STATE THROUGH CBI versus DAWOOD IBRAHIM KASKAR AND ORS.

Citation: [1997] SUPP. 1 S.C.R. 212 · Decided: 07-05-1997 · Supreme Court of India · Bench: M.K. MUKHERJEE · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
STATE THROUGH CBI 
v. 
DAWOOD IBRAHIM KASKAR AND ORS. 
MAY 7, 1997 
B 
[M.K. MUKHERJEE, G.T. NANAVATI AND B.N. KIRPAL, JJ.) 
c 
Oiminal .Law : 
Crimi11al Procedure Code, 1973 : Section 167. 
Offe11ce-Cognizance of-Take11 by Court-Accused aTTested by police 
afterwards during fwther i11vestigatio11-Dete11tio11 of accused i11 police cus-
tody-Held : Accused can be detained i11 police custody i11 exercise of court's 
power under S. 167. 
D 
Section 7:J-A"est-WO/Ta11t-lssuance of-Held : Court <:a11not issue 
warrant of an-est solely for production of accused before police i11 aid of 
investigation .. 
Words and Phrases : 
E 
·~ccused if in custody''-MeaT1ing of-In the colltext of Sectio11 309(2) 
of the Criminal Procedure Code, 1973. 
The respondents were involved in a series of bomb blasts in and 
around the City of Bombay following which raids had been conducted at 
their known hideouts to arrest them but none could be apprehended as 
F they were deliberately evading their arrest. Thereafter, the State (CBI) 
filed applications before the Designated Court for issuance of non-bailable 
warrants of arrest against the respondents under Section 73 of the 
Criminal Procedure Code, 1973 and Section 8(3)(a) of Terrorist and 
Disruptive Activities (Prevention) Act, 1987. 
G 
The Designated Court rejected the application holding that after 
cognizance was taken in respect of an offence process could be issued to 
the persons accused thereof only to compel them to face trial but no such 
process could be issued by the Court in aid of investigation under Section 
73 of the Code. According to the Designated Court, though under the Code 
·H further investigation was not barred there was no provision therein which 
212 
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STATE v. DAWOODIBRAHIMKASKAR 
213 
entitled the Investigating Agency to seek for and obtain aid from the Court A 
for the same. Hence this appeal. 
Allowing the appeal, this Court 
HELD : 1.1. There cannot be any manner of doubt that the remand 
and the custody referred to in the first proviso to Section 309(2) of the B 
Criminal Procedure Code, 1973 are different from detention in custody 
under Section 167 of the Code. While remand under the former relates to 
a stage after cognizance and can only be to judicial custody, detention 
under the latter relates to stage of investigation and can initially be either 
in police custody or judicial custody. Since, however, even after cognizance C 
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, there is no 
reason whatsoever why the provision 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- to mean that 
after the Court takes cognizance of an offence it cannot exercise its power D 
of detention in police custody under Section 167 of the Code, the loves" 
tigating 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) 
I custody was essential for that purpose. Therefore, the words "accused if in E 
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 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 
F 
Section 167. [222-A-F] 
G 
Mohammad Yasin Manswi v. State of Maharashtra, (1994) Cr.LJ. 
1854 (Born.), overruled. 
1.2. Section 73 of the Code is of general application and that in 
course of the investigation a court can issue a warrant in exercise of power H 
214 
SUPREME COURT REPORTS (1997) SUPP. 1 S.C.R. 
A thereunder to appreheod, inter alia, a person who is accused of a non-bail-
able offence and is evading arrest, the related question is as to whethe
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