TMI Blog1992 (10) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... se. (3) That the petitiner, in pursuance to the said order was produced before the Special Judge, Delhi on 17th August, 1992. On being produced, petitioner was formally arrested in this case on 17th August, 1992 itself. Police remand was sought which was given till 20th August, 1992. Thereafter police remand was extended till 22nd August, 1992. However, vide order dated 22nd August, 1992, Mr. Kuldip Singh, Special Judge, Delhi did not grant police remand but remanded the petitioner to judicial custody till 25th August, 1992 at Central Jail, Tihar. (4) That the petitioner was taken to Bombay on 24th August, 1992 and thereafter never produced before the Special Judge, Delhi. The remand after 25th August, 1992 was neither sought nor given to the petitioner. (5) It is in this background Mr. Dinesh C. Mathur, Sr. Advocate for the petitioner has raised very important questions of law. So 'far there is no decision of any High Court or of the Apex Court on these points. These are: I)Whether for the sake of interrogation in connection with the investigation, the prosecuting agency can invoke the provisions of Section 267 Criminal Procedure Code .? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g this principle in mind, we have to see what was the intention of the legislature while incorporating Section 267 in the Criminal Procedure Code . (8) Section 267 Criminal Procedure Code . reads as under; Section 267 (1)Whenever, in the course of any inquiry, trial or other proceeding under this Code, it appears to a Criminal Court, - (a) that a person confined or detained in a prison should be brought before the Court for answering to a charge of an offence, or for the purpose of any proceedings against him, or (b) that it is necessary for the ends of justice to examine such person as a witness, the Court may make an order requiring the officer in charge of the prison to produce such person before the Court for answering to the charge or for the purpose of such proceeding or, as the case may be, for giving evidence. (2)Where an order under sub-section (1) is made by a Magistrate of the second class,it shall not be forwarded to, or acted upon by the officer in charge of the prison unless it is countersigned by the Chief Judicial Magistrate to whom such Magistrate is subordinate. (3)Every order submitted for countersigning under sub-section (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion out of context. (12) The legislature intentionally omitted the word investigation under Section 267 Cr.P.C. The underlying reason for requiring the attendance of a prisoner from another prison is primarily to answer a charge of an offence in inquiry or trial pending in Court or for such proceedings. His attendance can also be required for the purpose of being examined as witness or for giving evidence. (13) Mr. Saxena on the other hand forcefully argued that other proceeding would include investigation because rule of ejusdem generis does not necessarily require that general provision be limited in its scope to the identical thing specifically named nor does it apply when the context manifests a contrary intention. He drew my attention to the provision of Sections 91, 92 and 93 of the Code which corresponds to the Provisions of Sections 94 to 96 of the Old Code. Section 91 which corresponds to Section 94 of the Old Code deals with summons to produce document or things. Whenever any Court or any officer in charge of a Police Station considers that production of any document or thing is necessary or desirable for the purposes of any investigation, inquiry, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uing warrants under Section 93 because of the enabling provision and taking recourse to the word other proceedings which provision is general in nature. Similarly for requiring the attendance of an accused lodged in another jail can be sought by invoking Section 267 Criminal Procedure Code . for the purposes of interrogation and investigation. In this regard, he has placed reliance on the decision of Mysore High Court in the case of M.P. Kevarappa Vs. D. Sankannayya Setty 1965(2) Crl.L.J. 225. in that case the Court was dealing with the provisions of Section 94 and 96 of the Old Code. The facts of that case were that the word Circle Inspector of Police at Mercara acquired information that two persons had printed and circulated a pamphlet containing matters falling witn the purview of of Section 124A and Section 153A of the Penal Code. The Circle. Inspector wanted to collect the evidence so that the prosecution could be commenced in respect of those offences. He applied to the First Class Magistrate Mercara for sanction to investigate those offences since those offences were non-cognizable offences, hence permission was necessary. The Magistrate accorded the permission to investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' in para 3 of Section 96(1) for founding the conclusion that an investigation is not a proceeding under the Code or that a general search to aid an investigation is not within para 3 of Section 96(1) of the Code. Therefore, relying on these observations, Mr. Saxena contended that inexistence of the word 'investigation' in Section 267 will not make any difference. The word 'other proceedings' is comprehensive enough to include investigation. The scope of the word 'other proceeding' should not be restricted only to the inquiry or trial pending in the Court because if that had been the import of the legislature it would have manifestly made it clear in its language as was done under Section 491(1)(C) of the Old Code. In fact in order to enlarge the scope of this Section the word 'other proceeding' has been used. (15) I have considered the rival contentions put forward by the counsel. So far as the case of Mysore High Court is concerned, that is distinguishable on the facts. There the High Court was dealing with the issuing of general search warrant for the purpose of collecting evidence in the investigation for which investigation sanction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... word 'investigation' could be covered. (16) The word other proceedings used in Section 267 Criminal Procedure Code . would mean proceedings pending in Court. For example case under Section 145 and 146 Criminal Procedure Code . are neither inquiry nor trial. Such cases are in fact covered under the definition of other proceedings appearing under Section 267 Criminal Procedure Code . It is keeping in view such like cases that legislature used the expression 'any other proceedings'. But this by no stretch of imagination would mean investigation. The import of the legislature becomes clear from the reading of the title under chapter Xxii which indicates attendance of persons confined Section 267 Criminal Procedure Code . deals with Court's power to require attendance of a prisoner. Now this power to my mind cannot be used to facilitate the investigating agency. It is only when Court requires the attendance of a person lodged in another jail it will exercise this power and that too for limited purpose i.e. to answer a charge in a trial or inquiry or in the proceedings pending before him or to require his presence as a witness for giving evidence and for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason for suggesting the charge was that Section 491(1) correspond to the writ of habeas corpus. That Art.26 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. Clause (a) and (b) of Section 491 (1) became practically superflous. Further recommended that the provisions of clause (c) (d) and (e) relating to production of prisoners in court for various purposes should be omitted and more detailed provisions securing the attendance of prisoners in criminal courts on. the lines of those contained in the prisoners (Attend pursuance in Courts) Act, 1955 should be included in this chapter. It is on the lines of these recommendations of the Law Commission that present Chapter Xxii containing Section 267 was brought on the 'statute. The objects and reasons for this amendment clearly points out the mind of the legislature. This was to secure the attendance of the prisoner in Court and not to be a help in aid to investigating agency nor the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be released on bail. Thus the accused can always obtain bail without an application by merely showing that the prosecution has not established sufficient grounds for remand to detain an accused after that period. Neither Section 436(1) nor Section 437(1) relating to bail enjoins the filing of an application. An application is needed only during the remand period. If the prayer for remand fails, the inevitable result would be that the accused must be released on bail. Thus the accused can always obtain bail without an application by merely showing that the prosecution has not established sufficient grounds for remand. (20) Mr. D.C. Mathur urged that the law does not permit an accused to be in custody without an order of remand. He has placed reliance on the Provision of Section 167 of the Cr.P.C. which provides that: (1)Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well founded, the officer in charge of the police station or the police officer making the inves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which would enable the Magistrate to make up his mind whether or not accused should be detained in custody. Transmission of a copy of the diary is mandatory, and failure to send it to the Magistrate leads to the inference that the diary had not by then come into existence. The Magistrate exceeds his authority in ordering further remand where police fails to produce the diary to justify the remand. (22) In no case the Magistrate can authorise the detention beyond 90 days or 60 days as the case may be. But even beyond 15 days and up to the period of 60 days, the remand has to be taken of the accused as is apparent from the reading of Proviso (a) of sub Section 2 of Section 167 Cr.P.C. and i.e. 15 days each time. Even if the accused is not produced before the Magistrate for any sufficient reasons, still there has to be order by the Magistrate authorising the detention of the accused as held by Supreme Court in the case of Raj Narain Vs. Supdt. Jail . (23) The detention of the petitioner has to be in the this case and not of a case pending at Bombay. Each case will have separate cause of action and pursuance to Section 57 of the Cr.P.C. the petitioner after having bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quirement and where it is found to be disobeyed, come down heavily upon the police. Mr. Mathur further placed reliance on the case of Ram narayan Singh Vs. The State of Delhi and others . There while interpreting Section 167 Cr.P.C. and Section 344 of the Old Code, (corresponding to Section 309 of the new code) the Supreme Court held that the detention of a person in custody after the expiry of the remand order without any fresh order of remand committing him to further custody while adjourning the case under Section 344 Cr.P.C. is illegal, it was further observed that in a question where the lawfulness or otherwise of the custody of the persons concerned is in queston, the documents containing order of remand would be of vital importance and should be produced at the time of Filing return. Relying on the observations made in this judgment, Mr. Mathur contended that the C.B.I, was duty bound to seek the remand of the petitioner even after the initial remand. Having not done so, the detention became illegal. (24) The reason why legislature wants accused to be produced every time, when remand is sought, it is to ward off malpractice and is in fact a counter check to safeguar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther hand, Mr. Saxena, appearing for the C.B.I. contended that the Supreme Court, in the Case of The Central Bureau of Investigation, Special Investigation Cell-1 Vs. Anupam J. Kulkarni 1992(2) Crimes has held .that if a person is in judicial custody in another case, his formal arrest in the second case is permissible. Therefore, remand for police custody was sought of accused Harshad S. Mehta for seven days by intimating the Court that Harshad S. Mehta has been put under arrest in this case. On this application of the C.B.I., the Court passed an order remanding the petitioner to police custody till 20th August, 1992 and in the detail order of the same day 17th August, 1992 Shri Kuldeep Singh, Special Judge, has mentioned that Harshad S. Mehta was produced in his Court and thereafter he was formally arrested by the C.B.I. in this case. Mr. Saxena contended that pursuance to C.B.I. Vs. Anupam J. Kulkarni's judgment the action of the C.B.I. is justified. Because if there are number of cases against the accused, the subsequent arrest in other case is permissible and not barred by any provision of law. Moreover, when the petitioner was produced before Shri Kuldeep Singh, Special Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and of the accused in his order still it will get cured while issuing the warrant for judicial custody. The Magistrate can mention the period of remand in the warrant, then that omission made in the order does not make the detention illegal as held by Allahabad High Court in the case of Dr. Ram Manohar Lohia . He further contended that there is in 'fact initial and outer limit which has been fixed by the statute under Section 167 Cr.P.C. for passing the order of detention. But after the expiry of the initial period up to the outer limit, there is no such provision in Section 167 Cr.P.C. which prescribes any limit. However, by practice police has started seeking remand after every 15 days. So far reading of Section 167 Cr.P.C. it does not stipulate any such condition. To strengthen his arguments he placed reliance on the Full Bench Judgment of the Gujarat High Court in the case of Shardul Bhai Laxman Pancholi Vs. State of Gujrat 1990 Crl.LJ. page 1275 where it was held that even if on account of non-obtaining of the remand, the detent in which has become illegal, can still be cured. Moreover, if a reasonable explanation is given for not producing the accused for seeking his furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and liberty of the accused is entirely governed by the authority and sanction of a Court of law beyond the initial period of 24 hours between the first arrest and the production before the Magistrate thereafter. Once an accused person is produced before the Magistrate he is in local senses in custodia legis and it is the Courts responsibility and power whether he is to be remanded to further custody or granted bail or released altogether. By no stretch of imagination can this power of the Court be whittled down and be indeed passed on to the mere discretion of the investigating agency alone. Though physical production of the accused before the Magistrate is desirable, yet the failure to do so would not per se vitiate the order of remand if the circumstances for non- productions were beyond the control of the prosecution or the police. It was further observed that one cannot possibly go to the extreme and accept the doctrinaire stand that the absence of the physical production of an accused person would vitiate the order of remand incurably. If it is physically impossible to produce the accused in person then his mere non production would not render his remand to further custody il ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the power to remand the accused in perpetuity, to my mind is against the very mandate of the legislature. The remand or the authorised detention cannotes that the Court has to monitor the remand proceedings in order to satisfy itself that further detention of the accused warrants his detention in judicial custody or not. The reading of this Proviso shows that there has to be satisfaction of the Magistrate and this satisfaction cannot be in perpetuity. The Supreme Court in the case of Chaganti Vs. State of Andhra Pradesh while interpreting sub section 2 of Section 167 as well as proviso to Sub Section (2) of Section 309, observed that these two provisions relate to the powers of remand of a Magistrate, though under different situation. The two provisos called for a harmonious reading in so far as the period of remands are concerned. Therefore what the Supreme Court has interpreted is that even under Section 167 Proviso (a) Sub section(2) also talks about the remand though using the word authorised detention but it has to be 15 days at a time. I am therefore of the view that there is no provision under Section 167 where the Magistrate could give a remand in perpetuity after the in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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