- (1.) 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 others) under section 8/20 N. D. P. S. Act Central Bureau of Narcotics, Ghazipur Cell. By the impugned order the learned Sessions Judge rejected the application of the revisionist moved under section 309 Cr. P. C. to grant judicial remand under this provision to accused Devendra Mishra.
(2.) 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 under section 309 Cr. P. C. But this application was rejected by the Sessions Judge on the ground that revisionist must move for custody remand under section 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. Explana'tion-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 under section 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. 12-B for granting remand under section 309 Cr. P. C. It is also a fact that the name of opposite party Devendra Mishra and others 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.
(3.) 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 other matters 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. ";