Remand under section 309 crpc | Remand of an Accused During Further Investigation |Police Remand After Filing Of Charge Sheet | Find Your Advocate

                                                                     written by :-  Ananya Sharma

Remand of an Accused During Further Investigation

We are well aware of the custody of an accused before the filing of charge-sheet that is during the stage of pre-cognizance. An accused can be kept in police custody for a maximum of 15 days and the remand i.e the judicial custody can be extended by the Judicial Magistrate to a period of 60 days or 90 days depending on the gravity of the offence and the amount of punishment for the offence. But a vital question which needs to be addressed is what happens to the custody of the accused after the filing of the charge-sheet and under which custody can an accused be kept for further investigation?

The distinction of custody can be inferred with the help of sections 167 and 309. Section 309 elucidates on the power of the court to postpone or adjourn proceedings and remand the accused into custody if it deems fit. But the main issue arose as to whether the accused can be sent to police custody after the filing of the chargesheet and initiation of the trial proceedings or not. This question was dealt by the Honorable Supreme Court in the case of Dawood Ibrahim Kaskar v State through CBI which differentiated the remands specified in sections 167 and 309 of the Cr.PC. The police officer has been vested with enough powers to investigate into a case even if cognizance has been taken. The main issue raised in this case was whether an accused arrested after the filing of the chargesheet should be kept in judicial remand as per the provisions of section 309 of Cr.PC or can he given to police custody as specified in section 167 of the Cr.PC for the purpose of further investigation if the Investigating Agency requires him for interrogation.

The judgement made it clear that there was no reason to impede the application of section 167 of the Cr.PC under such circumstances the reason being that if section 309(2) is interpreted in such a way that it bars the Court from exercising its power of detention in police custody, it would deprive the Investigating Agency of the opportunity to interrogate the accused. The Investigating Agency is given wide powers for the purpose of further investigation if sufficient materials are produced but if police custody is not granted for the same in cases of late arrest, it would not cater to the requirement of fair investigation. 

Furthermore, the judgement makes it clear that the words “accused if in custody” provided in section 309(2) refers to accused present before the Court when cognizance was being taken and not for the accused arrested during further investigation as Section 167 would apply in the latter scenario. 

In yet, another recent case, the aforementioned case of Dawood Ibrahim was reiterated and it further made clear that the accused arrested during further investigation can be remanded to police custody subject to the limitations laid under Section 167. Section 309 can be invoked only after cognizance is taken and under this section, remand can only be in the judicial custody. Hence it can be inferred from the cases that the accused can be remanded as per the provisions of section 167(2) during investigation till cognizance is taken by the Court and even if cognizance is taken, the accused can be remanded to police custody u/s 167(2) if the arrest took place during further investigation. 


Further Investigation of an Accused after the Grant of Bail

We have already discussed about the remand of an accused during further investigation but another issue which was raised in the Court was what whether an accused could be sent to police custody after he had been granted bail by the Honorable Court. This question was answered in the case of Mithabhai Pashabhai Patel v State of Gujarat. In this particular case, a Special Investigation Team had been devised to carry out further investigation and the team required the accused in police custody for a period of 14 days for interrogation. 

An application seeking the custody of the accused was filed before the Sessions Court but the same was rejected on the reasoning that the Honorable Gujarat High Court had already granted bail to the accused. Thus the Sessions Court was not entitled to provide the remand of the accused in police custody without the cancellation of the bail. The applicant when approached the High Court, the High Court opined that the custody of the accused could be granted to the Investigating Agency for interrogation considering the wide powers granted for further investigation and that no cancellation of bail was required for the same.

The Supreme Court on the other hand criticized the reasoning of the High Court and stated that the custody of the accused could not be granted as he was not in the custody of the Court. The remand could be granted for further investigation only after the cancellation of the bail. The cancellation of bail without a concrete ground would tamper with the justice system, thus certain grounds have been laid down for the cancellation which are as follows:

  • If the accused interferes or attempts to interfere with the due course of administration of justice by intimidating witnesses;

  • If the accused attempts to evade the course of justice by absconding or going underground or tampering the evidence;

  • If the accused abuses the liberty granted to him by indulging in unlawful activities.

  • If the accused attempts to hamper the smooth process of investigation.

Thus the prosecution in order to get the bail cancelled would have to come up with very strong grounds which provide reasonable grounds to believe that arrest is absolutely necessary.


The Supreme Court further iterated that re-arrest of an accused if made after the expiry of the first fifteen days of police custody must be for the investigation of different case. Thus re-arrest for the investigation of the same offence is prohibited. The Court thus taking into account all the situations and precedents concluded that the remand of the accused in police custody for further investigation was not possible without the cancellation of the bail and that the Investigating Agency could not come up with cogent grounds to justify the cancellation of the bail.

Change in Investigation Agency During Further Investigation

Section 156(3) of the Criminal Procedure Code provides wide powers of directing investigation to the Magistrate including the power to direct further investigation but the further investigation covered here does not hinder the further investigation which can be performed by the Investigating Officer under section 173(8). The question arises with regards to the extent to which this power can be exercised and whether such powers would permit the change in investigating officer during further investigation or not. This question was answered in a recent 2015 case which stated that the Magistrate is not entitled to order further investigation by a different agency as that would lead to re-investigation which is beyond the power of a magistrate. Re-investigation comes under the purview of Constitutional Courts and only they can order further investigation by a different investigating agency. In the case of Chandra Babu, the Chief Judicial Magistrate had firstly ordered for reinvestigation and secondly ordered this investigation by a different investigating agency. The Apex Court interpreted the order of re-investigation as “further investigation” and emphasized on the wide powers of the Magistrate in section 156(3) but on the issue of different investigating agency, the bench concurred that it would not fall within the jurisdiction of the Magistrate to pass such orders as that would lead to fresh investigation.

Can the CBI Take Over the Investigation of a Case?

The CBI take over the investigation of a criminal case only under circumstances where the State Government requests for the same and the Central Government agrees to it. This takes place through a proper procedure where the State Government issues notification of consent and the Central Government issues a subsequent notification granting permission for the same. Another way through which the CBI can take over a criminal case is if the Constitutional Courts i.e. any of the High Courts or the Supreme Court orders CBI to do so. This power is hence not vested with any Magistrate or any lower court.


Can Magistrate Order Further Investigation by CB-CID?

We already witnessed the restrictions on the powers of the Magistrate to order further investigation by a different investigating agency i.e. the CBI but over the period of time, the Apex Court was approached with another issue as to whether the Magistrate could order further investigation by the CB-CID or not. This issue was answered in a recent case which said that CB CID was an elite force devised within the Police Department to investigate cases on the direction of the Government, Director General of Police as well as the Constitutional Courts. Thus investigation by a separate force was not permissible on the order of the Magistrate as already pronounced in the earlier cases. Thus it can be concluded that the magisterial powers laid down under section 156(3) cannot be stretched beyond directing the Officer in Charge to carry out the investigation.


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