Section 437(5),
which is relevant for the present controversy is as follows:-
"(5) Any Court which has released a person on bail under subsection (1) or sub- section (2), may, if it considers it necessary so
to do, direct that such person be arrested and commit him to
custody."
20. Section 439 deals with special powers of High Court or Court
of Session regarding bail. Section 439(2) is to the following effect:-
"(2) A High Court or Court of Session may direct that any person
who has been released on bail under this Chapter be arrested and
commit him to custody."
21. Both Sections 437(5) and 439(2) empowers the Court to arrest
an accused and commit him to custody, who has been released on bail
under Chapter XXXIII. There may be numerous grounds for exercise
of power under Sections 437(5) and 439(2). The principles and grounds
for cancelling a bail are well settled, but in the present case, we are
concerned only with one aspect of the matter, i.e., a case where after
accused has been granted the bail, new and serious offences are added
in the case. A person against whom serious offences have been added,
who is already on bail can very well be directed to be arrested and
committed to custody by the Court in exercise of power under Sections
437(5) and 439(2). Cancelling the bail granted to an accused and directing
him to arrest and taken into custody can be one course of the action,
which can be adopted while exercising power under Sections 437(5)
and 439(2), but there may be cases where without cancelling the bail
granted to an accused, on relevant consideration, Court can direct the
accused to be arrested and committed to custody. The addition of serious
offences is one of such circumstances, under which the Court can direct
the accused to be arrested and committed to custody despite the bail
having been granted with regard to the offences with which he was
charged at the time when bail was considered and granted.
22.