SC: Accused can be remanded even if arrested during further investigation

The Hon’ble Supreme Court, on 1stJuly 2019, in the matter of Pradeep Ram v. The State of Jharkhand & Anr. observed that 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.

Whether the power under Section 167 Cr.P.C. can be exercised where the cognizance has already been taken by Chief Judicial Magistrate or the accused could have been remanded only under Section 309(2) Cr.P.C.?

The Hon’ble Supreme Court observed that:

(Central Bureau of Investigation, Special Investigation Cell-I, New Delhi Vs. Anupam J. Kulkarni, (1992) 3 SCC 141) Section 309 comes into operation after taking cognizance and not during the period of investigation. Remand order under this provision (Section 309) can only be with judicial custody. (Para 53)

Section 309(2) of the CrPC does not refer to an accused, who is subsequently arrested in course of further investigation. Even after cognizance is taken of an offence the police has a power to investigate into it further and there is no reason 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. (Para 56)

The phrase “accused if in custody” in Section 309(2) of the Cr.P.C relates to an accused who was before the court when cognizance was taken or when inquiry or trial was being held in respect of him and not to an accused who is subsequently arrested in course of further investigation. (This inference has been drawn on the basis of Para 57)

(Para 62)

(i) The accused can be remanded under Section 167(2) Cr.P.C during investigation till cognizance has not been taken by the Court.

(ii) That 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.

(iii) 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.

Copy of judgement:Judgement_01-Jul-2019

-Tushar Kaushik

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