Orissa High Court
State Of Orissa vs Dara Singh Alias Rabindra Kumar Pal on 11 February, 2000
Equivalent citations: 2000(I)OLR320
Author: C.R. Pal
Bench: C.R. Pal
JUDGMENT C.R. Pal, J.
1. This is a petition Under Section 482, Cr.P.C. wherein the State has challenged the order passed by the learned SDJM, Karanjia on 1.2.2000 in G.R.Case No. 282 of 1999 corresponding to Thakurmunda P.S.Case No. 33 of 1999 refusing the prayer of the petitioner to remand the accused-opposite party to police custody for the purpose of further investigation.
2. The facts giving rise to the petition, may be stated in brief as follows : That on the information of one Makunda Naik lodged on 28.8.1999, Thakurmunda P.S. Case No. 33 of 1999 was registered for the offences Under Sections 307, 435 read with Section 34, IPC against the present opposite party and 38 others and investigation was taken up. After investigation, police submitted charge-sheet for the offences Under Sections 396, 435, 212, IPC against all the accused persons showing the opposite party namely Dara Singh alias Rabindra Kumar Pal as an absconder. On receiving the charge-sheet the learned SDJM took cognizance of the offences. Subsequently, on 31.1.2000 at about 11.00 P.M. the present opposite party was arrested from near the forest and was forwarded to Court on the next day. While producing the opposite party before the SDJM, Karanjia in the aforementioned G.R. Case a prayer was made by the investigating agency to hand over the accused to police custody for further investigation contending that it is necessary to examine him to collect materials about the weapon of offence used and if possible to recover the same and to obtain information about the involvement of other person if any. It is also submitted that the opposite party is involved in a number of cases besides Thakurmunda P.S. Case No. 33 of 1999 including the case of murder of Graham Stuart Steines, a Christian Missionary and his two children for which a case Under Sections 120B, 147, 148, 435 read with Section 149, IPC has been registered. It is submitted that the investigating agency has reason to believe that the opposite party has exclusive and special knowledge about the persons involved and the weapons used in all those occurrences and as such it is essential to further investigate into the matter and examine the said accused to bring further material to lime light. The learned S.D.J.M. however rejected the prayer observing as follows :
"As in this case investigation has already been completed and charge-sheet has already been submitted against the present accused Dara Singh along with others, so I am not inclined to allow the prayer of I.O. to give the accused on police remand at this stage for 15 days and as there is no recommendation from his higher authority......"
Being aggrieved by the aforesaid order the State has filed this petition.
3. The question arose whether without hearing the opposite party the petition can be disposed of. The learned Addl. Govt. Advocate appearing for the State placing reliance on Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaja v. State of A.P. and Ors. reported in 1999 (II) OLR (SC) 344 contended that it is not obligatory on the part of the Court to hear the accused before making a direction to the police to conduct further investigation. Considering the submission and the urgency of the matter as stated by the counsel appearing for the State, this case was heard.
4. The learned counsel appearing for the State submitted that the order of the learned SDJM refusing to hand over the accused to police custody for further investigation on the ground of completion of investigation and submission of charge-sheet is against the law and as such is liable to be set aside. In the above context, it is also submitted that unless the opposite party is remanded to police custody the important aspect of the case like recovery of weapon of offence as well as the involvement of other persons are not likely to come to light and the persons involved in the commission of serious offences like the offences alleged may escape. In view of the above submission, the question which requires consideration is whether police can take up further investigation of the case in which charge-sheet has already been submitted after completion of investigation ? In this context, it may be mentioned here that such a question came up for consideration before the apex Court in Ram Lal Narang v. State (Delhi Admn.) reported in AIR 1979 SC 1791 where the apex Court recognised such a power. Under Section 173(8) of the Code of Criminal Procedure, 1973 the officer-in-charge is authorised to take up further investigation. Sub-section (8) of Section 173 which authorises the officer-in-charge to make further investigation runs as follows :
"173. Report of police officer on completion of investigation-
xx xx xx xx (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall, as far as may be, apply in relation to a report forwarded under Sub-section (2)."
In view of the above statutory provision and the law laid down by the apex Court, it is no longer open to say that once charge-sheet is submitted and cognizance is taken in a case no further investigation of the case by the police is permissible.
5. The learned State counsel in course of his submission also contended that the provisions of Section 309, Sub-section (2) of the Code cannot stand as a bar in the instant case as the remand and custody Under Section 309(2), Cr.P.C. is different from the detention in custody Under Section 167, Cr.P.C. In the above context, the learned .counsel relied on the principle laid down by the apex Court in State v. Dawood Ibrahim Kaskar reported in AIR 1997 SC 2494. The apex Court while considering the above question observed as follows :
"There cannot be any manner of doubt that the remand and the custody referred to in the first proviso to the above sub-section are different from detention in custody Under Section 167. While remand under the former relates to a stage after cognizance and can only be to judicial custody, detention under the latter relates to the stage of investigation and can initially be either in police custody or judicial custody. Since, however, even after cognizance is taken of an offence the police has a power to investigate into it further, which can be exercised only in accordance with Chapter XII, we see no reason whatsoever why the provisions of Section 167 thereof would not apply to a person who comes to be later arrested by the police in course of such investigation. If Section 309(2) is to be interpreted - as has been interpreted by the Bombay High Court in Mansuri, (1994 Cri.L.J. 1854) (supra) - to mean that after the Court takes cognizance of an offence it cannot exercise its power of detention in police custody Under Section 167 of the Code, the Investigating Agency would be deprivedof an opportunity to interrogate a person arrested during further investigation even if it can on production of sufficient materials, convince the Court that his detention in its (police) custody was essential for that purpose. We are therefore of the opinion that the words "accused if in custody" appearing in Section 309(2) refer and relate to an accused who was before the Court when cognizance was taken or when enquiry or trial was being held in respect of him and not an accused who is subsequently arrested in course of further investigation. So far as the accused in the first category is concerned he can be remanded to judicial custody only in view of Section 309(2), but he who comes under the second category will be governed by Section 167 so long as further investigation continues. That necessarily means that in respect of the latter the Court which had taken cognizance of the offence may exercise its power to detain him in police custody, subject to the fulfilment of the requirements and the limitation of Section 167".
8. In view of the statutory provision of Section 173, Sub-section (8), Cr.P.C. and the principle laid down by the apex Court Section 309(2) cannot be bar for remand of the accused to the police custody and as such the order passed by the learned SDJM rejecting the prayer of the petitioner to remand the opposite party to police custody on the ground of completion of investigation and submission of charge-sheet cannot be sustained.
9. In course of hearing the learned State Counsel also put much emphasis on the efficacy of custodial interrogation. In the above context, he also placed reliance in State Rep. by the CBI v. Anil Sharma reported in IV (1997) CCR JO (SC). In the said case the respondent was granted anticipatory bail by the High Court of Himachal Pradesh. The CBI challenged the said order contending that considering the responsible and high office which the respondent held and the wide 'influence which he would wield and the great handicap which investigating agency would be subject to while interrogating a person armed with an order of anticipatory bail, the discretion Under Section 438 should never have been exercised in favour of the respondent. While considering the said submission the apex Court observed as follows :
"We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconced with a favourable order Under Section 438 of the Code. In a case like this effective interrogation of suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The. argument that the custodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible Police Officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders."
Keeping in view the above observation of the apex Court and taking into consideration the seriousness of the case in which Sk. Rahman, a member of the minority community was done to death in the Padiabeda Weekly Hat first by assaulting him brutally by means of sharp cutting weapon and then setting fire to his garment shop throwing him into the shop which was ablaze, it becomes necessary that the matter should be considered again by the learned SDJM.
10. Accordingly, the impugned order so far as it relates to refusal to remand the opposite party to police custody for further investigation is concerned is set aside with direction to the learned SDJM , Karanjia for reconsideration of the petition keeping in mind the principles laid down by the apex Court in the cases referred to above.
The Criminal Misc. Case is disposed of.