TMI Blog2019 (3) TMI 1980X X X X Extracts X X X X X X X X Extracts X X X X ..... horities 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled to set at liberty in Cr. No. 452 of 2017. It is stated that the detenue also applied for bail in the remaining two crimes i.e., Cr. Nos. 432 of 2015 and 32 of 2016 and got bail vide Crl. MP No. 2262 of 2018 and Crl. MP No. 1290 of 2018 respectively. The detenue is said to have been in custody though it is alleged that no arrest was shown in any other case. While so, the detenue was shown as an accused in number of cases in Kadapa District but without showing arrest was produced before the respective Magistrate Courts under PT warrants. Questioning the said act, the petitioner filed a writ of habeas corpus before the erstwhile common High Court vide WP No. 29887 of 2018 which was disposed on 27.9.2018 giving liberty to question such orders in appropriate proceedings. (b) Pursuant to the said order, the detenue filed a petition to recall PT warrant vide Crl. MP No. 4418 of 2018 and the same was dismissed by the learned Magistrate, stating that it is not maintainable as he became functus officio and has no power to recall the PT warrant already issued. It is stated that when the accused is produced pursuant to a PT warrant, the learned Magistrate remanded him to judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat without their being an arrest, remand orders cannot be passed and there cannot be order of remand, when the production is on a PT warrant. Neither the procedure for arrest as required under Sections 41(ii), 31-B(b), 41-D, 50, 50-A and 60-A is followed nor judicial mind was applied. The learned Counsel relied upon a judgment of the Constitutional Bench of the Apex Court in State of Punjab v. Ajaib Singh, to show that arrest without a warrant issued by a Court, in which, a greater protection was called for ensuring immediate application of judicial mind to the legal authority of the person making the arrest and the regularity of procedure adopted by him. In view of the above, he submits that the argument of the respondent that the petitioner has to challenge the order of remand under the provisions of Cr.P.C. has no legs to stand. 5. The sixth respondent filed his counter denying the allegations made in the writ affidavit stating that a warrant issued under Section 267 Cr.P.C., though does not authorize detention of a person in prison, but it can be invoked to produce a person confined or detained in a prison before a Criminal Court for answering the charge. As such, it is sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rresponds to writ of habeas corpus. Since Article 226 of the Constitution of India confers wide and comprehensive powers for the High Courts of the States to issue to any person, or authority, including, in appropriate cases, any Government, directions, orders or writs, including writs in the nature of writ of habeas corpus for any purpose. In view of this provision, clauses (a) and (b) of Section 491(1) became practically superfluous. Further, the Law Commission recommended the provisions of clauses (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 (Attendance in Courts) Act, 1955 should be included in this chapter. It is on the lines of these recommendations made by the Law Commission, that Chapter 22 containing Section 267 was brought on record. The objects and reasons for this amendment clearly point out the mind of the Legislature, which is to secure the attendance of the prisoner in Court and not to be a help in aid to investigating agency, nor the Legislature intended that these provisions be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in CBI v. Anupam, J. Kulkarn, AIR 1992 SC 1768, the procedural law is meant to further the ends of justice and not to frustrate the same. It is an accepted rule that an interpretation, which further the ends of justice, should be preferred. 9. In our view, the words used in Section 267, 'other proceedings under this Code'; 'for the purpose of any proceedings against him' and 'for the purpose of such proceeding', makes it very clear that the words used therein cannot be given a restricted meaning to fall in line with the preceding words 'inquiry' and 'trial'. The scope and ambit of the words 'other proceedings' require to be given wider meaning. As observed earlier, if the intention of the Legislature was to restrict its meaning to the words, 'inquiry' or 'trial', definitely there was no need to use the words 'other proceedings' or 'any proceedings' etc., as referred under Section 267(1)(a) and in the proviso. Hence, we hold that, Section 267 Cr.P.C. can be invoked to all the proceedings which fall within the meaning of the word 'investigation', as defined under Section 2(h) of the Code. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode. 12. The question which would then fall for consideration, is, whether by effecting such formal arrest, the accused would be in the custody of the police, who executed the formal arrest. Though the words 'arrest' and 'custody' looks synonymous, a Full Bench of Madras High Court in Roshan Beevi v. Joint Secretary, Government of T.N., 1983 MLW (Crl.) 289 (Mad.), held that 'custody' and 'arrest' are not synonymous terms. The Full Bench held that though custody may amount to arrest in certain circumstances, but not in all circumstances. The findings given in the said judgment case to be tested before the Apex Court in the case of Directorate of Enforcement v. Deepak Mahajan and another, (1994) 3 SCC 440. While confirming the stand taken by the Full Bench in Roshan Beevi's case (supra), the Apex Court held as under: Thus the Code gives power of arrest not only to a police officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or atleast physical presence, coupled with submission to the jurisdiction and orders of Court, is a sine qua non. Be it on the production by the investigating agency, or on his own before the Court. If the Court is of the opinion that he has committed cognizable offence and that his remand is warranted, it can direct him to be remanded to judicial custody under Section 167 Cr.P.C., though not arrested by any investigating agency. That being the position, the argument of the learned Counsel for the petitioner that arrest is a pre-condition for remand may not be correct. But, however, the power of remand is to be exercised under Section 167 Cr.P.C. only and not under Section 267 Cr.P.C. As held by us earlier, remand of an accused under Section 267 Cr.P.C., itself may not be correct, but remanding an accused by an order of Court is a prerequisite for the purpose of making an application for seeking bail. 17. It is well established that a remand of an accused on production before the Court can only be under the provisions of Section 167 Cr.P.C., but non-mentioning the provision of law while ordering remand of the accused by itself shall not make a remand, an illegal one. If a speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se where the police officer deems it necessary to arrest when the accused is already in judicial custody in connection with a different case, in our considered opinion, there are two modes available for him to adopt. The first one is that, instead of effecting formal arrest, he can very well make an application before the Jurisdictional Magistrate seeking a PT warrant for the production of the accused from prison. If the conditions required under Section 267 of the Code of Criminal Procedure, are satisfied, the Magistrate shall issue a PT warrant for the production of the accused in Court. When the accused is so produced before the Court, in pursuance of the PT warrant, the police officer will be at liberty to make a request for remanding the accused, either to police custody or judicial custody, as provided in Section 167(1) of the Code of Criminal Procedure. At that time, the Magistrate shall consider the request of the police, peruse the case diary and the representation of the accused and then, pass an appropriate order, either remanding the accused or declining to remand the accused. 20. Though the learned Counsel for the petitioner relied upon various judgments of the Ape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uasive value to show that since the accused has been released on bail in the crimes in which his arrest is shown and that remanding of the accused pursuant to the proceedings under Section 267 Cr.P.C. is illegal and incorrect. 22. At this stage, it may be appropriate to refer to the judgment of the learned Single Judge of the High Court in Tupakula Appa Rao v. State of A.P., 2002 (1) ALD (Crl.) 67 (AP). It was also a case where the accused was arrested in connection with one crime and is sought on PT warrant to judicial remand, without showing his arrest in other crimes purposefully or negligently or otherwise. In such circumstances, the Court dealt with the issue as to whether his custody in one crime be deemed to be custody in other crime and held that the fall out of the interpretation giving benefit of detention during investigation, enquiry and trial in one case, in the other case, may also demand the investigating agency not to arrest the accused for commission of the second offence pending conclusion of the trial and passing of sentence in the first case. Therefore, the Court held that benefit of Section 428 of the Code cannot be extended to second case as it amounts to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll-founded. 25. Things would have been different had all the cases been registered in one police station. But, in the case on hand, it is to be noted that out of 12 cases in which he has produced on PT warrant, the petitioner was granted bail in 10 cases and in two cases bail applications are pending as of now and he is said to have obtained anticipatory bail in three other cases. In the remaining cases, the respective police are taking steps for filing petitions for issuance of PT warrants. The allegation that he was not shown as an accused in all cases and that he is being shown as an accused, as and when he secures his bail, is denied by the State. Since the alleged detenue is in judicial custody in Crime No. 452 of 2017, the police stations in whose jurisdictions the crimes came to be registered have filed petitions under Section 267 Cr.P.C. before the Concerned Court for issuance of PT warrant and on production, remand orders came to be passed. At this stage, it would be useful to refer to Paragraphs 21 and 22 of the writ petition wherein the relief which is sought for is extracted. A reading of two paragraphs show that even the petitioner is not aware as to whether the rem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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