It is the duty of judiciary to protect the fundamental rights of the citizens of this country to ensure justice must not only be done but must be seen to be done and majesty of rule of law is to be upheld and it is to be ensured that guilty are punished in accordance with law notwithstanding their status and authority which they might have enjoyed. This Court being the protector of the civil liberties of the citizens, has not only power and jurisdiction but also an obligation to protect the fundamental rights guaranteed by part III in general and Article 21 of the Constitution in particular, zealously and vigilantly.
In Pradeep Ram v. State of Jharkhand And Another [(2019) 17 SCC 326] called upon to deal with a situation where an accused had been bailed out in a criminal case in which new offences were added subsequently and a question arose as to whether it would be necessary to cancel the bail granted earlier for taking the accused in custody, a Division Bench of this Court took pains to examine the view taken by several High Courts including the High Courts of Rajasthan, Madras, Allahabad and Jammu and Kashmir as also the observations made by this Court in previous decisions on this aspect and held thus :-
“31. In view of the foregoing discussions, we arrive at the following conclusions in respect of a circumstance where after grant of bail to an accused, further cognizable and non-bailable offences are added:
31.1. The accused can surrender and apply for bail for newly added cognizable and non-bailable offences. In event of refusal of bail, the accused can certainly be arrested.
31.2. The investigating agency can seek order from the court under Section 437(5) or 439(2) CrPC for arrest of the accused and his custody.
31.3[Ed.: Para 31.3 corrected vide Official Letter dated 31-7-2020.] . The court, in exercise of power under Section 437(5) or 439(2) CrPC, can direct for taking into custody the accused who has already been granted bail after cancellation of his bail. The court in exercise of power under Section 437(5) as well as Section 439(2) can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non-bailable offences which may not be necessary always with order of cancelling of earlier bail.
31.4. In a case where an accused has already been granted bail, the investigating authority on addition of an offence or offences may not proceed to arrest the accused, but for arresting the accused on such addition of offence or offences it needs to obtain an order to arrest the accused from the court which had granted the bail.”
ย As can be discerned from the observations made in Pradeep Ram (supra), addition of a serious offence can be a circumstance where a Court can direct that the accused be arrested and committed to custody even though an order of bail was earlier granted in his favour in respect of the offences with which he was charged when his application for bail was considered and a favourable order was passed. The recourse available to an accused in a situation where after grant of bail, further cognizable and non-bailable offences are added to the FIR, is for him to surrender and apply afresh for bail in respect of the newly added offences.
The investigating agency is also entitled to move the Court for seeking the custody of the accused by invoking the provisions of 437(5) and 439(2) Cr.P.C., falling under Chapter XXXIIII of the Statute that deals with provisions relating to bails and bonds. On such an application being moved, the Court that may have released the accused on bail or the Appellate Court/superior Court in exercise of special powers conferred on it, can direct a person who has been released on bail earlier, to be arrested and taken into custody.
Note
Section 437(5) – Any Court which has released a person on bail under sub- section (1) or sub- section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
Section 439(2) – A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.
It is relevant to consider the provisions of 173(8) of the Code of Criminal Procedure, which reads as under:
“173. (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 such report or reports as they apply in relation to a report forwarded under sub-section (2).”
A careful reading of the said provisions, makes it clear sub section (8) of Section 173 of the Code of Criminal Procedure does talk about “further investigation”. The term, “further investigation” has, however, not been defined in the Code and must therefore depend on the facts of each case as culled from the record. The further investigation conducted by the 2nd respondent revealed that 88 witnesses were examined and 75 documents were produced, which depicts the overt acts against the additional accused persons and accordingly filed the supplementary charge sheets before the Court, which clearly indicates that the nature of the investigation conducted by the 2nd respondent amounts to continuation of further investigation in Crime No.135/16 and not re- investigation as contended by the learned counsel for the petitioners.
The Hon’ble Supreme Court while considering the provisions of Section 173(8) of the Code of Criminal Procedure in the case of Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj -vs- State of A.P. reported in 1999 Crl.J. 3661, held at paragraph-10 as under:
Power of the police to conduct further investigation, after laying final report, is recognised under Section 173(8) of the Code of Criminal Procedure. Even after the court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. This has been so stated by this Court in Ram Lal Narang v. State (Delhi Admn.) [(1979) 2 SCC 322 : 1979 SCC (Cri) 479 : AIR 1979 SC 1791] . The only rider provided by the aforesaid decision is that it would be desirable that the police should inform the court and seek formal permission to make further investigation.
Supreme Court in the case of State of A.P. v. A.S. Peter, reported in (2008)2 SCC 383 at paragraphs 4 and 17, which reads as under:
4. Before carrying out the said investigation, the Inspector of Police, CID filed a memo in the said court with the prayer that the matter be adjourned. Although it does not appear that any express permission was granted for carrying out further investigation, the prayer of adjournment was allowed in terms of the said memo. Further investigation was carried out whereafter an additional charge-sheet was filed against Accused 1 to 3 in the Court of the IVth Additional Munsif Magistrate, Chittoor for offences under Sections 199, 200, 204 and 120 of the Penal Code. More accused persons were also added in the charge-sheet in the category of the accused. Indisputably, the case was transferred from the Tirupati Court to a Designated Court at Chittoor.
Hon’ble Supreme Court in the case of Pradeep Ram v. State of Jharkhand reported in (2019) 17 SCC 326, wherein at paragraph- 45 it is held as under:
45. Sub-section (6) of Section 6 prohibits the State Government or any police officer of the State Government to proceed with the investigation. In the present case, when Order was issued by the Central Government on 13-2-2018, it was not competent for the police officer of the State Government to proceed with the investigation. We, thus, are of the opinion that FIR, which was re-registered by NIA on 16-2-2018 cannot be held to be second FIR of the offences rather it was re-registration of the FIR to give effect to the provisions of the NIA Act and re-registration of the FIR is only procedural Act to initiate the investigation and the trial under the NIA Act. The re-registration of the FIR, thus, is neither barred nor can be held that it is second FIR.