Union of India (UOI) vs Devendra Mishra

Shiv Charan, J.—The instant revision has been instituted against the order dated 10.1.2008 passed by A.S.J. 10th, Varanasi in Criminal Case No. 195 of 2007, Union of India v. Lal Babu Ram and Ors. u/s 8/20, N.D.P.S. Act by Central Bureau of Narcotics, Ghazipur Cell. By the impugned order the learned Sessions Judge rejected the application of the revisionist moved u/s 309, Cr. P.C. to grant judicial remand under this provision to accused Devendra Mishra.

Learned Counsel for the revisionist argued that Lal Babu Ram and other accused persons were involved in the above case. But the accused Devendra Mishra, Shri Nath Dada and Mohari Dada were absconding. Later on Devendra Mishra was arrested at Lucknow in the same offence. Thereafter an application was moved before the Sessions Judge in the above mentioned case to grant custody remand u/s 309, Cr. P.C. But this application was rejected by the Sessions Judge on the ground that revisionist must move for custody remand u/s 167, Cr. P.C. and that the provisions of Section 309, Cr. P.C. are not applicable to the facts of the present case.

Learned Counsel for the revisionist further argued that this observation of the trial court is not in accordance with Section 309, Cr. P.C. Explanation 1. In this provision remand is to be granted against whom the evidence is of bare suspicion that the accused may have committed the offence. That this Explanation has been added purposely and further option has also been given to collect further evidence. That Section 309 is applicable to the facts of the case and not Section 167, Cr. P.C. as observed by the Sessions Judge. The complaint was instituted against O. P. Devendra Mishra as absconder as he was not arrested. Hence the investigation was kept open otherwise no further evidence was to be collected for the involvement of the accused in the offence. Investigation was only kept open so that the evidence of absconding may be collected. And this position was made clear in the Court by the special prosecutor of the revisionist. And the first argument of the special prosecutor was that the complaint had been filed against the accused Devendra Mishra who is absconding. And after accepting this argument the Court should have granted the remand under this provision. That act of the Sessions Judge is against the provision of Cr. P.C.

I have considered the facts and circumstances of the case as well as submission of the learned Counsel for the revisionist and I have also perused Section 309, Cr. P.C. and also the order passed by the Sessions Judge. The facts are correct as have been mentioned above. Now the legal position is that whether the remand was to be granted u/s 309, Cr. P.C. or Section 167, Cr. P.C. The main contention of the learned Counsel for the revisionist is that the investigation was completed prior to institution of the complaint against the O. P. Devendra Mishra and other co-accused persons. But as Devendra Mishra and other were absconding and only Lal Babu Ram was facing trial, that in the charge-sheet it has been mentioned that as the some of the accused persons are absconding, hence the investigation shall remain open. But he also argued that now the accused had already been arrested in some other case at Lucknow and the entire evidence was collected. No further evidence is to be collected regarding the case and this fact was made clear by the Special Prosecutor in the Court also while arguing the Application No. 12B for granting remand u/s 309, Cr. P.C. It is also a fact that the name of opposite party Devendra Mishra and Ors. were mentioned in the complaint as absconder. It has been mentioned in the complaint that the investigation shall continue to arrest the accused persons who were absconding. Learned Counsel for the revisionist tried to persuade the Court to draw the inference that the investigation was completed but as the accused was not arrested, hence this fact was mentioned otherwise after arrest the absconding accused shall have to face trial. No further evidence is to be collected against the absconder.

I have perused the order of the Sessions Judge and it is correct that the first argument of the special prosecutor was that the complaint had already been instituted against the absconder Devendra Mishra and now he has been detained in the other mattes at District Jail and he is present today in Court. Hence his custody warrant be prepared. It was a complaint case and after completing the investigation the complaint was filed in the Court against the accused persons who were absconding. It was not a police chalani case. Although it is expected from the Central Bureau of Narcotics to conduct the investigation prior to instituting the complaint. But it is also a fact that the case of Central Bureau of Narcotics are to be tried as complaint case and in the present case prior to filing the complaint in the Court the investigation was completed. There is no binding for Central Bureau of Narcotic to conduct the investigation. Because it is expected from the revisionist to file a complaint and criminal complaint was instituted.

Learned Counsel for the revisionist placed reliance on Explanation 1 of Section 309, it has been provided "If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand."

Hence the bare perusal of the Explanation shows that if the evidence shows the bare suspicion that the accused have committed an offence then remand can be granted under this provision and it is also provided in the Explanation that even if it appears to the Court that further evidence may be obtained by a remand then remand may be granted. And in the present case Devendra Mishra has been arrayed as an accused in the complaint but as he was absconding, hence no proceeding was conducted against him. And in my opinion the prosecution was perfectly justified in moving an application u/s 309, Cr. P.C. for granting remand in this provision as the case is pending against him. The learned Sessions Judge was not justified in observing that as in the complaint itself, it has been mentioned that the investigation shall remain open against the absconding accused persons and in these circumstances the prosecution must move an application for remand u/s 167, Cr. P.C. In the present case, the complaint was filed after conducting the investigation and there was sufficient evidence against the accused to raise the suspicion that he committed an offence. Hence in view of Explanation-1 remand ought to have been granted by the learned Sessions Judge u/s 309, Cr. P.C. and when the intention was made clear by the revisionist in the argument that the complaint is pending against the accused who had been arrested in another case. Under these circumstances there is no necessity for the prosecution to move an application u/s 167, Cr. P.C. for obtaining remand. This fact could have been taken into consideration by the Sessions Judge that the complaint is pending in the Court against the accused.

For the reasons mentioned above I have come to the definite conclusion that the revisionist was perfectly justified in moving an application for granting remand u/s 309, Cr. P.C. to accused Devendra Mishra against whom the complaint is pending in the Court. And in the circumstances of the case the revisionist was not required to move an application for seeking remand u/s 167, Cr. P.C. The case of the revisionist is covered u/s 309, Cr. P.C. In my opinion the revision deserves to be allowed.

The revision is allowed. The order dated 10.1.2008, passed by Additional Sessions Judge, Court No. 10, Varanasi is set aside and the learned Sessions Judge is directed to pass proper order on the application of the revisionist u/s 309, Cr. P.C. in the light of the observation made in the body of this judgment.