IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.217 of 2007 MD.SHAHABUDDIN Versus THE STATE OF BIHAR & ORS ----------- For the petitioner:- Mr Y.V.Giri, Sr. Advocate. For the State:- Mr Ram Bilas Mahto, AAG 8 cum Spl.P.P. Mrs Anita Sinha, G.P.9. ------------ 13. 15.09.2008. Heard learned counsel for the parties. In the instant case, the writ petitioner has prayed for issuance of appropriate direction commanding respondents to produce him in the court of the S.D.J.M., East Muzaffarpur, so that he can be remanded in Kajimohamadpur PS case no. 182 of 2005, pursuant to production warrant dated 6.12.2006, 16.1.2007,12,2,2007 issued by the Chief Judicial Magistrate, Muzaffarpur, in this regard. It would be necessary to notice the facts of case in brief. One Kajimohamadpur PS case no. 182 of 2005 was instituted under sections 176,177,179,412,468,201 and 120B of the I.P.C. on written statement of Javed Mahmood, S.I. of police cum officer in charge, of aforesaid PS. In this case, the petitioner figured as a named accused. It is relevant to state here that the petitioner figures as an accused in large number of cases pending trial in special courts at Siwan. Pursuant to order of the High court, the aforesaid cases are being tried almost on day to day basis in Siwan district. The petitioner is lodged in Siwan District Jail in connection with aforesaid case. Case of the petitioner is that despite repeated issuance of production warrant by the CJM, Muzaffarpur, he is not being produced before the SDJM, East Muzaffarpur, in seisin of Kajimohamadpur PS case no. 182 - 2 - of 2005, for the purpose of his remand. He submits that after his production in the court at Muzaffarpur, it would be open to the authorities to take him back to Siwan jail for his appearance in cases in which he is involved or he is being tried. He further states that no date is fixed in his cases in courts at Siwan on 17th September, 2008 and as such he could be easily produced before Muzaffarpur court, on the aforesaid date and it would be open to the authorities to take him back in Siwan on the same date itself. Sri Ram Bilas Mahto, learned Addl. Advocate General- VIII cum Special Public Prosecutor, as well as Mrs Anita Sinha, learned G.P. 9 submit that petitioner is required for trial in various cases going on almost day to day basis under the order of this Court. Sri Mahto submits that argument in Sessions Trial No. 99 and 18 of 2007 are likely to be concluded within a day of two and pronouncement of judgment may be made within ten days thereafter. He undertakes that petitioner would be produced soon after the pronouncement of aforesaid judgment and before start of Durga Puja Holidays i.e. October 02, 2008. He submits that strict direction may be given to the petitioner that he would cooperate while being carried from Siwan Jail to Muzaffarpur court and back to Siwan Jail. Having heard the parties, this court is of the view that denial of production of any accused in a case for the limited purpose of remand, subject to exception mentioned in section 269 Cr.P.C., would amount to denial of both, right to seek bail under sections 437,439,440 Cr.P.C., etc. as well as benefits of rights enshrined under section 428 Cr.P.C. An accused has equal right of being tried speedily in cases, in which he is an accused. The - 3 - instant matter may also require close look at section 269 Cr.P.C. for limited purpose of remand in another case may be in another district. Section 269 Cr.P.C. speaks of certain exigencies in which an officer in charge of P.S. may have genuine difficulty in facilitating the production of the petitioner in other courts in such a situation, he may abstain from carrying out order in such extreme excegency. It would be expedient to quote the relevant extract of section 269 Cr.P.C. 269. Officer in chare of prison to abstain from carrying out order in certain contingencies.- where the person in respect of whom an order is made under section 267- (a) is by reason of sickness or infirmity unfit to be removed from the prison: or (b) is under committal for trial or under remand pending trial or pending a preliminary investigation: or (c) is in custody for a period which would expire before the expiration of the time required for complying with the order and for taking him back to the prison in which he is confined or detained: or (d) is a person to whom an order made by the State Government under section 268 applies, the officer in charge of the prison shall abstain from carrying out the Court’s order and shall sent to the court a statement of reasons for so abstaining: Provided that where the attendance of such person is required for giving evidence at a place not more than twenty- five kilometers distant from the prison, the officer in charge of the prison shall not so abstain for the reason mentioned in clause (b). For instance, section 269 Cr.P.C. provides that if an accused in respect of whom production warrant has been issued is sick or unfit to move, obviously he cannot be possibly produced before the other court. However, if detenue recovers, the officer in charge of prison would be obliged to facilitate such production. Similarly 269(b) states that if an accused is facing trial or under remand pending trial it may not be possible to facilitate his production before another court in contingences, which may be for some - 4 - limited period. The provision does not bestow unfettered power to abstain from carrying out direction issued by other courts for limited purpose of remand under section 267 Cr.P.C. as the whole exercise at the most is likely to take about 36 hours. The terms contingency generally refers to an event that may happen or may not happen. It is a precautionary measure to meet any sort of eventualities. Therefore, the provision does not inhibit an officer in charge, from carrying out the orders of a court for limited purpose of remand under section 267 of the Cr.P.C.P if there are intervening days between the dates on which one can be easily produced before another court. The prayer of petitioner is not that he should be shifted to Muzaffarpur Jail from from Siwan Jail for his trial at Muzaffarpur. In the instant case, production warrant is pending execution since 6.12.2006 i.e. over one year and ten months. On plea of impending contingencies, a production warrant issued by another court cannot be thwarted for a long period of time. In order to ensure production of petitioner at Muzaffarpur and also to ensure that of speedy trials at Siwan is not affected in any way, a balance has to be accorded to give effect to various provision of Cr.P.C. including sections 267,269,437,428 Cr.P.C. and above all Article 21 of the Constitution of India. In the aforesaid circumstances and also taking into view the undertaking given by learned Addl Advocate General-VIII cum Special P.P., this Court directs the State Government as well as District Administration of Siwan, as also the Administration of Muzaffarpur, to ensure the production of the petitioner by 2nd October, 2008, as undertaken by leaned AAG-VIII cum Special PP, whereafter, petitioner could be taken back to Siwan jail, so that - 5 - his trials at Siwan which is said to be continuing almost day to day basis do not get hampered. The authorities would be at liberty to take all possible security measures for ensuring petitioner’s smooth production at Muzaffarpur court and his return to Siwan Jail thereafter. In view of the aforesaid circumstances, this court directs the respondent State, as well as the District Magistrate, Siwan, and Jail Superintendent, Central District Prison, Siwan to ensure that accused petitioner be produced in the court of the S D J M, East Muzaffarpur, pursuant to issuance of production warrants and also as assured by the learned AAG-VIII cum Spl.P.P. in this regard. Let a copy of this order be handed over to learned AAG-VIII cum Special P.P. and G.P. 9 for necessary communication. Let this order be faxed to the District Magistrate, Siwan, Jail Superintendent, Siwan as well as the learned Addl Sessions Judge cum Special Judge, Siwan in seisin of the case at the cost of the petitioner. It goes without saying that petitioner would cooperate with the District administration, while he is being produced and moved to and fro from Siwan Jail to Muzaffarpur court and again back to Siwan. The writ petition is allowed accordingly. Shashi. (Samarendra Pratap Singh,J).