TMI Blog1998 (12) TMI 629X X X X Extracts X X X X X X X X Extracts X X X X ..... identical and it is as follows : This Court may be pleased to direct the (third respondent in the first case and the sixth respondent in the second case) not to hand over custody of the petitioner on the basis of any P. T. warrants/arrest warrants etcd. etc. ( 2. ) The persons, who are trying to take custody of the petitioner from the Central Prison, are the second respondent in the first petition and the Respondents 2 to 5 in the second petition. I heard Mr. C. A. Sundaram, learned senior counsel appearing for the petitioner, Mr. R. Shanmuga-sundaram, learned State Public Prosecutor for all the respondents, Mr. Barot, a senior counsel from the Supreme Court of India and as a party in person in his capacity as the informant in the crime stated to have been registered in Ahmedabad against the petitioner; Dr. Surat Singh, a senior counsel from New Delhi for and on behalf of the investors in common as well as Mr. P. Kannan Babu, learned counsel representing the investors in common. ( 3. ) It appears that there is a complaint on the file of the first respondent/police station in Madras, which stands registered as X Crime No. 1431 of 1998 for offences under Ss. 409 and 420 read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or trial and therefore the proceedings referred to above should also relate to an inquiry or trial and not in any other context. According to the learned senior counsel, none of the three contingencies referred to above, as enumerated in sub-section (1) of Section 267 of the Code of Criminal Procedure, is established and therefore the issuance of the P. T. warrant is without the authority of law. Except the First Information Report in the respective crime numbers, there is nothing else before the Courts concerned, which have issued the P. T. warrants. Mere pendency of an F.I.R. on the file of the Court would not amount to an inquiry, trial or other proceedings under this Code. If the issuance of the P. T. warrant could not be traced to Section 267 of the Code of Criminal Procedure, then the transfer of the petitioner from the judicial custody of the Court at Madras to the Court outside the city of Chennai or even the State; would amount to unauthorised/illegal detention violating Article 21 of the Constitution of India. The petitioner's judicial custody in Chennai is warranted by law and if he has to be transferred from the judicial custody of the Court at Madras to the custod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginally there was an Act called Prisoners (Attendance in Courts) Act, 1955. The provisions in that Act alone enabled the transfer of a prisoner from one Court to another Court. The Forty First Law Commission Report, in its wisdom, thought the provisions akin to the provisions contained in the Prisoners (Attendance in Courts) Act, 1955, should be provided for in the Code of Criminal Procedure itself and thus Sections 267, 268 and 269 of the Code have been brought into the Code itself in the year 1973. Consequently, clauses (c), (d) and (e) of Section 491 of the Code of Criminal Procedure also stood omitted. The learned State Public Prosecutor contended that the personal liberty of the petitioner is not going to be violated in any manner in this case by his custody being transferred pursuant to the P. T. warrants. The P.T. warrants issued in this case are for transfer and production of the petitioner before the issuing Courts and not before the police for any purpose. On production before the Courts concerned, the Courts may order such custody as they deem fit and while ordering custody, the Courts concerned may, if circumstances exist, order police custody as well. However the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... managed affair in respect of any other offence in any other place within the same State or outside the State, go to jail in the later case and thereby disable the investigating agency in the former case to have his custody for the purpose of investigation. Thatcannot be the legislative intention and that cannot be criminal jurisprudence. If such a construction is given to Section 267 of the Code, it would be giving a premium to an offender to avoid transfer from one custody to another custody. ( 7. ) Dr . Surat Singh, a learned member from Delhi would contend that the police who had registered the crime, is entitled to investigate that crime in a manner authorised by law and this includes the power to arrest. Such a power of investigation cannot be curtailed by reading Section 267 of the Code of Criminal Procedure in the manner canvassed by the learned senior counsel for the petitioner. All powers vested with the police to investigate the crime must be protected and even if there is any difficulty in having that power accomplished, the Court should come to its help by reading the relevant provision in the Code of Criminal Procedure in a manner, which would advance the interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ential of the original order itself and so long as the original order is found to be legal, any consequential result will continue to be valid. Since the execution of the original order takes place within the territorial limit of this Court, at least a part of the cause of action has arisen within the jurisdiction of this Court. The challenge to the order is on the basis that if it is allowed to be executed here, then the personal liberty of the petitioner will be infringed and this Court in such a situation, cannot fold its hands and refer the party to the Court which issued the P. T. warrant. In cases of preventive detention, orders of detention are passed some times by an authority outside the State and it is executed within the State where the detenu is residing. Many a case on the validity of these detentions are challenged before this Court and this Court has always entertained those cases and disposed of them one way or the other. Therefore when the personal liberty of a citizen is sought to be infringed pursuant to an order passed elsewhere, it is always open to the person concerned to move the Court within whose jurisdiction his personal liberty is sought to be infringed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory. If in a case the Court finds that the appellants could not invoke its jurisdiction under Article 226, the Court can certainly treat the petition one under Article 227 or S. 482 of the Code. It may not however be lost sight of that provisions exist in the Code of revision and appeal but sometime for immediate relief. Section 482 of the Code or Art. 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate Courts. Under these circumstances, I have no difficulty in holding that this Court possesses jurisdiction to decide the points at controversy.POINT (b) ( 11. ) Once an information of the commission of a cognizable offence is given to the police, it has to be reduced to writing by the officer concerned as provided for under Section 154 of the Code. There is no doubt in this case that complaints disclosing cognizable offences against the petitioner have been registered not only in the city of Chennai but also in some places in other States as well. Once a cognizable offence is disclosed, the police is at liberty to investigate the case without the order of a Magistrate. The power to investigate includes the power to arrest. Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code contemplates two situations of arrest (i.e.) arrest is made by the police without a warrant and arrest is made by the police with a warrant. In the first type of arrest, the arrested person has to be produced before the nearest Court subject to the power of remand of the Court concerned. In the second type of arrest, the Court before which the arrested accused is produced subject to bail, can permit the removal of his custody to the Court which issued the warrant. ( 13. ) The Honourable Supreme Court of India in the judgment reported in C.B.I. v. Anupam J. Kulkarni, 1992 SCC (Cri) 554 : 1992 Cri LJ 2768 : 1992 (3) SCC 141 : (AIR 1992 SC 1768) has held that even if an accused is in judicial custody in connection with the investigation of an earlier case, the investigating agency can formally arrest him regarding his involvement in a different case and associate him with the investigation of that other case. The importance of this decision as far as the case on hand is concerned is that even when a person is in judicial custody, he can be shown arrest in respect of any number of other crimes registered elsewhere in this country and there cannot be any legal obstacle for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Court to answer to charge or the proceeding pending in the Court. Form No. 37 Schedule two deals with the production of the person from another jail for the purpose of giving evidence. There is no other form prescribed in the Schedule to the Criminal Procedure Codeunder Section 267 empowering the Magistrate to issue the warrants compelling the attendance of the person from another jail in order to answer a charge in investigation. The law commission in its 40th and 41st report recommended that this Section 491 be omitted and more comprehensive provisions be incorporated under the new Code. This Chapter XXII is substituted for Chapter XXXVII of the Code of 1898. The reason for suggesting the change was that Section 491(1) correspond to the writ of habeas corpus. That Art. 226 of the Constitution of India confer wide and comprehensive powers as the High Court of States to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including writs in the nature of habeas corpus etc. for any purpose. In view of this provision, Clauses (a) and (b) of Section 491(1) became practically superfluous. Further recommended that the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the present Code. Under the above referred to Act, the transfer of a prisoner was provided for when any civil or criminal Court thinks that the evidence of any person confined in any prison, is material in any matter pending before it (Section 3(1)). Under sub-section (2) of Section 3 of the said Act, any criminal Court may, if a charge of an offence against a person confined in any prison, is made or pending before it, make an order in the form set forth seeking production of a prisoner from the prison. In other words, the said Act took into its fold the presence of a prisoner before a civil or a criminal Court when his evidence is found to be material in any matter pending before the Court or when a charge of an offence against the said person is made or pending before it. No other situation was contemplated under that Act. The learned senior counsel for the petitioner relied on the judgments of the Honourable Supreme Court of India in Kanu Sanyal v. Dist. Magistrate, Darjeeling, AIR 1974 SC 510 : (1974 Cri LJ 465) and the judgment of the Allahabad High Court in State v. Raghuraj Singh, 1970 Cri LJ 78 for this proposition. It may be noticed, that in the said Act, the words ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... genus. The ejusdem generis rule then is not attracted and such broad construction as the subsequent words may admit will be favoured.The principle underlying this approach to statutory construction is that the subsequent general words were only intended to guard against some accidental omission in the objects of the kind mentioned earlier and were not intended to extend to objects of a wholly different kind. This is a presumption and operates unless there is some contrary indication. In another judgment in Asst. Collector of Central Excise, Guntur v. Ramdev Tobacco Company, (1991) 2 SCC 119 : (AIR 1991 SC 506), the Honourable Supreme Court of India, on the Rule of Construction, laid down as follows (at page 510 of AIR) : The general expression has to be read to comprehend things of the same kind as those referred to by the preceding specific things constituting a genus, unless from the language of the statute it can be inferred that the general words were not intended to be so limited and no absurdity or unintended and unforeseen complication is likely to result if they are allowed to take their natural meaning. The cardinal rule of interpretation is to allow the general words to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Crime Z at place B is without any remedy. The answer should be that he has a remedy and that is under Section 267 of the Code. If an accused is arrested without a warrant while he is free and not in custody, then he has to be produced before the nearest Magistrate, who can remand him. Likewise, if an accused is arrested with a warrant while he is free and not in custody, then Section 81 of the Code permits the removal of such person to the Court issuing warrant. But when the arrest is shown either without a warrant or with a warrant while the person so arrested is in judicial custody, there is no provision in the Code except Section 268 of the Code for the removal of the arrested person to the Court within whose jurisdiction the crime is registered. Such a construction of Section 267 would be definitely to further the ends of justice and not to frustrate the same as stated by the Honourable Supreme Court of India in Anupam J. Kulkarni's case. In Section 267(1) of the Code, the words used are other proceeding under this Code ; in Section 267(1)(a) of the Code, the words used are for the purpose of any proceedings against him ; and in the last portion of that section, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, as put forward by the learned Judges in the above referred to two judgments, has to be followed, then it will have the impact of destroying Section 267 of the Code and will make it unworkable in respect of situations given asillustrations in this case and that cannot be the intention of the legislature as well. Even on facts, I find from the judgment of the Delhi High Court in Harshad S. Mehta's case (referred supra) that the Special Judge, Delhi, while exercising his power under Section 267(1) of the Code, directed the Superintendent of Jail, Byculla, Bombay, to produce the arrested person in the Court as his presence was required for interrogation in connection with the investigation of that case. On being produced, he was formally arrested. In the case decided by the learned Judges of the Rajasthan High Court in Bharti Sachdeva's case (referred supra), it appears that there are two first information reports against the same accused one at Kota and the other at Indore (Madhya Pradesh). A warrant was issued by the Court at Kota for transferring the detenu in prison from Indore to Kota. The arrested person was produced before the Court at Kota and the said Court passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 988 SC 283 : 1988 Cri LJ 417, the Honourable Supreme Court of India had held that investigation as defined in Section 2(h) of the Code is a proceeding under the Code and that is the definition of the word 'investigation' in the Code. ( 17. ) This leads this Court to the next question framed as point (d). The power to remand is provided under Section 167(2) of the Code. A mandate is given to the police officer, subject to Section 57 of the Code, to produce an arrested person forthwith to the Magistrate's court. The Magistrate, to whom an accused person is forwarded under that section may. . . . . remand him to such custody and this power he gets under sub-section (2) of Section 167 of the Code. Therefore on a reading sub-sections (1) and (2) of Section 167 of the Code together, it is clear that unless a person is arrested and produced before the Court, the Court will have no power to exercise the power of remand. The Honourable Supreme Court of India in the judgment in Satyanarayana v. State of A. P., AIR 1986 SC 2130 had stated as follows (at page 2134) : In fact the powers of remand given to a Magistrate become exercisable only after an accused is produced befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e file crimes have been registered against the petitioner, have not, till now, chosen to show arrest of the petitioner when he is in judicial custody in respect of the crime registered in Chennai. Since the Court's power to remand a person to such custody, which includes a police custody as well, is traceable to sub-section (2) of Section 167 of the Code and again when it is made dependant upon an accused arrested and being produced before it under sub-section (1) of Section 168 of the Code, I am of the opinion that the Court, unless an accused is arrested and produced before it, may not be in a position to pass any orders regarding his transfer as is sought to be done in this case. I have already found that arrest of an accused person in a crime is permissible in law though the same person may be in judicial custody in respect of another crime registered against him. As rightly said by the learned Judge of the Delhi High Court in the judgment referred to supra, the Court cannot be used as a device to secure the presence of an accused in custody before that Court by resorting to Section 267 of the Code so as to enable them to effect the arrest. In my respectful opinion it is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of justice . To my mind, the issuance of the P.T. Warrants would not amount to abusing the process of any Court and to prevent the execution of the same would result in failure to secure the ends of justice. If the P.T. warrants are not allowed to be implemented, then there can be no doubt, on the facts of this case, that the ends of justice, would be defeated. Under the first limb of Section 482 of the Code, wherever it is necessary, this Court should not hesitate to give effect to any order under this Code. The P.T. warrant is an order issued under this Code and therefore all that is necessary to give effect to that order must be made by this Court. That is what, two learned Judges of this Court had laid down in Rajamanickam v. State of Tamil Nadu, 1994 (1) Mad Law Weekly (Cri) 121. ( 19. ) Under these circumstances under the inherent powers of this Court I declare that the P.T. warrants issued in these cases are not the result of abuse of any process of Court but they have been issued by Courts having jurisdiction. I also hold that the Court will have jurisdiction to issue such orders only when arrest is shown and the Court is informed about the same, though the accused is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to him and if such a right is recognised, it is likely to affect the investigation in grave crimes. As I have already stated, Section 269 of the Code only contemplates certain legal duties on the officer in charge of the prison and itdoes not create any corresponding right on the accused. Therefore I am of the opinion that the petitioner is not entitled to rely upon Section 269 of the Code, to avoid being transferred pursuant to the P.T. warrant. ( 21. ) In the light of the conclusions on points (c), (d) and (e), on the lines indicated above, I have to hold on point (f) that the personal liberty of the petitioner as guaranteed under Article 21 of the Constitution is not in any way infringed. ( 22. ) In the result, these petitions are dismissed. Consequently Crl. M. P. Nos. 9339 to 9341 of 1998 are dismissed.NOTE :After I pronounced the order, the learned senior counsel appearing for the petitioner prayed for leave to appeal to the Honourable Supreme Court of India stating that the case on hand involves a substantial question of law of general importance. I carefully applied my mind to the judgment rendered by me in the context of the request made by the learned senior couns ..... X X X X Extracts X X X X X X X X Extracts X X X X
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