PAoduthon kamanm

ALL MR (Cri) Susan Abraham Vs. State of Maharahtra 723

2010 ALL MR (Cri) 723 may be confined in a priSon in one case and
some othcr criminal case is also registered
IN THE HIGH COURT OF JUDICATURE AT
against him or his custody may become
BOMBAY
necessary for investigation of some other case.
F.I. REBELLO & J. H. BHATIA, JJ. Tn such circumstancCs, the police cannotarrest
the person without warrant or even with
Susan Abraham warrant of the Court because the person is
Vs. alrcady in judicial custody and is confined in
State of Maharahtra & Ors. Some priSon. He cannot betaken out from the
Criminal Writ Petition No.1951 of 2007 jail without direction from the Court under
WITH Criminal Application No.57 of 2008 whose order the person was confined in the
WITH Criminal Application No. 108 of 2008. jail or any superior Court or under some
20th January, 2010. production warrant from any Court. Therefore,
when the investigating officer finds it
r. ANAND GROVER, Sr. Adv., with Ms. necessary to have custody of such person for
MAHARUKH ADENWALA, i/b. Mr. the proper investigation of the case. he will
PRAKASH MAHADIK. Advocates, for the have to make a request to the Court having
Petitioner.
Mrs. A. S. PAI, APP, for the State.
jurisdiction to issue production warrant so that
the person may be produced before the Court
Mr. MANDAR GOSWAMI, Advocate, for
and then that Court may consider the request
Respondent No.8.
of the police to grant police custody or to pass
Section 269
(A) Criminal P.C. (1973), S.2(g)-"Inquiry" any other appropriate order.
-
Meaning of "Inquiry"" under S.2(g)
- provides that in certain circumstances, the
means every inquiry, other than a trial officer-in-charge of the prison. in which such
confined and in respect of whom a
conducted under this Code by a Magistrate person, is
under Section 267 has been
or Court" The inquiry may be for the production warrant
-

purpose of taking cognizance of the

offence issued, shall abstain from carrying out the
Court's order for production and shall send to
on filing of a complaint or for the puurpose
committal of the case to the Court of the Court a statement of r e a s o n s for so
of
Sessions for trial. (Para 8) abstaining. Under Section 269(b) he may
abstain from producing the person before the
B ) Criminal P.C. (1973),S.267- may be
Production
under
Court, inspite of production warrant
warrant Warrant under S.267
-

committal
Section 267, if the person is under
issued for production of the accused before
pending trial or pending
for trial or under remand
the Magistrate for the purpose of the in such
a preliminary investigation. Therefore.
proceeding, to be undertakn to consider
sanction or apprOval
and to take a decision on the request of Siluation, the consent.
o the Court or Magistrate, under whose order
police for custody of such person in the case that person wasconfined in the jail._may
in which he is not already arrested or in
become necessary so that the officer in charge
custody. with the production
may be obliged to comply
No specific provision is made in the warrant issued under Section 267 and produce
Criminal
situationwhere.a
Procedure
person,
Code
detained
to deal
or confined
with a the person before the Magistrate or the Court
which issued the warrant under Section 267.
of any Court such
in a prison under the orders When the accused is produced before
or
When in
Magistrate, is. required for investigation Magistrate he will be required to peruse the police
someother caselt is. possible that a person
papers and hear the concerned police officer
2010 ALIL MR (Cri) - Mar
 2010
Susan Abraham Vs. State of
Maharahtra
724
committal for
to consider the accused if he is under order of
and may also hear the accused or pending
This is a trial or under remand pending trial
request for custody of the person.
the investigation. (Paras 15, 16)
kind of proceeding before the (ourt or
that
Magistrate. Therefore, it may be held CASES CITED: PARA
warrant under Section 267 may
be issued for
Customs Vs.
B. S. Rawat, Asst. Collector of
production of the accused before the Magistrate Mohmed Azan Khan, 1991 Cr.L.J. 820.
to be
for the purpose of the proceeding, ...4, 12
decision
undertaken to consider and to take a
of
such Harshad S. Mehta Vs. Central Bureau
on the request of police for custody of
which he is not already Investigation, Manu/DE0459/1992..4,11
person in the case in
arested or in custody. 1991 Cr.LJ. 820
and State of Maharashtra Vs. Yadav Natthuji
Kohachade, 2000 Cr.LJ. 959. ...5, 11
2005 Cri.LJ. 1830 Ref. to. (Paras 9, 10)
-

269 State of Rajashthan Vs. Santosh Yadav, 2005

(C) Criminal P.C. (1973), Ss.267, ,13
Production warrant - When any person is Cri.LJ. 1830. .
prison in one case, he may
in a
be C.B.I. Vs. Anupam J. Kulkani, 1992 SCC (Cri)
nfined S54
S , 14
given in police custody in another
case -

S.C.
Naturally, for this purpose, a warrant may D.K. Basu Vs. State of Bengal,AIR 1997
-.19
be issued for production of that person 610
under S.267(1) by a Court within whose
The petition is filed
jurisdictionanother case, in which he is J. H. BHATIA, J.:
required, is registered. fora Writ of Habeas Corpus under Article 226
of the, Constitution of India. wherein the
When any person is confined in a prison
in one case, he may be given in police custady
transfer of the accused persons from judicial
custody in a.cáse of one police station to police
in another case. The limit of 15 days police
police station by exercising
after the first order remand is Custody ofanother
custody if that is the powers to issue production warrant under
applicable to one case and person
Section 267, Cr.P.C. has been challenged.
for investigation in another case, the
required To state in brief. the petitioner's
concerned Magistrate or Court may grant 2
poice custody in such case irrespective of husband Vernon Stanislaus Gonsalves and bis
W.ther he was or was not in police custody in friend Shridhar Krishnan Shrinivasan, boih
the case in which he is already confined. re_idents of Mumbai. were arrested on
No.3-Anti-Terrorism
Naturally, for this purpose, a warrant may be 19.8.2007 by respondent
issued for production of that person under Squad, Kalachowki. Mumbai in Crime No.10
Section 267(10a) by Court within whose
a 2007 under Sections l120-B and 121-A of the
Jurisdiction anotier case, in which he is Indian Penal Code and the provisions of the
Arms Act., Explosive Substances Act. Indian
required, is registered so that the Court may
consider the request of the police for his Explosives Act and Unlawful Activities
custody. However, warrant has to beissued Prevention (Amendment) Act. 2004. Oa
forproduction of the person before the Court 20.8.2007, they were produced before th
and not before anyinvestigating agency. Under Holiday Magistrate and were remanded to polic
Section 269, officer-in-charge of prison may custody till 22.8.2007. On 22.8.2007, the 2nd
abstain to produce the accused before the Court Metropolitan Magistrate, Mazgaon, Mumbai
inspite of the prodution warrant in certain extended their police custody remand til
circumstances. Under clause (b) of Section 3.9.2007. During the police custody. upto
269, he may abstain from producing the 3.9.2007 they were interrogated not only by
2010 ALL MR (Cr) Mar.
 ALL MR (Cri) Susan Abraham Vs. State of
Maharahtra
725
the staff of respondent No.3, but also
by the accused Vernon
police personnel of respondent No.2 and was required to be admitted in
respondent Nos.4 to7 as well as by hospital on 21.9.2007. Both the accused were
the policc
personnel from Chattisgarh, Madhya Pradesh produced before the J.M.F.C,
remanded them to Magisterial Amgaon,
who A
and Andhra Pradesh and Intelligenco Bureau. No.120/2006, but custody Crime
in
On expiry of police custody, on 3.9.2007, the immediately
Purada Police took their respondent No.5 S
custody in 4
Additional Chief Metropolitan Magistrate, 46th
Court. Mazgaon, remanded them to No.5172007 of their políce státion.Crime On S
judicial .T0.2007, they were produced before the St
custody till 17.9.2007., However, the J.M.F.C. Desaiganj, who refused further police
(C
respondent No.4.- officer-in-charge, Salekasa custody and remanded them to M
Police Station from District CGondia,had obtained custody. However, respondent No.6 Magisterial M
- officer 15
a production warrant under Section 267, in charge
Kurkheda Police Station, District Pu
Cr.P.C. of both the accused in Crime No.34/ Gadchiroli sought ustody of
the said accused
2005 registered by that Police Station from in Crime No.32/2007 and was granted till
(S
Pr
JMF.C. Amgaon, District Gondia.On 3.9.2007 4.10.2007. On 4.10.2007, J.M.F.C. Desaiganj Vi
itself. the Salekasa Police Station Officer refused further police custody in Crime No.32/
4
Ga
respondent No.4 sought custody of both the 2007 and remanded them to magisterial AL
accused. In Crime No.34/2005 on the basis of custody. However, immediately the respondent 13
theproduction warrant. As per the order passed No.5-Purada Police executed formal arrest of
by the Addl. C:M.M. they were given in custody both ofthem and sought police custody in Crime JU
ec
of Salekasa Police. On 4:9.2007, they were No.28/2007, but it was refused by the J.MF.C.
Or
produced before the J.M.F.C. Amgaonand were Dedsaiganj. After that refusal, respondent No.6
remandedto police custodytill129.2007.On Kurkheda Police again executed formal arrest o
12.9.2007, they were remanded tó Magisterial of both of them and sought their police custody
custody till 26.9.2007 by J.M.F.C. Amgaon in in Crime No.44/2007 which was also refused.
Crime No.34/2005. However, onthesameday, Immediately after that, respondent No.7 the
they were givenin pólicecustody ofrespondent officer-in-charge of Chinchgad Police Station.
No.4 Salekasa Police till17.9.2007in Crime District Bhandara éxecuted formal arrest of both
No.174/2006 by J.M.F.C. Amgaon. On of them and squght theiralso police custody
by
in
the
17.9.2007,they were remanded to Magisterial another crime which was refused
custody in Crime No.174/2006. However, According to the
J.M.F.C., Desaiganj.
immediately, respondent No.4 Salekasa Police petitioner, the transfers to different cases after
sought police custody in Crime No.120/2006 the initial arrest in Crime No.10/2007 by the
which was granted till 21,9.2007 by J.M.F.C. Anti Terrorism Squad. Kalachowki. Mumbai.
Amgaon. On 17,.9.2007, they were not were illegal and thepolice custody of the
Produced beforethe Metropolitan Magistrate, accused in the different is also bad-in-law.
On 4.10.2007, respondent Nos.5
Mazgaon even though.their vefy jüdicial
custody in crimeNo.10/2007had comë to an and . made, separate appliçations before the
,end on, that day, However, on that, day, J,M.F.C Desaiganj seeking permission
to

respondent No.5 officer,in charge, of Purada subject both the accused to narcoanalysis tests.
It is
Those applicatjons are still pending.
Police Station, Disirict Gadchiroli, próduced a
the learned Counsel for the parties
production warrant dated 4,9.2007from concededby
MFC. Desaiganj, seeking custody ofthesaid that the question as to to' whether an accused
test
accused in Crime No.s1/2007 of that policeperson càn be sübjected narco analysis the
in a petition before
: station he custody was granted by the 2nd is'the subject matter
MetroPOlitanMagistrateMazgaon.heSupreme Court ánd, thereförë, the'learned
Mar.
2010 ALL MR (Cri)-
 726 Susan Abraham Vs.
State of Maharahtra
Counsel for the
petitioner did not press that 2010
noilt. Therefore. the limited question in this proceeding which is covered under Section
Detition is about the Cr.P.C. and 267,
therefore the Court can issue a
pOwers of a Court to issue
production warrant under Section 267 with the warrant under Section 267
directing the jail
intent to transfer the accused from one authority for production of the
accused before
case to the Court to consider
another. the request of the
for transfer or for police
remand in other case. She
4. Heard the learned Counsel for
the relied upon the State of
parties. The learned Counsel for the petitioner Yadav Maharashtra Vs.
vehemently contended that Natthuji Kohachade, 2000 Cr.L.J.
Section 267 959;State of Rajashthan Vs. Santosh Yadav,
empowers acourt lo isSue
production warrant 2005-Cri.L.J. 1830 and Supreme Court
in respect of a person confined or detained
prison only for answering to a charge of an
ina authority in C.B.. Vs. Anupam J. Kulkani,
1992SCC (Cri) 554.
offence or for the purpose of any
proceeding 6. To appreciate the rival contentions
against him before the Court or to examine him and for proper
as a witness.
According to him, the production of law and the
interpretation of the provisions
warrant under Section 267 cannot be issued
case where a
procedure to be followed in a
for the purpose of remanding the accused person detained in prison is
to
police custody or for transfer to different cases
required by the investigating agency for
registered with the police. According to the investigation in some other case it will be
learned Counsel, if an accused is to be arrested necessary to consider the relevant provisions
of Cr.P.C.. Under Section 41, Cr.P.C.
in any criminal case by the any
police, powers have police officer may without an order from a
to be exercised under Section 41 or warrant of
Magistrate and without a warrant, arrest any
arrest may be issued under the
provisions of person who commits, in the presence of a police
Chapter VI, Part-B of the Cr.P.C.. In support officer, a cognizable offence and in other
of his contention, the learned Counsel relied circumstances stated in that
section. Part-B of
upon the Judgment of a learned Single of this
Chapter VI of the Cr.P.C provides for execution
Court in B. S. Rawat, Asstt. Collector of of warrant of arrest. Sections 12, 73
and 74
Customs Vs. Mohmed Azan Khan and provide as to whom the arrest warrant may be
others, 1991 Cr.L.J. 820 as well as a directed and who can execute the warrant.
Judgment of the Delhi High Court in Harshad Section 76 provides that the police officer or
S. Mehta Vs. Central Bureau of other person executinga warrant of arrest shal,
Investigation, Manu/DE/0459/1992 rendered without unnecessary delay, bring the person
by a learmed Single Judge. The Delhi High Court arrested before the concerned Court Section
had in terms held that under Section 267, the 77 provides that a warrant of arrest may be
Court cannot order the officer-in-charge of the executed at any pBace in India. Sections 78 to
jail to produce a person detained except to face 81 make próvision for execution of warrantof
a charge or such other proceedings before the arest outsidethe jurisdiction of the Courtissuing
Court or to be a witness and the production the warrant. On perusal of the provisions of
warrant cannot be issued to assist the Sections 72 to 81 incorporated in Part-B of

investigation. Chapter VI, it would appear that the person is

On the other hand, the learried
5.
APP contended that consideration by the Court
as to whether the person detained in prison
o d or should not be transferred or
remanded
p o l c e custody in some other case is itself a
2010 ALL MR (Cri)- Mur.
before the
requiredto bearrested and produced is not
Court, which indicates that the person
alreadyin policeor judicial custody as per the
that
57
order of any Court. Section provides
no police officer shall detain in custody
a person
arrested without warrant for a longer period
ALL MR (Cri) Susan Abraham Vs. Statc of
than reasonable and such
period slhall not excced
24 hours cxclusive of time
necessary for the
iourney from the place of arrest to the
Magistrate's Court. Further detention can be
DOssible only by an order from the Magistrate
under Section 167. Section 76 also provides
that when aperson 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 from the place of arrest to the Court and any
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
Maharahtra 727
investigation relates tto an offence punishable
with death.
imprisonment for life or
imprisonment for a term of not less than ten
ycars 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
further detention beyond 24 hours has to be
authorisedby the Magistrate under Section 167.
7. Chapter XXIE consisting of
Sections 266 to 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

jurisdiction to try the case or commit it for trial to the charge or for the purpose of such
for giving
and considers further detention unnecessary, proceeding or, as the case may be,
he may order the accused to be forwarded to a evidence."
Magistrate having such jurisdiction. The provisO On careful reading ofsub-section (1) of Section
that the 267, it would appear that the Court mayissuea
(a) to sub-section (2) provides
Magistrate may authorise detention
of the
production warrant directing the officer in
person
accused person, otherwise than the custody
in charge of prison (a) to produce a
15 if he
confined or detained in prison. (b) before the
ofthe police beyond the period of days
1S satisfied that adequate grounds exist for doing Court (c)for answeringto acharge of an offence
So, but, no Magistrate shall authorise
tne
or for examining of such person as a witness
against
detention of the accused person in custOdy
for
or for the purpose of any proceeding
trial or other
where the him, in the course of inquiry,
a
otal period exceeding 90 days -

2010 ALL MR (Cri)- Mar

 128 Susan Abraham
Vs. State of
oceeding under this Code. Maharahtra 2010
8. Under Section 2(g) 9. It is material to
"every "inquiry'" specific provision
note that no
means
ans " e
inquiry. other than a trial, Procedure Code to deal is made in the Criminal
ncted under this Code by a Magistrate
onductedunder with a situation where
The inquiry maybe for the purpose orof aperson,
the orders
detained or confined in a
prison under
cognizance of the offence on of any Court or Magistrate, is
required
taking
or for the
filing ofa for investigation in some other case. It is nP
complaint purpose of committal
Sessions for trial. We possible
of that a person may be confined in a 75
thecaseto the court of
ane not
are concerned with a
not concerned prison in one case and some other crirainal case
production warrant isalso registered
hen it isissued during atrial or inquiry before may become against him or his austody
theCourt. In. Section 267(1) the words "other necessary.for investigation of some
other case. In such circumstances, the pelice
proceeding have been used at three different cannot arrest the person without warrant or
slaces.In the opening part of sub-section (1) even with warrant of the Court beçause ithe
ordsare "other proceeding under this Code". person i_ already, in judicial custody andis
Under clause (a) words are "for the purpose of confined in some prison. He cannot be taken
any proceedings against him", and in the Qut from the jail without direction from the
concluding Part of sub-section (1) words areCourt under whose order the person was
for the purpose of such proceeding" Under confined inthe jail or any superior Court or
Section 2(h) "investigation" includes, all under some production warant from any Court.
proceedings under this Code for the collection Therefore, when theinvestigating officer finds
of evidence conducted by a police officer or it neçessary to.have custody of such person
by any person (other than a Magistrate) who isforthe properinvestigation of the case, he will
authorised by a Magistrate in this behalf. have to make a request to the Court having
so that
Therefore, under Section 2(h) proceedings for Jurisdiction to issue production warrant
collection of evidence by police officer or by the person may be produced before the Court
and then that Court may consider the request
any person authorised by Magistrate, other than
a Magistrate himself, are included within the
of the police to grant police custody or to pass
any other appropriate order.
Mefinition of "investigation". Unider Section 2i)
10. Section 269 provides that in
Judicialproceeding" includes any pröceeding of
in the'course of which evidence is or may be certain circumstances, the oficer-in-charge
such person, is confined
legally taken on oath: Section 267(1)authorises the prison; in iwhich
warrant in and in fespect of whom production
a warrant
a Criminal Court to issue production
under Séction 267 has been issued, shall abstain
Course ofan inquiry, trial or other proceedings for
under this Code. "Inquiry" as noted above, from
carrying out the Court's order
shall send to the Court a
conducted inproduction and
aeans every inquiry otherthan trial statement so abstaining.
of reasons forabstain
Under
naturally
4agistrate: or theCourt and Section 269(b);he may from producing
investigation by police or any other
CXCludes
»the porson before;the
Court; mspite of
made for trial
on Specific proyisions are produotion! warrantúnder Section 267,under
if the
in Chapters
ne Cases by, different CourtsCr.P.C, committal for trial or
The personiis: under
X I X , XX and XXI of vemandpendingtrialor
pendingapreliminary
be included situation, the
a n d , trial would naturally investigation. Theresove, in such'a
the defiFition of "judicial proceeding
or
Th consenti:sanction or approval
of
the Courtwas
Thet do not çome
be proceedings which inquiry, Magistrate,under'whose order
that person
or jaik;may.become.necessaryso
n the definition of trial or Confined inthe to
investigation in may be obliged
charge
'
that the officer
ALLMR(Cri)
Susan Abraham
Vs. State
tate of Maharahtra
Mah
nly with the production
comply with the

warrant 729
and produce the issucd
u n d e rS e c t i o n
267 interrogation and investigation. The
nderMagistrate or the Court
ant under Section 267,
which
person
issucd Magistrate. First Class, 2nd Court,judicial
was,
When thc thercforc. justified in
passing order under
the warra

an
is produced before such section 267 of the Criminal
accused

required to peruse the

Magistratc he and Procedure Code
issuing warrant as per Form No.36 of
will be
police papers and Second schedule addressed
hear the concemed polico officer and to the
officerto
may also in-charge of Central Prison. Nagpur.
hear the accused
to consider the
request for
ofthe person. This is produce before him the
ustody a kind of accused for the purpose of
non-applicant
wwceeding before the Court or the Magistrate.
proce proceedings. i.e.
remand. The legislature has used the words
Therefore it may be held that warrant under
other proceedings and any proceedings
Section 267 may be issued for production of
under the Code" in section 267 of the
the accused before the Magistrate for the Criminal Procedure Code and not judicial
Durpose of the proceeding,-to be undertaken to
proceedings and, therefore, seeking
consider and to take a decision on the request production of the accused for remand under
of police for custody of such personin the case section 267 ofthe Criminal Procedure Code
in which he is not already arrested or in custody. cannot be faulted. There can be no quarrel
11 In Harshad S. Mehta Vs. CBI over the decision in B. S. Rawat's case (cited
(supra), a Single Judge of the Delhi High Court supra) relied upon by Mr. Manohar. as what
the Court observed was that the order Code
under
eheldthat,Words other prpceedings ocçurring in ,

section 267 of the Criminal Procedure

Section 267, Cr.P.C.have, to be.construed person for
cannot be passed to produce a
according to the principle,of,ejusdem generis the purpose of investigation
before the
investigation and
and cannot be said to include
order agency which is engaged in the investigation;
came to conclusion thatthe Courtcannot as inthe said case, the warrant
was sought
officer-in-charge ofthe jailtoproduce aperson or production of the accused before
the
or such other
detained except to face charge
a
Court Custom Officer for the purposes of
before the
proceeding or to be,a witness investigation. Therefore, it cannot
be said
other person
andproduction watrant of such .
that the Magistrate was
not competent to
investigating of the
cannot be issued to assist 'theMaharashtra issue such a warrant of production
agency. However, in
State of : accused confined or detained
in a prison.
Vs. Yaday Kohacháde (supra),
the learned of considering
the relevant before him. fór the purposes
with
Single Judge of this Court dealt and came to ' the request of the Investigating
Officer to
267 custody."
provisions of section order his detention is police
was.coMpetent Mohmed
conclusion that the MMagistrate 12. In B. S. Rawat Vs.
Qf,production ofAccused the accused persons
were
to' issue warrant, of
purPOse Azan Khan (supra).
in prison forfhe, provisións 'of thë N.D.P.S..
confined afrested iunder fhe arrèat they were
request.ofthe inyestigating and after thé
Cpnsidering the The "Act on 19.7.1989
in another.case, ciustody til 4.8.1989. On
officerfor.policecustody follows in para remanded judicial
tó
was made by the
ed Single Judge observed as 31.7.1989, an application for
beforè the Migistrate
24. Concérned authotity Pending that
mean and include warrant.

Proceedings", would
issue of examination before
spmetimes as accused were produced
prosecution and application, the application
3,,4 acion or actign and,
therefore,
the Judge A
Judge.
Addl. Sessions
Sessions
A similar

Ganin8a step,in an Add.

the on
furtherance of Sessions Judge
AddB.
t

hA cludesall steps
takenin was made before the same, however.
he
hPTOsECYtion, d e . aErestiremand,
2.8:1989 who rejected Mar.
MR (Cri)
2010 ALL
 Susan Abraham Vs. State of
730 Maharahtra 2010

permi
d the horities to
interrogate the definition of "investigation". The words "all
CCu
used persons. While rejecting tlhe the proccedings" referred in Section 2(h) in
lication, the Add Sessions Judge took the our considered opinion would also include
aPphat
viewthat Sec.267 which was
sought to be the expression used in the words "other
aked would not apply. In the revision
inv
alication
lication before the High Court, the learned procecdings under this Code" (Section
267(1)). "For the purpose of any
Single Judge. after quoting the provisions of
proceedings against him" (Section
section 267(1). observed thus: 267(1)(a) and "for the purpose of such
3..It is apparent that in order that sub- proceeding'" (last portion of Section 267(1).
sec.(1) of S.267 should apply. it is necessary In order to further the ends of justice wider
that the requirement should be that he has meaning is required to be given to the word
to be brought before the Court for one or "proceeding" used in Section 267, Cr.P.C..
Had the Legislature intended to give
the other purposes mentioned in Clauses (a)
and (b) and it would not apply to a situation restrictive meaning to the words "other
where it is necessary to produce the person proceeding under the Code" (Section
for the purposes of investigation, before the 267(1)), they would not have used the
of any
agency which is engaged in the investigation. expression "for the purpose
Section
The learned Additional Sessions Judge was, proceedingsagainst him" in
therefore, right in pointing out that this 267(1)(a).
would the stage 14. In CBI Vs. Anupam J.
provision not apply to at
which the request was made Kulkarni (supra), the Supreme Court was
by the after
investigating authorities to him." dealing with the question as to whether
the initial 15 days detention in police orjudicial
From these observations, it is clear that this
Custody, a person can be again given police
in
Court in B. S. Rawat held that production serious offence in the same
warrant under Section 267(1) could not
be custody for some
case or in any other case. Their Lordships
issued to produce the person for the purpose
the agency which is
observed as follows in para II:
of investigation before find 1. Aquestion may then arise whether
engaged in the investigation. We do not offence
views expressed in B. a person arrested in respect of an
any inconsistency in the him
and Yadav Kohachade. Section 267(1) alleged to have been committed by
. Rawat can during an occurrence can be
detained again
clearlyprovidesthatthe production warrant
Court.It in police custody in respect of
another
the
be issued for production before for offence committed by him in the
same case
does not provide for issue of warrant

accused before any and which fact comes to light after the expiry
production of an of his
of the period of first fifteen days
investigating agency. The learned Additional Solicitor
arrest.
Vs. result of the
13. In State of Rajasthan General submitted that as a
Full Bench ofthe and the evidence
Santosh Yadav (supra), the number investigation carried on
arrested accused
Rajasthan High Court considered a large collected by the police the
more serious
to be involved in
oudgments from different Courtsincluding Kohachade
may be found
for which he was
afeofMaharashtra Vs. Yadav offences than the one
arrested and that in
such a case
and observed in para 28 thus originally the accused
Section 2(h), reason as to why
"28 A bare reading of there is no
custody should
not be
T.P.C. would show that "all tne who is in magisterial at a
officer to police custody
by police turned over
proceedings conducted a
under the
collecting evidence come
 ALL MR (Cri)
Susan Abraham Vs.
bsequent stage of investigation when the
formation
discloses his
complicity in more
ious offences. We are unable
m bne occurence it may so agrec.to
happen that
the accused might have committed several
offences and the
police may arrest him
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 wemustcBarify that this limitation
shallnot apply to adifferent occurrence in
which complicity ofthe arrested accusedis
disclosed. That would be a different
transactionand ifan accused isin judicial
custody in connection with onécaseand to
enable the police to complete their
investigationof the other case they can
require his detention in policecustody for
thepurpoSe of associating him with the
investigationof the other case. In such_a
State of
Maharahtra 731
"We sec no inflexible bar against a person
in
custody with regard to the
of a investigation
particular
offence being either re-
arrested for the purpose of the
investigation
of an altogether different offence.
in in other words, there is no
To put it
hurdle in the conversion
insurmountable
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 accusedis alreadyin.custody.
-
Ahteral construction of Section 167(2) to
the effect that ,a fresh remand for police
custody of a person already in judicial
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

situation he must be formally arrèsted in of which needs no special emphasis. The

connection with othercase and then obtain procedural law is meant to further the ends
It is
theorder of the Magistrate for detention in ofjustice and not to frustrate the same.
which
accepted rule that an interpretation
police custody..." (emphasis supplied).
an

observed in the same furthers the ends of justice should be

Their Lordships further
preferred. It is true that the police custody
para thus is the be-all and end-all of the whole
not
State of Punjab
"In S. Harsimran Singh Vs. investigation but yet it is one of its primary
aDivision Bench of the Punjab and Haryana requisitesparticularBy in the investigation of
High Court consideredthe question whether
fifteen
serious and heinous crimes. The legislature
limited police
the limit of policecustody exceeding 167(2) is
also noticed this and permitted
first fifteen days
custody. The period of
Section
days prescribed by
as
case or is
attracted
should naturally apply
in respect of the
applicable only to a single
requiring case for which
investigation of that specific
cases
to a series of different
accused and in custody. But such
nvestigation against
the same the accused is held bar for
hrldthur (n 257 nara 10-A) GuStody cannot further held to be a
 usan
Abraham Vs. State of
oking a fr remand to
such
Maharahtra 2010
Hke
ike
kC police
police custody in
respect of custody or
detained in
Case involving
dilfferent case
the same
an
altogether of the prison seekingfor
permission
concerned Court, on the basis that
accuscd"
15. In view of the the
custody of the accused is required for
provisions
interpreted above.itwill be clear thatof law
as the
purposes
of proceedings pending before
erson is confined in a prison in
when a Court of competent
anv

he maybegiven in police
one casc,
custody in another
The
Use. The limit of 15 days
police custody after
order reman is
first first
applicable to one case
and if that person is
quired for investigation
itt her case the concerned Magistrate or
ourtmay grant police custody in such case
Tespective of whether he was or was not in
olice custody
in the case in which he
is already
anfined. Naturally, for this purpose, a warrant
may be issued for production
of tht person
ander Section 267(1)Ma) by,a Court within
whose juris iction another case, in which he is
required. is registeped,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 mayabstain to
produce the accused before the Court inspite
of the production warrant in certain
circumstances. Under clause (b) of Section
Sume.exercISe and. therefore,
he may. abstain from producing the
69,
accused if he is under order of committal for
Lrial orunder remand pending trial or pending
nvestigation. In State of Maharashtra Vs» Yadav
Kohachade, the learned Single Judge considered
describe the jurisdiction and
nature of the proceedings as in
this case,
secking 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
or 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
Piocedure Code with or without condition
elating to the proceedings pending before
it.in which. accused is required to be
produced before it. This would avoid
nneçessary controversy and in such cases.
a warrant of:produçtion issued by a
competent Court for the said purpose need
not bereturned back by. the officer-in-charge
of the prison, because in case the officer-
n-charge of pri_on 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
before such
Criminal
an order under section 267 of the
Procedure Code is sought to be enforced. if
prosecution is already armed with the
the
'.
under
Consent of the concerned ÇCaurt
whose orders a.pèrson who is required
to

a situation and explainedthe procedure

to in the
Such bearrested is contined or detained
Defollowed when a person is confined in prison
prison, the officer-in-charge of the prison
said order."
will have to comply with the
er the orders of one Court and prodsction
warrant is issued by some other ourt We agre. with these observations.
The learned
onectionwith some other case. However, we may clarify that this proçedure of
Dingle Judge observed thus will be useful only tosürmount the obstacle That
' . '

21-A At this state, I would 'like

to
Sectiou 269(b) in praduction of accused.
officer in charge
Clarifythatinsuch cases, it is always order will not take away the'rightof
beter
production, if any
fortheproscution after obtainingProcedure
an of prison to abstain from available.
also
under Section 269 is
otherground
Sectión 267 of the Criminal whose allegations made in
a p p r o a c h the
Court under 17. In view of the
contined
TS a convict or an accused is
 L L MR (Cri) Nanda Dharamm
Namlanmwar Vs.
and on penisal of the
Nanlkishor'Talakram 'Thaokar 733
record,
t h e
p e t i t i o

hePed that the procedure laid down in

satistied
we
followed, there should not be any
any scope or
lor
n 267(1Ma) was correctly followed. any grievance. Thercfore,
Thercfore, on this count we do
on
this count we de
not find it
18 It is contended
by the learned necessary to give any nore dircctions.
sel for the petitioner that police nmis-used 20. Out of ten cases, in which the
police soughi their custody by transfer
thepOwer
power of of the Court to issue
ant by
warrant
production
by seeking police custody in number investigation has been completed in 9 cases and
cases one after anothet. When charge sheets arefiled in Courts. but
production
ATant is issucd u/s.267. the'direction investigation in only one case could not proceed
is to because of the order passed by this Court
the officer in charge of the Jail to produce the 20.12.2007. Admittedly. the accused are already
accused before Court and not before the in judicial ctustody since6.10.2007. Even before
investigating officer. Atter production before that, they were in judicial custody or police
Magistrate. he has to consider whether custody custody as per the orders passed by the
be or not be granted to police, which naturally Magistrate under Section 167(2)(a) after
Tequires application of judicial mind. That is the following the procedure laid down in Section
eftective check or safeguard against misuse of 267(1(a). Therefore, we do not find any merit
the provision. This matter itself reveals that in the present petition.
several requests by policeto grant custody în 21. For the aforesaid reasons, the
number of cases were refused bý J.MF.C., Petition stands dismissed. In the result. the
Desaiganj Criminal Applications do not survive and stand
19,
A,8rievance was made by the disposed off accordingly.
Petition dismissed.
petitioner that as and when both the accused
were transferred from one poBlice station to
another and then before the concerned
relatives
Magistrate, the police did not keep the 2010 ALL MR (Cri) 733
and,
of accused and the petitioner informed AT
therefore, the Advocate for the petitioner
could IN THE HIGH COURT OF JUDICATURE
BOMBAY
not remain present to contest the applications (NAGPUR BENCH)
made by the police for transfer or for police
custody. This contention has been denied by A.P.BHANGALE, J.
be noted that in D, K.
the respondents. It may
1997 S.C Nandanwar
Basu State of Bengal, AlR
Vs Smt. Nanda w/o. Dharam
several Vs.
610 the Supreme Court had given Talakram Thaokar
the police at the Nandkishor s/o.
directions to be followed by
and thereafter. After
time of arrest of a person Criminal
Criminal Appoul No.467 of 2009
amendments were
made in the 12th January, 2010.
that, in 2005 and 2008
and Sections
Procedure Code for Appellant.
34-A, 55-A, 60- Mr. P. K. MISHRA, Adv.
41-A. 41-B41-D, 50-A, 53-A, inserted None for Respondent.
Section 46 have been
A proviso
and to
Procedure Code. Thus Act (1881),
Instruments Act
Negotiable Instruments
in the Criminal (A) Negotiable
directions given by the
Debt
of - Debt
applicability of
-

all the S.138 Scope

Scope and applicability
and
ractically, the.statute and debt oror liablity
lability
Court are now part of legally
legally
enforceable debt
enforceable
preme bound to comply with
Only under
proceedings under
is enforced In the proceedings
enforced in
orefore the police provisions
and the can
can be (Para 8)
the same. If those
thas statutory N.I. Act.
of N.I.
S.138 of
S.138 Act.
.If
Dguideines Supreme
Court are
ghven by the (Cri) Mur
2010ALu. MR