TaxTMI 
TaxTMI 
2019 (3) TMI 1980
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....(a), (b), (ii), (a), (b) of A.P. Forest (Amendment) Act, 2016, Rule 3 of A.P. Sandal Wood & Red Sanders Wood Transit Rules, 1969, Section 29(2)(b) of A.P. Forest (Amendment) Act, 2016 and Section 3 of PDPP Act, 1984. Later he was granted bail on 5.3.2018 vide Crl. MP No. 645 of 2018. It is stated that the detenue was remanded to custody in two other cases i.e., Cr. No. 432 of 2015 of Mydukur Police Station and Cr. No. 32 of 2016 of Railway Kodur Police Station. When the detenue was a remand prisoner, the District Magistrate, Kadapa District passed an order of detention in CI/170/M/2018 dated 19.3.2018 under Act 1 of 1986. But the said order was set-aside by the Hon'ble High Court on 17.7.2018 vide WP No. 14693 of 2018. Subsequent to the quashing of the detention order, the detenue furnished sureties as he became entitled to set at liberty in Cr. No. 452 of 2017. It is stated that the detenue also applied for bail in the remaining two crimes i.e., Cr. Nos. 432 of 2015 and 32 of 2016 and got bail vide Crl. MP No. 2262 of 2018 and Crl. MP No. 1290 of 2018 respectively. The detenue is said to have been in custody though it is alleged that no arrest was shown in any other case. Whil....
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....l Authorities cannot keep an accused in custody unless there is a judicial order of remand either under Section 167 or 306 Cr.P.C. As the detention is merely on the basis of PT warrant under Section 267 Cr.P.C. order remanding the accused is ex facie without jurisdiction and as such the detenue has no other option except to approach this Court under Article 226 of the Constitution of India. 4. From the above, it is clear that the main ground urged by the learned Counsel for the petitioner is that as per Section 267 Cr.P.C., the detenue must be in judicial custody under a valid order of remand and that no remand order can be passed invoking Section 267 Cr.P.C. It is pleaded that after 5.3.2018, the date on which detenue was granted bail, the detenue cannot be considered to be in a valid judicial custody under an order of remand. It is urged that without their being an arrest, remand orders cannot be passed and there cannot be order of remand, when the production is on a PT warrant. Neither the procedure for arrest as required under Sections 41(ii), 31-B(b), 41-D, 50, 50-A and 60-A is followed nor judicial mind was applied. The learned Counsel relied upon a judgment of the Constitut....
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....d in the PT warrant, then, it ceases to operate. On the other hand, if the alleged detenue is produced before the efflux period and the Court passes an order under Section 167 Cr.P.C. then the issue of co-terminus with the end of detention, would not arise. Hence, prays to dismiss the writ petition. 6. Before proceeding farther, it would be appropriate to know the legislative history of Section 267 Cr.P.C., since the main plank of argument is that the detenue has been illegally and unlawfully detained, thereby warranting issuance of habeas corpus, more so, when there is no remand under Section 167 Cr.P.C. 7. The Law Commission in its 40th and 41st report recommended that Section 491 be omitted and more comprehensive provisions be incorporated under the new Code. The reason for suggesting the change appears to be that Section 491(1) corresponds to writ of habeas corpus. Since Article 226 of the Constitution of India confers wide and comprehensive powers for the High Courts of the States to issue to any person, or authority, including, in appropriate cases, any Government, directions, orders or writs, including writs in the nature of writ of habeas corpus for any purpose. In view o....
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....#39;inquiry' or 'trial'. But, in the new provision, words, 'other proceedings' were incorporated, which is not found in the earlier enactment. Definitely the scope of securing the presence of a prisoner by issuance of PT warrant has been wide, meaning thereby, that he can be secured not only for 'inquiry' or 'trial', but also for 'other proceedings' under the Code. If really the intention of the Legislature was to restrict the meaning of the words 'other proceedings' only for 'inquiry' or 'trial', definitely there was no necessity for them to incorporate the words 'other proceedings'. It is also to be noted that one another phrase came to be incorporated in Section 267(1)(a) i.e., 'for the purpose of any proceedings against him'. As held by the Apex Court in CBI v. Anupam, J. Kulkarn, AIR 1992 SC 1768, the procedural law is meant to further the ends of justice and not to frustrate the same. It is an accepted rule that an interpretation, which further the ends of justice, should be preferred. 9. In our view, the words used in Section 267, 'other proceedings under this Code'; 'for the pur....
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....rred to above used the words 'formal arrest'. When once such "formal arrest" is effected in prison, it would not be possible for the police officer to produce him before the nearest Magistrate within 24 hours for the purpose of further remand, since he cannot be, removed or moved out from the jail. In such a situation, the only method by which he can seek production of the accused before the concerned Magistrate for the, purpose of remand is to invoke the provision under Section 267 Cr.P.C. It is to be noted here that PT warrant can be issued by, that Magistrate within whose jurisdiction the crime is registered and in which the production is sought, but not by any other Magistrate. It is also to be noted that production on PT warrant is sought from the prison through the Superintendent of Jail and not through any other mode. 12. The question which would then fall for consideration, is, whether by effecting such formal arrest, the accused would be in the custody of the police, who executed the formal arrest. Though the words 'arrest' and 'custody' looks synonymous, a Full Bench of Madras High Court in Roshan Beevi v. Joint Secretary, Government of T.N., 1983....
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.... produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the Court and submits to its directions." 16. From the judgment of Niranjan Singh's case (supra), it is very clear that an accused can be in custody not only when the police arrests him, but also when remanded on his surrender before the Court and submitting to its jurisdiction. Therefore, as observed by the Apex Court in Anupam, J. Kulkarni's case (supra), arrest shall never be a pre-condition for remand, and that one need not be arrested and produced before the Court, for the purpose of remand and to the judicial custody of the Court. He can be stated to be in judicial custody when remanded on his surrender before the Court and submits to its jurisdiction. However, his physical control or atleast physical presence, coupled with submission to the jurisdiction and orders of Court, is a sine qua non. Be it on the production by the investigating agency, or on his own before the Court. If the Court is of the opinion that he has committed cognizable offence and that his remand is warranted, it can direct him to be remanded to ju....
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....ctions 267 to 270 Cr.P.C. contemplate production of the prisoner before the Court by the Officer in-charge of the prison. It is also evident that at times, the investigating agency in one case may not be aware about the production of the prisoner before another Court, in another crime, where arrest is effected till then. 18. In the instant case, the grievance of the petitioner is that the petitioner is involved in number of cases and that his remand is sought by the police on PT warrant without effecting his arrest and that the accused is being remanded on PT warrant, contrary to provisions of Section 267 Cr.P.C. 19. A Division Bench of the Madras High Court in State by Inspector of Police v. KM Nehru and others, Crl. OP (MD) No. 13683 of 2011, dated 3.11.2011, while dealing with an identical situation observed as under: "In a case where the police officer deems it necessary to arrest when the accused is already in judicial custody in connection with a different case, in our considered opinion, there are two modes available for him to adopt. The first one is that, instead of effecting formal arrest, he can very well make an application before the Jurisdictiona....
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....nd the period of detention. Since no order or authorization of the detention was passed after 19.6.2015 by which time he was released, the Court while releasing him on bail directed the petitioner therein to appear before the Court. 21. All the other cases relied upon viz., Hussainara Khatoon and others v. Home Secretary, AIR 1979 SC 1369 and Bhim Singh v. State of J&K and others, AIR 1986 SC 494, dealt with issuance of habeas corpus due to illegal detention and payment of compensation. Similarly, the Counsel for the petitioner also relied upon judgment in Anupam, J. Kulkarni's case (supra), which in fact was also relied upon by the Counsel for the respondent to show that the remand of the accused does not amount to illegal detention. The two judgments of the Madras High Court, though not binding on us, has been pressed into service as a persuasive value to show that since the accused has been released on bail in the crimes in which his arrest is shown and that remanding of the accused pursuant to the proceedings under Section 267 Cr.P.C. is illegal and incorrect. 22. At this stage, it may be appropriate to refer to the judgment of the learned Single Judge of the High Court i....
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....der preventive detention laws, his detention order was set aside on technical ground. Fact remains that he is shown as an accused in number of crimes in different police stations of the State. Steps are being taken for his production in almost all the police stations through PT warrant before the Concerned Courts. It is also to be noted here that if PT warrants are issued by different Courts for production of the alleged detenue before the respective Courts, then it would be practically impossible for the police to produce the prisoner before various Courts at various places on a particular date and eventually the order of the High Court could not be complied with. Therefore, the argument of the learned Counsel for the petitioner that the police are intentionally filing applications under Section 267 Cr.P.C. as and when he obtained bail is ill-founded. 25. Things would have been different had all the cases been registered in one police station. But, in the case on hand, it is to be noted that out of 12 cases in which he has produced on PT warrant, the petitioner was granted bail in 10 cases and in two cases bail applications are pending as of now and he is said to have obtained an....