JUDGMENT
Aftab Alam, J.
1. The appellant stands convicted under Section 395 of the Penal Code and sentenced to undergo rigorous imprisonment ford five years.
2. According to the prosecution case in the night between June 5 and 6, 1976, a dacoity was commited in the house of the informant Yogendra Yadav, PW 1. The miscreants apart from looting the household articles were looking for the informant's father Mauje Lal. On finding him, they assaulted him with lathis and sticks and one of them also fired a short at him. Among the miscreants, the informant (and other members of his family) identified some dacoits including the present appellant. In his fardbeyan the appellant gave a list of the articles looted away and also stated that his family was having some dispute with the co-accused Sheonandan Yadav and it was his belief that Sheonandan Yadav had got the dacoity commited with the aid of some groups of dacoits.
3. The appellant who was named in the F.I.R. was arrested on 20-6-76 and was released on bail on 16-9-76. After his release on bail, the appellant absconded. Thus, compelling the trial Court to proceed with the trial of the other two co-accused in S.T. No. 108 of 1981 separating the appellant from that trial. It may only be noted incidentally that S.T. No. 108 of 1981 ended in the acquittal of the two other co-accused Bindul Mukhiya and Sheonandan Yadav vide judgment dated 15-3-1993.
4. When the appellant was later apprehended, he was put on trial in S.T. No. 119/1982 and at the conclusion of the trial, he was convicted and sentenced by the trial Court as indicated above.
5. The prosecution in support of its case examined five witnesses. PW 1 is the informant Yogendra Yadav; PW 2 Ram Bila.s is one of the neighbours of the informant. It may be stated that the trial Court has not found him trustworthy. PW 3 is a formal witness who proved the fardbyean which was marked as Ext. 1. PW 4 is the brother of the informant who was present in the house at the time of commission of the dacoity and who also had identified the appellant among the dacoits. PW 5 was tendered. The I.O. and the doctor who had examined the informant's father and some other witnesses named in the charge-sheet were not examined.
6. Learned Counsel appearing for the appellant submitted that the non-examination of the I.O. and the doctor had vititated the trial and the conviction of the appellant was not sustainable on that score. I am unable to accept the submission. The non-examination of the I.O. has in no way prejudiced the appellant's case. So far as non-examination of the doctor is concerned, it was perhaps due to the non examination of the doctor that the appellant was convicted under Section 395 and not under Section 397 of the Penal Code. The appellant, therefore, can make no grievance about non-examination of the doctor.
7. The participation of the appellant in the commission of the dacoity is fully established on the basis of the evidence of PWs 1 and 4 who named him consistently as being one of the dacoits. Both these witnesses identified him during the commission of the dacoity and also before the trial Court. Their evidence is quite consistent on all material issues and I see no reason not to accept their testimony.
8. I accordingly find and hold that the appellant's conviction was arrived at on a proper appraisal of the prosecution evidence by the trial Court and it does not warrant any interference by this Court. The appellant's conviction under Section 395 of the Penal Code is accordingly confirmed.
9. On the question of sentence, learned Counsel for the appellant submitted that in case the different periods of detention undergone by the appellant as an under-trial are properly accounted for in terms of Section 428 of the Code of Criminal Procedure ('the Code', hereinafter), it would be found that he has already served out the entire sentence and is, therefore, entitled to be released, learned Counsel further submitted that the trial Court erred in not reckoning the period during which the appellant was in custody in Begusarai jail in connection with some other case and from where he was not being produced before the Samastipur Court in the connection with this case notwithstanding the production warrant issued by the Samastipur Court.
10. From the records of the case, it appears that the appellant was arrested in connection with this case on 20-6-1976 and he was released on bail on 16-9-1976 (1st period of detention of two months and 21 days). Sometime after his release on bail, he failed to appear in this case before the Samastipur Court. Later on 30-6-1988 a petition was filed stating that the appellant was lodged in Begusari jail as an under-trial in connection with some other case, On the basis of that petition, the trial Court at Samastipur issued a production warrant asking the jail authorities at Begusarai to produce the appellant in this case before the Samastipur Court. Though the production warrant was issued on 30-6-1988, the appellant was produced before the Samastipur Court in connection with this case on 22-11-1990 (2nd period of detention of 2 years 4 months 22 days at Begusari jail in connection with other case). On being produced on 22-11-1990, he was remanded in this case and was again released on bail on 16-9-199. (3rd period of detention of 9 months 24 days). He was again arrested and produced before the Court on 31 -1 -1994 and was once again released on bail on 19-4-1994 (4th period of detention of 3 months 19 days). Finally, the judgment was pronounced in this case on 28-11-1997. On that date the appellant was taken back in custody and has remained in jail from that date. On 8-5-1998 the date of pronouncement of this judgment by this Court, he has, thus, remained in jail for five months ten days as a convict undergoing sentence.
11. From the order coming under appeal, it appears that when a submission was made before the learned trial Court that the appellant had already completed about five years of detention as an under-trial, the trial Court did not accept the submission. For calculating the appellant's period of detention as an under-trial it took into account his first period of detention of two months 26 clays; the 3rd period of detention of nine months and 24 days and the 4th period of detention of three months and 19 days and found and held that the appellant had remained in custody as under-trial only for 15 months and few days. The trial Court did not take into account the second period of his detention of two years four months and 22 days in Begusarai jail on the ground that that was in connection with some other case and not in connection with this case.
12. It is evident that in case the 2nd period of detention (two years four months 22 days) is taken into account along with his current detention (for the period of five months 10 days) as a convict undergoing sentence, he would complete more than five years of detention and would, therefore, be entitled to be released on completion of this sentence.
13. Learned Counsel for the appellant submitted that the 2nd period of detention (two years four months and 22 days) when the appellant was not being produced from the Begusarai jail in this case before the Samastipur Court must be taken into account in view of the fact that the Samastipur Court had issued the production warrant on 30-6-1988 and the failure of the jail authorities to produce the appellant before the Samastipur Court in disobedience of the Court's warrant must not be allowed to deprive the appellant from the benefit under Section 428 of the Code.
14. In support of his submission, learned Counsel relied upon a Supreme Court decision in Government of A.P. v. A.V. Rao AIR 1977 SC 1096 : (1977 Cri LJ 935) (para 8) which is as follows (at Page 939 of Cri LJ):
There is however substance in the other point raised by the Writ petitioners regarding the computation of the period during which the writ petitioner in each case should be held to have suffered imprisonment on conviction. In A. V. Rao's case (W.P. 1865/76), he was already in detention under the Preventive Detention Act when the First Information Report was lodged on December 18, 1969 in connection with the Sessions cases. Some of the co-accused in these cases were arrested and produced before the Magistrate for remand on December 19, 1969, but Rao was produced before the Magistrate sometime in April, 1970 after he was released from preventive detention. It was argued that he also could have been produced before the Magistrate for remand on December 19, 1970. On behalf of the respondent-State of Andhra Pradesh, it was contended that as Rao was already in detention under the Preventive Detention Act, it was not possible to produce him before the Magistrate for remand until the period of the preventive detention was over. We do not find any justification in law for the position taken up by the State. Rao being, already in custody, the authorities could have easily produced him before the Magistrate when the First Information Report was lodged. Nothing has been pointed out to us cither in the preventive detention law or the Code of Criminal Procedure which can be said to be a bar to such a course. That being so we think that the claim that the entire period from December 19, 1969 when many of the co-accused were produced before the Magistrate, to April 18, 1970 should be treated as part of the period during which Rao was under detention as an under-trial prisoner, must be accepted as valid. A.V. Rao's Appeal No. 484 of 1976 is allowed to this extent.
15. I find that the Supreme Court decision relied upon by the learned Counsel fully applies to the facts of the present case. In fact, the case of the appellant appears to me to be on a stronger footing. In the case of A.V. Rao, he was in detention under the Preventive Detention Act and in that circumstance the State Govt. took the plea that being in detention under the Preventive Detention Act, he could not be produced before the Magistrate for remand in the substantive case until the period of preventive detention, was over. The Supreme Court found no justification in the plea taken by the State.
16. In the present case, the appellant was lodged at the Begusarai jail merely as an undertrial prisoner in connect ion with some other case. The Samastipur Court had also issued a production warrant for his production before it. The jail authorities, therefore, had no reason to withhold his production before the Samastipur Court for more than two years and four months and the appellant can, therefore, lawfully claim that that period should also be set off against his sentence of imprisonment and I accordingly uphold the submission on his behalf. It is noted above that if the period along with the period of his detention after the pronouncement of the trial Court judgment is taken into account, he would have completed more than five years of detention. It must, therefore, be held that the appellant has already served out the. sentence awarded to him by the trial Court in this case. He is accordingly directed to be released forthwith provided he is not wanted in any other case.
17. In the result, the appeal stands dismissed subject to the aforesaid observations and directions.
JUDGMENT
A.B. Srivastava, J.
1. These are three connected writ petitions under Article 226 of the Constitution of India, in relation to one and the same matter filed on different dates, hence are being disposed of by a common judgment.
2. The writ petition No. 10870 of 1991 was filed on 15-4-1991 for mandamus directing the Superintendent, District Jail, Moradabad not to transfer the petitioner from the said jail to Bombay in pursuance of warrants received from the City Sessions Court Greater Bombay and to release him the moment he receives release order in Crime No. 96 of 1983 under Sections 392/397, IPC. P. S. Hazrat Nagar Garhi, Moradabad. It was admitted on 1-10-191.
3. By means of the Habeas Corpus Petition No. 24268 of 1991 filed on 12-9-1991 the petitioner prayed for issuance of a writ of habeas corpus directing the respondents Nos. 1 and 2, Superintendent District Jail, Moradabad and State of Uttar Pradesh, respectively to release the petitioner from detention in the District Jail, Moradabad and also for a writ of mandamus prohibiting the respondents from transferring the petitioner to any other jail outside the district of Moradabad. This petition was originally filed impleading the Superintendent, District Jail, Moradabad and the State of Uttar Pradesh as respondents Nos. 1 and 2, respectively. It was admitted on 1-10-1991 and rule nisi was issued to the respondents on 28-10-1991, an interim order restraining transfer of petitioner to any jail outside Moradabad was passed. Subsequently, on the application of the petitioner by an order dated 13-1-1992 of this court, the Superintendent Central Prison, Nasik (Maharashtra), and the Senior Inspector (Police), Detention of Crime Branch, C.I.D. Unit No. 5, Bombay were impleaded as respondents Nos. 3 and 4 respectively, and notices for return be issued to them.
4. Writ Petition No. 5105 of 1992 was filed on 12-2-1992 against the Sessions Judge, Moradabad and the Special Judge, Moradabad for mandamus directing them not to shift the petitioner to Bombay or any prison outside Moradabad, to comply with interim order dated 28-10-1991 in Habeas Corpus Petition No. 24268 of 1991 and to release him on bail in pursuance of order dated 27-3-1991 of this court in Crime No. 96 of 1983 aforesaid.
5. Since Habeas Corpus Petition No. 24268 of 1991 has been heard as the leading case and the pleadings therein cover the entire gamut of the controversy, it will not be necessary to burden this judgment by separately narrating the pleadings in all three petitions.
6. The petitioner Mohd Daud alias Mohd Salim along with four others, was arrested by Detention of Crime Branch, CID Bombay (hereinafter referred to as D.C.B., C.I.D. Bombay) on 11th July, 1989 pursuant to alleged recovery of narcotic and psychotropic substances, He was being prosecuted in the court of Special Judge, City Sessions Court, Greater Bombay for offences under Sections 8(C), 21, 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as N.D.P.S. Act) and was in judicial custody of the said court, when "production warrant under Section 267 of the Criminal Procedure Code (commonly known as B Warrant) dated 13-4-1990, was sent from the court of the Special Judge, Moradabad to the Superintendent Central Jail, Nasik requiring him to produce the petitioner before the said court to answer the charge of offences under Section 394/397, IPC in the Sessions Trial No. 748-A of 1984. By his order dated 11-7-1990 the Special Judge, Greater Bombay directed the Superintendent, Central Prison, Nasik to produce the petitioner before the Special Judge, Moradabad in compliance of the production warrant. The petitioner was ultimately produced before the court of Special Judge, Moradabad on 3-12-1990 who by his order dated 3-12-1990 remanded him to judicial custody in the said sessions trial.
7. These petitions for issuing writs of habeas corpus and mandamus have been filed by the petitioner alleging inter alia, that his detention by order dated 3-12-1990 of the Special Judge, Moradabad is illegal. The petitioner was not named in the first information report relating to the said case, he was subjected to test identification in the District Jail, Moradabad on 19-12-1983 in which he was not identified by any of the prosecution witnesses. Under these circumstances, his prosecution for the said offences in Sessions Trial No. 748-A of 1984 is an abuse of process of court requiring intervention of this court. The petitioner who was on bail in the said case could not appear in the court of Special Judge, Moradabad due to his illegal detention in the N.D.P.S. Case in the Central Prison, Nasik, resulting into cancellation of his bail bonds, and issuance of a B Warrant by the said Court. On the petitioner being produced before the court concerned at Moradabad on 3-12-1990 no valid order remanding him to jail custody was passed nor any intermediate custody warrant in the prescribed form was sent to jail authority at Moradabad, the so called intermediate custody warrant dated 3-12-1990 is a mere waste paper. There being no other valid intermediate custody warrant for detaining the petitioner in jail in connection with any other offence, the continued detention of the petitioner in the District Jail, Moradabad is illegal. Even no order remanding the petitioner to custody of District Jail, Moradabad was passed on 7th, 22nd January, 28th February, 27th March, 23rd April, 15th May, 28th June, 11th July, 25th July and 22nd August, 1991, as would appear from the copy of order-sheet of the said court, Annexure '3' to the petition No. 24268 of 1991. The petitioner was even not produced before the court on 13-6-1991 and 19-6-1991 and the adjourned dates were fixed in his absence.
8. It is further pleaded that the petitioner applied for bail to the Sessions Court at Moradabad which was not accepted. His bail plea, however, was allowed by this Court vide order dated 27-3-1991. In spite of the petitioner offering to furnish bail bonds in compliance of the order dated 27-3-1991 the Special Judge, Moradabad and the authorities of the District Jail, Moradabad, expressed inability to release him from custody on the plea that in such event they would transfer the petitioner to the Central prison, Nasik from where he had been brought to Moradabad jail. The respondents, it is alleged to have no right to transfer the petitioner back to the Central Prison Nasik as there does not exist any valid order or warrant B of the City Sessions Court, Greater Bombay for such return of the petitioner to the central prison Nasik under Section 267, Cr. P.C. The detention of the petitioner being in violation of the provisions of Sections 167, 209 and 309 of the Cr. P.C. and Articles 14, 19 and 21 of the Constitution of India, he is entitled to be released from detention in the District Jail Moradabad forthwith, and till such time as he so released the authorities of the District Jail, Moradabad are liable to be restrained from transferring him to any other jail outside Moradabad.
9. In the supplementary affidavit dated 2-1-1992 filed on behalf of the petitioner, in Habeas Corpus Petition No. 24268 of 1991 for impleadment of the respondents Nos. 3 and 4, the arrest and detention in custody of the petitioner under orders of the Special Judge, City Sessions Court, Greater Bombay has been challenged on the ground that the search was conducted in violation of the provisions of N.D.P.S. Act, there also was not made recovery of any narcotic or psychotropic drug from him he was not disclosed the reasons or grounds for his arrest which amounted to violation of provisions of Article 22(1) of the Constitution, Section 50(1) of the Code of Criminal Procedure and Section 52(1) of the N.D.P.S. Act, he was not produced before any court or Magistrate along with the entries in the diary of investigation, despite the bar on detaining an accused in police custody for a period of more than 15 days, he was detained in police costody by the D.C.B., C.I.D. Bombay for about one and half months, there thus was a violation of Section 167 of the Cr.P.C. rendering the petitioner's detention invalid. The City Sessions Court, Greater Bombay took cognizance of the offence under Section 8C read with Sections 21 and 29 of the N.D.P.S. Act 1985 on 6-10-1990. In the meantime the petitioner was arbitrarily transferred from the Bombay jail to the Central Prison Nasik, despite the fact that there was no order to that effect of the City Sessions Court Bombay. The petitioner was not produced before the Special Judge, Greater Bombay on 24-10-1990 when 17-1-1991 was fixed and no order of remand to custody was made. Subsequently on 17-1-1991, 12-3-1991, 13-6-1991, 19-9-1991 nd 20-11-1991 the petitioner was even not produced before the said court, as would appear from Annexure S.A. 1 the copy of the order sheet of the said court. For these reasons and in the absence of any B Warrant under Section 267, Cr.P.C. or detention order of the Special Judge, City Sessions Court Greater Bombay addressed to the Superintendent District Jail, Moradabad the detention of the petitioner from inception as well as from the date of his production before the Moradabad Court, 3-12-1990, is illegal and unauthorised, and the authorities at Moradabad have no jurisdiction to transfer him back to Central Prison Nasik. The petitioner being presently detained in the District Jail, Moradabad (U.P.) and also being a permanent resident of the said district the cause of action for this habeas corpus petition accrued within the jurisdiction of this Court qua these respondents also.
10. The return on behalf of the respondents Nos. 1 and 2 was filed on 19-11-1991 by means of a counter affidavit dated 13-11-1991 of Virendra Bahadur Asthana, Deputy Jailor, District Jail, Moradabad. It has been contended in this counter affidavit that the petitioner came on transfer to the District Jail, Moradabad in pursuance of a production warrant issued by the Special Judge, Moradabad and was committed to jail custody vide order dated 3-12-1990, and the dates subsequent thereto, as borne out from Annexure-1 to the C.A. the copy of the intermediate custody warrant. The trial in S.T. No. 748-A of 1984 was proceeding in the aforesaid court, and there was in existence a valid order of detention up to 12-12-1991 on the eve of filing the return. The petitioner was regularly being produced in the court of Special Judge, Moradabad in accordance with the directions of the the said court. There is no fresh warrant B for transfer of the petitioner to the Central Prison, Nasik, and a radiogram had been sent to the City Sessions Court, Bombay for such warrant. The documents in the possession of the respondents on the basis of which the petitioner is to be transferred to the Central Prison, Nasik besides Annexure-1 to the counter affidavit, are Annexure-2 the letter dated 1-12-1990 of the Superintendent Central Prison Nasik about transfer of the petitioner to Moradabad and intimating that the second case being pending in Bombay Sessions Court he may be sent back to the said prison, Annexure-3 copy of letter dated 8-12-1990 of the Superintendent of the said prison to the Registrar, City Sessions Court, Greater Bombay, intimating that in case the presence of the said accused was required in the Bombay case production warrant may be sent directly to the Superintendent of Jail, Moradabad. It was on account of the mandate in these orders and documents that the petitioner even after his release in S.T. No. 478-A of 1954 of Moradabad will have to be tranferred back to the Central Prison, Nasik, Under these circumstances, nor his transfer to the Central Prison Nasik will be illegal or invalid.
11. On behalf of the respondent No. 4 the return was filed on 4-3-1992, by means of counter affidavit of Shri Jayat Kanhu Hargude, Police Sub-Inspector, D.C.B., C.I.D. Bombay. Sunsequently on 1-5-1992 a fresh counter affidavit and on 7-7-1992 a supplementary counter affidavit of Shri Hargude was filed on behalf of the respondent No. 4. The contentions inter alia in these affidavits being that on a raid conducted on Flat No. 704/12 A-1 ARHFAT Co-operative Housing Society Millat Nagar, Andheri West Bombay on 11-7-1989 the petitioner along with four others found in possession of 25 Kg of brown sugar + 30 Kg of charas, the petitioner was also found in unlawful possession of a foreign made pistol with five cartridges. Recovery memo was duly made and the accused persons were arrested. They were explained the entire facts and reasons for their arrest and were produced before the Additional Chief Metropolitan Magistrate, Esplanade Bombay the same day who remanded the petitioner and the co-accused persons to police custody up to 25-7-1989 on which date they were produced before the competent court of Sessions of Greater Bombay who after hearing the counsel for both sides remanded all the 5 to police custody till 9-8-1989. On 9-8-1989 while the rest of the accused persons were remanded to judicial custody, the petitioner was remanded to police custody up to 18-8-1989. On 18-8-1989 the petitioner also was remanded to judicial custody which was extended from time to time. These remand orders were validly passed under the provisions of the N.D.P.S. Act, and Section 167 of the Cr.P.C. read with Section 96 of the Bombay Police Act, 1951. The chargesheet against the petitioner and other co-accused persons under the N.D.P.S. Act was submitted in the court of Session, Greater Bombay on 6-10-1989. While the petitioner was under detention in the Nasik Central Prison during trial of the aforesaid N.D.P.S. case, on production warrant being received from the court of Special Judge, the Special Judge City Sessions Court Greater Bombay, on 11-7-1990, ordered the Supreintendent Central Prison Nasik to produce the petitioner before the said court at Moradabad. The petitioner reached Moradabad on 3-12-1990 in compliance of the said production warrant and was confined in the district Jail Moradabad. He is liable to be transferred back from District Jail Moradabad to Central Prison, Nasik, to stand his trial before the Special Judge City Sessions Court Greater Bombay and is not entitled to be released as neither his detention in connection with the N.D.P.S. Act case nor the move for his transfer to Central Prison, Nasik is in any way illegal or unconstitutional. The arrest, detention and trial of the petitioner in connection with the N.D.P.S. case having occurred in Greater Bombay, within the territories of the State of Maharashtra, this court has no jurisdiction to adjudicate upon its validity or otherwise, or to order the release of the petitioner from detention, or prevent his transfer to the Central Prison Nasik which is being made in compliance of the provisions of law. These petitions are liable to be dismissed for want of territorial jurisdiction itself.
12. In the counter affidavit of Ashok Chintamani Rane, Jailor Group I, Nasik Road, Central Prison Nasik, filed on behalf of the respondent No. 3 on 1-5-1972, the said respondent stated that the petitioner came on transfer to the Central Jail Nasik, from Bombay Prison Bombay on 30-6-1990, on the basis of order passed by the IG Prison Maharashtra due to overcrowding in the Bombay prison, and was detained there in connection with the N.D.P.S. case against him pending before the Special Judge City Sessions Court Bombay, on the basis of valid remand orders passed by the said Court. By his order dated 11-7-1990 the Special Judge Greater Bombay directed the production of the petitioner before the Special Judge, Moradabad U.P. as per production warrant received from the said court. As escort was not readily available and the date of production before Moradabad court had expired, correspondence through wireless was made enquiring about the fresh dates in the case. Meanwhile the petitioner also made an application vide Annexure CA. 2 that he may be transferred to Moradabad. Under these circumstances the petitioner was sent on 1-12-1990 by the respondent No. 3 to Moradabad with a communication Annexure CA-4 to return him back to stand trial in N.D.P.S. case in Bombay. The petitioner thereafter could not be produced before the court at Bombay because he had been detained in District Jail Moradabad under order of the Special Judge, Moradabad. The petitioner having been acquitted on 12-2-1992 in the Sessions Trial before the Special Judge, Moradabad he was liable to be immediately transferred to the Central Prison Nasik. The said transfer, however, could not be made and he is detained in the District Jail, Moradabad only on the basis of the interim order dated 28-10-1991 of this court restraining transfer of the petitioner to any jail outside Moradabad. Meanwhile an order dated 23-4-1992 has also been passed by the Special Judge City Sessions Court Greater Bombay for production of the petitioner in his court, as intimated by Annexure CA
5. The respondent No. 1 is accordingly duty bound to comply with the said direction and transfer the petitioner to the Central Prison Nasik.
13. In the various affidavits of Muzaffar Husain alias Pappu filed on behalf of the petitioner as rejoinder to the counter-affidavits, the petitioner stated that the theory of raid and recovery of narcotic drugs from the possession of the petitioner on 11-7-1989 at Bombay is totally imaginary. The remand orders passed by the courts at Greater Bombay were against law, the I.G. Prison, Maharashtra had no jurisdiction to transfer the petitioner outside the territorial jurisdiction of the City Sessions Court, Bombay, there being no order of any competent court, the detention in the Central Jail, Nasik from 30-6-1990 to 1-12-1990 was illegal and unconstitutional. On the petitioner being produced before the Moradabad court on the production warrant, and detained under order dated 3-12-1990 of the said court in the Moradabad Jail, the detention, if any, of the petitioner in the Central Prison Nasik automatically came to an end. The Sessions Trial No. 748A of 1984 of the court of Special Judge, Moradabad having ended in acquittal on 12-2-1992, and there being no remand order in relation to the N.D.P.S. Case No. 801 of 1989 or B warrant of the court of Special Judge Greater Bombay, the direction of the Special Judge, Moradabad, in the operative portion of his judgment to detain the petitioner in District Jail, Moradabad till he is transferred to Central Prison Nasik is also illegal. The respondent No. 3 had no authority to direct the respondent No. 1 to transfer back the petitioner to Central Prison Nasik as such orders could only be passed by the competent court, the production order dated 23-4-1992 of the City Sessions Court Bombay and the communication dated 24-4-1992 of the Registrar, City Sessions Court have been procured to fill in the lacunae and do not either validate the petitioner's detention, or his transfer to the Nasik Jail. Since the petitioner has not sought quashing of, or adjudging illegal, any act or order of court or authorities at Greater Bombay, and is in illegal detention in District Moradabad , the petition is within jurisdiction of this Court. The petition is also maintainable in this court, as in any case part of cause of action for it has accrued within the territorial jurisdiction of this Court.
14. We have heard the learned counsel for the parties at sufficient length and have perused the record.
15. On behalf of the respondents a preliminary question has been raised, and it has been pleaded that, this court has no jurisdiction to entertain this petition for writs of habeas corupus and mandamus in the matter of detention of the petitioner, in view of the fact that this will involve adjudication of the question of validity or otherwise of the orders passed, and acts done by the courts at Greater Bombay and the authorities of the Central Prison Nasik, both within the territorial jurisdiction of the Bombay High Court. It is contended that the arrest of the petitioner was made at Bombay pursuant to alleged recovery of narcotic drugs on 11-7-1989, under the provisions of N.D.P.S. Act, the orders remanding him to custody were passed by the competent courts at Bombay, charge-sheet was submitted and cognizance of the offence was also taken by the Special Judge City Sessions Court Greater Bombay and the petitioner was detained in custody first at Bombay Prison, and thereafter at the Central Prison Nasik, all within the State of Maharashtra. On requisition being sent by the Moradabad court under Section 267 of the Code of Criminal Procedure, he was transferred under orders of the Special Judge, City Sessions Court Greater Bombay by the Superintendent, Central Prison Nasik with a stipulation as provided in Section 270 of the Cr.P.C. that he was to be taken back to the said prison on conclusion of the trial in the . court of Special Judge, Moradabad, in view of the N.D.P.S. Act case against him pending in the court at Greater Bombay. The proceedings in the said Sessions Trial No. 748-A of 1984 having concluded on 12-2-1991 ending in adquittal of the petitioner, he has to be sent back to the Central Prison Nasik in compliance of the order of the Special Judge, Greater Bombay as well as the mandate in Section 270 of the Code of Criminal Procedure. Under these circumstances, the cause of action for the present petition has arisen wholly within the territorial limits of the jurisdiction of the Bombay High Court and no part of it having arisen within local limits of this Court, the petition is beyond jurisdiction of this court.
16. The contention of the petitioner on the other hand is that this petition is cognizable by this court, as the petitioner does not seek quashing of any order or act, of the courts or the authorities within the territorial jurisdiction of the Bombay High Court, and secondly the cause of action for the present petition has arisen within the jurisdiction of this Court and not that of the Bombay High Court. It is contended that the detention of the petitioner in the Central Prison Nasik was invalid and non-existent in law, in view of the fact that there was no order at all of remand by the competent court to custody of the Central Prison Nasik, the transfer of the petitioner from Bombay prison to the Central Prison Nasik was without jurisdiction no remand at all to custody having been ordered after 20-10-1990 the detention of the petitioner was without any valid authority of law, the act of the Superintendent Central Prison Nasik of transferred the petitioner to Moradabad despite the prohibition contained in Section 269(b) of the Cr.P.C. is indicative of the fact that there was no valid detention of the petitioner in N.D.P.S. case. In any event the order of Special Judge, Moradabad remanding the petitioner to custody in the Moradabad jail vide his order dated 3-12-1990 amounted to automatic termination of the petitioner's detention in the Central Prison Nasik in the N.D.P.S. case, at Bombay. The order dated 3-12-1990 of the Special Judge, Moradabad remanding the petitioner to custody in both the cases pending at Bombay and Moradabad, till further orders being invalid and thereafter there being no remand for any specific period after 3-12-1990 and before 11-7-1991 the petitioner's detention in Moradabad jail also was without any authority of law. The petitioner having been granted bail by this Court and offering to furnish bail bonds, the act of the Special Judge Moradabad of refusing to entertain the same and release the petitioner on the plea that he was liable to be transferred back to the Central Prison Nasik from where he had come on a production warrant under Section 267, Cr.P.C. and his subsequent order dated 3-12-1990 in the judgment of acquittal in Sessions Trial No. 748-A of 1984, that the petitioner be not set at liberty and detained till decision of this writ petition as he was liable to be transferred to the said prison is illegal. The petitioner being presently detained in the jail at Moradabad, and also being a permanent resident of the said district the cause of action for this petition wholly, or in any case in part has arisen within the territorial jurisdiction of this court and the petition is cognizable by this Court.
17. Article 226(1) and (2) of the Constitution of India, relevant in this regard is as follows:--
226(1). Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to person or authority, including in appropriate cases, any Government, within those territories directions, orders writs, including (writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred in Part III and for any other purpose).
(2) The power conferred by Clause (1) to issue directions orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within these territories.
18. It is clear therefore that the power to issue writs under Article 226 of the Constitution can be exercised by a High Court in respect of a person or authority (a) within the territories in relation to which it exercised jurisdiction as well as, (b) if the cause of action wholly or in part has arisen within such territories.
19. In the instant case on a careful scrutiny of the facts narrated above, it would be clear that it is only the detention of the petitioner from the date of his production before the Moradabad Court, 3-12-1990 up to the date of judgment, 12-2-1992 in the Sessions Trial No. 478-A of 1984, in regard to which cause of action has arisen within the local limits of jurisdiction of this Court. No part of cause of action with regard to his arrest, confinement and detention in connection with the N.D.P.S. Act as at Bombay, or the liability of his transfer back to Central Prison Nasik, from the District Jail, Moradabad on conclusion of the Sessions Trial No. 748-A of 1984, has arisen within such jurisdiction, rather the same has squarely arisen within the territorial limits of the State of Maharashtra.
20. In fact in this petition, there is a misjoinder of the two different and distinct causes of action. The arrest, prosecution and detention of the petitioner in Maharashtra in connection with the N.D.P.S. Act constitutes an entirely separate and distinct transaction having no nexus to his detention in connection with the Sessions Trial at Moradabad. For the purposes of determining jurisdiction, therefore the two cannot be clubbed together to bring the case within the purview of Article 226(2) of the Constitution. The expression 'cause of action in part arises' in the said provision refers to a part of cause of action relating to or arising from the same transaction. It does not envisage or permit joining of different causes of action arising out of two separate transactions, to confer jurisdiction on the ground of accrual of part of cause of action within the territorial limits of the court. In this 'view of the matter, therefore, the present petition for writs of habeas corpus and mandamus, in so far as it will have the effect of releasing the petitioner from confinment and detention qua the N.D.P.S. Act case at Greater Bombay, is beyond the jurisdiction of this court, as no part of cause of action has arisen within its territorial limits.
21. The alternative plea of the petitioner that there being no prayer for adjudging illegal, or quashing the acts done by the concerned authorities at Bombay and Nasik, the petition as a whole is congnizable by this court, is also devoid of any force. The determination of the questions as to whether the detention of the petitioner from inception was void or it became invalid after 24-10-1990, or became non-existent from 3-12-1990, and whether the petitioner is liable to be taken back to the Central Prison "Nasik in accordance with the provisions of Sections 267 and 270 of the Code of Criminal Procedure after conclusion of the Sessions Trial No. 478-A of 1984 in court of Special Judge, Moradabad, will obviously involve adjudging illegal the petitioner's confinement and detention in connection with the N.D.P.S. Act case pending before the court of the Special Judge Greater Bombay. This Court as such before issuing the writs prayed for, would precisely be called upon to decide about the validity or otherwise the orders passed, and acts done, in relation to the N.D.P.S. Act case pending before the court at Greater Bombay, as well as the acts of the detaining authority in the Central Prison Nasik, both outside the limits of its jurisdiction, which it is not competent to undertake in test of the provisions of Article 226(2) of the Constitution.
22. To say that cause of action for this petition has arisen only at Moradabad, within the territorial limits of jurisdiction of this Court, on account of production warrant for transferring the petitioner from Central Prison Nasik, having been issued by the Special Judge, Moradabad, and his consequent detention in the District Jail, Moradabad, and the said Court itself having ordered the petitioner to be taken back to the Central Prison Nasik is also not correct. In determining the maintainability of the petition in this court, qua the petitioner's liability to be sent back to the Central Prison Nasik for being produced before the Special Judge, Greater Bombay, in connection with the N.D.P.S. Act case pending there, from which custody he came on transfer to Moradabad, the issuance of production warrant under Section 267 of the Cr.P.C. by the Moradabad Court is not at all relevant. Return of a prisoner requisitioned by a Court under Section 267 of the Code of Criminal Procedure does not depend upon any violation of, or order passed by the transferee court, rather is the natural corollary of such transfer of a prisoner from another custody, as well as the mandate of Section 270 of the Cr.P.C. On this count also, therefore, no part of the cause of action for this petition against sending back the petitioner to Central Prison Nasik in connection with the N.D.P.S. Act case at Greater Bombay can be said to have arisen within the jurisdiction of this Court.
23. Yet another contention of the petitioner that he could not file a petition under Article 226 of the Constitution in regard to this subject-matter in the High Court of Bombay because he is no longer in the custody of the Bombay Court after his transfer to Moradabad, and remand to the custody of Morada-bad Jail, is also not tenable in view of the fact that even if not in actual custody of the said Court at Greater Bombay, during the intervening period between the date of his transfer to Moradabad and return to Central Prison Nasik, he will be deemed to be in confinement in connection with the N.D.P.S. Act case pending in the court of Special Judge, Greater Bombay. On behalf of the petitioner reliance has been placed on a decision of the Gujarat High Court in Smt. Manjulaben v. C.T.A. Pillay, New Delhi, reported in 1976 Cri LJ 889. In the said case the detenus, who were ordinarily resident within the State of Gujarat were detained under orders passed under the Maintenance of Internal Security Act, 1971 and were kept in Jail at Baroda. Subsequently they were transferred to the Central Jail Jaipur in the State of Rajasthan. On expiry of the said orders of detention, fresh orders of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 were passed and served on them, without releasing them from jail. On these facts the court found that since the detenus were not set at liberty on the expiry of previous orders of detention passed under the Maintenance of Internal Security Act, 1971 and under their fresh orders of detention they were kept in the Central Jail, Jaipur, their initial detention at Baroda continued. Thus, the aforesaid facts furnished a part of cause of action within the territorial limits of the Gujarat High Court and the said Court had jurisdiction to entertain the writ petition.
24. The facts of the instant case, however, are entirely different than those of Manjulaben's case (supra). In the instant case the detention and confinement of the petitioner in connection with the N.D.P.S. Act case pending at Bombay, and that in the Sessions Trial No. 748-A of 1984 pending in the court of Special Judge, Moradabad are in relation to two different crimes, having no nexus or correlation to each other. The detention of the petitioner in the two cases also do not form part of the same transaction. Accordingly, these facts do not furnish a part of cause of action within the territorial limits of the jurisdiction of this court in relation to the confinement and detention of the petitioner in connection with the N.D.P.S. Act case at Bombay, so as to attract the enabling provisions of Article 226(2) of the Constitution and confer jurisdiction on this Court to entertain this writ petition in that regard.
25. In State of Madhya Pradesh v. Bhaskar Dutt Misra 1986 All WC 295 also cited by the petitioner, the plaintiff who was an employee of the Madhya Pradesh Government against whom an order termining his services was passed by the appointing authority at Madhya Pradesh, was served with the order of termination at Allahabad. On his instituting a suit in the court of Civil Judge, Allahabad for declaration that order terminating his services was illegal, inoperative and without jurisdiction, the defendants, State of Madhya Pradesh and others, took the plea that the Civil Judge, Allahabad had no jurisdiction to entertain the suit as no part of cause of action arose at Allahabad. It was, However, held that since the order of termination of services was served on the plaintiff at Allahabad, the part of cause of action did arise at Allahabad and the suit was, accordingly, cognizable by the Civil Judge, Allahabad. The facts here again were quite different from those in the present writ petition, wherein so far as the petition with regard to the relief in respect of the confinement in the N.D.P.S Act case at Bombay is concerned, no part of cause of action arose within the territorial jurisdiction of this Court.
26. On behalf of the respondents a Division Bench decision of this court in Daya Shanker Bharadwaj v. Chief of the Air Staff Air Headquarters, New Delhi, reported in 1988 All WC 285 : (AIR 1988 All 36) has been relied on in support of the plea regarding lack of jurisdiction. The petitioner in the said case was a Junior Warrant Officer in Air Force posted in Madhya Pradesh where he was superseded. He filed a writ petition before this Court for a direction to the opposite parties, the Chief of Air Staff, Air Headquarters, New Delhi and others, to decide his representation and grant him the status of Warrant Officer. It was held by this Court that a person residing in a State cannot invoke extraordinary jurisdiction under Article 226 against an authority or Government situated outside the State in respect of an order made or action taken by such Government or authority outside the territorial limits of the High Court for no part of cause of action in such a case could be said to arise within jurisdiction of the High Court in which the petition was filed.
27. In Krishna Kumar Bhargava v. The Metropolitan Magistrate, 26th Court Bori-wali, Bombay 1986 All WC 148 : (1986 All LJ 1093) a complaint for defamation was filed against the petitioners in the court of Magistrate at Bombay. On the notice of complaint being received by the petitioner at Allahabad, they filed a writ petition under Article 226 for quashing the complaint. On the question of maintainability of the petition before this Court being raised it was observed that Article 226 of the Constitution confers on all High Courts wide powers in the matter of issuing writs. The two limitations placed under this Article, however, are that the power is to be exercised throughout the territories in relation to which it exercises jurisdiction, that is to say the writ issued by the Court cannot run beyond the terrotories subject to its jurisdiction and that the person or authority to whom the High Court is empowered to issue the writ must be within these territories. This implies that the persons against whom the writs are sought should be amenable to the jurisdiction of the High Court either by residence or the location within those territories. It was further observed that the Court could exercise its power under Article 226 of the Constitution if the cause of action either wholly or in part would have arisen within the territorial limits of the Allahabad High Court. Service of notice not being an integral part of cause of action, no part of cause of action could be said to have accrued within the jurisdiction of this Court. Consequently also, the petition was not maintainable.
28. The principles enunciated in the aforesaid cases cited by the respondents, apply with full force to the present case where also as a matter of fact it is found that no part of cause of action in respect of the relief claimed in relation to the confinement of the petitioner in the N.D.P.S. Act case at Bombay, has arisen within the territorial jurisdiction of this Court.
29. For these above reasons, therefore, we hold that this petition in so far as it relates to the confinement and detention of the petitioner in connection with the case under the N.D.P.S. Act, at Greater Bombay is concerned, is not maintainable in this Court, as the cause of action neither wholly, nor in part has arisen within the territories in relation to which this Court exercises jurisdiction.
30. This, however, is not the end of the matter, as in this petition allegations about illegal confinement and detention have been made, and reliefs sought, not only in regard to the cause of action arising from the petitioner's arrest, detention and confinement in connection with the N.D.P.S. Act case in Bombay, but also against the detention of the petitioner in connection with the Sessions Trial No. 748-A of 1984 Sections 394 and 397, I.P.C.P.S. Hazrat Nagar Garhi, District Moradabad under orders of the Special Judge, Moradabad. The pleas raised, as to whether the order dated 3-12-1990 of the Special Judge, Moradabad, Moradabad remanding the petitioner to custody till further orders, and in connection with the cases, both at Moradabad and Bombay, the non-sanction of remand on the adjourned dates between 3-12-1990 and 11-7-1991 by the Special Judge, Moradabad, render the petitioner's detention illegal, whether the orders of the Special Judge, Moradabad refusing to release him on furnishing bail bonds as well as his non-release pursuant to the acquittal recorded on 12-2-1991 in S.T. No. 478-A of 1984, and the direction to send him back to the Central Prison Nasik in connection with the Bombay case are against law, do give rise to a cause of action within the territories in relation to which this Court exercises jurisdiction. Also the authorities concerned, Special Judge, Moradabad and the Superintendent, District Jail, Moradabad being within the limits of the said territories, the petition to this extent and in respect of this cause of action is maintainable in this Court and it has jurisdiction to take cognizance of this case.
31. In view of our above conclusion, holding part of the subject matter of the petition and the reliefs claimed in that regard, to be beyond the jurisdiction of this Court, although it is now not necessary to dilate upon the various pleas of the petitioner touching the question of validity or otherwise of his arrest and detention in the N.D.P.S. Act case, since detailed arguments were advanced on these questions also, by both sides, we propose to mention the same briefly.
32. The first contention on behalf of the petitioner is that the search and arrest was made by the Detection of Crime Branch C.I.D. Bombay in violation of the provisions of the N.D.P.S. Act as well as the Code of Criminal Procedure. No papers were produced before the Magistrate at the time of seeking the first remand. There thus was violation of Article 21(2) of the Constitution and Section 50(1) of the Code. The remand to police custody of the petitioner from 11-7-1989 up to 18-8-1989 also exceeded the mandatory limit of 15 days as provided under Section 167 of the Criminal Procedure Code and Section 36A of the N.D.P.S. Act, as such it was illegal and render the detention of the petitioner from inception invalid.
33. The plea of the respondents on the. other hand, is that search and arrest was legally made, the petitioner was also disclosed the grounds of his arrest and was produced promptly before the Magistrate with all relevant papers, on a consideration of which he was remanded to custody first by the Magistrate and after expiry of the same by the Special Judge. The limit of 15 days for police remand is not applicable in this case in view of the modification to Section 167, Cr. P.C. by the Bombay Police Act applicable to the State of Maharashtra. Section 96 of the said Act lays down that Presidency Magistrate in Greater Bombay to whom the accused person is forwarded under Section 167(2), Cr. P.C. may, whether he has or has no jurisdiction to try the case, authorise the detention of the accused in such custody as he thinks fit for a term not exceeding 15 days at a time. The reference to the term Presidency Magistrate in the Bombay Police Act has to be construed as reference to the Metropolitan Magistrate as per Section 3 of the Code of Criminal Procedure. According to Section 5 of the Code, in the absence of a specific provision to the contrary, nothing in it shall affect any special or local law for the time being in force. Admittedly, the Bombay Police Act is a local law. There being no specific provision in the Criminal Procedure Code to the contrary, the provisions of Section 96(i)(ii) of the said Act would govern grant of remand in Greater Bombay and police remand from time to time may be granted but not exceeding 15 days at a time.
34. In reply, on behalf of the petitioner it has been contended by his learned counsel, that N.D.P.S. Act being a Central Law and a Special Act, the provisions of Section 36A will have overriding effect and Section 96, Bombay Police Act, 1951 would stand abrogated, meaning thereby, police remand could be granted under the provisions of Section 167(2), Cr. P.C. only for a period of 15 days as a whole.
35. The contention of the respondents is that while there can be no doubt about the proposition that a special law would have the effect of abrogating a general or local law to the extent it deals with matters which formed the subject matter of the latter, it would be found from the phraseology of Section 36A of the N.D.P.S. Act, 1985 as substituted by Act 2 of 1989, that while Sub-clause (b) thereof modifies the provisions of Sub-sections (2) and (2-A) of Section 167, Cr. P.C. in respect of powers of a Magistrate to grant remand by limiting the same to a period not exceeding 15 days in the whole in such custody as he thinks fit; there is no such modification with regard to the powers of Magistrate having jurisdiction exercisable by the Special Court under Sub-section (c) of Section 36A, rather it lays down that the special court may exercise in relation to the persons forwarded to it under Section 167(2), Cr. P.C. the same powers which a Magistrate having jurisdiction may exercise under Section 167, Cr. P.C. In other words, the provisions of Section 167, Cr. P.C. as modified by Section 96 of the Bombay Police Act, 1951 applicable to the Greater Bombay have been implanted under the N.D.P.S. Act and will regulate powers of a Special Court under the said Act to grant remand, and in this view of the matter police remand from 11-7-1989 to 25-7-1989 granted by Metropolitan Magistrate and from 25-7-1989 to 9-8-89, and thereafter up to 18-8-1989, granted by the Special Court was not illegal and does not render the detention invalid.
36. On behalf of the petitioner the following cases have been cited by his learned counsel in support of his contention that the remand of the petitioner under Section 167, Cr. P.C. in connection with the N.D.P.S. Act case at Bombay having been granted in contravention of the provisions of law, the said detention is illegal and inoperative.
Ramakant v. State 1988 All WC 1354. In this case detention of two of the detenus was found to be violative of Article 22(1) of the Constitution and Section 50(1) of the Cr. P.C. in the absence of any Entry in the General Diary or other record indicating that the arresting officer informed them of the grounds of arrest of particulars of the offence. Surya Kant Ram Das More v. State of Maharashtra(1990) 1 EFR 119 : (1989 Cri LJ 2422) (Bombay) to the effect that a Judicial Magistrate cannot grant remand for a period exceeding 15 days and is obliged even if he considers detention of the person to be unnecessary to order him to the Special Court having jurisdiction under the N.D.P.S. Act and the Special Judge shall have the same powers which a Magistrate having jurisdiction may exercise under Section 167, Cr. P.C. Zever Bhai Amai Das v. State of Bombay AIR 1954 SC 752 : (1954 Cri LJ 2822) laying down that the important thing to be considered with reference to Article 254(2) is whether the legislation by the Parliament is in respect of the same matter as enacted by the Legislature of a State. Maru Ram v. Union of India, AIR 1980 SC2147 : (1980 Cri LJ 1440) laying down that Section 433-A as newly added to the Cr. P.C. would prevail over the local and Special Laws relating to remissions and short sentencing schemes in view of Section 5 of the Cr. P.C. being a provision to the contrary dealing with a particular and narrow class of cases. Ajmer Singh v. Union of India, AIR 1987 SC 1646 : (1987 Cri LJ 1877) and Ajit Kumar v. Union of India, AIR 1988 SC 283 : (1988 Cri LJ 417) laying down that Army, Navy, Air Force Acts being a Special Act embodying completely self contained comprehensive Code, specifying offences, procedure for detention, investigation and punishments, constitute a special law within the meaning of Section 5 of the Code of Criminal Procedure, rendering the provisions of the Code inapplicable in respect of matter covered by such special law.
37. The authorities cited on behalf of the respondents in support of their contentions in these regard are -- Yashwant Bapuji Mokashi v. State of Maharashtra, AIR 1968 Bombay 273 : (1968 Cri LJ 903) laying down that the position under Section 96, Bombay Police Act, 1951 is different that the general law under Section 167, Cr. P.C. in so far as a Presidency Magistrate in Greater Bombay irrespective as to whether he has or has no jurisdiction to try the case has authority to remand the accused into police custody even for a period of more than 15 days, the only limitation being that at a time he shall not remand for a period exceeding 15 days. Mohd Abdul v. State of West Bengal (1991) 2 EFR 242 laying down that with regard to the powers of a special Court under the N.D.P.S. Act, Section 167 of the Cr. P.C is attracted by virtue of the fact that the said provisions have been implanted under the N.D.P.S. Act by Clause (c) of Section 36A.
The C.B.I, New Delhi v. Anupam J. Kulkarni, (1992) 3 JT (SC) 366 : (1992 Cri LJ 2768) laying down that where a person is arrested and produced before the nearest Magistrate as required under Section 167(1) or forwarded under Section 167(2) of the Code can be remanded to police custody only during the first period of 15 days and not after expiry of the said period, but if there are any special amendments enlarging the periods of detention, different considerations may arise on the basis of the language employed in those amendments.
38. The next contention of the petitioner regarding his detention being illegal and without any authority of law is that, no remand to custody within the meaning of Section 309 of the Cr. P.C. was granted by the Special Judge, City Sessions Court Greater Bombay on 24-10-1990, nor any such remand subsisted on the date of filing of the habeas corpus petition or till date. Reliance has been placed on the extract of order-sheet of the case under the N.D.P.S. Act of the Court of the Special Judge, City Sessions, Greater Bombay Annexure-1 to the supplementary affidavit dated 2-1-1992, according to which after taking cognizance of the case on 6-10-1989 and furnishing papers, the case was adjourned to 20-10-1989 and the accused was remanded to custody till the said date. Thereafter the case was adjourned for various reasons to be recorded to 26-10-1989, 19-6-1990 and 24-10-1990 on 24-10-1990 it was adjourned to 17-1-1991 and thereafter to 12-3-1991, 13-6-1991, 19-9-1991, 20-11-1991 and 27-1-1992. On these dates the petitioner was not produced in custody before the said court and order to produce him on the next date was passed but not for his remand to custody. It is also contended that although from 24-7-1990 the date of order of the Special Judge Greater Bombay directing production of the petitioner before the court of Special Judge, Moradabad up to 1-12-1990, he remained in custody of the Central Prison Nasik and even after his production before the Special Judge, Moradabad and remand to custody of the Moradabad jail by order dated 3-12-1990 of the Special Judge, Moradabad, no order of remand authorising detention of the petitioner in connection with N.D.P.S. Act case was passed by the Special Judge, Greater Bombay, in consequence the custody of the petitioner, if any, in connection with the N.D.P.S. Act case at Bombay stood terminated. Further it is contended that the act of the Superintendent Central Prison Nasik of producing the petitioner before the court of Special Judge Moradabad despite the bar in Section 269(b) of the Cr. P.C. implies that he was not under any remand pending trial in Greater Bombay.
Ram Narain Singh v. State of Delhi, AIR 1953 SC 277 : (1953 CriLJ 1113).
Raj Narain v. Supdt. Central Jail New Delhi, AIR 1971 SC 178 : (1971 Cri LJ 244), Natabar Farida v. State of Orrisa, AIR 1975 SC 1465 : (1975 Cri LJ 1212) Hari Prasad Dubey Tyagi v. D. M. Farukkhabad, (1976 All LJ 62) and Mashooq Ahmed v. State of U.P. 1987 All LJ 329.
39-40. On behalf of the respondents, the proposition that the existence of a valid remand is the foundation of the authority to detain a person in custody, is not disputed but it is contended that, in the instant case there does exist a valid remand to custody in connection with the N.D.P.S. Act case at Bombay and the said remand has not terminated or exhausted. The effect of the production of the petitioner on transfer from Central prison Nasik before the Special Judge, Moradabad and his order dated 3-12-1990 remanding the petitioner to custody of Moradabad Jail would be that the custody of the petitioner stood transferred in view of the provisions of Section 267, Cr. P.C. to the district jail Moradabad, with stipulation in return him back to the custody of the said prison in connection with the N.D.P.S. Act case at Bombay, in view of the provisions of Section 270 of the Cr. P.C. Despite the custody having been so transferred the confinement of the petitioner under orders of the Special Judge, Bombay in connection with the N.D.P.S. Act case continued. Under these circumstances of the confinement in the N.D.P.S. case being; the court of Special Judge, Greater Bombay, but the custody being of the court of Special Judge Moradabad, while adjourning the case under Section 309 of the Cr. P.C. awaiting return of the petitioner to its custody, the court of Special Judge, Greater Bombay was not required in law to remand him to custody. The necessity and occasion for passing such an order of remand would arise only on the petitioner being returned back to the custody of the court at Bombay after the Moradabad court has dispensed with the presence of the petitioner authorising him to be taken back to the Central Prison Nasik. Such contingency however, has so far not arisen, on account of the petitioner himself having obtained even before his acquittal in the Moradabad case, an interim stay order dated 28-10-1991 from this court, prohibiting his transfer from the District Jail, Moradabad to any jail outside Moradabad. The respondents have also disputed the contention that the detention and custody of the petitioner in the N.D.P.S. case automatically terminated on the petitioner being remanded to custody in the Moradabad case. In the instant case the transfer having been authorised by the Special Judge Greater; Bombay, the bar in Section 269(b), Cr. P.C. also stood removed.
41. Reliance has been placed on behalf of the respondents on a decision of the Full Bench of this court in Surjeet Singh v. State of U.P. 1984 All LJ 375.
42. Apart from narrating what the parties have stated and contended before us, we do not propose to deal with, and express any opinion on the questions aforesaid in view of our conclusion on the question of jurisdiction in the matter of petitioner's confinement and detention in connection with the N.D.P.S. Act case pending before the Bombay Court, lest it may prejudice the parties, in case any petition in regard to the said cause of action is filed before the competent court having jurisdiction.
43. Now this brings us to that part of petition which concerns the petitioner's detention in the District Jail, Moradabad in connection with the Sessions Trial No. 748A of 1984 of the Court of Special Judge, Moradabad and the reliefs claimed on the cause of action alleged to have been furnished by the said detention. The contentions in this regard before us to recapitulate may be submmarised as below.
44. A warrant B or a production warrant being a mere requisition for transfer, does not on its own constitute a valid authority for detention in prison, specific order of remand for a specified period was necessary to authorise the petitioner's detention in the Moradabad jail, which was not done and the alleged remand warrant was not in the prescribed form. There, thus, was violation of: Section 309 of the Cr. P.C. and the detention of the petitioner from inception, as well as on the date of filing the petition, and filing of return, was illegal and non-existent, Grant of Remand by the Special Judge Moradabad for the trial before him as well as that pending before the Bombay Court, was illegal. It was also illegal because while adjourning the trial to various date after 3-12-1990 the petitioner was not remanded to custody till the next date. Consequently, he was entitled to be set at liberty without any further formality. The refusal of the Special Judge, Moradabad and the Superintendent, District Jail, Moradabad to release the petitioner despite bail being granted in the Moradabad case on 27-3-1991 was in violation of law non-release of the petitioner despite his acquittal on 12-2-1992 in the Moradabad case and the judgment not directing such release, constituted breach of Section 354, Cr. P.C., there being no subsisting detention order or a valid production warrant of the Special Judge, Greater Bombay, there is no authority in law to send him back to the Central Prison, Nasik, and the provisions of Section 270 of Cr. P.C. are not attracted. The petitioner's detention in District Jail, Moradabad being unlawful he is entitled to be released and the respondents commended not to transfer him to Central Prison Nasik.
45. Before dealing with these submissions, however, at the very outset it may be mentioned that in a writ of habeas corpus the validity of detention has to be determined at the time of the return and not with reference to the institution of the proceedings. At the same time, however, an enquiry whether the detention is legal or not at the date of hearing would also be relevant.
46. It has been laid down in Col. Dr. B. Ramachandra Rao v. State of Orissa, AIR 1971 SC 2197 that in habeas corpus proceedings the court has to judge the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings. A fortiori, the court would not be concerned with a date prior to the initiation of the proceedings for a writ of habeas corpus.
47. In Talib Husain v. State of Jammu & Kashmir, AIR 1951 SC 62 it has been observed that in habeas corpus proceedings the court has to consider the legality of the detention on the date of hearing.
48. In Kanusanyal v. District Magistrate Darjeeling 1974 Cri LJ 465 : (AIR 1974 SC 510) taking note of the propositions laid down in A. K. Gopalan's case AIR 1966 SC 816 : (1966 Cri LJ 602) B. R. Rao's case (Supra) and Talib Husain's case (Supra) the Supreme Court observed as follows:--
Of these three views taken by the Court at different times the second appears to be more in consonance with the law and practice in England and may be taken as having received the largest measure of approval in India though the 3rd view also cannot be discarded as incorrect because an enquiry whether the detention is legal or not at the date of hearing of the application for habeas corpus would be quite relevant, for the simple reason that if on the date the detention is legal, the Court cannot order release of the person detained, by issuing a writ of habeas corpus.
49. Now with these propositions in mind, we may consider and discuss the questions raised as aforesaid to determine whether or not the petitioner is in unlawful detention of District Jail Moradabad.
50. Taking up first the submission of the petitioner based on Section 267 of the Cr. P.C. that a warrant issued under the said section does not constitute a detention order authorising detention in. prison of a person, it would be found that it is fully borne out from the provisions of Section 267 itself. The head-note as well as the phraseology of the said section indicates that the order envisaged therein is an order to produce a person confined or detained in a prison before a criminal court for answering to a charge or for the purpose of any proceedings against him. An order under this section does not partake the character of a detention order by the court seeking production qua the charge of the proceedings pending before it. This view finds support also from the principles laid down in Dharampal v. State of U.P. 1982 All WC 13 : (1982 All LJ 130) and Pramod Kumar v. State of Uttar Pradesh (reported in Allahabad Band Nirnaya 108). In fact before us the learned counsel for the respondents has also not taken the stand of a warrant under Section 267 to be a warrant of detention. He, on the other hand, relies on what he claims to be an order of remand validly passed under Section 309 of the Cr. P.C. by the Special Judge, Moradabad and this brings us to one of the main questions in issue between the parties.
51. Undisputedly, on the petitioner being; produced by the Superintendent, Central Prison, Nasik on 3-12-1990, before him the Special Judge, Moradabad passed the following order (Annexure-1 to the counter affidavit of V. B. Asthana Deputy Jailer, Moradabad) directing detention of the petitioner in custody.
In the Court of Special Judge, Moradabad S.T. No. 748-A/84 (contd. on col. 2) State v. Mohd. Daweed Under Section 394/307 I.P.C. Crime No. 96/83 P. S. Hazaratnagar, Garhi Distt. Moradabad Also detained in Special Case No. 801/89 U/S N.D.P.S. Act in the court of City Sessions Court, Greater Bombay.
To,
The District Superintendent,
District Jail,
Moradabad
Accused Mohd. Daweed, s/o Ikram Qureshi r/o Langra Ki Pullia, Asalatpura, P. S. Gal Shaheed, District Moradabad, is being remanded to judicial custody of this court. He is also under judicial custody of the City Sessions Court, Greater Bombay. You are, therefore, authorised to detain the aforesaid accused in both the cases till further orders.
Dt. 3-12-1990
Sd/- Illegible
(I.B. Singh)
Special Judge,
Moradabad
52. The pro forma of custody warrant as reproduced in a decision of Lucknow Bench of this court in Urooz Abbas v. State reported in 1973 Cri LJ 1458 (FB) is as follows :
Warrant for intermediate custody of remand (Section 344, Cr. P.C. 1898)
The Jailor of
whereas
charged with
and has been remanded to take his trial before the court of
You are hereby required to receive the said ... into your custody and produce him before
the said court as required on the reverse
Date Date of Magistrate 19
The back side of the form is divided into four columns with heading both in English and Hindi in each column and a note at the end. Only the English part of the headings and the back side is reproduced below.
Number of date of order date on which accused is Magistrate accused to be produced Signature
53. A perusal of the reverse side of the custody order/warrant (Annexure-1 aforesaid) would show that no endorsement on the back was made on 3-12-1990. Such endorsements start from 11-7-1991 and cover the period coinciding with the various dates fixed in the trial such as 11-7-1991 to 25-7-1991 and so on and bear also the initials of the Presiding Judge against each entry, the last entry being for the period 28-11-1991 to 12-11-1991.
54. In has been vehemently contended on behalf of the petitioner by his learned counsel that the order and the various endorsements on the back as contained in Annexure-1 aforesaid do not constitute a valid remand to custody within the meaning of Section 309, Cr. P.C. because firstly a remand to custody for the N.D.P.S. Act case at Bombay was beyond jurisdiction of the learned Special Judge, Moradabad, secondly he could not have granted a remand for an indefinite period, thirdly no reasons or directions were recorded for remanding the accused to custody on the various dates mentioned in Annexure-1 and even such endorsements are absent for the dates fixed in the trial after 3-12-1990 up to 11-7-1991.
55. In our opinion, the interpretation of recitals on the front side of the custody warrant (Annexure 1 aforesaid) that by means of it the Special Judge, Moradabad exercised the power of remanding the petitioner also in connection with the Bombay case, is not supported by the context. It would appear from the tenor of Annexure-1 that the Special Judge was merely taking precaution to incorporate in the warrant issued by him, the fact that the petitioner was also in detention in connection with the N.D.P.S. Act case before the City Sessions Court, Greater Bombay, for the purpose of record in the District Jail, Moradabad, Obviously with the requirements of Sections 267 and 270 of the Cr. P.C. in mind. It become further clear from the main sentence in the warrant that the accused Mohd. Daud is being remanded to judicial custody of the court of Special Judge, Moradabad. The further information was that he is also under judicial custody of the City Sessions Court. Greater Bombay, meaning thereby he was in such custody, irrespective of his order in the Sessions Trial No. 748-A of 1984. The last sentence authorising to detain the accused in both the cases thus was obviously superfluous so far it refers to Bombay case but that by itself would not invalidate the remand order in connection with S.T. No. 748A of 1984.
56. As far as the mention in the order dated 3-12-1990 that the Superintendent District Jail, Moradabad was authoritied to detain the petitioner till further orders, is concerned, apparently it is not in consonance with the provisions of Section 309 of the Cr. P.C. and consequently on this count, unless it is found to be valid for other reasons, the detention order would be invalid.
57. Section 309 of the Cr. P.C. does not envisage or permit remand to custody for an indefinite period. The remand thereunder has to coincide with the duration of adjournment and not beyond it,(See Raghavendra Singh v. State of U.P. (1986 All LJ 611)) (Supra).
58. The plea that the custody and detention of the petitioner in connection with the Sessions Trial No. 484-A of 1984 of the Moradabad Court is illegal for want of reasons for such remand to be recorded, however, is not warranted on a true interpretation of Section 309 of Criminal P.C. Sub-section (2) of Section 309, Cr. P.C. runs in following terms:--
309 (2). If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry of trial, it may from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considered reasonable may by a warrant remand the accused if in custody.
59. It is clear therefore, that the court is required to record its reasons for postponement or adjournment of the trial, and not for remanding the accused. It is not because a remand under Section 309, Cr. P.C. stands on a quite different footing than one under Section 167 of the Cr. P.C, where remand is sought pending investigation and the Magistrate or Judge is required to apply its judicial mind to consider whether on the materials collected remand is necessary and justified. In taking this view we are fortified by observations in Mashooq Ahmad v. State of U.P. 1987 All LJ 329 and Urooj Abbas v. State (1973 Cri LJ 1458) (All) (FB) (supra).
60. Before adverting to the other grounds upon which these remand orders are stated to be invalid, it will be proper to consider the legal position in regard to the powers, if any, to validate a custody. The submission of the petitioner is that once the initial remand is invalid, all subsequent orders of remand would also be rendered invalid because the word custody in this context used in Section 309(2) Cr. P.C. means legal custody. On behalf of the petitioner reliance in this regard has been placed on decisions rendered by this court in Hari Prasad Dubey Tyagi v. District Magistrate, Farrukhabad, 1976 All LJ 62, Mahesh Chandra v. Adhikshak Janpad Karagar, Nainital, 1983 Luck LJ 141, Raghuvendra Singh v. State of U.P. 1983 All LJ 611 and Kamlesh Kumar v. State, 1982 Luck LJ 4 : (1981 Cri LJ NOC 92).
61. On behalf of respondents, on the other hand, it is contended that the custody for the purpose of Section 309(2), Cr. P.C. includes illegal custody. This contention finds support from a Full Bench decision of this Court in Surjit Singh v. State of U.P. 1984 All LJ
375. In the said case, the applicant was committed to the Court of Session under Section 209, Cr, P.C. on 26-2-1983. The Magistrate issued warrant to the effect that he be produced before the Court of Session on 10-3-1983 without mentioning that he was to be in custody during or until conclusion of the trial before the Sessions Judge. The case was put up on various dates between 1-3-1983 and 17-5-1983, but no custody warrant was issued. It was issued for the first time on 14-6-1983 and was extended to various dates of hearing. On detention being challenged as illegal and the accused applying for bail on the said ground, dissenting from the view taken in the cases of H.P. Dubey Tyagi (1976 All LJ 62), Mahesh Chandra (1983 Luck LJ 141), Raghuvendra Singh (1983 All LJ 611) and Kamlesh Kumar (1981 Cri LJ NOC 92) (All) (supra), it was held that the word custody under Section 309(2), Cr. P.C. embraces both legal imprisonment as well as illegal imprisonment. The fact that in the said section word lawful is not used with the word custody shows that the legislature did not restrict the ordinary meaning of the word custody to lawful custody.
62. In view of this legal position, there-fore, the petitioner cannot assail his custody and detention in the Moradabad Jail during the pendency of Sessions Trial No. 748 of 1984 as being incapable of rectification.
63. The detention of the petitioner in the Moradabad Jail during the pendency of the Sessions Trial aforesaid has, however, been assailed by the learned counsel for the petitioner on the ground that apart from initial order of remand to custody being illegal, the alleged subsequent extension of remand to custody is also illegal, and as such there is no question of the mistake being rectified or the custody legalised at any subsequent time. In fact, he says during the period from 3-12-1990 to 11-7-1991 there was no attempt of extension of remand whereas the alleged extension after 11-7-1991 is no order of remand in the eye of law. The petitioner seeks to derive support to his contention in this regard from Ram Narain Singh v. State of Delhi (1953 Cri LJ 1113) (SC) (supra) to the effect that detention of a person in custody after expiry of remand without any fresh order of remand committing him to further custody, while adjourning the case as illegal, and Urooj Abbas v. State of U.P. (1973 Cri LJ 1458) (All) (FB) (supra) to the effect that a remand by merely filling the columns of the reverse of the warrant form already signed on the front side on some earlier date is not substantive compliance with the requirement of Section 344 (1), Cr. P.C. (corresponding to new Section 309 of the Cr. P.C.)
64. On behalf of the respondents reliance has been placed on Mashooq Ahmad v. State (1987 All LJ 329) (supra) in support of the contention regarding detention of the petitioner during the pendency of Sessions Trial at Moradabad being legal and valid. In the said case the accused was committed to the Court of Sessions on 2-8-1985 without any order of remand during and until conclusion of trial as required under Section 209, Cr. P.C. In the Court of Session, the date fixed for appearance was 9-8-1985 whereafter it was adjourned to various dates from time to time. On the validity of the detention being challenged it was held that there was a valid remand up to 9-8-1985 and thereafter no specific order of remand was passed on the order sheet. However, the accused came to be present before the court, fresh dates were given from time to time and the accused appeared on these dates also. In the absence of any specific plea to the effect that valid warrant of custody was not drawn out, it was held that the requirement of the law stood completely fulfilled. Even though there was no specific order of remand in the order sheet it would be presumed that warrant must have been drawn out on which the endorsement of the dates must have been made. Reliance in this regard was also placed on Surjeet Singh v, State of U.P. (1984 All LJ 375) (F.B) (supra).
65. On a careful consideration on of the above submissions and scrutiny of the relevant documents on record, however, in our opinion, the initial illegality in the remand order dated 3-12-1990, continued and was not rectified at any point of time. The remand on 3-12-1990 by means of Annexure-1 to the counter-affidavit was for an indefinite period. As per copy of order sheet in S.T. No. 748A of 1984 Annexure-1 to the petition, although the case was adjourned to 22-1-1991, 28-2-1991, 27-3-1991, 23-4-1991, 12-5-1991, 13-6-1991 and 28-6-1991 no order of remand to custody nor any endorsement to the effect on the warrant was made. Subsequently though there were endorsements covering the period from one adjourned date to another and containing initials of the Presiding Officer, there is nothing to indicate that these were intended to remand the accused to custody during these periods.
66. Had the warrant of remand to intermediate custody been drawn in the relevant pro forma directing the petitioner (accused) to be kept in custody and produced on the dates mentioned in reverse, or at least the columns Nos. 1 to 4 were properly drawn and filled to convey remand from one date to another, it could on the principles laid down in Mashooq Ahmed v. State (1987 All LJ 329) (supra) have been taken to be sufficient compliance of Section 309(2) of the Cr. P.C. In the absence of all these there is no option but to hold that there was no valid remand to custody of the petitioner in ST No. 748-A/84 from 3-12-1990 the date of the production till his acquittal in the said trial on 12-2-1992.
67. It is a matter of concern that the subordinate courts in the State, are paying scant regard to the provisions of law as contained in Section 309(2) of the Cr. P.C. in the matter of remand of accused to custody, while adjourning an enquiry or trial. This is so, despite the proposition of law being clearly laid down in a catena of decisions in the case of Ram Narain Singh (1953 Cri LJ 1113) (SC), Mahesh Chandra (1983 Luck LJ 141), Raghuvendra Singh (1983 All LJ 611), Kamlesh Kumar (1981 Cri LJ NOC 92) (All), Urooj Abbas (1973 Cri LJ 1458) (All) (FB), Mashooq Ahmad (1983 All LJ 611) and Surjeet Singh (1985 All LJ 375) (FB) (supra),
68. In fact in Urooj Abbas v. State (supra) a Full Bench of this court while recommending some improvement in the form of intermediate custody, directed the matter to be placed before Hon. the Chief Justice for the purpose. While reiterating the same, we direct the Registrar also to issue necessary instructions at the earliest to all the courts subordinate to this court, to scrupulously observe the mandate in Section 309(2), Cr. P.C. and to ensure that remand is granted for a specific period coinciding with the adjourned date of hearing, and either a printed form of warrant is used or in case it is not available, the typed or cyclostyled copy used is the exact reproduction of the same in both sides.
69. In the peculiar circumstances of this case, however, the mere fact of the detention of the petitioner in Sessions Trial No. 748 A of 1984, in the District Jail, Moradabad between 3-12-1990 the date of his production before the court and 12-2-1992 the date of acquittal in the said case being invalid would in our opinion, not constitute any ground for release of the petitioner by means of a writ of habeas corpus. The reason being that the petitioner was brought before the Special Judge, Moradabad to answer a charge of an offence on the strength of a production warrant issued under Section 267 of the Cr. P.C. to so produce him from the custody of the Special Judge, Greater Bombay in the Central Prison Nasik. Section 270 of the Cr. P.C. dealing with the mode of compliance of production warrant issued under Section 267, Cr. P.C. lays down that upon delivery of an order under sub-sec. (1) of Section 267, the Officer-in-charge of the prison shall cause the person named in the order to be taken to the court in which his attendance is required, so as to be present there at the time mentioned in the order, and shall cause him to be kept in custody in or near the court until he has been examined or until the court authorises him to be taken back to the prison in which he was confined or detained. The Form No. 36 of order of production under Section 267 contained in Schedule II of the Cr. P.C. also reiterates the same position, when it says that the Officer-in-charge of the jail where the prisoner required to be produced is confined, is required, besides producing the accused before the court concerned, to answer the charge, after the court has dispensed his further attendance, to cause him to be conveyed under safe and sure conduct back to the said prison.
70. Sections 267 and 270 of the Cr. P.C. read together thus contain a clear legislative mandate that when a prisoner already confined in a prison is produced before another criminal court for answering to a charge of an offence, and is detained in or near such court for the purpose, on the court dispensing with his further attendance, has to be conveyed back to the prison from where he has been brought for such attendance. In view of this there could be no question of the confinement of the petitioner in connection with the N.D.P.S. Act case in Greater Bombay coming automatically to an end, or becoming nonexistent, on the petitioner being produced on transfer before the Special Judge, Moradabad and his order for petitioners' detention in the Moradabad Jail pending trial, and ultimately the said detention as undertrial in the sessions case coming to an end by a judgment of acquittal. No support can be derived by the petitioner in this regard from the decision of the Supreme Court in Kanu Sanyal's case (1974 Cri LJ 465) (supra) as the facts in the said case were quite different and it also has not been laid down therein, that the original confinement or detention comes to an end on transfer of the prisoner on the basis of a production warrant.
71. It is a cardinal principle that where the law prescribes a specific mode of doing an act, such act can be done only in that and no other manner, when Section 270 of the Cr. P.C. provides a prisoner brought before a court on a production warrant to be taken back to the prison from where he was so brought, he can only be dealt with in such manner. The act of the respondents in directing the petitioner to be taken back to the Central Prison, Nasik thus has the due sanction of law and these petitions for the writs of habeas corpus and mandamus do not lie.
72. It has been vehemently contended by the learned counsel for the petitioner that in the absence of a valid detention order of the Bombay Court, his detention for the purpose of the NDPS case there or sending back to Central Prison, Nasik, is unsustainable, as no person can be detained without any lawful authority. However, as said, above, in view of our conclusion on the question of jurisdiction, it is not open to us to go into these questions.
73. As far as the grievance of the petitioner against the act of the Special Judge, Moradabad and the Superintendent District Jail, Moradabad in not agreeing to release him in the event of his furnishing bail bonds in pursuance of the order dt. 27-3-1991 of this court granting bail in the sessions case, the same has become redundant in view of the fact that the trial has already concluded, ending in acquittal and now there does not arise any question of release on bail. However, even otherwise there could be no release from detention even on the petitioner furnishing bail bonds, in view of what we have held about his being liable to be transferred back to the Central Prison, Nasik in connection with the NDPS Act case in view of the mandate in Section 270 of the Cr. P.C.
74. Yet another contention of the petitioner that his detention in the District Jail, Moradabad is unauthorised after his acquittal in the sessions case on 12-2-1992 and the Special Judge, Moradabad acted illegally in directing him to be detained in jail pending decision of this writ petition, in view of the interim order dated 28-10-1991 of this court, is also not tenable. What Section 354(1)(d) of the Cr. P.C. means by the requirement of the judgment containing a direction that the accused be set at liberty, is liberty with reference to the case in which acquittal is recorded, and not with reference to any other confinement or custody. In the instant case the operative portion of the judgment dated 12-2-1992 in Sessions Trial No. 748A of 1984 does connote a direction to set the accused at liberty with reference to the said case. The release in such a case, has to be by making a note in jail record, and not actually setting the accused to liberty, when he is also in detention or confinement in connection with another case. In the instant case, being in confinement of the Bombay Court also in the NDPS Act case, the petitioner obviously could only be released on paper from detention in the Moradabad case, and was liable to be transferred back to the Central Prison, Nasik. The same, however, could not be in view of the interim order dated 28-10-1991 of this court at the instance of the petitioner, restraining his transfer to any jail outside Moradabad. The only order which the Special Judge could have passed in the operative portion of his judgment thus was to keep the petitioner confined in District Jail, Moradabad, to be dealt with subject to the decision of this court in the writ petition. The order thus does not contravene the provisions of Section 354, Cr. P.C. and is also not otherwise illegal.
75. The controversy regarding the detention of the petitioner in the District Jail, Moradabad in connection with the Sessions Trial being illegal, is also not now relevant, in view of the fact that on 4-3-1992 and 1-5-1992 the date, respectively of return of the respondents Nos. 3 and 4, and at the hearing of these writ petitions there was no subsisting detention in connection with the Sessions Trial No. 748A of 1984, the same having already ended in acquittal on 12-2-1992, and as apparent from the averments in the supplementary affidavit dated 29-7-1992 of V.P. Srivastava the Education Teacher in District Jail, Moradabad, filed on behalf of the respondents, the petitioner has been released in the said case in compliance of the said judgment Annexure SA 1 to the affidavit. The confinement of the petitioner after 12-2-1992 in the District Jail, Moradabad, thus is only for the purpose of compliance of the mandate of Section 270 of the Cr. P.C. regarding taking back the petitioner to Central Prison, Nasik in view of his confinement in the said prison, in connection with the NDPS Act case at Bombay, and the said case admittedly still being pending before the Special Judge, City Sessions Court, Greater Bombay.
76. For all the above stated reasons, therefore, in our opinion, there is no merit in the contentions advanced on behalf of the petitioner in any of these petitions and these are liable to be dismissed.
All the three petitions are accordingly dismissed. The interim order dt. 28-10-1991 in Habeas Corpus Petition No. 24268 of 1991 is withdrawn. As directed in paras 67 and 68 above the Registrar shall issue necessary instructions to all the Courts subordinate.
77. Leave to appeal to Supreme Court is orally prayed for on behalf of the petitioner. In our opinion, it is not a fit case where such leave may be granted. It is, accordingly refused.
ORDER
Virendra Saran, J.
1. Heard Sri Raza Zaheer on behalf of the applicant and Sri Bireshwar Nath and Sri Janardan Singh for the State.
2. By means of this application Ranjeet Singh alias Laddu Singh has prayed for the quashing of the order of the Chief Judicial Magistrate, Lucknow purporting to have been passed under Section 267 of the Code of Criminal Procedure (for short, the Code) in respect of crime No. 496 of 1994 under Sections 302/120B, l.P.C. of police station Aliganj, district Lucknow.
3. The deceased Sri Susheel Kumar Misra was the Chief Engineer, Mandi Parishad, Uttar Pradesh. He is alleged to have been shot while going on usual morning walk at about 7 a.m. on August 7,1994. He was rushed to the hospital, but he succumbed to his injuries. The crime was reported by Sri Vinod Kumar younger brother of the deceased at P. S. Aliganj, Lucknow. The applicant is not named in the F.I.R. but his complicity emerged during the course of investigation. The applicant is accused in yet another murder case at Faizabad, that is, Crime No. 326 of 1989 under Sections 302/323/308/147/148/149, l.P.C. P. S. Cantt. Faizabad. It is averred in paragraph 3 of the affidavit that the applicant is confined in District Jail, Faizabad pending commitment of the case there and is under remand under Section 309 of the Code. The learned counsel for the applicant has stated that the applicant, who was on bail in respect of murder case at Faizabad, himself surrendered on 12-8-1994 by getting his bail bonds cancelled and since then he is confined in Faizabad Jail.
4. Sri Raza Zaheer, learned counsel for the applicant who argued the case with great proficience, has contended that since the applicant is confined in Faizabad Jail in another case pending commitment, it was beyond the competence of the learned Chief Judicial Magistrate, Lucknow to make an order under Section 267 of the Code. Learned counsel has referred to the following extract of Section 267 which states:
"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) ..."
(The underlining is mine)
Sri Raza Zaheer has urged that Section 267 and Section 269 are to be read together and has laid emphasis on the following extract of Section 269:
"269.- Where the person in respect of whom an order is made under Section 267-
(a) ...
(b) is under committal for trial or under remand pending trial or pending a preliminary investigation; or
(c) ...
(d) ...
the officer-in-charge of the prison shall abstain from carrying out the Court's order and shall send to the Court a statement of reasons for so abstaining."
5. The contentions of Sri Raza Zaheer are two- fold. His first contention is that a plain reading of Section 267 of the Code shows that an order under Section 267 of the Code can be made if a person confined or detained in any prison is required by the Court for answering to a charge of an offence. Sri Zaheer has submitted that in the present case, no charge-sheet has been filed in Court against the applicant and the applicant is not required for answering to a charge of any offence in the Court. The second contention of Sri Raza Zaheer is that Section 267 and Section 269 of the Code are to be read in harmony and Section 269 requires the officer-in-charge of the prison to abstain from carrying out the Court's order passed under Section 267 if the person (in respect of whom an order under Section 267 is made) is under committal for trial or under remand pending trial or pending preliminary investigation. According to Sri Raza Zaheer since the applicant is in custody in Faizabad Jail pending committal in respect of crime No. 326 of 1989 it was beyond the competence of the learned Chief Judicial Magistrate, Lucknow to make an order under Section 267 of the Code.
6. The first contention of the learned counsel for the applicant meets with rejection without much difficulty. The words, "or for the purpose of any proceedings against him" occurring in Section 267(1)(a) are compendious and include proceedings encompassing all stages and have in their fold remand proceedings and even proceedings of an investigation. In the present case, the presence of the applicant is required for the purposes of remand which may even include police remand or for their purposes of the investigation.
7. More serious reflection is needed on the second contention of the learned counsel for the applicant. There does appear some ambiguity in Section 269 of the Code. Clarity, unfortunately, has not been a strong point of our legislative draftsmanship. The arduous task of creasing out the ambiguities has to be done by the Courts by interpreting the law in a reasonable manner so as to make the law meaningful and put life into it. The legislature may not visualise all future situation as it is not within human powers to foresee the manifold sets of facts which may arise and it is not possible to provide for them in clear terms, free from ambiguity. At the same time, the procedural law is meant to further the ends of justice and not to frustrate the same. If the contention of Sri Raza Zaheer is accepted, hardened criminals would always give a slip by surrendering in another case at a distant district and cripple the process of investigation relating to crimes subsequently perpetrated by them. The committal proceedings or the trial in respect of the earlier crime may take long time and sometime several years and by long lapse of time the evidence in the subsequent crime may fade away. The fact that commitment proceedings in respect of the applicant have remained pending for the last five years at Faizabad. In an offence like murder amply illustrates my above observations. The presence of an accused is required during an investigation for various purposes, such as, making of recoveries, identification and the like. Speed is the essence in a criminal investigation and if it is allowed to linger on for several years, its very purpose is lost. In my opinion, even if there is some ambiguity in Section 269 of the Code, it has to be overcome by adopting a reasonable approach.
8. I am of the opinion that Section 269 of the Code has a salutary purpose. All criminal proceedings must conclude as expeditiously as possible. If commitment proceedings or the trial is in progress, carrying out of the order under Section 269 of the Code may disrupt the speedy disposal of the case. Section 269 is aimed at uninterrupted disposal of the proceedings which are in progress and hence, the officer-in-charge of the prison has to abstain from carrying out the orders under Section 267 of the Code. Normally when the accused is confined in prison, he is incapable of moving out and commit further offence is another district. His detention prevents him from doing so. Perhaps the law makers did not foresee a case where the accused after release on bail commits a crime in another district and soon thereafter gets his bail cancelled to hinder the investigation of the crime subsequently committed by him. The legislature could hardly foresee that even in henious offences like murder, the commitment proceedings may remain in doldrums for half a decade as in the present case. In appears to me that the only reasonable construction of words, "is under committal for trial or under remand pending a preliminary investigation," occurring in Section 269 is that the commitment proceedings, trial or investigation, as the case may be, should be in actual progress and not merely pending. In a case where the proceedings are not in actual progress, an accused can be reasonably sent for the purposes of another investigation, committal proceedings or trial. Thus, when an order has been passed by the Magistrate under Section 267 of the Code, the officer-in-charge of the prison may with the consent of the concerned Court or the Investigating Officer carry out the order under Section 267 of the Code.
9. There is yet another aspect of the matter. The mere fact that committal proceedings are pending in respect of the applicant at Faizabad does not take away the jurisdiction of the Magistrate at Lucknow to pass an order under Section 267 of the Code and for this reason, too, the order passed by the learned Chief Judicial Magistrate, Lucknow does not suffer from any infirmity.
10. To conclude, this application fails and is hereby dismissed.
Dated : 1.7.2010
C O R A M
The Honourable Mr. Justice C.NAGAPPAN
and
The Honourable Mr. Justice P.R.SHIVAKUMAR
Habeas Corpus Petition No.1151 of 2010
K.S.Muthuramalingam .. Petitioner
Vs.
1. State, rep. by the
Inspector of Police,
District Crime Branch,
Commissioner Office,
Coimbatore.
2. The Superintendent,
Central Prison,
Coimbatore-18. .. Respondents
PRAYER : Petition under Article 226 of the Constitution of India seeking to issue a Writ of Habeas Corpus for a direction to the respondents to produce the petitioner's son Sundar alias Raja, S/o.Muthuramalingam, aged about 35 years, now confined in Central Prison, Coimbatore, before this Hon'ble Court and set him at liberty. For Petitioner : Mr. M.Radhakrishnan for M/s.P.Pugalenthi and P.K.Ilavarasan For Respondents : Mr.Hassan Mohd. Jinnah Additional Public Prosecutor
O R D E R
(Order of the Court was made by P.R.SHIVAKUMAR, J.)
The father of the detenu Sundar alias Raja is the petitioner in this Habeas Corpus Petition and he has sought for issuance of a writ of Habeas Corpus directing the release of the above said detenu who has been lodged in Central Prison, Coimbatore.
2. As per the petition allegations, the detenu Sundar alias Raja was arrested and remanded to judicial custody in Crime No.16/2009, registered on the file of District Crime Branch, Coimbatore, for offences punishable under Sections 406 and 420 IPC on 29.5.2009 and he was granted bail by the learned Judicial Magistrate, Palladam, imposing conditions to produce documents showing assets worth Rupees One Crore and two sureties, having property worth Rs.50,00,000/- and to jointly execute a bond for a sum of Rs.10,000/-. However, the said order was subsequently modified by removing the other conditions and imposing a condition to execute a bond for a sum of Rs.1,00,000/- with two sureties each for a likesum and the said order of modification was passed on 10.6.2010. It has also been stated in the petition that pursuant to the said order, bail bond was executed on 18.6.2010 by the sureties and the bail bond was sent to the Superintendent, Central Prison, Coimbatore on the same day. However, the detenu Sundar alias Raja was not released by the Prison Authorities even after the submission of the bail bond as per the requirements found in the bail order granted by the learned Judicial Magistrate, Palladam. Hence the petitioner has come forward with the present petition contending that the continued detention of the detenu in the Central Prison is not authorised by law and his right guaranteed under Article 21 of the Constitution of India has been violated, necessitating this Court to exercise the power under Article 226 of the Constitution of India for issuance of a writ of Habeas Corpus for production of the detenu and set him at liberty.
3. The second respondent has filed a counter affidavit stating that even before the bail bond was received by the Jail Authorities in the case in which the detenu had been remanded to judicial custody, a P.T. Warrant was received from the III Additional Civil Judge and Judicial Magistrate of First Class, Porbandar, Gujarat in connection with Crime No.2576/2009, a case registered for an offence punishable under Section 138 of Negotiable Instruments Act; that due to non-availability of the escort police, the detenu could not be taken to Porbandar to be produced before the said Court and that subsequently on intimation to the said Court, successive P.T. Warrants came to be issued till date and a P.T. Warrant is pending at present, directing the production of the detenu on 23.7.2010. It has also been stated in the counter affidavit that two more P.T. Warrants, one from III Additional Civil Judge (Junior Division) and III Judicial Magistrate of First Class, Bijapur and another from I Additional Civil Judge (Junior Division) and Judicial Magistrate of First Class, I Court GADAG, in connection with C.C.Nos.04/10 [P.C.No.123/2009] and C.C.No.05/2010 [P.C.No.124/2009] respectively with requests to produce the above said detenu before the said Courts on 23.7.2010, are pending execution and that the same was the reason why the detenu was not released pursuant to the execution of bail bond.
4. We heard the submissions made by Mr.M.Radhakrishnan, learned counsel for the petitioner and the submissions made by Mr.Hassan Mohammed Jinnah, learned Additional Public Prosecutor representing the respondents.
5. It is the contention of the learned counsel for the petitioner that the very purpose of issuing a P.T. Warrant is to produce a person who is lawfully confined in a prison to answer a charge or to be examined as a witness before a Criminal Court and the mere fact that P.T.Warrants have been issued shall not authorise the Prison Authorities to keep the prisoner in continued custody unless his custody is otherwise legally authorised.
6. Section 267 Cr.P.C reads as follows:-
"267. Power to require attendance of prisoners. - (1) Whenever, in the course of an 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) shall be accompanied by a statement of the facts which, in the opinion of the Magistrate, render the order necessary, and the Chief Judicial Magistrate to whom it is submitted may, after considering such statement, decline to countersign the order."
7. Section 267 of the Code of Criminal Procedure, 1973 deals with P.T. Warrant. It says, whenever it appears to a Criminal Court dealing with an inquiry, trial or other proceeding, in the course of such inquiry, trial or other proceeding under the Criminal Procedure Code 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 proceeding against him or it is necessary to examine such person as a witness, such 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. A reading of the said section itself suggests that such an order of a Criminal Court for production of the person detained in prison shall be executable only if the person is detained on the date on which, production is to be made. This position is further amplified by sub-section (c) of Section 269 of Criminal Procedure Code. For better appreciation, the entire Section 269 of the Code of Criminal Procedure is re-produced hereunder: "269. Officer in charge of prison to abstain from carrying out order in certain contingencies.- Where the person in respect of whom an order is made under section 267- (a) is by reason of sickness or infirmity unfit to be removed from the prison; or
(b) is under committal for trial or under remand pending trial or pending a preliminary investigation; or
(c) is in custody for a period which would expire before the expiration of the time required for complying with the order and for taking him back to the prison in which he is confined or detained; or (d) is a person to whom an order made by the State Government under section 268 applies,
the officer in charge of the prison shall abstain from carrying out the Court's order and shall send to the Court a statement of reasons for so abstaining;
Provided that where the attendance of such person is required for giving evidence at a place not more than twenty-five kilometres distance from the prison, the officer in charge of the prison shall not so abstain for the reason mentioned in clause (b)."
8. Section 269 of Cr.P.C prescribes the circumstances under which a jail authority has to abstain from carrying out the order passed under Section 267 Cr.P.C. The contingencies under which the person in-charge of the prison has to abstain from producing the prisoner on P.T. warrant are: a) unfitness of the prisoner to be removed from the prison by reason of his sickness or infirmity making the prisoner unfit to be removed from the prison; b) the prisoner being under orders of committal for trial or under remand pending trial or pending preliminary investigation; c) the period of authorised custody would expire before the prisoner could be produced in compliance with the P.T. warrant before the court which issued the order and brought back to the prison in which he is confined or detained and d) The State Government has passed an order under Section 268 Cr.P.C that the person should not be removed from the prison and such order remains in force. The proviso to Section 269 Cr.P.C provides an exception and prescribes the circumstances under which a jail authority shall not abstain from carrying out the order passed under Section 267 Cr.P.C.
9. Clause (c) of section 269 Cr.P.C specifically provides that the officer in-charge of the prison shall abstain from carrying out the production order, if the person sought to be produced is in custody for a period which would expire before the expiration of the time required for complying with the order and for taking him back to the prison in which he is confined. A reading of clause (c) shall make it clear that unless there is sufficient time for taking prisoner to the court which issued the production warrant and to take him back to the prison before expiry of the authorised period of detention, an order passed by the court under Section 267 Cr.P.C for production of the prisoner shall not be complied with.
10. As per the proviso, when a prisoner is required to be produced before a criminal court situated at a place not more than 25 miles away from the prison for giving evidence, then the officer in-charge of the prison shall not so abstain for the reason mentioned in clause (b), namely 'the prisoner is under committal for trial or under remand pending trial or pending a preliminary investigation'. The conjunction used for the four exceptions (a) to (d) in Section 269 Cr.P.C is 'OR' and not 'AND'. If any one of the four contingencies is proved to exist, then the prison authority has to abstain from carrying out the order in the form of P.T. warrant. However, the proviso provides an exemption to sub clause (b) alone, provided the conditions found in the proviso are satisfied.
11. A conjoint reading of sections 267 and 269 Cr.P.C will make it clear that the purpose of P.T. warrant is to direct the production of a person who is confined or detained in prison by a lawful order. It cannot be interpreted to mean that the P.T. warrant shall be an authorisation to curtail the liberty of the person and keep him in custody till the date on which his production is sought for. The mere pendency of a P.T. warrant shall not be enough to keep a prisoner in the prison beyond the date of expiry of the sentence, if he is a convict or beyond the date on which the remand expires unless the remand is extended by a competent court. The pendency of a P.T. warrant cannot be equated with a remand and the same cannot be construed to be an authorisation for detaining a person beyond the period for which he was remanded or committed to undergo punishment.
12. In this regard, the judgment of this court in Kattan @ Subramani vs. State by Inspector of Police, Avadi P.S. & Another reported in 1992(1) MWN (Cri)/Mad 68 shall have bearing, though not directly applicable. In the said case it has been observed that the issue of a P.T. warrant when the person is not confined or detained in a prison in respect of any other case is not justifiable and when such a fact is brought to the notice of the court which had issued P.T. warrant, the same should be recalled. The judgment went further to state that the recalling of the P.T. warrant will not bar the subsequent arrest of the person in execution of an NBW.
13. From the above, it is quite obvious that the scope of the P.T. warrant cannot be enlarged by assuming the same to be an authorisation for detaining the prisoner beyond the period of detention. It will be effective only if his detention is otherwise authorised as on the date on which he is supposed to be produced before the court issuing P.T. warrant.
14. The decision of the Apex court in Ram Dass Ram v. State of Bihar and another reported in AIR 1987 SUPREME COURT 1333 will make it abundantly clear that the issuance of P.T. warrant cannot be construed to be an order of remand. A person, who has been acquitted or granted bail in the cases in which he was remanded to judicial custody, cannot be detained further on the sole ground that a P.T. warrant has been issued by another court. In the said case decided by the Supreme Court, the accused was acquitted in two Sessions cases in which he had been remanded and even after the acquittal in those cases he was continued to be detained in the prison on the basis of a P.T. warrant issued for his trial in another case. Such a detention was held to be unjustified. The facts of the case before the Supreme Court reveal that there was no warrant (remand order) for detaining the detenu in jail in the third case in which P.T. warrant was issued or in any other case after the detenu had been acquitted in the two cases in which he had been remanded.
15. P.T. Warrants can be classified into two categories:
1)directing production of the person confined in the prison on the date of hearing specified in the order, and
2)directing production without specifying a date for production.
In either case, the P.T.Warrant cannot be construed to be an authorisation to detain the person in jail beyond the period of remand or beyond the date of expiry of the sentence of imprisonment, as the case may be. Legal custody on the date on which he is directed to be produced in the sine qua non for such production. Therefore, the first category of P.T. Warrant, namely specifying a particular date on which production is to be made, shall be issued in cases when production is sought for being examined as a witness or for answering a charge or facing other proceedings in which he has already been granted bail. In such cases, the prisoner shall be released if, before the date fixed for his production, his period of sentence expires or the period of remand comes to an end. Second type of P.T. Warrants viz. without specifying the date for production can be issued, in cases wherein the prisoner has to answer the charge or face a proceeding when he was not granted bail or bail granted was cancelled. In such cases, the prison authority is bound to produce such person on receipt of P.T. Warrant. Even in such cases, he cannot be detained for being produced in the court in compliance with the P.T. Warrant if the sentence or remand period expires before the receipt of P.T.Warrant.
16. Hence, we are convinced with the contention of the learned counsel for the petitioner that the continued detention of the petitioner beyond 19.6.2006, the date on which the bail bond was received by the Superintendent of Prisons, Central Prison, Coimbatore, is illegal and this Court has to issue a direction for his release, especially when it is not the case of the respondents that he has been remanded in any other case or his continued custody is authorised in connection with any other case.
17. In the result, the Habeas Corpus Petition is allowed and the detenu Thiru. Sundar alias Raja is ordered to be set at liberty forthwith, unless his custody is authorised in connection with any other case. (C.N.J.) (P.R.S.J.)
1.7.2010
Copy to:-
1. The Inspector of Police, District Crime Branch, Commissioner Office, Coimbatore.
2. The Superintendent, Central Prison, Coimbatore-18.
3. The Public Prosecutor, High Court, Madras-104.
C.NAGAPPAN, J.
and
P.R.SHIVAKUMAR, J.
H.C.P. No.1151 of 2010
1.7.2010
PETITIONER: KANU SANYAL Vs. RESPONDENT: DIST. MAGISTRATE, DARJEELING & ORS.
DATE OF JUDGMENT05/02/1974
BENCH:
BHAGWATI, P.N.
GOSWAMI, P.K.
HEADNOTE:
The petitioner was remanded to the District Jail, Darjeeling, in connection with certain offences. Thereafter, two charge 'sheets were filed against him and others for various offences under the I.P.C., which were triable exclusively by a Sessions Court, before the Special Magistrate, Visakhapatnam. The Special Magistrate issued a warrant for the production of the petitioner in his Court, under s. 3(2) of the Prisoners (Attendance in Courts) Act, 1955, and the officer in charge of the, Dt. Jail Darjeeling, sent the petitioner to the Court of the Special Magistrate, Visakhapatanam. The petitioner was then remanded to the Central Jail. Visakhapatnam, pending the disposal of the. committal proceedings.
In a petition for the issue of a writ of habeas corpus, the petitioner contended that his initial detention in the Dt. Jail, Darjeeling, was illegal, because, (1)(a) it was violative of Art. 22(1) (b) the concerned Magistrate in Darjeeling had no jurisdiction to try the offences in connection with which he was detained in Darjeeling and hence could not order detention beyond 15 days; and (2) the officer in charge of the Dt. Jail, Darjeeling should have refused to comply with the warrant for production issued by the Special Magistrate, Visakhapatnam, by reason of s. 6 of the Prisoners (Attendance in Courts) Act. HELD: (1) As regards the earliest date with reference to which the legality of detention challenged in a habeas corpus proceeding may be examined, there are 3 views, namely, (a) that it is the date on which the application for habeas corpus is made to the Court, (b) that it is the date of the return, and (c) that it is the date of hearing. Whichever be the correct view, the earliest of the dates would be the date of filing of the application for habeas corpus. In the present case, the application was filed after the petitioner was ordered to be detained in the jai at Visakhapatnam. Assuming that there was some infirmity in the detention in the jail at Darjeeling, that cannot invalidate the subsequent detention off the petitioner in the jail at Visakhapatnam. The legality of the detention at Visakhapatnam has to be judged on its own merits. Therefore, it is unnecessary to examine the legality of the detention of the petitioner in the jail at Darjeeling.
(2) Under s. 3(1) of the Prisoners (Attendance in Courts) Act, the order contemplated is an order by a civil or criminal court, for the production of a detained person for giving evidence. But the order contemplated by s. 3(2) is an order of production of a person for answering a charge in a criminal court. Under s. 5, when an order of production is made under s. 3(1) or (2), the officer in charge of a prison shall cause the detained person to be taken to the court where his attendance is required. Under s. 6, such officer shall abstain from complying with the order of production in certain circumstances. The proviso to the section carves out an exception if the 3 conditions for its applicability, laid down in the proviso, are satisfied. The first condition is that the order of production should be by a criminal court and the second is that the detained person should not be unfit to be removed, and the third is that the place where the evidence of the detained person is required is not more than 5 miles from the prison where he is confined.
In the present case, the first two conditions are satisfied. The 3rd condition can have no application where an order is made by a criminal court under s. 3(2) requiring production for answering a charge. The fulfillment of the first two conditions would, in such a case, be sufficient to attract the applicability of the Proviso, and to take the case out of s. 6. Therefore, the officer in charge of the jail at Darjeeling was bound to send the petitioner to the Court at Visakhapatnam and he acted according to law. The subsequent detention in the jail at Visakhapatnam pending trial must be held to be valid and a writ of habeas corpus cannot be granted where a person is committed to jail custody by a competent court by an order which, prima facie, does not appear to be without jurisdiction or wholly illegal. [285 H- 286 G]
B. R. Rao v. State of Orissa, A.I.R. 1971 S.C. 2197, followed.
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 205 of 1973. Under Article 32 of the Constitution of India for issue of a writ in the nature of habeas corpus.
N. H. Hingorani, for the petitioner..
P. K. Chatterjee, Sukumar Basu and G. S. Chatterjee, for respondents Nos. 1-5.
P. Ram Reddy and P. P. Rao, for respondent No. 6. B. D. Sharma and S. P. Nayar, for respondent No. 7. The Judgement of the Court was delivered by BHAGWATI, J., This is a writ petition by the petitioner under Art. 32 of the Constitution challenging the legality of his detention in the Central Jail, Vsakhapatnam and praying for a writ of hebeas 'corpus for setting him at liberty forthwith. The petitioner is one of the acknowledged leaders of the Naxalite movement which originated in the area within Naxalbari, Kharabari and Phansidewa police stations in Siliguri Sub-Division of Darjeeling District of West Bengal some ten years ago. The movement represents armed revolt of the peasantry against exploitation by landholders and it seeks to achieve its end by violent means calculated to overthrow the democratic pro- cess. The petitioner, as one of the top leaders of this movement, was engaged in violent and anti-social activities and was for quite some time underground evading arrest by the police. Eventually on 19th August, 1970 the petitioner was arrested by the police alongwith some of his associates from a hideout within the jurisdiction of Phansidewa police station. A huge quantity of arms, ammunition and explosives was found with the petitioner and his associates at the time of the arrest. Phansidewa PS case No. 3 was accordingly registered against the petitioner on 19th August, 1970 under s.5 of the Explosive Substances Act, s. 25 (1) (a) of the Arms Act and ss. 120B, 121A, 122, 309 and 402 of the Indian Penal Code. There was also another case, namely, Phansidewa P.S. Case No. 28 registered against the petitioner on 29th June, 1967 under s. 412 read with s. 34 of the Indian Penal Code. That case was under investigation at the time when the petitioner was arrested. Immediately after his arrest, on the same day, i.e., 19th August, 1970, the petitioner was produced before the Sub-Divisional Magistrate, Siliguri. The learned Sub-Divisional Magistrate, passed an order of remand directing that the petitioner be detained in the District Jail, Darjeeling and that he should be produced before the Sub-Divisional Magistrate, Darjeeling. The petitioner was accordingly produced before the Sub-Divisional Magistrate Darjeeling from time to time and orders of remand were passed by the Sub-Divisional Magistrate, Darjeeling at the interval of every fourteen days since the investigation in P.S. Case No. 28 dated 29th June, 1967 and P.S. Case No. 3, dated 19th August, 1970 was not complete. It appears that on 16th January, 1970 first information report in respect of certain criminal offences alleged to have been committed by the petitioner and a large number of other co-conspirators was lodged in Parvathipuram police station and after the completion of the investigation, two charge-sheets were filed against the petitioner and other 139 accused in the Court of the Special Magistrate, Visakhapatnam on 12th October, 1970 charging them with offences under s. 120B read with ss. 302, 395, 397, 121, 122, 123,-and 124A of the Indian Penal Code. The offences charged under these two charge-sheets were triable exclusively by the Court of Sessions, and therefore, inquiry proceedings under Ch. XVIII of the Cods of Criminal Procedure were initiated by the Special Magistrate, Visakhapatnam. Since the petitioner, who was accused No. 138 in these two criminal cases, which were numbered as P.R.C. Nos. 1 and 2 of 1971, was under remand in the District Jail, Darjeeling pending investigation of the two Phansidewa P.S. cases, the Special Magistrate, Visakhapatnam issued on 30th May, 1972 a warrant for production of the petitioner in his Court under s. 3, sub-s. (2) of the Prisoners (Attendance in Courts) Act, 1955. The officer in-charge of the District Jail, Darjeeling, in obedience to this warrant for production, sent the petitioner to the Court of the Special Magistrate, Visakhapatnam on 14th June, 1972 and immediately on arrival, the petitioner was produced in the court of the Special Judge, Visakhapatnam on 17th June, 1972. The petitioner was remanded by the Special Judge, Visakhapatnam from time to time pending the disposal of the committal proceedings and pursuant to the orders of remand, the petitioner was detained in the Central Jail, Visakhapatnam. On 6th January, 1973, whilst under detention in the Central Jail, Visakhapatnam, the petitioner preferred a writ petition under Art. 32 of the Constitution in this Court challenging the legality of his detention right from the time of its inception and praying that he may be set free by issue of a writ of habaas corpus. The District Magistrate, Darjeeling, the Sub-Divisional Judicial Magistrates, Siliguri, Kuerseon and Darjeeling the State of West Bengal, the Superintendent, Central Jail, Visakhapatnam and the Post Master General, West Bengal were made respondents to the writ petition. This Court ordered a rule nisi to be issued on the writ petition but directed that the petitioner need not be produced in person. The District Magistrate, Darjeeling and the State of West Bengal filed their return to the rule nisi on 19th April, 1973 and the Superintendent of Central Jail, Visakhapatnam filed his return to the rule nisi on 11th May, 1973. When the writ petition reached hearing, counsel appearing on behalf of the petitioner raised a contention that the writ petition could not be heard by the Court unless the petitioner was produced in person and his argument was that once rule nisi was issued, the Court was bound to order production of the petitioner. Since, this contention raised an important question of law affecting the practice of the Court while dealing with petitions for a writ of habeas corpus, the Division Beach hearing the writ petition referred this question for decision by the Constitution Bench. The writ petition was thereafter placed before the Constitution Bench and by a judgment delivered by the Constitution Bench on 11th September, 1973, it was held that it was competent to the Court to dispense with the production of the body of the person detained while issuing rule nisi, and the rule nisi could be heard without requiring the body of the person detained to be brought before the Court. On this view being taken by the Constitution Bench, the writ petition again came back to the Division Bench for final disposal. In the meantime the committal proceedings which were being held by the Special Judge, Visakhapatnam against the petitioner and his other associates concluded and by an order dated 12th July, 1973 the petitioner and 66 other accused were commuted to the court of Sessions to stand their trial for various offences. The trial of this Sessions Case, being Sessions Case No. 46 of 1973, is still pending against the petitioner in the Court of the Second Additional Sessions Judge, Visakhapatnam and the petitioner is under detention in the' Central Jail,-Visakhapatnam pursuant to the orders made by the Second Additional Sessions Judge, Visakhapatnam pending trial. The learned counsel appearing on behalf of the petitioner put forward three grounds challenging the legality of the detention of the petitioner and they may be briefly summarised as follows
A. The initial detention of the petitioner in the District Jail, Darjeeling was illegal because he was detained without being informed of the grounds for his arrest as required by cl (i) of Art. 22 of the Constitution;
B. The Sub-Divisional Magistrate, Darjeeling had no jurisdiction to try the two Phansidewa P.S. cases against.the petitioner and he could not, therefore, authorise the detention of the petitioner under S. 157 of the' Code of Criminal Procedure for a term exceeding fifteen days in the whole. It was only the Sub Divisional Magistrate Siliguri who had jurisdiction to try the two Phansidewa P.S. cases and he alone could remand the petitioner to custody after the expiration of the initial period of fifteen days under S. 344 of the Code of Criminal Procedure. The orders of remand under which the petitioner was detained in the District Jail, Darjeeling were, however, made by the Sub-Divisional Magistrate, Darjeeling and the detention of the petitioner in the District Court, Darjeeling was, therefore illegal.
C. The officer in charge of the District Jail, Darjeeling was bound to abstain from complying with the warrant for production issued by the Special Judge, Visakhapatnam by reason of S. 6 of the Prisoners (Attendance in Courts) Act, 1955 and the production of the petitioner before the Special Judge, Visakhapatnam pursuant to such warrant for production and his detention in the Central Jail, Visakhapatnam were consequently without the authority of law.
Re Grounds A and B.
These two grounds relate exclusively to the legality of the initial detention of the petitioner in the District Jail, Darjeeling. We think it unnecessary to decide them. It is now welt settled that the earliest date with reference to which the legality of detention challenged in a habeas corpus proceeding may be examined is the date on which the application for habeas corpus is made to the Court. This Court speaking through Wanchoo, J., (as he then was) said in A. K. Gopalan v. Government of India(1) : "It is well settled that in dealing with the petition for habeas corpus the Court is to see whether the detention on the date on which the application is made to the Court is legal, if nothing more has intervened between the date of the application and the date of hearing". In two early decisions of this Court, however, namely, Naranjan Singh v. State of Punjab(2) and Ram Narain Singh v. State of Delhi(3) a slightly different view was expressed and that view was reiterated by this Court in B. R. Rao v. State of Orissa(4) where it was said : "In habeas corpus the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings". And yet in another decision of this Court in Talib Husain v. State of Jammu & Kashmir(5) Mr. Justice Dua, sitting as a Single Judge, presumably in the vacation, observed that "in habeas corpus proceedings the Court has to consider the legality of the detention on the date of the hearing". of these three views taken by the Court at different times, the second appears to be more in consonance with the law and practice in England and may be taken as- having received the largest measure of approval in India, though the third view also cannot be discarded as incorrect, because an inquiry whether the detention is legal or not at the date of hearing of the application for habeas corpus would be quite relevant, for the simple reason that if on that date the detention is legal, the Court cannot order release of the person detained by issuing a writ of habeas corpus. But, for the purpose of the present case, it is immaterial which of these three views is accepted as correct, for it is clear that, whichever be the correct view, the earliest date with reference to which the legality of detention may be examined is the date of filing of the application for habeas corpus and the Court is not, to quote the words of Mr. Justice Dua in B. R. Rao v. State of Orissa,(4) "concerned with a date prior to the-initiation of the proceedings for a writ of habeas corpus". Now the writ petition in the present case was filed on 6th January, 1973 and on that date the petitioner was in detention in the Central Jail, Visakhapatnam. The initial detention of the petitioner in the District Jail, Darjeeling had come to an end long before the date of the filing of the writ petition. It is, therefore, unnecessary to examine the legality or otherwise of the detention of the petitioner in the District Jail, Darjeeling. The only question that calls for consideration is whether the detention of the petitioner in the Central Jail, Visakhapatnam is legal or not. Even if we assume that grounds A and B are well founded and there was infirmity in the detention of the petitioner in the District Jail, Darjeeling, that cannot invalidate the subsequent detention of the petitioner in the Central Jail, Visakhapatnam. See para 7 of the judgment of this Court in B. R. Rao v. State of Orissa, (4). The legality of the detention of the petitioner in the Central Jail, Visakhapatnam would have to be judged on its own merits. We, therefore, consider it unnecessary to embark on a discussion of grounds A and B and decline to decide them.
Re : Ground 'C'
The only question which, therefore. requires to be considered is whether the detention of the petitioner in the Central Jail, Visakhapatnam is illegal. Now the legality of this detention is challenged on the ground that by reason of S. 6 of the Prisoners (Attendance in Courts) Act, 1955 the officers in charge of the District Jail, Darjeeling was bound to abstain from complying with the warrant for production issued by the Special Magistrate, Visakhapatnam and was not entitled to send the petitioner to the Court of Special Magistrate, Visakhapatnam in compliance with such warrant for production. This ground is wholly without substance. It overlooks the Proviso to s. 6 of the Act. In order to arrive at. a proper interpretation of s. 6 with the, Proviso, it is necessary to have a look at ss. 3 and 5 as well. Sub-s. (1) of s. 3 provides that any civil or criminal court may, if it thinks that the evidence of any person confined in any prison is material in any matter pending before it, make an order in the form set forth in the First Schedule, directed to the officer in charge of the, prison. It is clear from this sub-section as well as the form set out in the First Schedule that the order contemplated by this sub-section is an order for production of a person detained, in any prison for giving evidence and such an order may be made by a civil court or a criminal court. Section 3, sub-s. (2) provides for a different situation. It says that 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 in the second Schedule directed to the officer in charge of the prison. The order contemplated in this sub- section-and that is evident also from the form set forth in the Second Schedule-is an order of production for answering a charge and exhypothesi that can only be by a criminal court. The warrant for production in the present case was under s. 3, sub-s. (2) as the petitioner was admittedly required to be produced before the Special Magistrate, Visakhapatnam for answering the charges against him.
Now, when an order of production is made under sub-s. (1) or sub-s. (2) of s. 3, what is to happen ? That is provided in S. 5 which says that upon delivery of such order of production to the officer in charge of the prison, that officer shall cause the person named in the order to be taken to the Court in which his attendance is required so as to be present in the Court at the time mentioned in the order. The main part of s. 6, however, sets out certain circumstances in which the officer in charge of the prison shall abstain from complying with the order of production. It reads :
"6. Officer in charge of prison when to abstain from carrying out order-Where the person in respect of whom an order is made under section 3-
(a) is, in accordance with the rules made in this behalf, declared to be unfit to be removed from the prison where he is confined by reason of sickness or other infirmity; or (b) is under committal for trial; or
(c) is under remand pending trial or pending a preliminary investigation; or
(d) is in custody for a period which would expire before the expiration of the time required for removing him under this Act and for taking him back to the prison in which he is confined;
the officer in charge of the prison shall abstain from carrying out the order and shall send to the Court from which the order had been issued a statement of reason.-, for so abstaining : "
But there is a proviso to this section which carves out an exception in the following terms :
"Provided that such officer as aforesaid shall not abstain where-
(i) the order has been made by a criminal Court; and
(ii) the person named in the order is confined under committal for trial or under remand pending trial or pending a preliminary investigation and is not declared in accordance with the rules made in this behalf to be unfit to be removed from the prison where he is confined by reason of sickness or other infirmity; and
(iii) the place,. where the evidence of the person named in the order is required is not more than fives miles distant from the prison in which he is confined."
Now there can be no dispute that the petitioner in respect of whom the warrant for production was issued by the Special Magistrate, Visakhapatnam under S. 3, sub-s. (2) was under remand pending preliminary investigation in the two Phansidewa PS cases, and therefore, under the main provision in s. 6, the officer in charge of the District Jail, Darjeeling was bound to abstain from complying with the warrant for production, unless, of-course, the Proviso was applicable. The Proviso lays down three conditions for its applicability. The two conditions set out in cls. (i) and (ii) were admittedly satisfied. The only question could be about the condition in cl. (iii), but that condition has obviously no application in case of an order of production under sub-s. (2) of s. 3. Clause (iii) posits an order of production for giving evidence made under sub-s. (1) of s. 3. It is only where such an order of production is made that the condition in cl. (iii) can apply. It can have no application where an order is made by a criminal court under sub-section (2) of s. 3 requiring production for answering a charge. In such a case, the condition in cl. (iii) would be wholly inappropriate and would not have to be satisfied. The fulfillment of the conditions set out in cls. (i) and (ii) would in that case be sufficient to attract the applicability of the Proviso. Here the warrant for production was admittedly issued under sub-s. (2) of s. 3 and therefore the only requirement for bringing the Proviso into operation was the fulfillment of the conditions set out in cls. (i) and (ii). These two conditions were clearly satisfied and the Proviso was accordingly attracted and it took the case out of the main provision in s. 6. The officer in charge of the District Jail, Darjeeling was, therefore, bound to send the petitioner to the Court of the Special Magistrate. Visakhapatnam in compliance with the warrant for production and he acted according to law in doing so. The, production of the petitioner before the Special Judge, Visakhapatnam, could not, therefore, be said to be illegal and his subsequent detention in the Central Jail, Visakhapatnam. pursuant to the orders made by the Special Judge, Visakhapatnam, pending trial must be held to be valid. This Court pointed out in B. R. Rao v. State of Orissa(4) that a writ of habeas corpus cannot be granted "Where person is committed to jail custody by a competent court by an order which prima 'facie does not appear to be without jurisdiction wholly illegal". The present case is clearly covered by these observation and the petitioner is not entitled to a writ of habeas corpus to free him from detention.
The writ petition is accordingly dismissed and the rule nisi is discharged.
V.P.S.
Petition dismissed.
JUDGMENT
V.M. Jain, J.
1. This order shall dispose of the above-mentioned two petitions, as common questions of law are involved in both the cases.
2. Criminal Misc. 27680-M of 2000 has been filed by accused-petitioner, Charanjit Singh, alleging therein that since his arrest in the month of August, 1999, he is detained in Ward No. 3, JailNo. 3, Tihar Central Jail, New Delhi. It has been alleged that as at present, he is in custody in the below mentioned 5 cases :-
(i) FIR 177/1999 registered u/ss 25, 54/59 Arms Act, 4/5 Explosive Substances Act, relating to Police Station Mallanwala, District Ferozepur, pending in the Court of Sessions Judge, Ferozepur.
(ii) FIR 349/1998 registered u/ss 4/5 Explosive Substances Act, 25/54/59 Anns Act and Section 18 of the NDPS Act, relating to Police Station Sadar, Jalandhar, pending investigation.
(iii) FIR 398/1999 registered u/ss, 25, 54/59 Arms Act relating to PS Sadar, Jalandhar, which is pending in the Court of JMIC, Jalandhar.
(iv) FIR 258/1999 registered u/ss 25, 54/59 Arms Act relaiing to Police Station Afipur, Delhi, pending in the Court of Sh. Raghubir Singh, Additional Sessions Judge, Teeshazari Courts, New Delhi.
(v) FIR 680/1999 registered u/ss 379/411, IPC, relating to Police Station Paschim Vihar, New Delhi, pending in a competent Court at Teeshazari. New Delhi."
3. It has further been alleged that out of the above-mentioned 5 cases, 3 cases are pending in the various Courts in Punjab, whereas the remaining 2 cases are pending in New Delhi Courts. It has been alleged that so far as the cases pending in the New Delhi Courts are concerned, the accused-petitioner is facing regular trial, whereas out of 3 cases pending against him in the various Courts in the State of Punjab, he is being produced only in the Court of Sessions Judge, Ferozepur, in the case mentioned at Sr. No. 1 above, but in the other 2 cases, pending against him in the Courts at Jalandhar, the accused-petitioner is not being produced in those Courts, even though the Police has already submitted the challan. It has been alleged that inspite of the production warrants being received in Tihar Jail, New Delhi, in this regard, the petitioner is not being produced in those Courts at Jalandhar. It has been alleged that it is incumbent upon the Police as well as the jail authorities to ensure that the accused is produced in the Court for facing trial on each and every date of hearing, as required under Section 267, Cr.P.C. It has further been alleged that Article 21 of the Constitution of India enshrines every citizen a right to life and liberty, which includes fundamental right of speedy trial. It has been alleged that since the accused-petitioner is not being produced in the Courts at Jalandhar, the trial of the accused-petitioner, in those cases, is being delayed. It was accordingly prayed that directions be given to the respondents to ensure that the petitioner is produced in the various Courts at Jaiandhar and Perozepur (in the State of Punjab) pending against him, on each and every date of hearing.
4. In Criminal Misc. 27700-M of 2000, it has been alleged by the accused- petitioners, namely Balbir Singh son of Kalyan Singh, Gurdeep Singh, son of Kirpal Singh and Balbir Singh son of Lal Singh, that the petitioners, namely, Balbir Singh, Gurdeep Singh and the other Balbir Singh, are facing trial in the following 2 cases, which are common to all three of them :-
(i) FIR 1068 of 1996, registered u/ss 302/307, IPC, 3/4/5 Explosive Substances Act, relating to PS Sirinivaspuri, New Delhi, pending in the Court of Sh. P.K. Bhasin, Addl. Sessions Judge, New Delhi, in which there are in all 59 witnesses and only 36 have been examined so far.
(ii) Case FIR 559/1996, registered u/ss 302/307, IPC, 3/4/5 Explosive Act, relating to Police Station, GRP, Ambala Cantt., in which all the three accused were taken on remand, but thereafter no proceedings have been placed before the Court of Special Judge of Railways, Ambala."
5. It has further been alleged that besides that, accused-petitioner, Balbir Singh, son of Lal Singh, was also an accused in the following 2 cases :-
"(i) Case FIR 56 of 1997 registered under Sections 302/307, IPC, and Sections 3/4/5, Explosive Substances Act.
(ii) FIR 27 of 1997 registered under Sections 302/307, IPC, and Sections 3/4/5 of the Explosive Substances Act."
6. It has been alleged that in both these cases, the production warrants were issued and were served in Tihar Jail, New Delhi, but the accused-petitioner, Balbir Singh, son of Lal Singh, was never produced in the Courts in respect of these two cases. It has been alleged that it is incumbent upon the Police as well as the jail authorities to ensure that the petitioners are produced in the various Courts for facing trial, on each and every date of hearing. Reference has been made to the provisions of Section 267, Cr.P.C., and Article 21 of the Constitution of India. It was accordingly prayed that necessary directions may be given that the petitioners, in the various cases pending against them at Pathankot, in the State of Punjab, and at Ambala, in the State of Haryana, are produced in those Courts, on each and every date of hearing.
7. In reply to Criminal Misc. 27680-M of 2000, it has been alleged by Sh. Jaspal Singh, SHO, Police Station, Mallanwala, District Ferozepur, that the accused-petitioner, Charanjit Singh, was arrested in case bearing FIR 177 dated 4.11.1999 under Section 25 of the Arms Act and under Sections 4/5 of the Explosive Act in Police Station, Mallanwala, and that presently, the accused- petitioner, Charanjit Singh, has been detained in Tihar Jail, New Delhi, and that the said case is pending in the Court of Sh. G.K. Dhir, Additional Sessions Judge, Ferozepur, and in this case, the accused-petitioner is being produced regularly in the said Court, by the Delhi Police.
8. In the written reply filed by Sh. O.P. Mishra, Superintendent, Central Jail No. 3, Tihar, New Delhi, it has been alleged that presently the accused- petitioner, Charanjit Singh, is facing trial in one case at Delhi the has since been acquitted in the other case) and that he is also an accused in 4 cases in the State of Punjab. Details of the Delhi case, in which he is facing trial and the details of the Delhi case, in which he has been acquitted, have been given in the written reply. Details have also been given with regard to the various cases (4 in number), in which the accused-petitioner, Charanjit Singh, is facing trial in the various Courts at Jalandhar and Ferozepur. It has been alleged that he is not being produced in the 2 cases, in which he is facing trial at Jalandhar and one case, in which he is facing trial at Ferozepur, and that he is being produced only in one case, in which he is facing trial in the Court of Sh. G.K. Dhir, Additional Sessions Judge, Ferozepur.
9. In reply to Criminal Misc. 27700-M of 2000, it has been alleged by Sh. Ajaib Singh, DSP (D), Gurdaspur, that accused-petitioner No. 3, Balbir Singh son of Lal Singh, along with some other persons, was accused in FIR 27 of 1997 under Sections 302/307/427, IPC, and under Sections 4/5, Explosives Act, and he was also an accused along with others in FIR 56 of 1997 under Sections 302/307/427, IPC, and under Sections 3/4/5, Explosives Act, which were registered in Police Station, Division No. 1, Pathankot. It has also been alleged that the production warrants were issued by the Court at Pa.thankot for producing the accused-petitioner, Balbir Singh, son of Lal Singh, but the Court at Delhi (Teeshazari) did not allow the production of said Balbir Singh son of Lal Singh and the warrants were returned un-executed it has been alleged that the Chief Metropolitan Magistrate, Delhi, had returned the production warrants un-executed, vide order dated 24.3.2000.
10. In the written reply filed by Inspector Bagicha Singh, SHO, GRPS, Ambala Cantt., it has been alleged that all the 3 accused-petitioners, were involved in a case beaing FIR 559 of 1996 under Sections 302/307, IPC, and under Sections 3/4/5 of the Explosives Act. It has been alleged that the said case is pending in the Court of Special Railway Magistrate, Ambala Cantt. It has been alleged that the warrants for production of these accused, who are lodged in Tihar Central Jail, Delhi, were issued by the Court for various dates, but the accused-petitioners were not produced in the Court. It has been alleged that this was inspite of the fact that at the asking of the jail officials, the production warrants were routed through the Chief Metropolitan Magistrate, Delhi. A copy of the communication received from the Tihar Jail authorities, is attached as Annexure R1, according to which the jail authorities had informed the Special Railway Magistrate, Ambala Cantt. that the accused- petitioners, namely Balbir Singh son of Kalyan Singh and Gurdeep Singh son of Kirpal Singh, could not be produced in Court at Ambala, because they were facing trial in a case of Police Station, SN Puri at Delhi and as such, the jail authorities were unable to produce the accused in the Court of Special Railway Magistrate, under Section 269, Cr.P.C.
11. I have heard learned counsel for the parties and gone thorough the record carefully.
12. It was submitted before me by the learned counsel forthe Superintendent of Tihar Jail, Delhi, that under Section 269 of the Code of Criminal Procedure, the officer in charge of the prison is required to abstain from carrying out the order of the Court, under Section 267 Cr.P.C., where the Court, in the course of any inquiry, trial or other proceedings, had made an order requiring the officer in charge of the prison to produce the person who was already confined or detained in a prison. It was submitted that exercising the powers under Section 269 Cr.P.C., the Superintendent, Tihar Jail, Delhi, being officer in charge of the prison, had not sent the accused to the various Courts in Punjab and Haryana, as those accused were in custody pending trial in the Courts at Delhi.
13. On the other hand, the learned counsel for the accused-petitioner submitted before me that the Superintendent, Tihar Jail, Delhi, could not refuse to send the accused lodged in Tihar Jail, Delhi to face trial before the Courts in Punjab and Haryanamerely on the ground that those accused were also facing trial in the Courts at Delhi. It was submitted that this would be violative of the provisions of Article 21 of the Constitution of India and also violative of the principles of speedy trial. It was submitted that for the last about five years various cases pending against the accused in the Courts in Punjab and Haryana could not proceed because the accused were not produced before those Courts by the Tihar Jail authorities and in this manner, the trial of those cases was delayed.
14. Sections 267, 268, 269 and 270 of the Code of Criminal Procedure read as under :-
"267. Power to require attendance of prisoners - (1) Whenever, in the course of an inquiry, trial, or other proceed ing 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 Chief Judicial Magistrate to whom such Magistrate is subordinate.
(3) Every order submitted for countersigning under sub-section (2) shall be accompanied by a statement of the facts which, in the opinion of the Magistrate, render the order necessary, and the Chief Judicial Magistrate to whom it is submitted may, after considering such statement, decline to countersign the order.
268. Power of State Government to exclude certain persons from operation of Section 267(1) The State Government may, at anytime, having regard to the matters specified in sub-section (2), by general or special order, direct that any person or class of persons shall not be removed from the prison in which he or they may be confined or detained, and thereupon, so long as the order remains in force, no order made under Section 267, whether before or after the order of the State Government, shall have effect in respect of such person or class of persons.
(2) Before making an order under sub-section (1), the State Government shall have regard to the following matters, namely :-
(a) the nature of the offence for which, or the grounds on which, the person or class of persons has been ordered to be confined or detained in prison;
(b) the likelihood of the disturbance or public order if the person or class of persons is allowed to be removed from the prison;
(c) the public interest, generally.
269. Officer in charge of prison to abstain from carrying out order in certain contingencies Where the person in respect of whom an order is made under Section 267 -
(a) is by reason of sickness or infirmity unfit to be removed from the prison; or
(b) is under committal for trial or under remand pending trial or pending a preliminary investigation; or
(c) is in custody for a period which would expire before the expiration of the time required for complying with the order and for taking him back to the prison in which he is confined or detained; or
(d) is a person to whom an order made by the State Government under Section 268 applies,
the officer in charge of the prison shall abstain from carrying out the Court's order and shall send to the Court a statement of reasons for so abstaining :
Provided that where the attendance of such person is required for giving evidence at a place not more than twenty-five kilometres distant from the prison, the officer in charge of the prison shall not so abstain for the reason mentioned in clause (b).
270. Prisoner to be brought to Court in custody - Subject to the provisions of Section 269, the officer in charge of the (sic) made under sub-section (1) of Section 267 and duly countersigned, where necessary, under sub-section (2) thereof, cause the person named in the order to be taken to the Court in which his attendance is required, so as to be present there at the time mentioned in the order, and shall cause him to be kept in custody in or near the Court until he has been examined or until the Court authorises him to be taken back to the prison in which he was confined or detained."
15. Sections 3, 4, 5 and 6 of the Prisoners (Attendance in Courts) Act, 1955 (Central Act No. 32 of 1955) (as amended by Punjab Act No. 25 of 1964), read as under :-
"3. Power of Courts to require appearance of prisoners to give attendance or answer a charge -
(1) Any Civil Court or Criminal Court may, if it thinks that the evidence of any person confined in any prison is material in any matter pending before it, make an order in the form set fourth in the First Schedule, directed to the officer in charge of the person :
Provided that no civil Court shall make an order under this sub-section in respect of a person confined in a prison situated outside the State in which the Court is held.
(2) 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 in the Second Schedule, directed to the officer in charge of the person.
(3) No order made under this Section by a Civi! Court which is subordinate to a district judge shall have effect unless it is counter-signed by the District Judge; and no order made under this Section by a Criminal court which is inferior to the Court of a magistrate of the first class shall have effect unless it is countersigned by the district magistrate to whom that court is subordinate or within the local limits of whose jurisdiction that court is situate.
(4) For the purposes of sub-section (3), a Court of Small Causes outside a presidency town or the city of Hyderabad shall be deemed to be subordinate to the district judge within the local limit of whose jurisdiction such court is situate.
NOTE : Court of a Magistrate of the First Class
Court of a Judicial Magistrate of the First
Class Countersigned by the District
Magistrate. Countersigned by the Chief Judicial Magistrate.
4. Power of State Government to exempt certain persons from operation of section 3. - (1) The State Government may, having regard to the matters specified in sub-section (2), by general or special order, direct that any person or class of persons shall not be removed from the prison in which he or they may be confined, and thereupon so long as any such order remains in force, the provisions of section 3 shall not apply to such person or class of persons.
(2) Before making an order under sub-section (1), the State Government shall have regard to the following matters, namely -
(a) the nature of the offence for which or the grounds on which the confinement has been ordered in respect of the person or class of persons;
(b) the likelihood of the disturbance of public order if the person or class of person is allowed to be removed from the prison;
(c) the public interest, generally.
5. Prisoners to be brought up. - Upon delivery of any order made under section 3 to the officer in charge of the prison in which the person named therein is confined, that officer shall cause him to be taken to the Court in which his attendance is required, so as to be present in the Court at the time in such order mentioned, and shall cause him to be detained in custody in or near the court until he has been examined or until the judge or presiding officer of the court authorises him to be taken back to the prison in which he was confined.
6. Officer in charge of prison when to abstain from carrying out order. - Where the person in respect of whom an order is made under Section 3 -
(a) is, in accordance with the rules made in this behalf, declared to be unfit to be removed from the prison where he is confined by reason of sickness or other infirmity; or
(b) is under committal for trial; or
(c) is under remand pending trial or pending a preliminary investigation; or
(d) is in custody for a period which would expire before the expiration of the time required for removing him under this Act and for taking him back to the prison in which he is confined;
the officer in charge of the prison shall abstain from carrying out the order and shall send to the court from which the order had been issued a statement of reasons for so abstaining:
Provided that such officer as aforesaid shall not so abstain where -(i) the order has been made by a criminal court; and
(ii) the person named in the order is confined under committal for trial or under remand pending trial or pending a preliminary investigation and is not declared in accordance with the rules made in this behalf to be unfit to be removed from the prison where he is confined by reason of sickness or other infirmity; and
(iii) the place, where the evidence of the person named in the order is required, is not more than five miles distant from the prison in which he is confined."
16. The following is the Statement of Objects and Reasons of the Prisoners (Attendance in Courts) Act, 1955 :-
"The Bill seeks to simplify the procedure for securing the attendance of prisoners in courts by repealing Part IX of the Prisoners Act and re-enacts its provisions with suitable modifications as a separate law while extending at the same time the provisions of this law to the whole of India except Jammu and Kashmir..."
17. Thus, it would be clear that the Prisoners (Attendance in Courts) Act, 1955, is a Special Central Act, with regard to the attendance of the prisoners in various Courts. Various provisions of the Prisoners (Attendance in Courts) Act, 1955 came up for consideration before the Hon'ble Supreme Court, in the case reported as AIR 1974 Supreme Court 510 "Kanu Sanyal v. District Magistrate, Darjeeling and others." in the reported case, the question before the Hon'ble Supreme Court was as to whether the detention of the petitioner in the Central Jail, Vishakhapatnam, is illegal. One of the grounds for challenging the legality of the said detention was that by reason of Section 6 of the Prisoners (Attendance in Courts) Act, 1955, the officer in charge of the District Jail, Darjeeling (where the petitioner was previously confined) was bound to abstain from complying with the warrant for production issued by the Special Magistrate, Vishakhapatnam and was not entitled to send the petitioner to the Court of the Special Magistrate, Vishakhapatnam in compliance with such warrant of production. It was held by the Hon'ble Supreme Court that this ground was wholly without substance and it over-looks proviso to Section 6 of the said Act. It was held that the warrant for production in the reported case was under Section 3(2) of the said Act, as the petitioner was admittedly required to be produced before the Special Magistrate, Vishakhapatnam, for answering the charges against him. After considering the various provisions of the above said Act, the Hon'ble Supreme Court held as under :-
"Now there can be no dispute that the petitioner in respect of whom the warrant for production was issued by the Special Magistrate, Vishakhapalnam under Section 3, sub-section (2) was under remand pending preliminary investigation in the two Phansidewa P.S. cases, and therefore, under the main provision in Section 6, the officer incharge of the District Jail, Darjeeling was bound to abstain from complying with the warrant for production, unless, of course, the Proviso was applicable. The Proviso lays down three conditions for its applicability. The two conditions set out in clauses (i) and (ii) were admittedly satisfied. The only question could be about the condition in clause (iii), but that condition has obviously no application in case of an order of production under subsection (2) of Section 3. Clause (iii) posits an order of production for giving evidence made under sub-section (1) of Section 3. It is only where such an order of production is made that the condition in clause (iii) can apply, it can have no application where an order is made by a criminal court under sub-section (2) of Section 3 requiring production for answering a charge. In such a case, the condition in clause (iii) would be wholly in-appropriate and would not have to be satisfied. The fulfilment of the conditions set out in clauses (i) and (ii) would in that case be sufficient to attract the applicability of the Proviso. Here the warrant for production was admittedly issued under sub-section (2) of Section 3 and therefore the only requirement for bringing the Proviso into operation was the fulfilment of the conditions set out in clauses (i) and (ii) These two conditions were clearly satisfied and the Proviso was accordingly attracted and it took the case out of the main provision in Section 6. The officer in charge of the District Jail, Darjeeling was, therefore, bound to send the petitioner to the Court of the. Special Magistrate, Vishakhapatnam in compliance with the warrant for production and he acted according to law in doing so. The production of the petitioner before the Special Judge, Vishakhapatnam, could not, therefore, be said to be illegal and his subsequent detention in the Central Jail, Vishakhapatnam, pursuant to the orders made by the Special Judge, Vishakhapatnam, pending trial must be held to be valid. This Court pointed out in AIR 1971 SC 2197 that a writ of habeas corpus cannot be granted "where a person is committed to jail custody by a competent Court by an order which prima facie does not appear to be without jurisdiction or wholly illegal". The present case is clearly covered by these observations and the petitioner is not entitled to a writ of habeas corpus to free him from detention."
18. From a perusal of the above, it would be clear that the Hon'ble Supreme Court has held that where the petitioner was under remand in District Jail, Darjeeling, pending preliminary investigaiion and where the warrant for production was issued by the Special Magistrate, Vishakhapatnam, the officer in charge of the District Jail, Darjeeling, was bound to send the petitioner to the Court of the Special Magistrate, Vishakhapatnam, in compliance with the warrant for production issued by that Court. It was further held that the production of the petitioner before the Special Judge, Vishakhapatnam, could not, therefore, be said to be illegal and his subsequent detention in Central Jail, Vishakhapatnam, pending trial before the Special Judge, Vishakhapatnam, must be held to be valid.
19. In the present case, the accused are facing trial in the Courts at Delhi and are confined in Tihar Jail, Delhi. These accused are also facing trial in various Courts in Punjab and Haryana. However, these accused are not being sent by the Superintendent, Tihar Jail, Delhi, to appear in the Courts in Punjab and Haryana. This has resulted in the delay in the disposal of the various cases pending against these accused in the various Courts in Punjab and Haryana. There does not appear to be any justification for not producing these accused in the Courts in Punjab and Haryana merely because some cases are pending against these accused in the Courts at Delhi. Of course, if there is a clash in dates, the same can be taken care of. However, the Superintendent, Tihar Jail, Delhi, cannot refuse to produce these accused in the various Courts in Punjab and Haryana before whom these accused are also facing trial in the Courts at Delhi. This would be just contrary to the principle of speedy trial embodied under Article 21 of the Constitution of India, in view of the law laid down by Their Lordships of Supreme Court in the cases reported as "Common Cause A Registered Society v. Union of India ", AIR 1996 SC 1619, "Common Cause A Registered Society v. Union of India", AIR 1997 SC 1539, "Rajdeo Sharma v. State of Bihar", AIR 1998 Supreme Court 3281 and "Rajdeo Sharma v. State ofBihar", AIR 1999 Supreme Court 3524 and various other authorities of the Hon'ble Supreme Court, emphasising the need for speedy trial especially in respect of the under trials, who are in custody.
20. Even if there is some difference in the language of Section 269 Cr.P.C. and Section 6 of the Prisoners (Attendance in Courts) Act, 1955, in my opinion, this would not authorise the Superintendent, Tihar Jail, Delhi, not to comply with the directions given by the various Courts in Punjab and Haryana (or Chandigarh), while issuing production warrants for producing various accused in the various Courts in Punjab, Haryana and Chandigarh to face trial, even though those accused were also facing trial in the various Courts at Delhi and were lodged in Tihar Jail, Delhi. As referred to above, the Prisoners (Attendance in Courts) Act, 1955, is a Special Central Act, which was enacted only for this purpose. It fully applies to the present case. Section 269 of the Code of Criminal Procedure thus, would not authorise the officer in charge of the prison (Tihar Jail, Delhi), not to produce the various accused in the various Courts in Punjab, Haryana and Chandigarh, in pursuance of the production warrants, merely on the ground that those accused were already facing trial in the Courts at Delhi. The provisions of the Prisoners (Attendance in Courts) Act, 1955 and Section 269 of the Code of Criminal Procedure, in this regard, have to be construed harmoniously, especially in view of the law laid down by Their Lordships of the Supreme Court, in the case reported as AIR 1974 SC 510 (supra).
21. For the reasons recorded above, it is held that the Superintendent, Tihar Jail, Delhi would not be competent to refuse to produce various accused in various Courts in Punjab, Haryana and Chandigarh (in pursuance of the production warrants issued by the various Courts), merely on the ground that these accused were also facing trial in the various Courts at Delhi. However, if there is a clash in dates, the Superintendent, Tihar Jail, Delhi would be well within his rights to refuse the production of these accused in the various Courts outside Delhi. Similarly, the Superintendent, Tihar Jail, Delhi, would also be entitled to refuse to produce these accused, in the various Courts in Punjab, Haryana and Chandigarh, on account of their sickness etc., as mentioned in Section 269(a) of the Code of Criminal Procedure, and Section 6(a) of the Prisoners (Attendance in Courts) Act, 1955, and also in view of the pro-visions of Section 268 Cr.P.C. and Section 4 of the Prisoners (Attendance in Courts) Act, 1955. It is further held that after these accused are produced in the various Courts in Punjab, Haryana and Chandigarh, on the dates for which these accused were summoned through production warrants, each of these accused would be brought back to Delhi and lodged in Tihar Jail, Delhi, to enable these accused to appear in the Court at Delhi, in the cases pending against them.
For the reasons recorded above, these petitions are allowed and the Superintendent, Tihar Jail, Delhi, is directed to send the petitioners, in custody, to the various Courts in Punjab and Haryana, in pursuance of the production warrants received from these Courts, so that these accused- petitioners may also face trial in the cases pending against them in these Courts.
22. Petitions allowed.