1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 01.08.2011 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU Crl.R.C.(MD)No.412 of 2011 1. Mandayan @ Marimuthu 2. Natarajan ... Petitioners/Petitioners/Accused 1 & 2 Vs. State represented by the Sub-Inspector of Police, Vadipatti Police Station, Madurai District. (Crime No.183 of 2006) ... Respondent/Respondent/Complainant Prayer: Criminal Revision Case filed under Section 397 r/w. 401 of Cr.P.C. to call for the records pertaining to order in Cr.MP.No.163/2011 in SC.NO.22/10 on the file of the Additional Sessions Judge, FAST TRACK COURT No.V, Madurai dated 03.05.2011 and set aside the same. For Petitioners : Mr.A.Jayaseelan For Respondent : Mr.P.Kandasamy, Additional Public Prosecutor Mr.C.Muthu Saravanan (Amicus Curiae) O R D E R The petitioners are the accused in S.C.No.22 of 2010 on the file of the learned Additional Sessions Judge, Fast Track Court No.II, Madurai and they were charge sheeted under Sections 395, 397 and 402 of I.P.C. Both of them were released on bail on 21.02.2007 by the Judicial Magistrate under Section 167(2) of Cr.P.C. While they were on bail, another case in Mallur Police station of Salem District came to be registered under Section 397 of I.P.C. and they were detained in Central Prison, Salem. Hence, they could not appear before the Fast Track Court No.II, Madurai for the case in S.C.No.22 of 2010, resulting in issuance of Non-Bailable Warrants against them. 2. At the request of the police, the learned Additional Sessions Judge, Fast Track Court No.II, Madurai issued P.T. Warrant to produce both the petitioners in this case before the Court from the Central Prision, Salem. On 29.10.2010. Both of them were produced before the learned Additional Sessions Judge, Fast Track Court No.II, Madurai. The Presiding Officer was informed that Non- Bailable Warrant was issued as against A1 and A2 on 05.10.2009 and 30.11.2008 respectively. Since Non- Bailable Warrants were pending against both of the petitioners, when they produced before the Court under P.T. Warrant, the learned Additional Sessions Judge, Fast Track Court No.II, Madurai remanded them to custody. The said remand order is challenged by these petitioners. https://hcservices.ecourts.gov.in/hcservices/ 2 3. The petitioners filed an application before the Court below in Crl.M.P.No.163 of 2011, requesting the Court to recall the P.T. Warrant under Section 267 of Cr.P.C. The Court below dismissed the said application, justifying the order of remanding the petitioners when they were produced under P.T. Warrant. 4. This Court appointed Mr.C.Muthu Saravanan, learned counsel as Amicus Curiae to render assistance of this Court in this matter. 5. Section 267 of 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 countersign ed 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. 6. Mr.C.Muthu Saravanan, Amicus Curiae would submit that when the accused are produced before the Court under P.T. Warrant, they cannot be remanded by the Court, in case if they are on bail. He would further submit that unless the bail order already granted to the accused was cancelled, by any manner known to law, no order of remand could be passed against them and the remand order passed by the Court below is unknown to law. 7. In support of his contention, he relied upon a decision of this Court reported in 2004 MLJ (Crl) 440 in Appu @ Santhakumar v. State, wherein A.K.Rajan,J has discussed about the scope of issuing a P.T. Warrant. The operative portion of the judgment reads as follows: 11. The point arises for consideration in these petitions is that when a person (who was granted bail by the competent Court and released after furnishing sureties, but was subsequently arrested and remanded in connection with another offence) is produced before the Court in the first case under a P.T. Warrant, whether that Court can remand him again in the first case till the next hearing date. https://hcservices.ecourts.gov.in/hcservices/ 3 8. He also relied upon a judgment mine reported in 2008 (1) MWN (Cr.) 227 in Jaleel Ramjan Sha v. State, wherein I have followed the decision of the Supreme Court in 1988 L.W. (Crl.) 304 in Simranjit Singh Mann v. State of Bihar and I have extracted the relevant portion in the judgment, which reads as under: 11. Adverting to the above said factual scenario, learned counsel for the petitioner contends that the Chief Judicial Magistrate was not at all empowered to remand the petitioner nor had he got any authority to extend the remand. In support of his contention, he placd much reliance upon a decision of the Apex Court in Simranjit Singh Mann v. State of Bihar, 1988 L.W. (Crl.) 304, wherein it was observed as follows: "20.... The argument of the learned counsel for the State of Bihar was that the order for release on bail stood extinguished on the remand of the accused to custody under Section 309(2) of the Code of Criminal Procedure. There is no substance whatever in this submission. S.309(2) merely enables the Court to remand the accused if in custody. It does not empower the Court to remand the accused if he is on bail. It does not enable the Court to 'cancel bail' as it were. That can only be done under Sections 437(5) and 439(2). When an accused person is granted bail, whether under the provisio to Section 167(2) or under the provisions of Chapter 33 the only way the bail may be cancelled is to proceed under Section 437(5) or 439 (2). 9. The Supreme Court has laid down law that when an accused person is granted bail under the provision of Section 167(2) Cr.P.C. or under the provisions in Chapter 33, the only way the bail may be cancelled is to proceed under Section 437(5) or Section 439(2) of Cr.P.C. 10. From the above, it emerges that when the bail granted to the accused is in force, remanding the accused, while he produced under P.T. Warrant, is alien to law. 11. In view of the above said proposition, this Court is of the considered view that remanding the accused, while they were produced under P.T. Warrant, is not sustainable. The order of remand is hereby set aside. The purpose of Non Bailable Warrant was served when the accused were produced before the Court. 12. In view of the above, the order challenged before this Court is liable to be set aside and accordingly, it is set aside. In the result, the criminal revision petition is allowed. This Court records its appreciation on the able and effective assistance rendered by Mr.C.Muthu Saravanan, learned counsel as Amicus Curiae. Sd/- Assistant Registrar (Crl.Side) /True Copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 4 To 1. The Sub-Inspector of Police, Vadipatti Police Station, Madurai District. 2. The Additional Sessions Judge, Fast Track Court No.II, Madurai. 3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai +1cc to Mr.A.Jayaseelan, Advocate, SR.No.25456 +1cc to Mr.C.Muthusaravanan, Advocate, SR.No.25612 akv GH : 03.08.2011 : 4p/6c (IT) Crl.R.C.(MD)No.412 of 2011 01.08.2011 https://hcservices.ecourts.gov.in/hcservices/