1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1951 OF 2007 WITH CRIMINAL APPLICATION NO. 57 OF 2008 WITH CRIMINAL APPLICATION NO. 108 OF 2008 Susan Abraham, ) age: 49 years, of Mumbai, Indian ) Inhabitant residing at C-3 New Prem ) Vasundharam Mahakali Caves Road, ) Andheri (East), Mumbai – 400 093. ).. Petitioner Versus 1. State of Maharahtra ) through the Secretary, Home Ministry) Mantralaya, Mumbai, Maharashtra ) 2. Additional Director General ) 2 Anti Naxal Operation, Nagpur, ) Maharashtra. ) 3. Officer-in-Charge, ) Anti-Terrorism Squad, ) Kalachowky, Mumbai, Maharashtra ) 4. Officer-in-charge, Salekasa ) Police Station, District Gondia, ) Maharashtra. ) 5. Officer-in-charge, Purada Police ) Station, District Gadchiroli, ) Maharashtra. ) 6. Officer-in-charge, Kurkheda Police ) Station, District Gadchiroli, ) Maharashtra. ) 7. Officer-in-charge, Chinchgad ) 3 Police Station, District Bhandara, ) Maharashtra. ) Union of India. ).. Respondents Mr. Anand Grover, Senior Advocate, with Ms. Maharukh Adenwala, i/b. Mr. Prakash Mahadik, Advocates, for the petitioner. Mrs. A.S.Pai, APP, for the State. Mr. Mandar Goswami, Advocate, for respondent No.8. CORAM: F.I.REBELLO AND J.H.BHATIA, JJ. JUDGMENT RESERVED ON 8.12.2009 JUDGMENT PRONOUNCED ON: 20.1.2010. JUDGMENT (PER J.H.BHATIA,J.) 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 4 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 120-B, and 121-A 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 5 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 Metroplitan 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 6 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. 7 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 8 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 vs. Mohmed Azan Khan and others, 1991 Cr.L.J.820 as well as a Judgment of the Delhi High Court in Harshad S. Mehta vs. 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 vs. Yadav Natthuji Kohachade 2000 Cr.L.J.959, State of Rajashthan vs. Santosh Yadav 2005 Cri.L.J.1830 and Supreme Court authority in C.B.I. vs. Anupam J.Kulkani 1992 SCC (Cri) 554. 9 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 77 provides that a warrant of arrest may be executed at any place in India. Sections 78 to 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 to 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 10 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 11 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 to 271 makes provision for attendance of a person confined or detained in prison. Section 267(1) reads as follows :- 12 “267. Power to require attendance of prisners – (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, 13 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(i) “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 14 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 15 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 16 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 vs. 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 vs. 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 17 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 vs. 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 18 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 Sec.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-sec.(1) of S.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 19 B.SRawat 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 vs. Santosh Yadav (supra), the Full Bench of the Rajasthan High Court considered a large number of Judgments from different Courts including State of Maharashtra vs. Yadav Kohachade and observed in para 28 thus :- “28. A bare reading of Section 2(h)