( 1 ) THE revisional application has been preferred by the petitioner challenging the order dated 19. 4. 04 passed by the learned Metropolitan magistrate, 9th Court, Calcutta in G. R. Case No. 696 of 1996 thereby rejecting prayer of the prosecution for police custody of accused opposite party Acharya tadbhavanananda Avadhuta @ Tusar Kanti @ Lalchand Parihar. ( 2 ) LEARNED Advocate for the petitioner contended that on the basis of source information on 18. 12. 95 that huge quantities of arms and ammunitions in village Khatanga, Belamu, Maramu, Beradi and Barudi within P. S. Jhaldah were in existence, the Officer-in-Charge of Jhaldah P. S. registered the matter in G. D. Entry No. 515 and left for situs. On search huge amount of arms and ammunitions were recovered and he registered Jhaldah P. S. Case No. 152 dated 18. 12. 95 under sections 121, 121a, 122 and 123 of the Indian penal Code (hereinafter called the IPC) and sections 25 and 27 of the Arms act against unknown persons. By a notification issued by the Government of West Bengal the said case was transferred to the petitioner for investigation and it was registered as No. R. C. 11/s/95 Cal dated 28. 12. 95 by Delhi Special Police Establishment, Anti-Corruption Branch, Kolkata. After completing investigation chargesheet was submitted on 20. 3. 96 and after further investigation supplementary chargesheet was submitted against 14 persons on 5. 9. 96. The accused opposite party is the General Secretary of the Prout Universal, an organisation of Anandamarg. The Members of the Prout Universal and Members of Anandmarg, conspired to wage and war against the Government of India and in that process they procured the said arms and ammunition and planned it to drop near Anandmarg Campus in the District of Purulia. The chargesheet was submitted showing this accused opposite party as one of the absconders. ( 3 ) HE contended that with the arrest of the accused opposite party an avenue has been opened to the prosecution for interrogating him to detect some more in the process of further investigation. Further investigation is required concerning: 1. Whereabouts of the absconding accused; 2. Complicity of Kim Davy a disciple of the opposite party arrangements for extradition of whom are being made; 3. Source of the money for the purchase of arms and ammunition and its passage to India; 4. Further investigation is required concerning: 1. Whereabouts of the absconding accused; 2. Complicity of Kim Davy a disciple of the opposite party arrangements for extradition of whom are being made; 3. Source of the money for the purchase of arms and ammunition and its passage to India; 4. The end use of the said funds and unrecovered arms and ammunitions and their place of concealment; 5. Harbouring of the absconding accused; 6. Of passports and of foreign travels; 7. Of international and foreign conspirators; 8. His complicity in the act. ( 4 ) HE further contended that on the basis of the chargesheet already trial of some of the accused persons were held and they were convicted. The question is now whether an accused who was absconding at the time of chargesheet and also during trial of the some of the accused persons, if arrested subsequently, can be interrogated in police custody to unearth the materials as indicated above. Arrest as well as interrogation of arrest person is part of investigation. The accused by absconding and refusing to submit to record his statement has interfered with the course of investigation. The supreme Court in AIR 1994 SC 2494 has held that remand under section 167 of the Code of Criminal Procedure (hereinafter called the Code) is governed so long further investigation continues which means that in respect of accused in which the Court had taken cognizance of the offence may exercise its power to detain him in police custody, subject to the fulfilment of the requirement and limitation of section 167. The learned Magistrate could not grasp the nature of detention that can be ordered in respect of an accused who was absconding and erred in law by rejecting the prayer for police custody. The order of the learned Magistrate should be set aside and the accused opposite party may be directed to be remanded to police custody in view of provisions of section 167 of the Code and also with the limitation under the said section. ( 5 ) LEARNED Advocate appearing for the opposite party referred to the decisions reported in 1983 Cr. LJ 839, 1975 Cr. LJ 1212 and 1992 Cr. LJ 2768 and contended that in the instant matter there is no scope of police custody. After completing investigation chargesheet was submitted on 20. 3. 96 and thereafter supplementary chargesheet was submitted on 5. 9. 96. LJ 839, 1975 Cr. LJ 1212 and 1992 Cr. LJ 2768 and contended that in the instant matter there is no scope of police custody. After completing investigation chargesheet was submitted on 20. 3. 96 and thereafter supplementary chargesheet was submitted on 5. 9. 96. Chargesheet was submitted showing this accused opposite party as absconder and the case was committed to the Court of Sessions under section 209 of the Code for trial. The persons who were arrested and were in custody were sent to the Court of Sessions to face the trial and after trial they have been convicted also. After trial and conviction there is no scope of further investigation against this accused opposite party who was shown as absconder in the chargesheet and the law makes it clear that against him investigation is complete. Provisions of sections 209 and 309 of the Code refers to custody and such custody is judicial custody and cannot be police custody. In the learned Court below date has been fixed for supplying copies to this opposite party and in indicates that the matter is at the stage of enquiry before the learned Magistrate for commitment. The learned Magistrate is to follow the statute and the learned Magistrate rightly rejected the prayer of petitioner for police custody of opposite party. ( 6 ) HE further contended that after submission of chargesheet against this opposite party showing him absconder cognizance was taken and the learned Magistrate committed the case to the Court of Sessions when the sessions Court also took cognizance of offence. Trial was held in respect of the some accused persons when this opposite party was absconding. He has subsequently been brought under arrest, after trial of some accused persons was over. Now police custody under provisions of section 167 of the Code is not applicable in respect of the accused opposite party. Provisions of section 167 of the Code for police custody could have been applicable if this opposite party was a new person against whom there was no investigation earlier. Police custody is not applicable against known accused person against whom chargesheet was already submitted showing absconder. Against new previously undisclosed accused scope of police custody under section 167 of the Code is not a bar but, in respect of known accused there cannot be any custody except custody under section 309 of the Code which is judicial custody. Police custody is not applicable against known accused person against whom chargesheet was already submitted showing absconder. Against new previously undisclosed accused scope of police custody under section 167 of the Code is not a bar but, in respect of known accused there cannot be any custody except custody under section 309 of the Code which is judicial custody. The factual matrix of AIR 1994 SC 2494, heavily relied on by the learned advocate of petitioner, is completely different from the factual matrix of the present case involving this accused opposite party. In the Court below the learned Public Prosecutor agreed to supply copies of relevant papers under section 207 of the Code to this accused and the learned Magistrate has passed direction to supply copies of relevant papers on the next date. After complying with the direction of the learned Magistrate regarding custody as envisaged in section 309 of the Code the petitioner cannot challenge the order of the learned Magistrate rejecting prayer for police custody. This accused is now in the stage of enquiry for commitment and he is not under the stage of investigation. At this stage against him the only custody that can be ordered in judicial custody and not police custody. There is right of interrogation no doubt but the petitioner can interrogate the accused opposite party inside the jail with the permission of the learned Magistrate. He contended that the order of the learned Magistrate requires no interference and prayer for police custody cannot be allowed and revisional application should be dismissed. ( 7 ) I have duly considered the submissions made by the learned Advocates of the parties and perused the revisional application and annexures and the decisions placed by the learned Advocates in support of their respective contentions. Learned Advocate for the petitioner referred to two decisions namely State of U. P. vs. Lakshmi Brahman and Anr. , reported in AIR 1983 sc 439 and State through C. B. I, vs. Dawood Ibrahim Kaskar and Ors. , reported in AIR 1997 SC 2494 . Learned Advocate for the opposite party referred to three decisions namely Natabar Parida vs. State of Orissa, reported in 1975 cr. LJ 1212, State of U. P. vs. Lakshmi Brahman and Anr. , reported in 1983 cr. , reported in AIR 1997 SC 2494 . Learned Advocate for the opposite party referred to three decisions namely Natabar Parida vs. State of Orissa, reported in 1975 cr. LJ 1212, State of U. P. vs. Lakshmi Brahman and Anr. , reported in 1983 cr. LJ 839 : AIR 1983 SC 439 and Central Bureau of Investigation, Special investigation Cell- I, New Delhi vs. Anupam J. Kulkarni, reported in 1992 cr. LJ 2768. Citing of decisions cannot establish any matter unless factual matrix of the reported decisions have any resemblance with the matter under consideration before the Court. It appears from the materials on record as well as submissions from the learned Advocates of the parties that in the instant matter chargesheet was submitted on 20. 3. 96 and a supplementary chargesheet was submitted on 5. 9. 96. Chargesheet was submitted against 13 accused persons under sections 121/121a/122/123 of the IPC and under sections 25 (1a), (1b), (FG)/27/35 of the Arms Act and under section 9 (B) (2) of Indian Explosives Act and under sections 4 (6)/5/6 of explosive Substances Act and also under sections 120b/177/420 of IPC and under sections 10/11/11a/12 of Aircraft Act against accused Nos. 1 to 8 including the present accused party showing him as absconder and he was shown accused No. 12 in the chargesheet. ( 8 ) AFTER going through the provisions of sections 167 (2), 207, 209 and 309 of the Code I am of opinion that custody during investigation can be made under section 167 of the Code. During the first 15 days of remand of the accused a Magistrate can make order for police custody. When a case has ended in submission of chargesheet showing a particular accused either under arrest or absconder there is no scope of further remand to police custody under provisions of section 167 (2) of the Code. The moment chargesheet is submitted and cognizance is taken by the learned Magistrate stage of investigation comes to an end. Thereafter, comes the stage of enquiry or committal enquiry if the case is triable by Court of Sessions and a magistrate has to supply copies of relevant papers to the accused under section 207 of the Code. The moment chargesheet is submitted and cognizance is taken by the learned Magistrate stage of investigation comes to an end. Thereafter, comes the stage of enquiry or committal enquiry if the case is triable by Court of Sessions and a magistrate has to supply copies of relevant papers to the accused under section 207 of the Code. After supplying copies the Magistrate can commit the case to the Court of Sessions and at that time the Magistrate may permit the accused to remain on bail or may take him into custody. The custody here cannot be police custody but it would be definitely a judicial custody. Similarly, the remand order under section 309 of the Code indicating custody can only be judicial custody and there cannot be any police custody. ( 9 ) IN the instant matter after submission of chargesheet showing the accused opposite party as absconder trial was held in respect of some of the accused persons who were in custody and their trial has also ended and they were convicted. Provisions of section 173 (8) of the Code no doubt lays down scope of further investigation and this scope of further investigation cannot permit the Magistrate to remand an accused to police custody against whom already chargesheet was submitted showing him absconder though he was brought under arrest subsequently. Exercising the power of further investigation Magistrate can remand an accused under section 167 of the code to police custody against whom there was no investigation earlier and against whom there was no chargesheet and who is brought before the learned Magistrate for the first time. An accused who has been subsequently arrested in a case which has already been committed to Court of Sessions and against whom chargesheet was submitted earlier showing him absconder, cannot be remanded to police custody under section 167 (2) of the Code and against him remand order, if any, before sending him to Court of Sessions for facing trial would be custody which can only be judicial custody. ( 10 ) LEARNED Advocate for the petitioner relied mainly on paragraph 10 of the decision of the Supreme Court in State through CBI (supra) but, factual matrix of this reported case is different from the factual matrix of the present case. ( 10 ) LEARNED Advocate for the petitioner relied mainly on paragraph 10 of the decision of the Supreme Court in State through CBI (supra) but, factual matrix of this reported case is different from the factual matrix of the present case. In the reported decision there was series of bomb explosion around the city of Bombay on March 12, 1993 and after completing investigation chargesheet was forwarded to the Designated Court on November 4, 1993 against 198 accused persons showing 45 of them absconders. A few days thereafter on November 11, 1993 the Government of India with the consent of Government of Maharashtra issued a notification entrusting further investigation in the case of Delhi Special Police Establishment (CBI ). In course of such investigation CBI apprehended Md. Salim Mira Moiuddin shaikh @ Salim Kutta, one of the absconders mentioned in the chargesheet and he made a confessional statement before the Deputy Inspector General of Police. In that confession he disclosed name of some persons who took active part in the criminal conspiracy and on the basis of such confessional statement CBI moved an application before the Court for issue of non-bailable warrant against the persons whose names were disclosed by Salim Kutta. Subsequently, few months later chargesheet was submitted against several accused persons including one Mansuri showing him absconder. Few months later Mansuri came to be arrested by the CBI and he was produced before the Designated Court and CBI prayed for remand of Mansuri to police custody. The prayer was allowed but the Designated Court kept the order in abeyance for few days to enable Mansuri to challenge the same in superior Court. The Bombay High Court when moved by Mansuri observed that order granting Mansuri to police custody was without jurisdiction and the High court set aside the order of the Designated Court. ( 11 ) THE matter then went before the Hon'ble Supreme Court and the supreme Court observed that, "there cannot be any manner of doubt that the remand and the custody referred to in the first proviso to the above sub-section are different from detention in custody under section 167. While remand under the former relates to a stage after cognizance and can only be to judicial custody, detention under the latter relates to the stage of investigation and can initially be either in police custody or judicial custody. While remand under the former relates to a stage after cognizance and can only be to judicial custody, detention under the latter relates to the stage of investigation and can initially be either in police custody or judicial custody. Since, however, even after cognizance 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, we see no reason whatsoever why the provisions 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- as has been interpreted by the Bombay High court in Mansuri, 1994 Cr. LJ 1854 (supra) to mean that after the Court takes cognizance of an offence it cannot exercise its power of detention in police custody under section 167 of the Code, the investigating 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) custody was essential for that purpose. We are therefore of the opinion that the words 'accused if in custody' appearing in section 309 (2) cognizance 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 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 section 167". ( 12 ) FROM the decision of the Hon'ble Apex Court it appears that Their lordships observed that while remand relates to a stage after cognizance can only be to judicial custody. Detention under the latter relates to stage of investigations and can initially be either in police custody or judicial custody. ( 12 ) FROM the decision of the Hon'ble Apex Court it appears that Their lordships observed that while remand relates to a stage after cognizance can only be to judicial custody. Detention under the latter relates to stage of investigations and can initially be either in police custody or judicial custody. Supreme Court made it clear that even after cognizance of an offence is taken the police has a power to investigate into it further which can be exercised under Chapter XII and provisions of section 167 of the Code can be applied to a person who comes to be later arrested by police in course of such investigation. It was observed by His Lordship that the words 'accused if in 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 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) of the Code but he who comes under the second category will be governed by section 167 so long as further investigation continues. In the instant matter the accused opposite party has been arrested subsequently no doubt but not during the course of further investigation. Against him investigation was complete and chargesheet was submitted showing him absconder and trial of some of the accused was also held and it would be deemed that this accused was before the Court when cognizance was taken or when enquiry was held in respect of him. In the charge framed against accused persons who faced the trial earlier reference and name of this accused opposite party was mentioned. He was not an accused who was subsequently arrested in course of further investigation. Therefore, the present accused opposite party can be remanded to judicial custody only in view of section 309 (2) of the Code and not under section 167 of the Code. That being the position of law this accused opposite party who was subsequently arrested but not subsequently arrested in course of further investigation cannot be remanded to police custody under section 167 of the Code. The prayer of the petitioner for remanding him to police custody cannot be allowed. That being the position of law this accused opposite party who was subsequently arrested but not subsequently arrested in course of further investigation cannot be remanded to police custody under section 167 of the Code. The prayer of the petitioner for remanding him to police custody cannot be allowed. ( 13 ) THE above discussion makes it clear that the learned Metropolitan magistrate, 9th Court, Calcutta made no mistake by rejecting the prayer of the petitioner for remanding the accused opposite party to police custody. The said order cannot be regarded as improper, illegal and without jurisdiction and I find no ground to interfere with the impugned order. The prosecution,. e. , the petitioner has a right of interrogation of the accused opposite party and the petitioner can do it in jail with the prior permission of the Magistrate concerned. The revisional application accordingly fails and is dismissed. Revisional application dismissed.