2019 (3) TMI 1980 - HC - Indian Laws

Seeking issuance of writ of habeas corpus - Seeking liberty of detenue - passing remand order invoking Section 267 Cr.P.C. - grievance of the petitioner is that the petitioner is involved in number of cases and that his remand is sought by the police on PT warrant without effecting his arrest and that the accused is being remanded on PT warrant contrary to provisions of Section 267 Cr.P.C. - HELD THAT - In the instant case though the petitioner was released on bail in crimes registered against him the reason for he being kept in prison is not reflected in the material placed on record. On the other hand the application filed before the Lower Court seeking recall of PT warrant show that to the knowledge of the petitioner he has not been arrested in any other crime and there was no remand under Section 167 Cr.P.C. meaning thereby that the petitioner was not aware or was not able to give a clear picture as to whether his arrest has been shown in any other crime - Since the prisoner was in remand as on the date of passing of the order by the Concerned Court the Jail Authorities produced the alleged prisoner before the Court on the respective dates and having heard the matter passed an order under Section 167 Cr.P.C. remanding him to judicial custody which is being extended from time to time as required under Section 167 Cr.P.C. Unless that judicial order is set aside by the Competent Court it is pleaded that the custody cannot be termed as legal. As seen from the record the petitioner is involved in number of crimes relating to theft and illegal transportation of red sander logs cut in Simhachalam Forest. Though he was detained under preventive detention laws his detention order was set aside on technical ground. Fact remains that he is shown as an accused in number of crimes in different police stations of the State. Steps are being taken for his production in almost all the police stations through PT warrant before the Concerned Courts. It is also to be noted here that if PT warrants are issued by different Courts for production of the alleged detenue before the respective Courts then it would be practically impossible for the police to produce the prisoner before various Courts at various places on a particular date and eventually the order of the High Court could not be complied with. When the prisoner is detained pursuant to the judicial order passed by the Magistrate one cannot term such detention as illegal as there is distinction between illegal custody and custody made in pursuance of the judicial orders. Unless judicial orders are set aside the petitioner cannot be released holding his detention as illegal and improper - the issuance of writ of habeas corpus would not arise when remands are made pursuant to a judicial order. Petition dismissed.

Summary

Issues Involved:
1. Legality of detention under PT warrant.
2. Jurisdiction and authority of the Magistrate in remanding the accused.
3. Interpretation and scope of Section 267 Cr.P.C.
4. Validity of remand orders under Section 167 Cr.P.C.
5. Distinction between "arrest" and "custody."
6. Application of habeas corpus in cases of alleged illegal detention.

Detailed Analysis:

1. Legality of Detention under PT Warrant:
The petitioner argued that the PT warrant under Section 267 Cr.P.C. cannot be a source to detain a person in judicial custody, asserting that remand orders based on PT warrants are without jurisdiction and violate Article 21 of the Constitution. The respondents countered that the PT warrant is used to produce a person confined in prison before a criminal court and that subsequent remand orders were issued under Section 167 Cr.P.C., making the detention lawful.

2. Jurisdiction and Authority of the Magistrate in Remanding the Accused:
The petitioner contended that the Magistrate has the power to remand a person only under Section 167 Cr.P.C., not under Section 267 Cr.P.C. The court clarified that the remand of an accused must be under Section 167 Cr.P.C., and remanding an accused under Section 267 Cr.P.C. is not correct. However, non-mentioning the specific provision while ordering remand does not make the remand illegal if the remand is substantively under Section 167 Cr.P.C.

3. Interpretation and Scope of Section 267 Cr.P.C.:
The court examined the legislative history and intent behind Section 267 Cr.P.C., noting that it was designed to secure the attendance of prisoners in court for inquiry, trial, or other proceedings, not to facilitate investigations or arrests. The court held that Section 267 Cr.P.C. can be invoked for all proceedings under the Code, including investigation, as long as the prisoner is lawfully confined or detained.

4. Validity of Remand Orders under Section 167 Cr.P.C.:
The court found that remand orders were issued under Section 167 Cr.P.C., authorizing the detention of the accused. The court emphasized that the remand must be pursuant to a judicial order, and unless such orders are set aside by a competent court, the custody cannot be termed illegal.

5. Distinction between "Arrest" and "Custody":
The court highlighted that "arrest" and "custody" are not synonymous. While every arrest involves custody, not every custody amounts to an arrest. The court referenced the Supreme Court's judgment in Directorate of Enforcement v. Deepak Mahajan, which clarified that custody may amount to arrest in certain circumstances but not in all.

6. Application of Habeas Corpus in Cases of Alleged Illegal Detention:
The court concluded that habeas corpus is not applicable when remands are made pursuant to judicial orders. The petitioner must challenge the remand orders through appropriate legal channels rather than seeking habeas corpus. The court dismissed the writ petition, stating that the remands were made under judicial orders and thus lawful.

Conclusion:
The writ petition was dismissed, and the court upheld the legality of the detention, remand orders, and the use of PT warrants under Section 267 Cr.P.C., provided the remand is substantively under Section 167 Cr.P.C. The court emphasized the necessity of judicial orders for lawful detention and clarified the distinction between arrest and custody.