Wednesday, 27 May 2020

Whether Magistrate can seek production of accused who is in prison for another offence for investigation of crime?

However, in State of Maharashtra v. Yadav Kohachade (supra), the learned Single Judge of this Court dealt with the relevant provisions of Section 267 and came to conclusion that the Magistrate was competent to issue warrant of production of accused confined in prison for the purpose of considering the request of the investigating officer for police custody in another case. The learned Single Judge observed as follows in para 24:

Proceedings" would mean and include an action or prosecution and sometimes as meaning a step in an action and, therefore, it includes all steps taken in furtherance of prosecution, i.e., arrest, remand, interrogation and investigation. The judicial Magistrate, First Class, 2nd Court, was, therefore, justified in passing an order under Section 267 of the Criminal Procedure Code and issuing warrant as per Form No. 36 of Second schedule addressed to the officer-in-charge of Central Prison, Nagpur, to produce before him the non-applicant accused for the purpose of proceedings, i.e., remand. The legislature has used the words "other proceedings and any proceedings under the Code" in Section 267 of the Criminal Procedure Code and not judicial proceedings and, therefore, seeking production of the accused for remand under Section 267 of the Criminal Procedure Code cannot be faulted. There can be no quarrel over the decision in B.S. Rawat's case (cited supra) relied upon by Mr. Manohar, as what the Court observed was that the order under Section 267 of the Criminal Procedure Code cannot be passed to produce a person for the purpose of investigation before the agency which is engaged in the investigation; as in the said case, the warrant was sought or production of the accused before the Custom Officer for the purposes of investigation. Therefore, it cannot be said that the Magistrate was not competent to issue such a warrant of production of the accused confined or detained in a prison, before him, for the purposes of considering the request of the Investigating Officer to order his detention is police custody.

IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition Nos. 1951 of 2007, 57 and 108 of 2008

Decided On: 20.01.2010

Susan Abraham Vs.  State of Maharahtra 

Hon'ble Judges/Coram:
F.I. Rebello and J.H. Bhatia, JJ.

Citation: 2010 (2) MHLJ 560


1. The petition is filed for a Writ of Habeas Corpus under Article 226 of the Constitution of India, wherein the transfer of the accused persons from judicial custody in a case of one police station to police custody of another police station by exercising the powers to issue production warrant under Section 267 Cr.P.C. has been challenged.

2. To state in brief, the petitioner's husband Vernon Stanislaus Gonsalves and his friend Shridhar Krishnan Shrinivasan, both residents of Mumbai, were arrested on 19.8.2007 by respondent No. 3 - Anti-Terrorism Squad, Kalachowki, Mumbai in Crime No. 10/2007 under Section 120B, and 121A of the Indian Penal Code and the provisions of the Arms Act, Explosive Substances Act, Indian Explosives Act and Unlawful Activities Prevention (Amendment) Act, 2004. On 20.8.2007, they were produced before the Holiday Magistrate and were remanded to police custody till 22.8.2007. On 22.8.2007, the 2nd Metropolitan Magistrate, Mazgaon, Mumbai, extended their police custody remand till 3.9.2007. During the police custody, upto 3.9.2007 they were interrogated not only by the staff of respondent No. 3, but also by the police personnel of respondent No. 2 and respondent Nos. 4 to 7 as well as by the police personnel from Chattisgarh, Madhya Pradesh and Andhra Pradesh and Intelligence Bureau. On expiry of police custody, on 3.9.2007, the Additional Chief Metropolitan Magistrate, 46th Court, Mazgaon, remanded them to judicial custody till 17.9.2007. However, the respondent No. 4 - officer-in-charge, Salekasa Police Station from District Gondia had obtained a production warrant under Section 267 Cr.P.C. of both the accused in Crime No. 34/2005 registered by that Police Station from J.M.F.C. Amgaon, District Gondia. On 3.9.2007 itself, the Salekasa Police Station Officer - respondent No. 4 sought custody of both the accused. In Crime No. 34/2005 on the basis of the production warrant. As per the order passed by the Addl. C.M.M. they were given in custody of Salekasa Police. On 4.9.2007, they were produced before the J.M.F.C. Amgaon and were remanded to police custody till 12.9.2007. On 12.9.2007, they were remanded to Magisterial custody till 26.9.2007 by J.M.F.C. Amgaon in Crime No. 34/2005. However, on the same day, they were given in police custody of respondent No. 4 - Salekasa Police till 17.9.2007 in Crime No. 174/2006 by J.M.F.C. Amgaon. On 17.9.2007, they were remanded to Magisterial custody in Crime No. 174/2006. However, immediately, respondent No. 4 Salekasa Police sought police custody in Crime No. 120/2006 which was granted till 21.9.2007 by J.M.F.C. Amgaon. On 17.9.2007, they were not produced before the Metropolitan Magistrate, Mazgaon even though their very judicial custody in crime No. 10/2007 had come to an end on that day. However, on that day, respondent No. 5 officer in charge of Purada Police Station, District Gadchiroli, produced a production warrant dated 14.9.2007 from J.M.F.C. Desaiganj, seeking custody of the said accused in Crime No. 51/2007 of that police station. The custody was granted by the 2nd Metropolitan Magistrate, Mazgaon. The accused Vernon was required to be admitted in hospital on 21.9.2007. Both the accused were produced before the J.M.F.C, Amgaon, who remanded them to Magisterial custody in Crime No. 120/2006, but immediately respondent No. 5 Purada Police took their custody in Crime No. 51/2007 of their police station. On 1.10.2007, they were produced before the J.M.F.C. Desaiganj, who refused further police custody and remanded them to Magisterial custody. However, respondent No. 6 - officer in charge Kurkheda Police Station, District Gadchiroli sought custody of the said accused in Crime No. 32/2007 and was granted till 4.10.2007. On 4.10.2007, J.M.F.C. Desaiganj refused further police custody in Crime No. 32/2007 and remanded them to magisterial custody. However, immediately the respondent No. 5 - Purada Police executed formal arrest of both of them and sought police custody in Crime No. 28/2007, but it was refused by the J.M.F.C, Dedsaiganj. After that refusal, respondent No. 6 Kurkheda Police again executed formal arrest of both of them and sought their police custody in Crime No. 44/2007 which was also refused. Immediately after that, respondent No. 7 the officer-in-charge of Chinchgad Police Station, District Bhandara executed formal arrest of both of them and sought their police custody in another crime which was also refused by the J.M.F.C. Desaiganj. According to the petitioner, the transfers to different cases after the initial arrest in Crime No. 10/2007 by the Anti Terrorism Squad, Kalachowki, Mumbai, were illegal and the police custody of the accused in the different is also bad in law.

3. On 4.10.2007, respondent Nos. 5 and 6 made separate applications before the J.M.F.C. Desaiganj seeking permission to subject both the accused to narco analysis tests. Those applications are still pending. It is conceded by the learned Counsel for the parties that the question as to whether an accused person can be subjected to narco analysis test is the subject matter in a petition before the Supreme Court and, therefore, the learned Counsel for the petitioner did not press that point. Therefore, the limited question in this petition is about the powers of a Court to issue production warrant under Section 267 with the intent to transfer the accused from one case to another.

4. Heard the learned Counsel for the parties. The learned Counsel for the petitioner vehemently contended that Section 267 empowers a Court to issue production warrant in respect of a person confined or detained in a prison only for answering to a charge of an offence or for the purpose of any proceeding against him before the Court or to examine him as a witness. According to him, the production warrant under Section 267 cannot be issued for the purpose of remanding the accused to police custody or for transfer to different cases registered with the police. According to the learned Counsel, if an accused is to be arrested in any criminal case by the police, powers have to be exercised under Section 41 or warrant of arrest may be issued under the provisions of Chapter VI Part B of the Cr.P.C. In support of his contention, the learned Counsel relied upon the Judgment of a learned Single of this Court in B.S. Rawat, Asstt. Collector of Customs v. Mohmed Azan Khan and Ors. 1991 Cr.L.J. 820 as well as a Judgment of the Delhi High Court in Harshad S. Mehta v. Central Bureau of Investigation MANU/DE/0459/1992 rendered by a learned Single Judge. The Delhi High Court had in terms held that under Section 267, the Court cannot order the officer-in-charge of the jail to produce a person detained except to face a charge or such other proceedings before the Court or to be a witness and the production warrant cannot be issued to assist the investigation.

5. On the other hand, the learned APP contended that consideration by the Court as to whether the person detained in prison should or should not be transferred or remanded to police custody in some other case is itself a proceeding which is covered under Section 267 Cr.P.C. and therefore the Court can issue a warrant under Section 267 directing the jail authority for production of the accused before the Court to consider the request of the police for transfer or for remand in other case. She relied upon the State of Maharashtra v. Yadav Natthuji Kohachade 2000 Cr.L.J.959, State of Rajashthan v. Santosh Yadav MANU/RH/0012/2005 : 2005 Cri. L.J. 1830 and Supreme Court authority in C.B.I, v. Anupam J. Kulkani 1992 SCC (Cri) 554.

6. To appreciate the rival contentions and for proper interpretation of the provisions of law and the procedure to be followed in a case where a person detained in prison is required by the investigating agency for investigation in some other case it will be necessary to consider the relevant provisions of Cr.P.C. Under Section 41 Cr.P.C. any police officer may without an order from a Magistrate and without a warrant, arrest any person who commits, in the presence of a police officer, a cognizable offence and in other circumstances stated in that section. Part B of Chapter VI of the Cr.P.C. provides for execution of warrant of arrest. Sections 72, 73 and 74 provide as to whom the arrest warrant may be directed and who can execute the warrant. Section 76 provides that the police officer or other person executing a warrant of arrest shall, without unnecessary delay, bring the person arrested before the concerned Court Section 11 provides that a warrant of arrest may be executed at any place in India. Sections 78-81 make provision for execution of warrant of arrest outside the jurisdiction of the Court issuing the warrant. On perusal of the provisions of Sections 72-81 incorporated in Part B of Chapter VI, it would appear that the person is required to be arrested and produced before the Court, which indicates that the person is not already in police or judicial custody as per the order of any Court. Section 57 provides that no police officer shall detain in custody a person arrested without warrant for a longer period than reasonable and such period shall not exceed 24 hours exclusive of time necessary for the journey from the place of arrest to the Magistrate's Court. Further detention can be possible only by an order from the Magistrate under Section 167. Section 76 also provides that when a person is arrested by a police officer under a warrant of arrest, he shall be produced before the said Court without unnecessary delay and, in any case, the delay shall not exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. Similar protection is given in the form of fundamental right under Article 22(2) of the Constitution of India. Section 167(1) Cr.P.C. provides that whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the investigating officer, who is not below the rank of sub-inspector, shall forthwith transmit the accused to the nearest Judicial Magistrate a copy of the entries in the diary relating to the case and shall, at the same time, forward the accused to such Magistrate. Under Sub-section (2), the Magistrate to whom the accused person is forwarded, may from time to time authorise the detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 15 days in the whole and if such Magistrate does not have jurisdiction to try the case or commit it for trial and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. The proviso (a) to Sub-section (2) provides that the Magistrate may authorise detention of the accused person, otherwise than in the custody of the police beyond the period of 15 days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody for a total period exceeding 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years and 60 days where the investigation relates to any other offence. On expiry of the period of 90 days or 60 days, as the case may be, the accused is entitled to be released on bail. From this, it will be clear that whether a person is arrested with or without a warrant, he is to be produced before the concerned Court or Magistrate within reasonable time not exceeding 24 hours exclusive of the time taken for journey from the place of arrest to the Court and any further detention beyond 24 hours has to be authorised by the Magistrate under Section 167.

7. Chapter XXII consisting of Sections 266-271 makes provision for attendance of a person confined or detained in prison. Section 267(1) 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.

On careful reading of Sub-section (1) of Section 267, it would appear that the Court may issue a production warrant directing the officer in charge of prison (a) to produce a person confined or detained in prison, (b) before the Court (c) for answering to a charge of an offence or for examining of such person as a witness or for the purpose of any proceeding against him, in the course of inquiry , trial or other proceeding under this Code.

8. Under Section 2(g) "inquiry" means "every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;" The inquiry may be for the purpose of taking cognizance of the offence on filing of a complaint or for the purpose of committal of the case to the court of Sessions for trial. We are not concerned with a production warrant when it is issued during a trial or inquiry before the Court. In Section 267(1) the words "other proceeding" have been used at three different places. In the opening part of Sub-section (1) words are "other proceeding under this Code". Under Clause (a) words are "for the purpose of any proceedings against him", and in the concluding part of Sub-section (1) words are "for the purpose of such proceeding". Under Section 2(h), "investigation" includes all proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. Therefore, under Section 2(h) proceedings for collection of evidence by police officer or by any person authorised by Magistrate, other than a Magistrate himself, are included within the definition of "investigation". Under Section 2(h) "judicial proceeding" includes any proceeding in the course of which evidence is or may be legally taken on oath. Section 267(1) authorises a Criminal Court to issue production warrant in course of an inquiry, trial or other proceedings under this Code. "Inquiry" as noted above, means every inquiry other than trial conducted by Magistrate or the Court and naturally excludes investigation by police or any other person. Specific provisions are made for trial of the cases by different Courts in Chapters XVIII, XIX, XX and XXI of Cr.P.C. The inquiry and trial would naturally be included within the definition of "judicial proceeding". There may be proceedings which do not come within the definition of trial or inquiry or investigation.

9. It is material to note that no specific provision is made in the Criminal Procedure Code to deal with a situation where a person, detained or confined in a prison under the orders of any Court or Magistrate, is required for investigation in some other case. It is possible that a person may be confined in a prison in one case and some other criminal case is also registered against him or his custody may become necessary for investigation of some other case. In such circumstances, the police cannot arrest the person without warrant or even with warrant of the Court because the person is already in judicial custody and is confined in some prison. He cannot be taken out from the jail without direction from the Court under whose order the person was confined in the jail or any superior Court or under some production warrant from any Court. Therefore, when the investigating officer finds it necessary to have custody of such person for the proper investigation of the case, he will have to make a request to the Court having jurisdiction to issue production warrant so that the person may be produced before the Court and then that Court may consider the request of the police to grant police custody or to pass any other appropriate order.

10. Section 269 provides that in certain circumstances, the officer in charge of the prison, in which such person, is confined and in respect of whom a production warrant under Section 267 has been issued, shall abstain from carrying out the Court's order for production and shall send to the Court a statement of reasons for so abstaining. Under Section 269(b) he may abstain from producing the person before the Court, inspite of production warrant under Section 267, if the person is under committal for trial or under remand pending trial or pending a preliminary investigation. Therefore, in such a situation, the consent, sanction or approval of the Court or Magistrate, under whose order that person was confined in the jail, may become necessary so that the officer in charge may be obliged to comply with the production warrant issued under Section 267 and produce the person before the Magistrate or the Court which issued the warrant under Section 267. When the accused is produced before such Magistrate he will be required to peruse the police papers and hear the concerned police officer and may also hear the accused to consider the request for custody of the person. This is a kind of proceeding before the Court or the Magistrate. Therefore, it may be held that warrant under Section 267 may be issued for production of the accused before the Magistrate for the purpose of the proceeding, to be undertaken to consider and to take a decision on the request of police for custody of such person in the case in which he is not already arrested or in custody.

11. In Harshad S. Mehta v. CBI (supra), a Single Judge of the Delhi High Court held that words "other proceedings" occurring in Section 267 Cr.P.C. have to be construed according to the principle of ejusdem generis and cannot be said to include investigation and came to conclusion that the Court cannot order officer in charge of the jail to produce a person detained except to face a charge or such other proceeding or to be a witness before the Court and production warrant of such other person cannot be issued to assist the investigating agency. However, in State of Maharashtra v. Yadav Kohachade (supra), the learned Single Judge of this Court dealt with the relevant provisions of Section 267 and came to conclusion that the Magistrate was competent to issue warrant of production of accused confined in prison for the purpose of considering the request of the investigating officer for police custody in another case. The learned Single Judge observed as follows in para 24:

Proceedings" would mean and include an action or prosecution and sometimes as meaning a step in an action and, therefore, it includes all steps taken in furtherance of prosecution, i.e., arrest, remand, interrogation and investigation. The judicial Magistrate, First Class, 2nd Court, was, therefore, justified in passing an order under Section 267 of the Criminal Procedure Code and issuing warrant as per Form No. 36 of Second schedule addressed to the officer-in-charge of Central Prison, Nagpur, to produce before him the non-applicant accused for the purpose of proceedings, i.e., remand. The legislature has used the words "other proceedings and any proceedings under the Code" in Section 267 of the Criminal Procedure Code and not judicial proceedings and, therefore, seeking production of the accused for remand under Section 267 of the Criminal Procedure Code cannot be faulted. There can be no quarrel over the decision in B.S. Rawat's case (cited supra) relied upon by Mr. Manohar, as what the Court observed was that the order under Section 267 of the Criminal Procedure Code cannot be passed to produce a person for the purpose of investigation before the agency which is engaged in the investigation; as in the said case, the warrant was sought or production of the accused before the Custom Officer for the purposes of investigation. Therefore, it cannot be said that the Magistrate was not competent to issue such a warrant of production of the accused confined or detained in a prison, before him, for the purposes of considering the request of the Investigating Officer to order his detention is police custody.
12. In B.S. Rawat v. Mohmed Azan Khan (supra), the accused persons were arrested under the provisions of the NDPS Act on 19.7.1989 and after the arrest they were remanded to judicial custody till 4.8.1989. On 31.7.1989, an application was made by the concerned authority before the Magistrate for issue of examination warrant. Pending that application, the accused were produced before the Addl. Sessions Judge. A similar application was made before Addl. Sessions Judge on 2.8.1989 who rejected the same, however, he permitted the authorities to interrogate the accused persons. While rejecting the application, the Addl.Sessions Judge took the view that Section 267 which was sought to be invoked would not apply. In the revision application before the High Court, the learned Single Judge, after quoting the provisions of Section 267(1), observed thus

3. ...It is apparent that in order that Sub-section (1) of Section 267 should apply, it is necessary that the requirement should be that he has to be brought before the Court for one or the other purposes mentioned in Clauses (a) and (b) and it would not apply to a situation where it is necessary to produce the person for the purposes of investigation, before the agency which is engaged in the investigation. The learned Additional Sessions Judge was, therefore, right in pointing out that this provision would not apply to the stage at which the request was made by the investigating authorities to him.
From these observations, it is clear that this Court in B.S.Rawat held that production warrant under Section 267(1) could not be issued to produce the person for the purpose of investigation before the agency which is engaged in the investigation. We do not find any inconsistency in the views expressed in B.S. Rawat and Yadav Kohachade. Section 267(1) clearly provides that the production warrant can be issued for production before the Court. It does not provide for issue of warrant for production of an accused before any investigating agency.

13. In State of Rajasthan v. Santosh Yadav (supra), the Full Bench of the Rajasthan High Court considered a large number of Judgments from different Courts including State of Maharashtra v. Yadav Kohachade and observed in para 28 thus:

28. A bare reading of Section 2(h) Or. P.C. would show that "all the proceedings" conducted by a police officer for collecting evidence come under the definition of "investigation". The words "all the proceedings" referred in Section 2(h) in our considered opinion would also include the expression used in the words "other proceedings under this Code" (Section 267(1). "for the purpose of any proceedings against him" (Section 267(1)(a) and "for the purpose of such proceeding " (last portion of Section 267(1)). In order to further the ends of justice wider meaning is required to be given to the word "proceeding" used in Section 267. Or. P.C. Had the Legislature intended to give restrictive meaning to the words "other proceeding under the Code" (Section 267(1)), they would not have used the expression "for the purpose of any proceedings against him" in Section 267(1)(a).
14. In CBI v. Anupam J. Kulkarni (supra), the Supreme Court was dealing with the question as to whether after the initial 15 days detention in police or judicial custody, a person can be again given in police custody for some serious offence in the same case or in any other case. Their Lordships observed as follows in para 11:

11. A question may then arise whether a person arrested in respect of an offence alleged to have been committed by him during an occurrence can be detained again in police custody in respect of another offence committed by him in the same case and which fact comes to light after the expiry of the period of first fifteen days of his arrest. The learned Additional Solicitor-General submitted that as a result of the investigation carried on and the evidence collected by the police the arrested accused may be found to be involved in more serious offences than the one for which he was originally arrested and that in such a case there is no reason as to why the accused who is in magisterial custody should not be turned over to police custody at a subsequent stage of investigation when the information discloses his complicity in more serious offences. We are unable to agree. In one occurrence it may so happen that the accused might have committed several offences and the police may arrest him in connection with one or two offences on the basis of the available information and obtain police custody. If during the investigation his complicity in more serious offences during the same occurrence is disclosed that does not authorise the police to ask for police custody for a further period after the expiry of the first fifteen days. If that is permitted then the police can go on adding some offence or the other of a serious nature at various stages and seek further detention in police custody repeatedly, this would defeat the very object underlying Section 167. However, we must clarify that this limitation shall not apply to a different occurrence in which complicity of the arrested accused is disclosed. That would be a different transaction and if an accused is injudicial custody in connection with one case and to enable the police to complete their investigation of the other case they can require his detention in police custody for the purpose of associating him with the investigation of the other case. In such a situation he must be formally arrested in connection with other case and then obtain the order of the Magistrate for detention in police custody...
Their Lordships further observed in the same para thus:

In S. Harsimran Singh v. State of Punjab a Division Bench of the Punjab and Haryana High Court considered the question whether the limit of police custody exceeding fifteen days as prescribed by Section 167(2) is applicable only to a single case or is attracted to a series of different cases requiring investigation against the same accused and held thus : (p.257, para 10-A)

We see no inflexible bar against a person in custody with regard to the investigation of a particular offence being either rearrested for the purpose of the investigation of an altogether different offence. To put it in other words, there is no insurmountable hurdle in the conversion of judicial custody into police custody by an order of the Magistrate under Section 167(2) of the Code for investigating another offence. Therefore, a re-arrest or second arrest in a different case is not necessarily beyond the ken of law.
This view of the Division Bench of the Punjab and Haryana High Court appears to be practicable and also conforms to Section 167. We may, however, like to make it explicit that such re-arrest or second arrest and seeking police custody after the expiry of the period of first fifteen days should be with regard to the investigation of a different case other than the specified one in respect of which the accused is already in custody. A literal construction of Section 167(2) to the effect that a fresh remand for police custody of a person already injudicial custody during investigation of a specific case cannot under any circumstances be issued, would seriously hamper the very investigation of the other case the importance of which needs no special emphasis. The procedural law is meant to further the ends of justice and not to frustrate the same. It is an accepted rule that an interpretation which furthers the ends of justice should be preferred. It is true that the police custody is not the be-all and end-all of the whole investigation but yet it is one of its primary requisites particularly in the investigation of serious and heinous crimes. The legislature also noticed this and permitted limited police custody. The period of first fifteen days should naturally apply in respect of the investigation of that specific case for which the accused is held in custody. But such custody cannot further held to be a bar for invoking a fresh remand to such custody like police custody in respect of an altogether different case involving the same accused.

15. In view of the provisions of law interpreted as above, it will be clear that when any person is confined in a prison in one case, he may be given in police custody in another case. The limit of 15 days police custody after the first order remand is applicable to one case and if that person is required for investigation in another case, the concerned Magistrate or Court may grant police custody in such case irrespective of whether he was or was not in police custody in the case in which he is already confined. Naturally, for this purpose, a warrant may be issued for production of that person under Section 267(1)(a) by a Court within whose jurisdiction another case, in which he is required, is registered so that the Court may consider the request of the police for his custody. However, warrant has to be issued for production of the person before the Court and not before any investigating agency.

16. As stated earlier, under Section 269, officer-in-charge of prison may abstain to produce the accused before the Court inspite of the production warrant in certain circumstances. Under Clause (b) of Section 269, he may abstain from producing the accused if he is under order of committal for trial or under remand pending trial or pending investigatin. In State of Maharashtra v. Yadav Kohachade, the learned Single Judge considered such a situation and explained the procedure to be followed when a person is confined in prison under the orders of one Court and production warrant is issued by some other Court in connection with some other case. The learned Single Judge observed thus:

21-A. At this state, I would like to clarify that in such cases, it is always better for the prosecution after obtaining an order under Section 267 of the Criminal Procedure Code to approach the Court under whose orders a convict or an accused is confined or detained in prison for seeking permission of the concerned Court, on the basis that the custody of the accused is required for the purposes of proceedings pending before a Court of competent jurisdiction and describe the nature of the proceedings as in this case, seeking remand of the accused, i.e., his police custody for the purposes of investigation in Crime No. 194/99 and on such application being made, the concerned Court, under whose order the accused is confined or detained in the prison, can direct the jail authorities to produce the accused in terms of the order passed by the competent Court under Section 267 of the Criminal Procedure Code with or without condition relating to the proceedings pending before it in which accused is required to be produced before it. This would avoid unnecessary controversy and in such cases, a warrant of production issued by a competent Court for the said purpose need not be returned back by the officer-in-charge of the prison, because in case the officer-in-charge of prison abstains from carrying out the Court's orders issued under Section 267 of the Criminal Procedure Code, the prosecution will then have to undergo the same exercise and, therefore, before such an order under Section 267 of the Criminal Procedure Code is sought to be enforced, if the prosecution is already armed with the consent of the concerned Court under whose orders a person who is required to be arrested is confined or detained in the prison, the officer-in-charge of the prison will have to comply with the said order.
We agree with these observations. However, we may clarify that this procedure will be useful only to surmount the obstacle of Section 269(b) in production of accused. That will not take away the right of officer in charge of prison to abstain from production, if any other ground under Section 269 is also available.

17. In view of the allegations made in the petition and on perusal of the record, we are satisfied that the procedure laid down in Section 267(1)(a) was correctly followed.

18. It is contended by the learned Counsel for the petitioner that police misused the power of the Court to issue production warrant by seeking police custody in number of cases one after another. When production warrant is issued Under Section 267, the direction is to the officer in charge of the Jail to produce the accused before Court and not before the investigating officer. After production before Magistrate, he has to consider whether custody be or not be granted to police, which naturally requires application of judicial mind. That is the effective check or safeguard against misuse of the provision. This matter itself reveals that several requests by police to grant custody in number of cases were refused by J.M.F.C. Desaiganj.

19. A grievance was made by the petitioner that as and when both the accused were transferred from one police station to another and then before the concerned Magistrate, the police did not keep the relatives of accused and the petitioner informed and, therefore, the Advocate for the petitioner could not remain present to contest the applications made by the police for transfer or for police custody. This contention has been denied by the respondents. It may be noted that in D.K. Basu v. State of Bengal AIR 1997 S.C. 610 the Supreme Court had given several directions to be followed by the police at the time of arrest of a person and thereafter. After that, amendments were made in the Criminal Procedure Code in 2005 and 2008 and Sections 41A, 41B, 41D, 50A, 53A, 54A, 55A, 60A and proviso to Section 46 have been inserted in the Criminal Procedure Code. Thus, practically, all the directions given by the Supreme Court are now part of the statute and therefore the police is bound to comply with the same. If those statutory provisions and the guidelines given by the Supreme Court are followed, there should not be any scope for any grievance. Therefore, on this count we do not find it necessary to give any more directions.

20. Out of ten cases, in which the police sought their custody by transfer, investigation has been completed in 9 cases and charge sheets are filed in Courts, but investigation in only one case could not proceed because of the order passed by this Court 20.12.2007. Admittedly, the accused are already in judicial custody since 6.10.2007. Even before that, they were in judicial custody or police custody as per the orders passed by the Magistrate under Section 167(2)(a) after following the procedure laid down in Section 267(1)(a). Therefore, we do not find any merit in the present petition.

21. For the aforesaid reasons, the Petition stands dismissed. In the result, the Criminal Applications do not survive and stand disposed off accordingly.


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