Madras High Court
C. Natesan vs State Of Tamil Nadu And Ors. on 21 December, 1998
Equivalent citations: 1999CRILJ1382
JUDGMENT R. Balasubramanian, J.
1. These two petitions are at the instance of the accused in Crime No. 1431 of 1998 on the file of the first respondent police station. In the first petition, there are three respondents namely the Inspector of Police, Crime Branch (R-l); State of Gujarat by Sub-Inspector of Police, Detective Crime Branch, Ahmedabad (R-2) and lastly the Superintendent of Central Prison, Chennai (R-3)' In the second petition, there are six respondents. Besides the respondents in the first case, who are arrayed as Respondents 1,2 and 6 respectively in this case, there are three other respondents namely State of Karnataka by Inspector of Police, Bangalore (R-3); State of Andhra Pradesh by Inspector of Police, Crime Branch, Hyderabad (R-4) and State of Maharashtra by Inspector of Police, Crime Branch (R-5). The relief asked for in both the petitions is, identical and it is as follows :
This Court may be pleased to direct the (third respondent in the first case and the sixth respondent in the second case) not to hand over custody of the petitioner on the basis of any P. T. warrants/arrest warrants etc. etc.
2. The persons, who are trying to take custody of the petitioner from the Central Prison, are the second respondent in the first petition and the Respondents 2 to 5 in the second petition. I heard Mr. C. A. Sundaram, learned senior counsel appearing for the petitioner, Mr. R. Shanmuga-sundaram, learned State Public Prosecutor for all the respondents, Mr. Barot, a senior counsel from the Supreme Court of India and as a party in person in his capacity as the informant in the crime stated to have been registered in Ahmedabad against the petitioner; Dr. Surat Singh, a senior counsel from New Delhi for and on behalf of the investors in common as well as Mr. P. Kannan Babu, learned counsel representing the investors in common.
3. It appears that there is a complaint on the file of the first respondent/police station in Madras, which stands registered as X Crime No. 1431 of 1998 for offences under Sections 409 and 420 read with Section 109 of the Indian Penal Code. I am not going into the details of the allegations found in the First Information Report against the petitioner. Likewise, it is also made known to this Court that crimes have been registered against the petitioner in various parts of this country. The sum and substance of the accusation against the petitioner appears to be that he has not repaid various sums of money running to several crores of rupees, collected and accepted by him as Fixed Deposits and under other schemes. The petitioner was arrested in the crime at Madras and he appears to be in judicial custody now. Courts of competent jurisdiction in States, other than the State of Tamil Nadu, appear to have issued Prisoner Transfer warrants under Section 267 of the Code of Criminal Procedure seeking the petitioner's transfer and production before the Court which issued the said Prisoner Transfer warrant, which hereinafter would be called as "P. T. warrant".
4. Mr. C. A. Sundaram, learned senior counsel for the petitioner, contended that the issuance of the P. T. Warrants in this case is not justified in law. The learned senior counsel, relying on Section 267 of the Code of Criminal Procedure, contended that the Courts which have issued the P. T. warrants, have no authority in law to issue such warrants for production of the accused before the respective Courts. The learned senior counsel elaborated this point stating that for the issuance of P. T. warrant, there must be an inquiry, trial or other proceeding under the Code during which if it appears to a Criminal Court 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 that it is necessary for ends of justice to examine such person as a witness, then only the Court would have the power to issue a P. T. warrant. The words "other proceeding under this Code", "for the purpose of any proceedings against him" and "for the purpose of such proceedings" occurring in Sections 267(1), 267(1)(a) and the last portion of that Section, should be given the same meaning. These words must be read 'ejusdem generis' with the preceding words namely inquiry or trial Court in the opening portion of the Section itself. If so read, the words quoted above should be given the same meaning as inquiry or trial and therefore the proceedings referred to above should also relate to an inquiry or trial and not in any other context. According to the learned senior counsel, none of the three contingencies referred to above, as enumerated in Sub-section (1) of Section 267 of the Code of Criminal Procedure, is established and therefore the issuance of the P. T. warrant is without the authority of law. Except the First Information Report in the respective crime numbers, there is nothing else before the Courts concerned, which have issued the P. T. warrants. Mere pendency of an F.I.R. on the file of the Court would not amount to an inquiry, trial or other proceedings under this Code. If the issuance of the P. T. warrant could not be traced to Section 267 of the Code of Criminal Procedure, then the transfer of the petitioner from the judicial custody of the Court at Madras to the Court outside the city of Chennai or even the State; would amount to unauthorised illegal detention violating Article 21 of the Constitution of India. The petitioner's judicial custody in Chennai is warranted by law and if he has to be transferred from the judicial custody of the Court at Madras to the custody of any other person/Court, which is not entitled to have such custody, then the petitioner will be justified in complaining before this Court that his personal liberty as guaranteed under Article 21 of the Constitution of India is being violated. The learned senior counsel would contend that even assuming the P. T. warrants issued in these cases can be traced to Section 267 of the Code of Criminal Procedure, yet a reading of Section 269 of the Code of Criminal Procedure makes it abundantly clear that the jail authorities in Chennai city have no obligation to transfer custody since Section 269 of the Code enables the jail authorities at Chennai to abstain from carrying out the order in the circumstances stated therein. Though the P. T. warrant had been issued by Courts situated outside the State of Tamil Nadu, yet since its execution is to take place within the State of Tamil Nadu and if it is brought to the notice of this Court that the proposed transfer of custody is without authority of law and offends the personal liberty guaranteed under Article 21 of the Constitution of India in letter and spirit, then this Court would be in a position to step in and remedy the breach and it cannot be contended that this Court would have no jurisdiction at all to decide this issue and it is only the Courts from which place the P. T. warrants emanated, would have jurisdiction. The learned senior counsel contended that under the guise of transferring the petitioner under the P. T. warrant, the issuing Court is going to hand over the petitioner to the respective police for interrogation and since investigation in any form cannot be equated to an inquiry, trial or other proceedings under this Code, the P. T. warrants have to be necessarily declared as illegal. The learned senior counsel also contended that while deciding the liberty of the petitioner as protected under Section 269 of the Code of Criminal Procedure as well as under Article 21 of the Constitution of India, this Court can incidentally decide the issue whether the P. T. warrant issued under Section 267 of the Code of Criminal Procedure is authorized by law.
5. Mr. R. Shanmugasundaram, learned State Public Prosecutor contended that the issuance of the P. T. warrants on the facts in this case is justifiable in law as the requirements of Section 267 of the Code of Criminal Procedure are fully satisfied. Originally there was an Act called Prisoners (Attendance in Courts) Act, 1955. The provisions in that Act alone enabled the transfer of a prisoner from one Court to another Court. The Forty First Law Commission Report, in its wisdom, thought the provisions akin to the provisions contained in the Prisoners (Attendance in Courts) Act, 1955, should be provided for in the Code of Criminal Procedure itself and thus Sections 267, 268 and 269 of the Code have been brought into the Code itself in the year 1973. Consequently, clauses (c), (d) and (e) of Section 491 of the Code of Criminal Procedure also stood omitted. The learned State Public Prosecutor contended that the personal liberty of the petitioner is not going to be violated in any manner in this case by his custody being transferred pursuant to the P. T. warrants. The P.T. warrants issued in this case are for transfer and production of the petitioner before the issuing Courts and not before the police for any purpose. On production before the Courts concerned, the Courts may order such custody as they deem fit and while ordering custody, the Courts concerned may, if circumstances exist, order police custody as well. However the accused has a right to be heard at the stage of transferring him from judicial custody to police custody and such transfer of custody is not going to be automatic or for the sake of mere asking. Since the accused is fully protected in this area when the police custody is sought for it is not open to the petitioner to raise a hue and cry that his personal liberty is likely to be eroded without authority in law. The learned State Public Prosecutor contended that the legality or otherwise of the issuance of the P. T. warrant under Section 267 of the Code of Criminal Procedure cannot be gone into by this Court since it lacks territorial jurisdiction.
6. Mr. Barot, appearing-as a party in person, in his capacity as the informant in the crime registered at Ahmedabad, contended that such a restricted meaning as canvassed by the learned senior counsel for the petitioner, could not be attributed to the words "other proceeding under this Code" occurring in Sub-section (1) of Section 267 of the Code. Mr. Barot contended that by complying with the order of P. T. wan-ants, the jail authorities are not going to act in a manner not authorised by law. He would contend that the Court is competent to issue a P. T. warrant under Section 267 of the Code of Criminal Procedure even at the stage of investigation and therefore when that power is vested with the Court, it cannot be said that transfer of custody pursuant to such order could be called as an unauthorised custody or illegal custody infringing the personal liberty of the citizen as guaranteed under Article 21 of the Constitution of India. In matters like these, when a person is involved in more than one crime, may be of same type or of different type, not only in one place but also outside the State, the Court should be reluctant, especially while acting under Section 482 of the Code, to interfere with the investigation as it would amount to entering into an area, which is totally alien to the Court's expertise. If Section 267 of the Code has to be understood in such a restrictive manner as contended by the learned senior counsel for the petitioner, then, according to Mr. Barot, it is possible for any person, who is wanted for investigation in a very serious crime in a place in India, to avoid being taken into police custody or for the purpose of investigation in that case, he, by surrendering himself in a stage managed affair in respect of any other offence in any other place within the same State or outside the State, go to jail in the later case and thereby disable the investigating agency in the former case to have his custody for the purpose of investigation. That cannot be the legislative intention and that cannot be criminal jurisprudence. If such a construction is given to Section 267 of the Code, it would be giving a premium to an offender to avoid transfer from one custody to another custody.
7. Dr. Surat Singh, a learned member from Delhi would contend that the police who had registered the crime, is entitled to investigate that crime in a manner authorised by law and this includes the power to arrest. Such a power of investigation cannot be curtailed by reading Section 267 of the Code of Criminal Procedure in the manner canvassed by the learned senior counsel for the petitioner. All powers vested with the police to investigate the crime must be protected and even if there is any difficulty in having that power accomplished, the Court should come to its help by reading the relevant provision in the Code of Criminal Procedure in a manner, which would advance the interest of the society at large.
8. Mr. P. Kannan Babu, a learned member of the Bar representing a cross-section of the investors, would state that on facts, it is desirable that the custody of the petitioner is not transferred to the investigating agency outside the State as it is likely to affect the larger interests of the investors.
9. In the light of the arguments advanced by the learned members of the Bar as referred to above, to my mind, the following questions arise for consideration in these two petitions :
(a) whether this Court has got territorial jurisdiction to decide the points at controversy raised by the petitioner?
(b) what are the powers of the police to arrest?
(c) what is the meaning that could be attributed to the words 'other proceeding under this Code' occurring in Section 267(1); the words "any proceedings" occurring in Section 267(1)(a) and the words "such proceedings" occurring in the paragraph succeeding Section 267(1)(b) of the Code?
(d) whether the issuance of the Prisoner Transfer warrants at the instance of the investigating agencies outside the State by Court of competent jurisdiction in those places, is legal?
(e) assuming the issuance of the P. T. warrant under Section 267 of the Code is valid, yet does the accused, in respect of whom a P. T. warrant is issued, has any right to contend that he should not be transferred based on Section 269 of the Code? and
(f) whether the personal liberty of the petitioner as guaranteed under Article 21 of the Constitution of India is in any way infringed?
POINT (a)
10. It is no doubt true that the issuance of the Prisoner Transfer warrant is by a Court outside the territorial limits of this Court. In other words, the Courts which issued the Prisoner Transfer warrants are situated and functioning out side this State. In normal circumstances, the validity or otherwise of this order can be questioned only before the jurisdictional Court in the State where the Courts issuing the P. T. warrants are situated and there cannot be any dispute about this proposition. But the issuance of the P. T. warrants alone is not the end of the matter in this case. Admittedly the P. T. warrants are sought to be executed in a place within this State over which this Court has got territorial jurisdiction. It is true that the execution part of the original order is only consequential of the original order it self and so long as the original order is found to be legal, any consequential result will continue to be valid. Since the execution of the original order takes place within the territorial limit of this Court, at least apart of the cause of action has arisen within the jurisdiction of this Court. The challenge to the order is on the basis that if it is allowed to be executed here, then the personal liberty of the petitioner will be infringed and this Court in such a situation, cannot fold its hands and refer the party to the Court which issued the P. T. warrant. In cases of preventive detention, orders of detention are passed some times by an authority outside the State and it is executed within the State where the detenu is residing. Many a case on the validity of these detentions are challenged before this Court and this Court has always entertained those cases and disposed of them one way or the other. Therefore when the personal liberty of a citizen is sought to be infringed pursuant to an order passed elsewhere, it is always open to the person concerned to move the Court within whose jurisdiction his personal liberty is sought to be infringed, for necessary reliefs. In Sunil Batra v. Delhi Admn. relied on by the learned senior counsel, it has been stated by the Honourable Supreme Court of India that technicalities and legal nice-ties are no impediment to the Court entertaining even an informal communication as a proceeding for Habeas Corpus if the basic facts are found. In the same judgment, it has been held that where the rights of a prisoner, either under the Constitution or under other law, are violated, the writ power of the Court can and should run to his rescue. There is a warrant for this vigil. Though this case on facts relates to the convicted prisoner, yet I am of the respectful opinion that the said principle can be extended even to an under-trial prisoner. In Maneka Gandhi v. Union of India relied on by the learned senior counsel for the petitioner, it has been held that no one shall be deprived of personal liberty except according to procedure established by law as guaranteed under Article 21 of the Constitution of India. The issue involved in this case, at the risk of repetition, is whether the transfer of the custody of the petitioner pursuant to the P. T. warrants in these cases, would be a lawful transfer or transfer without authority. If it is a lawful transfer, then there is no question of any infringement of the personal liberty of the petitioner. If it is otherwise, then the personal liberty of the petitioner is likely to be infringed. Under these circumstances, I am of the respectful opinion that this Court would be well within its jurisdiction to go into the question raised above. Though normally the preventive detention orders are challenged on the writ jurisdiction of this Court, yet I am of the opinion that this power under Section 482 of the Code of Criminal Procedure is more or less similar to the power under Article 226 of the Constitution of India. The Honourable Supreme Court of India in Pepsi Foods Ltd. v. Special Judicial Magistrate held as follows :
It is settled that High Court can exercise its power of judicial review in criminal matters. Nomenclature under which petition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case the Court finds that the appellants could not invoke its jurisdiction under Article 226, the Court can certainly treat the petition one under Article 227 or Section 482 of the Code. It may not however be lost sight of that provisions exist in the Code of revision and appeal but sometime for immediate relief. Section 482 of the Code or Art. 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate Courts.
Under these circumstances, I have no difficulty in holding that this Court possesses jurisdiction to decide the points at controversy.
POINT (b)
11. Once an information of the commission of a cognizable offence is given to the police, it has to be reduced to writing by the officer concerned as provided for under Section 154 of the Code. There is no doubt in this case that complaints disclosing cognizable offences against the petitioner have been registered not only in the city of Chennai but also in some places in other States as well. Once a cognizable offence is disclosed, the police is at liberty to investigate the case without the order of a Magistrate. The power to investigate includes the power to arrest. Under Section 41(1)(a) of the Code, a police officer may, without an order from a Magistrate and without a warrant, arrest any person, who has been concerned in any cognizable offence....Section 46 of the Code prescribes the manner of effecting arrest. Under Section 48 of the Code, a police officer may, for the purpose of arresting without warrant any person, whom he is authorised to arrest, pursue such person into any place in India. Therefore, it is clear from this Section that irrespective of the place where the crime of a cognizable offence is registered, the police officer is entitled to pursue the accused for the purpose of arrest to any place wherever he is found and he need not necessarily wait for the accused to come into his territorial jurisdiction to effect arrest. A person so arrested, shall be taken before the nearest Magistrate and under Section 57 of the Code, the detention of the arrested person in the police custody shall not exceed 24 hours excluding the time necessary for the journey from the place of arrest to the Magistrate's Court. The production of the arrested person before the nearest Magistrate is subject to the bail provisions. It is open to the Magistrate to remand the accused to judicial custody. Therefore it is clear that the person involved in crime in one part of this country can be arrested in any other part of this country and produced before the nearest Magistrate within the time prescribed by law, who can either release him on bail or pass an order for custody. The above provisions relate to the arrest of an accused by a police officer without a warrrant.
12. The accused can also be arrested pursuant to a warrant of arrest issued by the Court of competent jurisdiction. Section 78 of the Code provides, when an arrest warrant is to be executed outside the local jurisdiction of the issuing Court, the procedure to be followed. When an arrest warrant directed to a police officer is to be executed beyond the local jurisdiction of the Court issuing the same, the procedure to be followed is provided for in Section 79 of the Code. Section 80 of the Code provides for the procedure to be followed on arrest being effected. Under Section 81 of the Code, the authority, before whom the arrested person is produced, can direct his removal in custody to the Court which issued the arrest warrants. Therefore it is clear that the Code contemplates two situations of arrest (i.e.) arrest is made by the police without a warrant and arrest is made by the police with a warrant. In the first type of arrest, the arrested person has to be produced before the nearest Court subject to the power of remand of the Court concerned. In the second type of arrest, the Court before which the arrested accused is produced subject to bail, can permit the removal of his custody to the Court which issued the warrant.
13. The Honourable Supreme Court of India in the judgment reported in C.B.I. v. Anupam J. Kulkarni has held that even if an accused is in judicial custody in connection with the investigation of an earlier case, the investigating agency can formally arrest him regarding his involvement in a different case and associate him with the investigation of that other case. The importance of this decision as far as the case on hand is concerned is that even when a person is in judicial custody, he can be shown arrest in respect of any number of other crimes registered elsewhere in this country and there cannot be any legal obstacle for the case.
POINTS (c) and (d)
14. The Delhi High Court in a reported judgment in Harshad S. Mehta v. C.B.I. (1992) 3 Current Criminal Reports 2793 held that the words "other proceeding under this Code" occuring in Section 267 of the Code shall not include an investigation. A Division Bench of the Rajasthan High Court in the reported judgment in Bharti Sachdeva v. State 1996 Cri LJ 2102, following the above referred to judgment of the Delhi High Court, held that -the words "other proceeding under this Court", shall not include an investigation. I have carefully gone through the judgments referred to above. The learned Judge of the Delhi High Court proceeded to hold as follows The word "other proceedings" used in Section 267, Cr. P.C. would mean proceedings pending in Court. For example cases under Sections 145 and 146 Cr. P.C. are neither inquiry nor trial. Such cases are in fact covered under the definition of "other proceedings" appearing under Section 267 Cr. P.C. It is keeping in view such like cases that legislature used the expression 'any other proceedings'. But this by no stretch of imagination would mean investigation/The import of the legislature becomes clear from the reading of the title under Chapter XXII which indicates attendance of persons confined to Section 267, Cr. P.C. deals with Court's power to require attendance of a prisoner. Now this power to my mind cannot be used to facilitate the investigating agency. It is only when Court requires the attendance of a person lodged in another jail, it will exercise this power and that too for limited purpose i.e. to answer a charge in a trial or inquiry or in the proceedings, pending before him or to require his presence as a witness for giving evidence and for no other purpose.
So far as Section 267, Cr. P.C. is concerned, it cannot be used as a sheet anchor by the police, to serve its purpose. The police cannot use the services of the Court for requiring the attendance of an accused from another jail to enable the police to arrest him in another case. There is no difficulty in reaching to this conclusion. In arriving at the decision, I am supported from the language used in the Forms Nos. 36 and 37 of the Second Schedule to the Code of Criminal Procedure which are used under Section 267 Cr. P.C. Reading of Form 36 makes it clear that the attendance of the person is required in the Court to answer to charge or the proceeding pending in the Court. Form No. 37 Schedule two deals with the production of the person from another jail for the purpose of giving evidence. There is no other form prescribed in the Schedule to the Criminal Procedure Code under Section 267 empowering the Magistrate to issue the warrants compelling the attendance of the person from another jail in order to answer a charge in investigation.
The law commission in its 40th and 41st report recommended that this Section 491 be omitted and more comprehensive provisions be incorporated under the new Code. This Chapter XXII is substituted for Chapter XXXVII of the Code of 1898. The reason for suggesting the change was that Section 491 (1) correspond to the writ of habeas corpus. That Art. 226 of the Constitution of India confer wide and comprehensive powers as the High Court of States to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including writs in the nature of habeas corpus etc. for any purpose. In view of this provision, Clauses (a) and (b) of Section 491(1) became practically superfluous. Further recommended that the provisions of Clauses (c), (d) and (e) relating to production of prisoners in Court for various purposes should be omitted and more detailed provisions securing the attendance of prisoners in Criminal Courts on the lines of those contained in the Prisoners (Attendance in Courts) Act, 1955 should be included in this chapter. It is on the lines of these recommendations of the Law Commission that present Chapter XXII containing Section 267 was brought on the statute. The objects and reasons, for this amendment clearly points out the mind of the legislature. This was to secure the attendance of the prisoner in Court and not to be a help in aid to investigating agency nor the legislature intended that these provisions be invoked in order to facilitate the investigating agency to call a prisoner through Court from another jail in order to make a formal arrest or to interrogate in investigation. The very heading shows that the attendance has to be in the Court and not for the benefit of investigating agency. By doing so, Court would be exceeding its jurisdiction because that is not the mandate given in this Section. The Court can exercise the power under Section 267 only for the purpose of asking him to answer to the charge in inquiry or trial or in the proceeding pending before him, or for giving evidence as witness in Court but cannot require his attendance to answer to the charge in investigation. This answer the first point raised.
The learned Judges of the Rajasthan High Court in the judgment referred to above, had simply followed the earlier referred to Delhi High Court judgment. A learned single Judge of the Allahabad High Court in the judgment in Ranjeet Singh v. State 1995 Cri LJ 3505 held that the words "or for the purpose of any proceedings against him" occurring in Section 267(1)(a) of the Code include proceedings encompassing all stages including remand proceedings and even proceedings of an investigation.
15. Therefore it is this Court's endeavour to find out what could be the correct answer for question (c) raised above. It may be noticed that prior to the introduction of Sections 267 to 269 in the Code of Criminal Procedure, the law that governed the transfer of a prisoner from one Court to another Court, was the Prisoners (Attendance in Courts) Act, 1955. Sections 3, 4, 5 and 6 in that Act are now found redrafted in Sections 267, 268 and 269 of the present Code. Under the above referred to Act, the transfer of a prisoner was provided for when any civil or criminal Court thinks that the evidence of any person confined in any prison, is material in any matter pending before it (Section 3(1)). Under Sub-section (2) of Section 3 of the said Act, any criminal Court may, if a charge of an offence against a person confined in any prison, is made or pending before it. make an order in the form set forth seeking production of a prisoner from the prison. In other words, the said Act took into its fold the presence of a prisoner before a civil or a criminal Court when his evidence is found to be material in any matter pending before the Court or when a charge of an offence against the said person is made or pending before it. No other situation was contemplated under that Act. The learned senior counsel for the petitioner relied on the judgments of the Honourable Supreme Court of India in Kanu Sanyal v. Dist. Magistrate, Darjeeling and the judgment of the Allahabad High Court in State v. Raghuraj Singh 1970 Cri LJ 78 for this proposition. It may be noticed, that in the said Act, the words "other proceedings" occurring now in Section 267 of the Code were not there. In other words, at the risk of repetition, it may be noticed that the heading of Section 3 of the said Act itself gives a clue to the circumstances contemplated under that section. The heading reads Power of Courts to require appearance of prisoners to give evidence or answer a charge". Therefore when the Legislature applies its mind to bring in the provisions contained in the 1955 Act into the Code of Criminal Procedure, they appear to have in mind situations not covered by the situation provided for in Section 3 of the 1955 Act. Therefore only in that context, they have used the words, "inquiry, trial or other proceeding under this Code" in the opening sentences of Section 267 of the Code. Section 267 also provides for answering to a charge of an offence or to examine such person as a witness. These two situations would fit in with the words "inquiry, trial" as found in Section 267(1) of the Code. Answering to a charge of an offence or to examine such person as a witness cannot be brought into the words "other proceeding under this Code.
16. Whether the words "other proceeding" should be understood in the same way as the preceding words namely "inquiry or trial" or the said words can have a wider meaning depends upon the Rule of Construction. The Honourable Supreme Court of India in the judgment in Siddeshwari Cotton Mills (P) Ltd. v. Union of India on the Rule of Construction, laid down as follows :
The expression ejusdem generis - of the same kind or nature - signifies a principle of construction whereby words in a statute which are otherwise wide but are associated in the text with more limited words are, by implication, given a restricted operation and are limited to matters of the same class or genus as preceding them. If a list or string or family of genus - describing terms are followed by wider or residuary or sweeping-up words, then the verbal context and the linguistic implications of the preceding words limit the scope of such words. The preceding words in the statutory provision which, under this particular rule of construction, control and limit the meaning of the subsequent words must represent a genus or a family which admits of a number of species or members. If there is only one species it cannot supply the idea of a genus. The ejusdem generis rule then is not attracted and such broad construction as the subsequent words may admit will be favoured.
The principle underlying this approach to statutory construction is that the subsequent general words were only intended to guard against some accidental omission in the objects of the kind mentioned earlier and were not intended to extend to objects of a wholly different kind. This is a presumption and operates unless there is some contrary indication.
In another judgment in Asst. Collector of Central Excise, Guntur v. Ramdev Tobacco Company , the Honourable Supreme Court of India, on the Rule of Construction, laid down as follows (at page 510 of AIR):
The general expression has to be read to comprehend things of the same kind as those referred to by the preceding specific things constituting a genus, unless from the language of the statute it can be inferred that the general words were not intended to be so limited and no absurdity or unintended and unforeseen complication is likely to result if they are allowed to take their natural meaning. The cardinal rule of interpretation is to allow the general words to take their natural wide meaning unless the language of the statute gives a different indication or such meaning is likely to lead to absurd results in which case their meaning can be restricted by the application of this rule and they may be required to fall in line with the specific things designated by the preceding words. But unless there is a genus which can be comprehended from the preceding words, there can be no question of invoking this rule. Nor can this rule have any application where the general words precede specific words.
In the light of the above referred to two judgments of the Honourable Supreme Court of India, let me try to understand what meaning that could be attributed to the words, "other proceeding under this Code"; "for the purpose of any proceedings against him"; and "for the purpose of such proceedings" occurring in Section 267. If these words, occurring in the above referred to section, have to be given a restricted meaning to fall in line with the preceding words namely "trial or inquiry", then I am of the respectful opinion that such construction is likely to result in many procedural difficulties, which in turn will affect the larger interests of the society as well. The Honourable Supreme Court of India in the judgment C.B.I. v. Anupam, J. Kulkarni (referred supra) on the Rule of Construction stated as follows:
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." For example, the following illustration may be taken note of.
"X" is the accused in Crime "Y" and Crime "Z" committed in place "A" and place "B". In Crime "Y" he is arrested and in judicial custody at place "A". The presence of the accused "X" in Crime "Z" at place "B" may be necessary for more than one reason. To illustrate (i) for a test identification parade or (ii) to record judicial confession or (iii) for remand proceedings. Admittedly the contingencies referred to above are only during investigation and not during inquiry or trial. In this context, it may be noticed that when a person is in judicial custody, there is no other provision other than Section 268 of the Code in the Code itself to have the prisoner transferred from one place to another place. On these situations, can it be said that the investigating agency in respect of Crime "Z" at place "B" is without any remedy. The answer should be that he has a remedy and that is under Section 267 of the Code. If an accused is arrested without a warrant while he is free and not in custody, then he has to be produced before the nearest Magistrate, who can remand him. Likewise, if an accused is arrested with a warrant while he is free and not in custody, then Section 81 of the Code permits the removal of such person to the Court issuing warrant. But when the arrest is shown either without a warrant or with a warrant while the person so arrested is in judicial custody, there is no provision in the Code except Section 268 of the Code for the removal of the arrested person to the Court within whose jurisdiction the crime is registered. Such a construction of Section 267 would be definitely to further the ends of justice and not to frustrate the same as stated by the Honourable Supreme Court of India in Anupam J. Kulkarni's case. In Section 267(1) of the Code, the words used are "other proceeding under this Code": in Section 267(1)(a) of the Code, the words used are "for the purpose of any proceedings against him": and in the last portion of that section, the words used are "for the purpose of such proceeding". On a reading of the entire [Section 267(1) of the Code, in the context of the words referred to above used, I am of the opinion that the words "other proceeding under this Code" cannot be given a restricted meaning to fall in line with the preceding words "inquiry, trial". The ambit and scope of the word 'proceeding' must be definitely given a wider meaning because in Clause (a) of Sub-section (1) of Section 267 of the Code, the Legislature has expressed that the presence of the person confined or detained to be brought before the Court "for the purpose of any proceedings against him". The words "any proceedings against him" definitely in my opinion enable this Court to understand the words "other proceeding" appearing in Sub-section (I) of Section 267 of the Code, in its natural meaning. If really the Legislature wanted a restrictive meaning to be given to the words "other proceeding under this Code" appearing in Section 267(1), they need not have used the expression "any proceedings against him" in the latter part of that section. Not only that, in Section 267(1), the word proceeding appear to be singular in nature whereas under Section 267(1)(a), the words used are 'any proceedings' and it is plural in nature. Therefore a true construction of Section 267(1) of the Code, to my mind, appears to be not to assign a restrictive meaning to the words "other proceeding under this Code" so as to fall in line with the meaning that can be attributed to "inquiry, trial" occurring earlier to the words referred to above. As stated by the Honourable Supreme Court of India in the judgment reported in Ramdev Tobacco Co's case, the language of Section 267 does not lead that the general words should be given a restricted meaning and the general words were not intended to be so limited by the preceding specific words. Giving a wider meaning by allowing the general words to take the natural meaning, in my respectful opinion, no absurdity or unintended or unforeseen complication is likely to result. The judgment of the learned single Judge of the Delhi High Court followed by the judgment of the two learned Judges of the Rajasthan High Court, in my respectful opinion, does not appear to have appreciated the general words occurring in Section 267 of the Code in its proper perspective. If such a construction, as put forward by the learned Judges in the above referred to two judgments, has to be followed, then it will have the impact of destroying Section 267 of the Code and will make it unworkable in respect of situations given as illustrations in this case and that cannot be the intention of the legislature as well. Even on facts, I find from the judgment of the Delhi High Court in Harshad S. Mehta's case (referred supra) that the Special Judge, Delhi, while exercising his power under Section 267(1) of the Code, directed the Superintendent of Jail, Byculla, Bombay, to produce the arrested person in the Court as his presence was required for interrogation in connection with the investigation of that case. On being produced, he was formally arrested. In the case decided by the learned Judges of the Rajasthan High Court in Bharti Sachdeva's case (referred supra), it appears that there are two first information reports against the same accused one at Kota and the other at Indore (Madhya Pradesh). A warrant was issued by the Court at Kota for transferring the detenu in prison from Indore to Kota. The arrested person was produced before the Court at Kota and the said Court passed orders authorising, the police to arrest and thereafter formally the arrest was shown. But however in the cases before this Court, such a situation of the prisoner being asked to be produced before the Court concerned for the purpose of interrogation, has not arisen. On the contrary, the P. T. warrant issued by the Court at Karnataka is for production of the prisoner before the Court and the P. T. warrant issued by the Court at Hyderabad is also for production of the prisoner before the Court. I am in agreement with the learned single Judge of the Delhi High Court in the judgment referred to supra that the Court cannot be used as a tool to bring an accused in judicial custody in another case for being produced before it under the prisoner transfer warrants to enable the investigating agency to effect arrest. But at the same time, I am unable to agree with the learned single Judge of the Delhi High Court that under no circumstances during investigation, the Court will have no power to ask for the transfer of the prisoner from judicial custody at one Court to another Court. I am of the firm opinion that if arrest is shown and the Court is informed about the same, then the said Court would be well justified in invoking the power under Section 267(1) of the Code to have the prisoner transferred. Therefore with great respect, I have to humbly state that I am not inclined to follow the judgment of the Delhi High Court in Harshad S. Mehta's case (referred supra) and followed by the judgment of the Rajasthan High Court in Bharti Sachdeva's case (referred supra) to the extent that the Court has no authority to exercise its power under Section 267(1) of the Code under any circumstances during investigation. According to me, the general words "other proceedings" under this Code, occurring in Section 267(1) of the Code, have to necessarily get a very wider meaning than the preceding words occurring in the. very same section. The words "for the purpose of any proceedings against him" and the words "for the purpose of such proceedings" occurring in Section 267(1)(a) and the last paragraph found in the sub-section itself lend support to my construction of the general words "other proceedings under this Code" occurring in Section 267(1) of the Code. Therefore the point (c) raised above is answered in favour of the prosecution. In Ajit Kumar v. Union of India , the Honourable Supreme Court of India had held that investigation as defined in Section 2(h) of the Code is a proceeding under the Code and that is the definition of the word 'investigation' in the Code.
17. This leads this Court to the next question framed as point (d). The power to remand is provided under Section 167(2) of the Code. A mandate is given to the police officer, subject to Section 57 of the Code, to produce an arrested person forthwith to the Magistrate's court. The Magistrate, to whom an accused person is forwarded under that section may...remand him to such custody and this power he gets under Sub-section (2) of Section 167 of the Code. Therefore on a reading Sub-sections (1) and (2) of Section 167 of the Code together, it is clear that unless a person is arrested and produced before the Court, the Court will have no power to exercise the power of remand. The Honourable Supreme Court of India in the judgment in Satyanarayana v. State of A.P. had stated as follows (at page 2134):
In fact the powers of remand given to a Magistrate become exercisable only after an accused is produced before him in terms of Sub-section (1) of Section 167.
The opening words of Sub-section (1) of Section 167 of the Code are in the following lines:
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 is charge of the Police Station or the Police Officer making the investigation, if he is not below the rank of Sub-Inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
Therefore arrest and detention in custody by the Police is the prerequisite for transmission of the records as well as forwarding of the accused to the Magistrate. In this case admittedly the respondents in these two petitions, who are seeking to implement the P. T. warrants issued by the Courts situated outside the State of Tamil Nadu, are the police investigating agencies. On whose file crimes have been registered against the petitioner. I have already stated in this order that the power of arrest is absolute and it is in the discretion of the investigating agency. As far as I could see, there is no legal bar in the Code or in any other law in force to arrest an accused who is already in judicial custody or in police custody in respect of any other crime. Honourable Supreme Court of India in the judgment in Anupam, J. Kulkarni's case (referred supra) held as follows (at page 2777 of Cri LJ):
...That would be a different transaction and if an accused is in judicial custody is connection with one case and to enable the police to complete their investigation of the other case, they can require his detention in police custody for the purpose of associating him with the investigation of the other case. In such a situation, he must be formally arrested in connection with other case and then obtain the order of the Magistrate for detention in Police Custody....
Therefore effecting arrest of an accused person even when he is in judicial custody when he is involved in more than one offence, is permissible in law. But unfortunately in this case the investigating agency of the other States on whose file crimes have been registered against the petitioner, have not, till now, chosen to show arrest of the petitioner when he is in judicial custody in respect of the crime registered in Chennai. Since the Court's power to remand a person to such custody, which includes a police custody as well, is traceable to Sub-section (2) of Section 167 of the Code and again when it is made dependant upon an accused arrested and being produced before it under Sub-section (1) of Section 168 of the Code, I am of the opinion that the Court, unless an accused is arrested and produced before it, may not be in a position to pass any orders regarding his transfer as is sought to be done in this case. I have already found that arrest of an accused person in a crime is" permissible in law though the same person may be in judicial custody in respect of another crime registered against him. As rightly said by the learned Judge of the Delhi High Court in the judgment referred to supra, the Court cannot be used as a device to secure the presence of an accused in custody before that Court by resorting to Section 267 of the Code so as to enable them to effect the arrest. In my respectful opinion it is not the duty of the Court to render any assistance to the police to effect arrest especially when the power of the police to arrest a person, who is suspected to be involved in a cognizable offence, is well recognized by the other provisions contained in the Code. When the Police Officer arrests an accused, who is already in judicial custody in respect of another crime, then he has no legal right to remove the arrested person from the judicial custody to a prison on his own. Only to meet such a situation namely when arrest is shown of a person, who is already in judicial custody in respect of another crime, in my opinion, the Code provides remedy under Section 267(1) of the Code. In this case, the respondents, on whose files crimes have been registered, have not shown arrest till date. In other words, I am of the considered opinion that unless arrest is shown and the Court is informed about the said arrest, though the forwarding of the accused to the Court along with the report is practically impossible on account of his detention in custody in respect of another crime, the Court may have no authority to pass any order relating to the transfer of the prisoner. A learned single Judge of the Allahabad High Court in the judgment in Ranjeet Singh v. State 1995 Cri LJ 3505 had held that the words, "for the purpose of any proceedings against him" occurring in Section 267(1)(a) of the Code include proceedings encompassing all stages in-eluding remand proceedings and even proceedings of an investigation. If the arrest is shown and the Court is informed, then Section 267(1) of the Code would certainly come in handy for the Court, which is informed of the arrest, to issue warrant for production of the accused before it for being remanded to such custody as that Court may deem fit. In this case as already stated since arrest is not shown in the crimes registered outside the city of Chennai, prima facie the issuance of the P.T. warrant may be without authority of law.
18. But however in this case, the P. T. warrants have come to be issued by the Courts of competent jurisdiction. The entire case is before me under Section 482 of the Code. The inherent powers of this Court are preserved under that section "to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice". To my mind, the issuance of the P.T. Warrants would not amount to abusing the process of any Court and to prevent the execution of the same would result in failure to secure the ends of justice. If the P.T. warrants are not allowed to be implemented, then there can be no doubt, on the facts of this case, that the ends of justice, would be defeated. Under the first limb of Section 482 of the Code, wherever it is necessary, this Court should not hesitate to give effect to any order under this Code. The P.T. warrant is an order issued under this Code and therefore all that is necessary to give effect to that order must be made by this Court. That is what, two learned Judges of this Court had laid down in Rajamanickam v. State of Tamil Nadu 1994 (1) Mad Law Weekly (Cri) 121.
19. Under these circumstances under the inherent powers of this Court I declare that the P.T. warrants issued in these cases are not the result of abuse of any process of Court but they have been issued by Courts having jurisdiction. I also hold that the Court will have jurisdiction to issue such orders only when arrest is shown and the Court is informed about the same, though the accused is not forwarded to the Court for the reason that he is already in judicial custody in another case. But on the facts of case and in the interest of justice, I hold that the orders issued under Section 267 of the Code are in order subject to the arrest of the petitioner, who is stated to be in judicial custody in respect of a crime registered in the city of Chennai, is shown. Normally arrest must be shown and the Court must be informed but in this case since the order under Section 267 of the Code has preceded the arrest and the Court not being informed about the same, I declare that it is open to the investigating agencies to show arrest even now and have the order under Section 267 of the Code implemented. However for future guidance, I have to hold that an arrest must be shown and the Court must be informed as a condition precedent before ever the Court may be called upon to exercise the power under Section 267 of the Code. The other judgment relied on by the learned senior counsel for the petitioner viz. Mohd. Daud v. Supdt. of Dist. Jail, Moradabad 1993 Cri LJ 1358 : 1993 All LJ 430 does not, on facts, apply to the case on hand.
Point (e)
20. The argument of the learned senior counsel for the petitioner that in any event Section 269 of the Code would come in the way of the petitioner being transferred pursuant to the P.T. warrant, does not appeal to me at all for more than one reason. Primarily that section confers certain rights on the officer in charge of the prison to decline to obey the command issued to him under Section 267 of the Code. Therefore it does not confer any vested right on an accused to say that he should not be transferred. Except in a case where the accused is sick or infirm, which physically effects his movement (Section 269(a)), any situations covered under sub-clauses (b), (c) and (d) in the said section, do not give the accused any semblance of right. It is needless to state that no person accused of a cognizable offence has any right to tell the investigating agency the manner; the mode and the place in which he has to be interrogated. The proviso to Section 269 of the Code provides an exception to the main section. To hold that the accused has an unfettered absolute right to tell the jail authorities not to transfer him pursuant to any P.T. warrant issued against him would amount to a right, not recognised by law, being given to him and if such a right is recognised, it is likely to affect the investigation in grave crimes. As I have already stated, Section 269 of the Code only contemplates certain legal duties on the officer in charge of the prison and it does not create any corresponding right on the accused. Therefore I am of the opinion that the petitioner is not entitled to rely upon Section 269 of the Code, to avoid being transferred pursuant to the P.T. warrant.
21. In the light of the conclusions on points (c), (d) and (e), on the lines indicated above, I have to hold on point (f) that the personal liberty of the petitioner as guaranteed under Article 21 of the Constitution is not in any way infringed.
22. In the result, these petitions are dismissed. Consequently Crl. M. P. Nos. 9339 to 9341 of 1998 are dismissed.
NOTE:
After I pronounced the order, the learned senior counsel appearing for the petitioner prayed for leave to appeal to the Honourable Supreme Court of India stating that the case on hand involves a substantial question of law of general importance. I carefully applied my mind to the judgment rendered by me in the context of the request made by the learned senior counsel. I am of the considered opinion that the decision rendered by him in this case turns round on the interpretation to be given to the words, "other proceeding under this Code"; "any proceedings against him" and "such proceeding" occurring in Section 267 of the Code. The Rule of Construction followed by me in this case in interpreting those words is on the basis of the two judgments of the Honourable Supreme Court of India, which are referred to in this order itself. Under these circumstances, I am of the considered opinion that no substantial question of law of general importance arises in the case on hand. Accordingly leave refused.
The learned senior counsel contended that since the Honourable Supreme Court of India is closed for Christmas vacation and since Magisterial Courts are working, if the prisoner transfer warrant is to be given effect to immediately, which is likely to happen as a result of my judgment in this case, then the prisoner would be transferred to the respective Courts without any further delay and in that event, his appeal before the Honourable Supreme Court of India would become infructuous. Therefore the learned senior counsel submitted that the prisoner transfer warrants concerned in the cases before me, shall be kept in abeyance till 4-1-1999 so as to enable the petitioner to move the Honourable Supreme of India and obtain appropriate orders. The learned Government Advocate opposed stating that any further delay is likely to hamper the investigation in the crimes registered outside the city of Chennai. Applying my mind, I do find some force in the submission made by the learned senior counsel for the petitioner. Accordingly I am inclined to direct the prisoner transfer warrants concerned in this order, be kept in abeyance till 4-1-1999.