MITHABHAI PASHABHAI PATEL AND OTHERS versus STATE OF GUJARAT

Citation: [2009] 7 S.C.R. 1126 · Decided: 06-05-2009 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2009] 7 S.C.R. 1126 
A 
MITHABHAI PASHABHAI PATEL AND OTHERS 
V. 
STATE OF GUJARAT 
Criminal Appeal No. 941 of 2009 
B 
MAY 06, 2009 
[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.] 
Code of Criminal Procedure, 1973: 
ss. 167, 309 - Power of remand - Held: The Court can 
-f ' 
c exercise power of remand u/s. 167(2) when investigation is 
not complete - Once chargesheet is filed and cognizance of 
offence is taken, Court cannot exercise its power uls. 167(2) 
and then s.309(2) is attracted - On facts, appellant were 
granted bail - They could not be taken into custody ordinarily 
D unless their bail was cancelled - High Court was not correct in 
holding that as further investigation was required, s.167(2) 
gives ample power for grant of police remand - Constitution 
of India, 1950 - Article 142. 
The question which arose for consideration in the 
E present appeal is whether with the change- of an 
investigating authority, police custody of the accused on 
remand can be sought for, although cognizance of the 
offence had already been taken. 
Allowing the appeal, the Court 
' 
r 
F 
HELD: 1. Indisputably the investigating agency in 
terms of sub-section (8) of Section 173 Cr.P.C. can pray 
before the Court and may be granted permission to 
investigate into the matter further. There are, however, 
G certain situations, where such a formal request may not 
be insisted upon. It is beyond any cavil that 'further 
investigation' and 're-investigation' stand on different 
footing. It may be that in a given situation a superior court 
in exercise of its _constitutional power, namely under 
H 
1126 
MITHABHAI PASHABHAI PATEL AND OTHERS V 
1127 
STATE OF GUJARAT 
Articles 226 and 32 of the Constitution of India could direct A 
a 'State' to get an offence investigated and/or further 
investigated by a different agency. Direction of a re-
investigation, however, being forbidden in law, no 
superior court would ordinarily issue such a direction. 
[Paras 16, 17] [1133-E-H] 
B 
Ramachandran v. . R. Udhayakumar (2008) 5 SCC 413; 
Nirmal Singh Kah/on v. State of Punjab (2009) 1 SCC 441 -
retied on. 
2. The investigating agency and/or a court exercise c 
their jurisdiction conferred on them only in terms of the 
provisions of the Code. The courtS subordinate to the High 
Court even do not have any inherent power under Section 
482 Cr.P.C. or otherwise. The pre-cognizance jurisdiction 
to remand vested in the subordinate courts, therefore, 
must be exercised within the four-corners of the Code. D 
[Para 21] [1134-F-H] 
3. The power of remand in terms of the Section 167 
is to be exercised when investigation is not complete. 
Once charge-sheet is filed and cognizance of the offence E 
is taken, the court cannot exercise its power under sub-
section (2) of Section 167 of the Code. Its power of remand 
can then be exercised in terms of sub-section (2) of 
Section 309. [Para 22] [1136-D-G] 
· 
4. Appellants were granted bail. They were not in 
F 
custody of the court. They could not be taken in custody 
ordinarily unless their bail was cancelled. The High Court 
was not correct in holding that as further investigation 
was required, sub-section (2) of Section 167 of the Code 
gives ample power for grant of police remand. The G 
distinction between the power of remand in terms of sub-
section (2) of Section 167 and sub-section (2) of Section 
309 of the Code is apparent. [Paras 23, 24] [1137-E-G] 
Raghubir Singh and oth.ers v. State of Bihar (1986) 4 H 
1128 
SUPREME COURT REPORTS 
[2009] 7 S.C.R. 
A SCC 481; CBI v. Anupam J. Kulkarni (1992) 3 SCC 141; State 
v. Dawood Ibrahim Kaskar 
AIR (1997) SC 2494; Dinesh Oalmia v. CBI, (2007) 8 
SCC 770; Rama Chaudhary v. State of Bihar (2009) 5 SCC 
366 - relied on. 
8 
5. The Special Investigating Team already submitted 
its report to this Court. Nothing was pointed out as to why 
even the bail granted to the appellants should be cancelled 
so as to consider that question independently. No 
~ 
sufficient or cogent material was placed on record by the 
f 
c 
State or the Special Investigating Team in this behalf. 
[Paras 26, 27] [1141-C-F] 
.. 
6. In the peculiar facts and circumstances of the case, 
in exercise of jurisdiction under Article 142 of the 
D Constitution of India, the interim direction is made 
absolute subject to any other or further orders that may 
be passed by the Sessions Judge till an additional charge 
sheet, if any, is filed by the Special Investigating Agency 
before the Sessions J

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