Jharkhand High Court
Pradeep Ram @ Pradeep Verma vs The State Of Jharkhand on 26 September, 2018
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (Cr.) No. 277 of 2018
With
Cr. M. P. No. 1114 of 2016
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W. P. (Cr.) No. 277 of 2018:
Pradeep Ram @ Pradeep Verma ... ... Petitioners
Versus
1.The State of Jharkhand
2.Union of India through the National
Investigation Agency ... ... Opposite Parties
Cr. M. P. No. 1114 of 2016:
Pradeep Ram ... ... Petitioner
Versus
The State of Jharkhand ... ... Opposite Party
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : Mr. R. S. Mazumdar, Senior Advocate
(in Cr.M.P. No. 277 of 2018)
: Mr. Deepak Kumar, Advocate
(in Cr.M.P. No. 1114 of 2016)
For the Opposite Party : A.P.P.
For the NIA : Mr. Rohit Ranjan Prasad, Advocate
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3/26.09.2018 Heard Mr. Deepak Kumar, learned counsel for the petitioner in
Cr.M.P. No. 1114 of 2016 and Mr. R. S. Mazumdar, learned senior counsel for the petitioner in W.P.(Cr.) No. 277 of 2018 and learned A.P.P. as well as Mr. Rohit Ranjan Prasad, learned counsel appears for the NIA in W.P.(Cr.) No. 277 of 2018.
Cr. M. P. No. 1114 of 2016:
2. In this application, the petitioner has prayed for quashing of the entire criminal proceeding including the order dated 11.03.2016 passed in Tandwa P. S. Case No. 2 of 2016 coresponding to G. R. No. 45 of 2016 whereby and whereunder cognizance has been taken for the offences punishable under Sections 414, 384, 386, 387, 120(B) of I.P.C. read with Section 25 (1-B) (a), 26 & 35 of Arms Act and Section 17(1)(2) of Criminal Law Amendment Act.-2-
3. The prosecution story in brief is that a secret information was received by the informant regarding realization of illegal collection of levy money from the contractors, transporters, D.O. holders, coal traders by the named accused persons including the petitioner to provide it to TPC extremists. On such information, the house of Binod Kumar Ganjhu was raided on 11.01.2016 and an amount of Rs. 91,75,890/- was recovered from a bag kept in the Almirah. It is alleged that Birbal Ganjhu and Munesh Ganjhu were also found present in a suspicious condition. One loaded mouzer pistol from Binod Ganjhu and one countrymade pistol and two live catridges were recovered from Munesh Ganjhu and all the three accused persons accepted their proximity with the banned organization TPC. It has been alleged that Binod Ganjhu has disclosed that he is engaged in collection of levy amount which he is providing to TPC supremo Gopal Singh Bhokta @ Brajesh Ganjhu and the said money is being distributed amongst various persons. On the disclosure of Binod Ganjhu, the house of the petitioner was raided and in the presence of two independent witnesses, Rs. 57,57, 710/- and four cell phones were recovered. The petitioner has failed to provide a reasonable explanation with respect to the huge quantity of cash which was recovered from his house.
4. Based on the aforesaid allegations, Tandwa P. S. Case No. 2 of 2016 was instituted under Section 414, 384, 386, 387 & 120(B) of I.P.C. under Section 25(1-b) (a), 26 & 35 of the Arms Act and Section 17 (1) (2) of the C.L.A. Act. Upon completion of investigation, charge-sheet was submitted and vide order dated 11.03.2016 passed by the learned C.J.M., Chatra cognizance was taken for the offences punishable under Sections 414, 384, 386, 387, 120(B) of I.P.C. read with Section 25 (1-B) (a), 26 & 35 of Arms Act and Section 17(1)(2) of Criminal Law Amendment Act.
W. P. (Cr.) No. 277 of 2018:
5. The factual aspects as narrated above in Cr.M.P. No. 1114 of 2016 goes further in the present case in view of the subsequent developments which had occurred and of which the petitioner is aggrieved.
6. The prayer made in this writ application is for quashing the entire criminal proceeding in connection with Special NIA Case No. 3 of 2018 including the FIR being R.C. 06/2018/NIA/DLI registered for the -3- offences punishable under Sections 414, 384, 386, 387 & 120(B) of I.P.C., Sections 25(1-b) (a), 26 & 35 of the Arms Act and Section 17 (1) (2) of the CLA Act and Section 16, 17, 20 & 23 of the Unlawful Activities (Prevention) Act (hereinafter referred to as the 'UAP Act').
7. A further prayer has been made for quashing the order dated 25.06.2018 passed by the learned Judicial Commissioner cum Special Judge, NIA, Ranchi by which the petitioner has been remanded to judicial custody in connection with Special NIA Case No. 3 of 2018 and after quashment of the order dated 25.06.2018, a direction be issued to release the petitioner from judicial custody immediately and forthwith.
8. The factual aspects though connected with Cr.M.P. No. 1114 of 2016 further reveals that the petitioner was taken into custody in Tandwa P. S. Case No. 2 of 2016 in which the petitioner was granted bail by this Court on 10.03.2016 in B. A. No. 1335 of 2016. On 19.09.2016, charges were framed against the accused persons including the petitioner. By virtue of order dated 15.12.2016 passed in Cr.M.P. No. 1114 of 2016, the further proceeding in connection with Tandwa P. S. Case No. 2 of 2016 was directed to remain stayed. After addition of Sections 16, 17, 20 & 23 of the UAP Act, 1967 during the course of investigation, the matter was reported to the Central Government and vide order dated 13.02.2018 passed by the Ministry of Home Affairs, Government of India, the investigation was suo-motu directed to be taken up by the NIA in terms of Section 6(5) read with Section 8 of the NIA Act. Pursuant to such direction by the Central Government, the NIA had taken over investigation and the case was re-registered as R.C. No. 06/2018/NIA/DLI. An application was preferred on behalf of NIA before the learned Special Judge, NIA, Ranchi praying for issuance of warrant of arrest against Binod Kumar Ganjhu, Munesh Ganjhu, Birbal Ganjhu and Bindu Ganjhu @ Bindeshwar Ganjhu which was allowed vide order dated 12.06.2018 and the office was directed to issue non-
bailable warrant of arrest against the said accused persons. A further prayer was made on behalf of the NIA for issuance of production warrant against the petitioner on 22.06.2018 since the petitioner was in custody in relation to another case and the said prayer having been allowed, the petitioner was produced from Chatra jail on 25.06.2018 and -4- he was remanded to judicial custody in connection with R.C. No. 06/2018/NIA/DLI.
Arguments canvassed by the respective counsels:
9. Mr. Deepak Kumar, learned counsel appearing for the petitioner in Cr.M.P. No. 1114 of 2016 has assailed the order taking cognizance by submitting that the logic given by the police that the amount recovered from the petitioner was collected from different coal traders for onward transmission to the banned organization - TPC is without any basis as there is no substantive supportive fact regarding such presumption. It is stated that not a single person has come forward during investigation regarding forceful extraction of money in the name of the terrorist outfit.
He submits that the recovery of such a huge amount of money has been properly explained by the petitioner by stating that the amount recovered was with respect to a business transaction. It has been stated that the petitioner runs a business in the name and style of M/s. Pradeep Ram and he had entered into an agreement with Aadhunik Power and Natural Resources Ltd. and the petitioner has to pay freight charges to the owners of the truck for such transportation which involves a huge amount of money. He submits that the petitioner had also entered into an agreement with the Director, Raushan Infrabuilt Pvt. Ltd., Ganga Nagar for engaging their trucks, loaders and had already paid an advance of Rs. 58,00,000/- in cash. He further submits that the amount which has been recovered was to be paid to different petrol pumps, transporters and labour contractors. The petitioner has initially started a business of insecticide in the name of Pradeep Krishi Kendra, Serengdag, Tandwa. Learned counsel submits that sufficient explanation has been given with respect to the money recovered from the house of the petitioner and the documents being unimpeachable in character, the entire criminal proceeding deserves to be quashed and set aside.
10. At this, learned A.P.P. has submitted that there is sufficient evidence on record to suggest the direct involvement of the petitioner with a banned organization - TPC and he was also instrumental along with other accused persons to collect levy from coal traders in order to forward the same to the members of the TPC extremists. Learned A.P.P. submits that whatever documents have been relied upon by the learned -5- counsel for the petitioner are only to establish his defence and this Court while considering an application under Section 482 of Cr.P.C. cannot conduct a roving inquiry or look into the defence evidence to come to a conclusion relating to complicity/non-complicity of the petitioner. He therefore, prays that the present application be dismissed.
11. Mr. R. S. Mazumdar, learned senior counsel for the petitioner in W.P.(Cr.) No. 277 of 2018 has firstly referred to the FIR by elaborating the allegations levelled against the petitioner. He has submitted that on 10.03.2016 charge-sheet was filed by the police and on 10.03.2016 itself the petitioner has been granted bail by this court. It has been stated by the learned senior counsel that instituting a fresh FIR after the investigation is taken over by the NIA is not permissible as the petitioner will be subjected to double jeopardy as two distinct FIRs have been instituted containing the same allegation. Learned senior counsel adds that if cognizance was not taken and investigation was pending so far as the petitioner was concerned, the investigation could have been taken over by the NIA, but once when charge has already been framed, the petitioner could not have been remanded by the learned court below on the prayer made by the NIA to judicial custody. Mr. Mazumdar, in support of his argument has relied upon the case of "Amitbhai Anilchandra Shah v. CBI" reported in (2013) 6 SCC 348 and "Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel" reported in (2017) 4 SCC 177. It has further been submitted while apprehending that a preliminary objection will be made by the NIA regarding the maintainability of the present application that the order which is under challenge is an interlocutory order which is barred in terms of Section 21 of the NIA and therefore, under the extraordinary writ jurisdiction of this Court, the present writ application is maintainable. Learned senior counsel in support of his contention has referred to the case of "State v. N.M.T. Joy Immaculate" reported in (2004) 5 SCC 729.
12. Mr. Deepak Kumar, learned counsel appearing for the petitioner in Cr.M.P. No. 1114 of 2016 has interjected by stating that a person having been granted bail cannot be remanded once again for the same offence. Learned counsel has questioned as to how the offence under the provisions of the UAP Act has been inserted since no basis could be -6- provided by the NIA even in the counter affidavit regarding making out a case under Sections 16, 17, 20 & 23 of UAP Act. Learned counsel has also reiterated what has been stated by Mr. Mazumdar, learned senior counsel with respect to the illegality committed by the NIA in registering the FIR and thereby subjecting the petitioner to face separate criminal prosecution for the same offence. Mr. Deepak Kumar, learned counsel has concluded his argument by stating that the personal liberty of the petitioner has been curtailed on account of the order of remand made by the learned court below.
13. Mr. Rohit Ranjan Prasad, learned counsel appearing for the NIA has referred to the counter affidavit by raising a preliminary objection with respect to the maintainability of W.P.(Cr.) No. 277 of 2018 in view of Section 21 of NIA Act which provides for appeals in case of refusal or grant of bail. Learned counsel has also referred to Section 43 D of the UAP Act by stating that there is a bar for grant of bail in addition to the bar contained under the provisions of Code of Criminal Procedure. Learned counsel submits that after taking over the case, the NIA has re- registered an FIR and has carried on further investigation and the perfunctory nature of investigation by the police is manifest in view of the fact that even the statement of the accused persons had not been recorded by the police. Learned counsel while referring to the supervision note has stated that the accused persons including the petitioner are well-entrenched in the banned organization TPC. It has been stated that the investigation had never come to an end and while submitting charge-sheet against some of the accused persons, the investigation was kept pending so far as the other accused persons are concerned. Learned counsel in support of his plea has submitted that an alternative remedy is available to the petitioner, while referring to the judgment in the case of "Hamida Vs. Rashid alias Rasheed & Others"
reported in (2008) 1 SCC 474. He has further referred to the case of "Bhadrersh Bipinbhai Sheth Vs. State of Gujarat and Anr." reported in (2016) 1 SCC 152, by stating that the charge can be added and the accused can in such circumstances pray for bail. Referring to Section 6 (5) of the NIA Act, learned counsel says that the same starts with a non-obstante clause and therefore, the NIA was not precluded from carrying out -7- further investigation. He has also referred to the cases of "Bijendra Vs. State of U.P." reported in (2006) Cr. L. J. 2253, "Bankey Lal Sharma Vs. State of U.P. & Anr." reported in 2008 Cr.L.J. 3779 and "Vinay Tyagi v.
Irshad Ali" reported in (2013) 5 SCC 762. He submits that the taking over of the investigation by the NIA and the subsequent remand of the petitioner to judicial custody by virtue of addition of Sections 16, 17, 20 & 23 of the UAP Act, such order of remand cannot be said to be not in accordance with law and therefore, he prays that the criminal writ application preferred by the petitioner should be rejected.
14. Mr. R. S. Mazumdar, learned senior counsel for the petitioner in reply has once again reiterated the contents of the supervision note while stating that the allegations were considered in its entirety while granting bail to the petitioner in connection with Tandwa P. S. Case No. 2 of 2016. He submits that so far as the judgments cited by the learned counsel for the NIA is concerned being "Bhadrersh Bipinbhai Sheth Vs. State of Gujarat and Anr." reported in (2016) 1 SCC 152 and "Hamida Vs. Rashid alias Rasheed & Others" reported in (2008) 1 SCC 474, none of the said judgments are applicable to the facts and circumstances of the case. Learned senior counsel while concluding his argument has also referred to Section 43 (D) (5) of the UAP Act and has stated that intent of the legislature has to be firstly seen.
FINDINGS:
15. The arguments advanced by the learned respective counsels have been considered and the relevant records pertaining to both the cases have been perused.
16. The preliminary objection which has been raised by the learned counsel for the NIA is with respect to the maintainability of the writ application for which reference has been made to Section 21 of the NIA Act. Mr. R. S. Mazumdar, learned senior counsel for the petitioner has in support of the maintainability has referred to the case of "State v. N.M.T. Joy Immaculate" reported in (2004) 5 SCC 729, wherein it was held that an order of remand is an interlocutory order and not amenable to revision. The same reads as under:
"13. Section 167 CrPC empowers a Judicial Magistrate to authorise the detention of an accused in the custody of police.-8-
Section 209 CrPC confers power upon a Magistrate to remand an accused to custody until the case has been committed to the Court of Session and also until the conclusion of the trial. Section 309 CrPC confers power upon a court to remand an accused to custody after taking cognisance of an offence or during commencement of trial when it finds it necessary to adjourn the enquiry or trial. The order of remand has no bearing on the proceedings of the trial itself nor can it have any effect on the ultimate decision of the case. If an order of remand is found to be illegal, it cannot result in acquittal of the accused or in termination of proceedings. A remand order cannot affect the progress of the trial or its decision in any manner. Therefore, applying the test laid down in Madhu Limaye case[(1977) 4 SCC 551 : 1978 SCC (Cri) 10 : AIR 1978 SC 47] it cannot be categorised even as an "intermediate order". The order is, therefore, a pure and simple interlocutory order and in view of the bar created by sub-section (2) of Section 397 CrPC, a revision against the said order is not maintainable. The High Court, therefore, erred in entertaining the revision against the order dated 6-11-2001 of the Metropolitan Magistrate granting police custody of the accused Joy Immaculate for one day."
17. In view of the aforesaid pronouncement, since the petitioner has challenged the order of remand dated 25.06.2018 and the same being not an interlocutory order would not be revisable in terms of Section 21 of the NIA Act and therefore, the petitioner was within his right to invoke the extraordinary jurisdiction of this Court by preferring this application under Article 226 of the Constitution of India.
18. So far as the prayer made by the petitioner for quashment of the criminal proceeding in connection with Tandwa P. S. Case No. 2 of 2016 is concerned, although a valiant attempt has been made by the learned counsel for the petitioner seeking to give an explanation with respect to the huge quantity of cash recovered from the house of the petitioner, but at this juncture while considering the allegations under Section 482 of Cr.P.C., the documents submitted by the petitioner which are by way of defence cannot be looked into. This Court cannot conduct a roving inquiry into the pros and cons of the allegations levelled against the petitioner in the backdrop of explanation which has been submitted by the learned counsel for the petitioner. The petitioner claims that he carries on a business of transportation of coal and he has relied upon various documents in support of his contention, but it would be premature at this stage to consider the said documents as none of the documents relied upon are unimpeachable in character justifying the -9- presence of such a huge amount of money in the house of the petitioner. It would be only during trial that the facts will emerge and the petitioner will also have ample opportunity to rebut the evidence collected against him. Since from a perusal of the FIR, there appears to be a prima-facie case made out against the petitioner, I am not inclined to interfere in the criminal proceeding instituted in connection with Tandwa P. S. Case No. 2 of 2016 and accordingly the present application stands dismissed.
19. This Court now ventures into the permissibility/non- permissibility of the NIA to register an FIR and to conduct further/fresh/de-novo investigation into the offence as alleged.
20. The first issue which has to be delved into is whether the registration of an FIR by the NIA can be considered to be a fresh FIR and whether the subsequent FIR and its consequent investigation can be allowed to continue. The petitioner was initially being prosecuted in connection with Tandwa P. S. Case No. 2 of 2016 and since in course of investigation, offences appeared to have also been committed under Sections 16, 17, 20 & 23 of the UAP Act, the supervising authority has directed the handing over the investigation to the Sub-Divisional Police Officer with a further direction to the I.O. to pray for addition of Sections 16, 17, 20 & 23 of the UAP Act before the learned court below which was subsequently allowed.
21. Addition of Sections 16, 17, 20 & 23 of the UAP Act led to an information being sent to the Central Government and vide order dated 13.02.2008, since the offence involved was a scheduled offence, the investigation of Tandwa P. S. Case No. 2 of 2016 was handed over to the National Investigation Agency. On being confronted with the investigation of Tandwa P. S. Case No. 2 of 2016, the FIR being R. C. 06/2018/NIA/DLI was registered. A prayer was also made for calling for the original case record of Tandwa P. S. Case No. 2 of 2016 which was allowed by the learned Special Judge, NIA, Ranchi on 19.02.2018.
22. The FIR instituted by the NIA according to the learned senior counsel for the petitioner in incongruous as in the original FIR, the investigation so far as the role of the petitioner is concerned, has already led to submission of charge-sheet.
-10-23. It is manifest that the NIA derives its power to investigate into a scheduled offence by virtue of Section 6 of NIA Act. Section 6 of the NIA Act reads as follows:
"6. Investigation of Scheduled Offences. - (1) On receipt of information and recording thereof under section 154 of the Code relating to any Scheduled Offence the officer-in-charge of the police station shall forward the report to the State Government forthwith.
(2) On receipt of the report under sub-section (1), the State Government shall forward the report to the Central Government as expeditiously as possible.
(3) On receipt of report from the State Government, the Central Government shall determine on the basis of information made available by the State Government or received from other sources, within fifteen days from the date of receipt of the report, whether the offence is a Scheduled Offence or not and also whether, having regard to the gravity of the offence and other relevant factors, it is a fit case to be investigated by the Agency.
(4) Where the Central Government is of the opinion that the offence is a Scheduled Offence and it is a fit case to be investigated by the Agency, it shall direct the Agency to investigate the said offence.
(5) Notwithstanding anything contained in this section, if the Central Government is of the opinion that a Scheduled Offence has been committed which is required to be investigated under this Act, it may, suo motu, direct the Agency to investigate the said offence.
(6) Where any direction has been given under sub-section (4) or sub-section (5), the State Government and any police officer of the State Government investigating the offence shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the Agency.
(7) For the removal of doubts, it is hereby declared that till the Agency takes up the investigation of the case, it shall be the duty of the officer-in-charge of the police station to continue the investigation."
24. A bundle of incidental question arises thereof as to whether in absence of any scheduled offence being recorded in the FIR can the Central Government hand over the investigation to the NIA, although the allegations do point to a scheduled offence. Section 6 (1) of the NIA Act categorically states about receipt of information and recording thereof under Section 154 of Cr.P.C. of a scheduled offence. Therefore, it has to be recorded that a scheduled offence has been committed which would then lead to further steps being taken in terms of Section 6 of the NIA Act. Initially when the FIR was registered, the same did not include any offence under the UAP Act. In the supervision report, it has been opined that a case under Sections 16, 17, 20 & 23 of the UAP Act was made out and direction was given to hand-over the investigation to S.D.P.O. who was further directed to pray before the court for addition of -11- offences under the UAP Act. The Investigating Officer made a prayer on 09.04.2017 to that effect which was allowed. Although, charge-sheet was submitted against the petitioner and some of the accused persons, but investigation was kept pending against the remaining accused persons. On addition of the offences under the UAP Act, the National Investigation Agency came into picture. Therefore, the recording of an offence which is a scheduled offence is a pre-condition for the investigation to be taken over by the NIA.
25. Now, since the investigation has been taken over by the NIA, contentions has been advanced that a fresh FIR cannot be registered by the NIA and consequently further or fresh investigation cannot be conducted. Mr. R. S. Mazumdar, learned senior counsel has in such context referred to the case of "Amitbhai Anilchandra Shah v. CBI"
reported in (2013) 6 SCC 348. He has particularly referred to paragraphs 58.3, 58.4, 58.5, 59 and 60 and the same reads as under:
"58.3. Even after filing of such a report, if he comes into possession of further information or material, there is no need to register a fresh FIR, he is empowered to make further investigation normally with the leave of the court and where during further investigation, he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports which is evident from sub-section (8) of Section 173 of the Code. Under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of the Code, only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 of the Code. Thus, there can be no second FIR and, consequently, there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences.
58.4. Further, on receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering FIR in the station house diary, the officer in charge of the police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 of the Code. Sub-section (8) of Section 173 of the Code empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report(s) to the Magistrate. A case of fresh investigation based on the second or successive FIRs not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in -12- the course of the same transaction and in respect of which pursuant to the first FIR either investigation is underway or final report under Section 173(2) has been forwarded to the Magistrate, is liable to be interfered with by the High Court by exercise of power under Section 482 of the Code or under Articles 226/227 of the Constitution.
58.5. The first information report is a report which gives first information with regard to any offence. There cannot be second FIR in respect of the same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the first FIR.
59. In the light of the specific stand taken by CBI before this Court in the earlier proceedings by way of assertion in the form of counter-affidavit, status reports, etc. we are of the view that filing of the second FIR and fresh charge-sheet is violative of fundamental rights under Articles 14, 20 and 21 of the Constitution since the same relate to alleged offence in respect of which an FIR had already been filed and the court has taken cognizance. This Court categorically accepted CBI's plea that killing of Tulsiram Prajapati is a part of the same series of cognizable offence forming part of the first FIR and in spite of the fact that this Court directed CBI to "take over" the investigation and did not grant the relief as prayed, namely, registration of fresh FIR, the present action of CBI filing fresh FIR is contrary to various judicial pronouncements which is demonstrated in the earlier part of our judgment.
60. In view of the above discussion and conclusion, the second FIR dated 29-4-2011 being RC No. 3(S)/2011/Mumbai filed by CBI is contrary to the directions issued in judgment and order dated 8-4-2011 by this Court in Narmada Bai v. State of Gujarat1 and accordingly the same is quashed. As a consequence, the charge-sheet filed on 4-9-2012, in pursuance of the second FIR, be treated as a supplementary charge-sheet in the first FIR. It is made clear that we have not gone into the merits of the claim of both the parties and it is for the trial court to decide the same in accordance with law. Consequently, Writ Petition (Crl.) No. 149 of 2012 is allowed. Since the said relief is applicable to all the persons arrayed as accused in the second FIR, no further direction is required in Writ Petition (Crl.) No. 5 of 2013."
26. In the aforesaid case, the CBI was directed to take over the investigation, but a fresh FIR was instituted by the CBI which led the Hon'ble Supreme Court to lay down guidelines as enumerated in paragraphs from 58.1 to 58.10.
27. Relying basically on paragraph 58.3 of the aforesaid judgment, it has been vehemently contented that there can be no second FIR and consequently no further investigation and therefore, the fresh FIR -13- instituted by the NIA is contrary to the principles delineated in the said case and in such circumstances, the entire criminal proceeding including the FIR instituted by the NIA deserves to be quashed and set aside. This Court had the occasion to consider a similar prayer with respect to re- registration of an FIR in the case of "Gopal Krishna Patar @ Raja Peter Vs. The State of Jharkhand & others" {W. P. (Cr.) No. 458 of 2017}, wherein it was held that the re-registration of the FIR by the NIA is basically a procedural aspect and flows as a consequence of the notification of the Central Government handing over the investigation to the NIA. Re-registration of an FIR pursuant to handing over the investigation cannot be in any circumstances treated to be a fresh case denoting a fresh investigation. Further investigation has been aptly considered in the case of "Vinay Tyagi v. Irshad Ali" reported in the case of (2013) 5 SCC 762, wherein it has been held as follows:
"22. "Further investigation" is where the investigating officer obtains further oral or documentary evidence after the final report has been filed before the court in terms of Section 173(8). This power is vested with the executive. It is the continuation of previous investigation and, therefore, is understood and described as "further investigation". The scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as "supplementary report". "Supplementary report" would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a "reinvestigation", "fresh" or "de novo" investigation."
28. Sub-section 5 of Section 6 of the NIA Act starts with a non-obstante clause, the same is replicated herein:
"6. (5) Notwithstanding anything contained in this section, if the Central Government is of the opinion that a Scheduled Offence has been committed which is required to be investigated under this Act, it may, suo motu, direct the Agency to investigate the said offence."
.
-14-29. The non-obstante clause must be given its natural and ordinary meaning. The word 'Notwithstanding' must be given its full effect and it is not a sound principle of interpretation to brush aside words in a statute as being in apposite or surplusage. The very purpose of a non- obstante clause is that, that provision shall prevail over any other provision and that other provisions shall not be of any consequence. In case, there is any inconsistency or a departure between a non-obstante clause and other provisions one of the objects of such a clause is to indicate that it is a non-obstante clause which would prevail over other clauses. The intention of the legislature has to be seen and what it wanted to convey while inserting the non-obstante clause. The NIA Act came into being with a specific purpose for investigation under the Special Acts and setting up of Special Courts and other related matters. The prelude of enactment of NIA Act is to constitute an investigation agency at the national level to investigate and prosecute offences affecting the sovereignty, security and integrity of India, security of State friendly relations with foreign states and offences under Acts enacted to implement international treaties, agreements, conventions and resolutions of the United Nations, its agencies and other international organisations and for matters connected therewith or incidental thereto.
30. Therefore, 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 investigation, the FIR is re-registered, as only the nomenclature changes. The basic structure remains the same and the NIA furthers the investigation. It would be relevant to once again state that the FIR of Tandwa P. S. Case No. 2 of 2016 did not contain any offence under the UAP Act, but in course of investigation when such offence was detected, the same was added and subsequent thereto, the NIA was directed by the Central Government to take over investigation. The Central Government in its order dated 13.02.2018 had in very clear terms directed the NIA to take over investigation of the case. The original records have been called for on the prayer made by the NIA by the learned court below. There can be no second thought regarding the provisions of Section 6(5) of the NIA Act and order dated 13.02.2018 of the Central Government, what was 15- intended for further investigation into the offence in view of the addition of offences under Sections 16, 17, 20 & 23 of UAP Act which is a scheduled offence. The re-registration of an FIR as has been indicated above is a procedural aspect. The FIR was instituted on 11.01.2016 being Tandwa P. S. Case No. 2 of 2016 and the investigation as it appears progressed at a snail's pace and after expiry of more than a year, Sections 16, 17, 20 & 23 of NIA Act was added and in the counter affidavit, it has been revealed that the investigation was being carried out by the police in a perfunctory manner. The question which forms the subject matter of Tandwa P. S. Case No. 2 of 2016, is also a subject-matter of the FIR registered by the NIA and in view of Section 6 as well as Section 8 of the NIA Act further investigation is permissible and on such context, therefore, the prayer of the petitioner regarding quashment of further investigation as well as the FIR registered by the NIA is negated.
31. The next pertinent question which needs to be answered is whether when the petitioner has already been granted bail in Tandwa P. S. Case No. 2 of 2016, can he subsequently be remanded on the basis of a fresh FIR instituted by NIA on taking over the investigation and getting the petitioner remanded to judicial custody and whether the same would amount to curtailment of the liberty of the petitioner being repeatedly taken into custody for the same offence. The petitioner was granted bail in B.A. No. 1335 of 2016 on 10.03.2016 in connection with Tandwa P. S. Case No. 2 of 2016. Consequent to the investigation being taken over by the NIA, remand of the petitioner was sought for and subsequently by impugned order dated 25.06.2018, the petitioner was remanded into judicial custody. An accused can be remanded either at the pre- cognizance stage by invoking the provision under Section 167(2) of Cr.P.C. or at the post cognizance stage by invoking the provision under Section 309 of Cr.P.C. It is to be seen as to whether in a case where further investigation is being conducted, accused can be remanded to judicial custody in terms of Section 309 of Cr.P.C. or he shall come within the purview of Section 167 of Cr.P.C. The Hon'ble Supreme Court in the case of "State through CBI Vs. Ibrahim Kaskar" reported in (2000) 10 SCC 438, has held as follows:
-16-"10. In keeping with the provisions of Section 173(8) and the above-quoted observations, it has now to be seen whether Section 309(2) of the Code stands in the way of a Court, which has taken cognizance of an offence, to authorise the detention of a person, who is subsequently brought before it by the police under arrest during further investigation, in police custody in exercise of its power under Section 167 of the Code. Section 309 relates to the power of the Court to postpone the commencement of or adjournment of any inquiry or trial and sub-section (2) thereof reads as follows:
"309. (2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:
Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time:"
11. 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 [ From the Judgment and Order dated 1-8-1996 of the Designated Court for Bomb Blast Cases, Brihat Mumbai in Misc. Applications Nos. 201, 210 and 211 of 1996] -- 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 deprived of 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 to 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 -17- 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."
32. What can be culled out from the aforesaid judgment is that Section 309(2) of Cr.P.C. relates to an accused when cognizance has been taken and not to an accused subsequently arrested in course of further investigation. In the case of further investigation, the accused shall be governed under Section 167 of Cr.P.C.
33. Mr. Rohit Ranjan Prasad, learned counsel appearing for the NIA has referred to the case of "Bhadrersh Bipinbhai Sheth Vs. State of Gujarat and Anr." reported in (2016) 1 SCC 152, but the same basically is related to the principles and guidelines regarding grant of anticipatory bail and the factual aspects also do not align with the present case, and therefore, the said judgment is not applicable in the facts and circumstances of the case. Mr. Rohit Ranjan Prasad, learned counsel has also referred to the case of "Bijendra Vs. State of U.P." reported in (2006) Cr. L.J. 2253. The court was considering as to whether a person who has been granted bail and on addition of certain other offences which was sessions triable, whether the said accused can remain on previous bail or furnish fresh bail-bonds. While considering such question, it was held as follows:
"27. 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.
28. 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 offence, therefore, on addition of a new offence, the accused is required to appear before the court and seek bail. His bail cannot -18- be considered unless and until he surrenders and is in custody in that offence. Any accused who is not in custody in an offence can not 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. Thus asking the Magistrate to accept fresh bail bonds in newly added offence will mean granting of bail to the accused in the newly added offences without he being taken into custody for the said offence and that is not permissible under the law. Moreover, there is another difficulty, which cannot be alleviated by the counsel for the applicants. Under the IV proviso to section 437 (1), which has been inserted by the Code of Criminal Procedure (Amendment) Act No. 25 of 2005, the offence under section 325 and 308 IPC are punishable with even years of imprisonment and consequently without giving an opportunity of hearing to the public prosecutor they cannot be allowed to furnish fresh bail bonds. The IV proviso, which has been inserted in the year 2005 now mandates that if a person is guilty of an offence punishable with imprisonment of seven years or more then. Public Prosecutor must be given an opportunity of being heard. If this court, in exercise of its inherent jurisdiction u/s 482 Cr.P.C.
allows, to the accused to file fresh bail bonds for the offences punishable with seven years and triable by session 's court then it takes away the right of the public prosecutor to oppose the bail, and the said order will be against the provisions of law.
29. More over under section 437(4) Cr.P.C. reasons or special reasons are required to be penned down while granting bail to an accused under sub section (1) or (2) of section 437 Cr.P.C. Consequently allowing the accused to furnish fresh bail bonds only in the newly added offences which is punishable with 7 years imprisonment will amount to non observance of this sub section (4) and will be an illegal exercise of power. (Emphasis Supplied).
30. More over there is yet another difficulty in the way of the applicants. Section 437 Cr.P.C. talks of "An offence". Plurality of words has been intentionally eschewed by the legislature in the format of the said section and rightly so because each offence is to be tried separately and joinder of charges is an exception to this general rule. This is perceptible from reading of chapter XVII Cr.P.C. sections 211 to 224 thereof. Thus bail in one offence cannot be taken to be bail in another offence and so filing of fresh bail bonds, which is a subsequent stage after grant of bail, cannot be allowed when the bail itself is not granted."
(Emphasis Supplied.)
34. Therefore, the order of remand dated 25.06.2018 was in exercise of the powers under Section 167 of Cr.P.C., since the same related to further investigation and would be governed under Section 167 of Cr.P.C. and not under Section 309 of Cr.P.C. which is at a post cognizance stage. The -19- addition of the offences under Sections 16, 17, 20 & 23 of the UAP Act has led to seeking remand of the petitioner by the NIA and it would not be impermissible in view of the addition of the offences under UAP Act which was much later to the grant of bail to the petitioner in Tandwa P. S. Case No. 2 of 2016 and therefore, it was not improper or illegal on the part of the learned Special Judge, NIA, Ranchi to remand the petitioner to judicial custody.
35. Consequent to the discussions made hereinabove, I do not find any merit to entertain this application and the same stands dismissed.
(Rongon Mukhopadhyay, J) R. Shekhar Cp 3