Andhra HC (Pre-Telangana)
Kurra Dasaratha Ramaiah And Ors. vs State Of Andhra Pradesh on 4 February, 1992
Equivalent citations: 1992(1)ALT269, 1992CRILJ3485
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi
JUDGMENT M.N. Rao, J.
1. This criminal petition filed by A-1, A-6 and A-13 (three of the thirteen accused) in Crime No. 35/91 of Bapatla Taluk Police Station for alleged offences punishable under Ss. 120B, 44B, 147, 148, 302 read with 149 of the Indian Penal Code, seeking enlargement on bail pending enquiry and trial, has gravitated from a learned single Judge to a Division Bench and eventually to this Full Bench, the question for resolution being :
"Whether non-availability of police escort constitutes a valid ground for extending the period of remand of an accused person by a Magistrate under S. 167(2) of the Code of Criminal Procedure ?"
How the reference has arisen :- The three petitioners herein are among the 13 accused in Crime No. 35/91 of the Bapatla Taluk Police Station. They were arrested on 19-7-91 and produced before the II Addl. Munsif Magistrate, Bapatla on 20-7-91 when an order was passed by the learned Magistrate remanding them to judicial custody for 14 days. Thereafter the remand was extended on six occasions - 5-8-91, 16-8-91, 27-8-91, 10-9-91, 18-9-91 and 1-10-91 without the police producing the petitioners before the learned Magistrate. The charge sheet was filed on 28-9-91 and on 14-10-91 the petitioners were produced before the Magistrate. Criminal petition No. 2861/91 was filed by the petitioners before the Magistrate under section 437, Cr.P.C., praying for their release on bail contending inter alia that the failure of the prosecution to produce them before the Magistrate at the time of seeking extension of remand on the aforesaid six occasions rendered their detention in jail illegal. It was pleaded on behalf of the prosecution that the petitioners were not produced on the six occasions due to non-availability of escort constables : there was law and order problem in Chunduru and Pusuluru villages necessitating deployment of all the available police constables on Bandobast duty and, therefore, it was not possible to provide escort constables for production of the accused, from Rajahmundry Jail where they were lodged, before the Magistrate's Court at Bapatla. The learned Magistrate dismissed the Crl.M.P. No. 2869/91 taking the view that under section 437, Cr.P.C., he had no power to enlarge the petitioners on bail, but at the same time observing that proviso (b) to sub-section (2) of Section 167, Cr.P.C., is in favour of the accused since it authorises the Magistrate to order detention under section 167 when only the accused are produced before him. The present petition was subsequently filed by the petitioners praying for enlargement on bail contending that the failure of the prosecution to produce them before the Magistrate on the six dates mentioned supra when orders extending the remand were passed by the Magistrate, entitles them for bail on the authority of the decision of a Division Bench of this Court in M. A. Dharman v. State of A.P., (1991) 1 Andh LT 315. The Division Bench in the above case while recognising the fact that situations may arise when it is impossible to produce the accused before the Magistrate for seeking extension of remand, observed :
".......... It is always open to either the prosecuting agency or the jail authority to put forward a plea of impossibility of production of an accused person before the learned Magistrate and if the learned Magistrate is satisfied that the plea is well founded, he may, for special reasons to be recorded in writing, extend the remand of the accused person even without his production. We, however, hasten to add that non-availability of escorts for non-production of the accused person hardly constitutes a ground for infraction of the mandatory requirement of Section 167(2)(b) of the Code of Criminal Procedure."
2. The Division Bench expressed the view that production of the accused before the Magistrate for seeking extension of remand is an indispensable requirement of natural justice and fair play and after referring to certain decisions of the Supreme Court (2 to 7), Madras High Court (8 to 10) and also a Full Bench decision of the Patna High Court, Ramprasad v. State of Bihar, concluded :
"......... Non-availability of escorts to produce the detenus before the learned Special Judge, pleaded by the Jail authority, hardly constitutes a ground for their continued non-production ....."
3. Another learned single Judge of this Court in Mohammed Taher v. State of A.P., (1990) 2 Andh LT 611 after reviewing the case law under Section 167, Cr.P.C., laid down ................................. ................ Raj Narain v. Supdt., Central Jail, ; Gaurishankar v. State of Bihar, ; S. K. Dey v. Officer-in-Charge Sakachi P.S., ; Natabar Parida v. State of Orissa, ; Raghubirsingh v. State of Bihar, ; Hussainara Khatoon v. State of Bihar, ; Elumalai v. State of T.N., 1983 Mad LW (Crl) 121; G. K. Moopanar v. State of T.N., 1990 Mad LW (Crl) 113 : (1990 Cri LJ 2685); Venkata Subramanyam v. State of T.N., 1984 LW Notes (Crl) p. 211.
the following three propositions :
"(i) generally, if not invariably, no Magistrate shall extend the remand under section 167, Cr.P.C., without the accused being produced before him.
(ii) the extension of remand in the absence of production of the accused under section 167, Cr.P.C., shall be for special and extra-ordinary reasons specifically recorded while making the order of extension, and
(iii) in case where the police or prosecution is not able to furnish proper reasons for non-production of the accused while seeking extension of remand under section 167, Cr.P.C., the competent Court may order release of the accused on bail."
4. When the present petition came up before a learned single Judge of this Court (G. Radhakrishna Rao, J.) he expressed the view that both the Dharman case (1991 (1) Andh LT 315) (supra) and Mohammed Taher case (1990 (2) Andh LT 611) (supra) require reconsideration observing :
"...... Any mischief can be made by the accused persons for their non- production before Court with the active connivance and support of the police. That aspect was not considered by the abovesaid two decisions of this Court ......."
The matter was, therefore, placed for consideration before a Division Bench consisting of one of us (M. N. Rao, J.) and P. L. N. Sarma, J. The Division Bench after hearing the counsel for both sides expressed its inability to agree with the proposition laid down in Dhaman case and so referred the matter for consideration by a Full Bench formulating the question extracted supra. The Division Bench speaking through one of us (M. N. Rao, J.) in the order of reference dated 4-11-91 has stated the reasons as to why the question needs to be resolved by a Full Bench :
"In the present case, the reason for non-production of the petitioners before the learned Magistrate was non-availability of escort police constables as all the police constables were sent on duty to Tsundur and Pusular. The petitioners were to be brought from Rajahmundry jail to the Court of the Munsif Magistrate at Bapatla. So far as Mohammed Taher's case (1990 (2) Andh LT 611) is concerned, decided by a learned single Judge, the propositions of law stated therein, in our considered view, accord with the extant legal position. That was a case where no reasons were stated for the non-production of the accused and the conjecture resorted to was that there might have been good and valid reasons for non- production, and that conjecture was very rightly rejected by the learned single Judge (Y. Bhaskar Rao J.). We are, therefore, not inclined to agree with that part of the order of reference which says that Mohammed Taher's case also requires reconsideration.
As regards the Dharman's case decided by the Division Bench, we are inclined to take the view that the same requires reconsideration by the Full Bench. The Division Bench accepted the proposition of law laid down by a Division Bench of the Madras High Court in Elumalai v. State of Tamil Nadu, 1983 Law Weekly Notes (Crl) 17 which is to the effect :
"(ii) Under no circumstance a Magistrate can order the detention of any person in custody or extend such detention without the production of the accused before him in violation of the provisions of the Code viz., provis (b) to Section 167(2), whatever may be the reasons stated by the authorities concerned for the non-production of the accused before the Court, such as the non-availability of police escorts, etc."
Non-production of the accused before the Court may be due to various reasons. When the law mandates production of the accused before the Court for the purpose of passing an order of extension of remand, it is needless to mention that the provision has to be complied with. The accused has a right to represent to the Court that there was no further need to grant extension of remand. But, we must also take into consideration that situations may arise when it may not be possible for police or jail authorities to produce the accused persons before Court for seeking extension of remand. Sometimes escort police personnel may not be available for genuine reasons as was claimed in the present case. To expect the prosecuting agency to produce accused persons before Courts when escort police personnel are not available is to ask for compliance with the impossible. Pragmatism should not be divorced from legalism in statutory interpretation. It should be the duty of the Court to consider the question whether non-production of the accused was deliberate, or there are justifiable reasons for such non-production. If the Court is satisfied, we are inclined to think, that non-production of the accused was due to reasons beyond the control of the jail authorities or the prosecuting agencies, it should pass an order extending the period of remand notwithstanding the peremptory language in which Proviso (b) to S. 167(2) Cr.P.C., is couched. The Division Bench in Dharman's case, while taking cognizance of the fact that impossibility of production of an accused person before the Magistrate constitutes valid ground for extending the period of remand, excepted from the range of such impossibility non-availability of escort personnel. This exception, in our view, is without any justification.
In the interest of fairness in administration of Justice S. 167(2), Proviso (b) Cr.P.C., was inserted, viz., to facilitate accused persons to represent to the Court that there are circumstances warranting rejection of request of prosecution for extension of remand period. But, if non-production of an accused before the Magistrate was due to reasons beyond the control of the prosecution, it could not be said that it would result in unfair treatment to the accused. Fairness in administration of justice implies fairness to prosecution as well as to the accused.
Each case has to be decided on individual merit; whether non-production of the accused was deliberate or due to reasons beyond the control of the prosecution. No inflexible rule is desirable. Looked at from this point of view, we are of the view that the judgment of the Division Bench in Dharman's case requires reconsideration by a Full Bench."
Consequent upon the reference, this Full Bench was constituted by the Hon'ble the Chief Justice to consider the question at issue.
5. In the reference order the Division Bench has clearly stated that as they are referring the question to a Full Bench, there is no need to consider the merits of the matter. At that time all the three petitioners were lodged in Central Jail, Rajahmundry and the learned counsel for petitioners, Shri Bali Reddy, wanted to advance arguments for enlargement of petitioners on bail under S. 439, Cr.P.C., without any reference to S. 167(2). Before us (the Full Bench) towards the end of arguments, Shri Bali Reddy has stated that all the three petitioners have been enlarged on bail on 20- 12-91 by the learned Sessions Judge, Guntur and, therefore, it is not necessary for us to go into the question whether all or any one of them should be enlarged on bail under Section 439 Cr.P.C., but the question referred to the Full Bench still survives for consideration. Further, the problem is arising frequently and so an authoritative interpretation of Section 167(2), Proviso (b) Cr.P.C., we feel, is necessary.
CONTENTIONS :- Shri T. Bali Reddy, learned counsel for the petitioners submits that in view of the clear legislative mandate incorporated in Section 167(2), Proviso
(b) Cr.P.C., it is not open to any Magistrate to pass an order extending the period of remand without the accused being produced before him. Right to personal liberty, being one of the most cherished human rights, should not be allowed to be whittled down contrary to the clear mandate of the law. The Division Bench of this Court in Dharman case (1991 (1) Andh LT 315) after considering the entire question comprehensively has laid down a sound proposition of law which does not require any reconsideration at all. The proposition of law was culled out by the Division Bench after examining a large number of rulings and if it is unsettled, the police authorities will not bother to produce the accused persons before the Magistrates for extension of remands. If a different proposition of law is to be laid down by this Full Bench, it will result in total obliteration of the statutory safeguards incorporation in sub-section (2) of Section 167 Cr.P.C. Any order of extension of remand made in the absence of the accused being void ab initio, the learned counsel says, the same cannot be cured even by a subsequent order passed by the Magistrate under section 209 or 309 of the Cr.P.C. The accused must be released and the only course open for the prosecution is to move the competent Court for cancellation of the bail either under section 437(5) or 439(2) of the Cr.P.C.
6. Opposing these contentions, the learned Public Prosecutor argues that several situations may arise where it may not be possible to produce the accused. There is no justifiable reason for laying down the inflexible proposition of law that non-availability of escorts shall not be a ground for non-production of the accused. Impossibility of production of an accused person before the Magistrate may also be due to non- availability of escorts and if on that ground the Magistrate is to set at liberty an accused person, it will definitely result in miscarriage of justice; the investigation will be hampered and taking back into custody of the persons accused of grave offences when once set at liberty would pose serious problems to the prosecution agency. After the police is filed into Court, the concerned Magistrate gets jurisdiction under section 209 of the Cr.P.C., to pass an order of commitment and the powers exercised by the Magistrate both under Sections 209 and 309 are independent of the power exercisable under Section 167 and, therefore, even if an illegality had crept in while passing an order of remand under section 167(2), the same can be cured by a valid order of remand under section 209 of the Cr.P.C. He concedes that at the time of seeking initial remand under Section 167(2) production of the accused is mandatory.
RELEVANT STATUTORY PROVISIONS :- Before considering the arguments advanced by both sides, it would be well to notice the relevant statutory provisions. Section 41(1) of the Cr.P.C., 1973 corresponding to the Sections 54(1) and 55(1) of the old Code 1898, by clause (a)(i) enumerates the circumstances when a police officer can arrest a person without an order from a Magistrate and without a warrant. Sub-section (2) concerns itself with the power of police to arrest persons belonging to the categories specified in Sections 109 and 110. Section 57 (corresponding to Section 61 of the old Code) injuncts that a person arrested without warrant shall not be detained in custody by a police officer for a period longer than reasonable under the circumstances and such period, in the absence of a special order of a Magistrate under Section 167, shall not exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Court of the Magistrate. There is no substantial change between the old Code and the new Code in so far as Sections 47 and 57 are concerned. Section 167 lays down the procedure when investigation cannot be completed in 24 hours. Sub-section (1) says that, if it appears to a police officer not below the rank of Sub-Inspector that the investigation in respect of a person arrested and detained in custody cannot be completed within the period of 24 hours fixed by Section 57 and if there are grounds to believe that the accusation or information is well founded, he shall forthwith forward the accused to the nearest Judicial Magistrate with a copy of the entries in the police diary (as prescribed in S.
172). By sub-section (2) the Magistrate, whether or not he has jurisdiction to try the case, is empowered to authorise detention of the accused person forwarded to him under sub-section (1), for such custody (police custody or judicial custody) as he may think for a term not exceeding fifteen days in the whole. If the Magistrate has no jurisdiction to try the case or commit it for trial, he may order the accused to be forwarded to the Magistrate having jurisdiction if he considers further detention unnecessary. Proviso (a) to sub-section (2) confers power on the Magistrate to authorise detention of the accused person otherwise than in police custody (obviously judicial custody) beyond the period of fifteen days if he is satisfied that there are adequate grounds for doing so. The power to order detention shall not exceed a total period of ninety days if the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a terms of not less than then years; and in other cases, sixty days. On the expiry of the said period of ninety days or sixty days as the case may be the accused person "shall be released on bail if he is prepared to and does furnish bail," and every such release shall be deemed to be a release on bail under the provisions of Chapter XXXIII for the purposes of that Chapter. Proviso (b) injuncts;
"no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him."
Proviso (c) says that only a second class Magistrate specially empowered by the High Court can pass orders of detention of the accused persons in the custody of police. Explanation (I) declares that if an accused fails to furnish bail for obtaining his release under proviso (a) he shall continue to be in custody. Explanation (II) says that if any doubt arises whether an accused person was produced before the Magistrate as required by proviso (b), the production of the accused may be proved by his signature on the order authorising detention. This explanation makes it obligatory for the Magistrate to obtain the signature of the accused on the order of detention. Sub-section (2A) deals with the power of an Executive Magistrate to authorise detention if the Judicial Magistrate was not available. By sub-section (3) the Magistrate authorising detention of the accused in the custody of the police, "shall record his reason for so doing. Sub-section (4) lays down that a Magistrate, passing an order authorising detention of the accused in the custody of the police, shall forward a copy of his order with the reasons for making it to the Chief Judicial Magistrate. Sub-sections (5) and (6) are new provisions not found in Section 167 of the old Code. Sub-section (5) imposes a time limit of six months, from the date of the arrest of the accused, for completion of investigation in summons cases by requiring the Magistrate to stop further investigation unless the investigation officer satisfies the Magistrate that due to reasons and in the interest of justice the continuation of the investigation beyond the period of six months is necessary. Sub-section (6) confers power on the Sessions Judge to vacate the order passed by a Magistrate under sub-section (5) and direct further investigation if the Sessions Judge is satisfied that such further investigation ought to be made. In the old Code, the corresponding section was also 167 but it did not have provisions corresponding to the provisos to Section 167(2) of the new Code. The reasons for incorporating the safeguards as stated in the Objects and Reasons are :
"At present S. 167 enables the Magistrate to authorise detention of an accused in custody for a term not exceeding 15 days on the whole. There is a complaint that this provision is honoured more in the breach than in the observance and that the police investigation takes a much longer period in practice. The practice of doubtful legality has grown whereby the police file a "preliminary" or incomplete chargesheet and move the Court for a remand under S. 344 which is not intended to apply to the state of investigation. While in some cases, the delay in the investigation may be due to the fault of the police, it cannot be denied that there may be genuine cases where it may not be practicable to complete investigation in 15 days. The Commission recommended that the period should be extended to 60 days, but if this is done, 60 days would become the rule and there is no guarantee that the illegal practice referred to above would not continue. It is considered that the most satisfactory solution to the problem would be to extend the period of the detention beyond 15 days whenever he is satisfied that adequate grounds exit for granting such detention".
7. Article 22 of the Constitution incorporates protection against orders of detention. Clause (1) says that no person who is arrested shall be detained in custody without being informed as soon as may be of the grounds for such arrest and he shall not be denied the right to consult and to be defended by a legal practitioner of his choice. Clause (2) mandates that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest excluding the time necessary for journey from the place of the arrest to the Court of Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.
8. Section 209 deals with power of the Magistrate to commit a case to the Court of Session if it appears to him that the offence is triable exclusively by the Court of Session. The wide and effective powers enjoyed by the Magistrate under the old Code to hold preliminary enquiries and discharge the accused in cases exclusively triable by the Court of Session have been abrogated. The powers of the Magistrate are now limited only to ascertaining whether the case as disclosed by the police report appears to be an offence exclusively triable by a Court of Session at the committal stage the Magistrate has power to remand the accused to custody subject to the provisions of the Code. Section 309 is a general section dealing with the power of the Court to postpone or adjourn proceedings : it applies to every enquiry or trial. Section 437 incorporates the procedure for granting bail in non-bailable offences. Section 439 concerns itself with the special powers of the High Court and a Court of Session to grant bail to a person accused of an offence exclusively triable by a Court of Session.
CONSIDERATION, REASONS AND CONCLUSION :-
9. Dharman case (1991) (1) Andh LT 315) relates to a batch of writ petitions filed for issue of writs of Habeas corpus on behalf of 9 accused persons lodged in the Central Prison, Visakhapatnam. They were employed as Helpers and Sailors in an Arab Dhow (Vessel). The officials of the Directorate of Revenue Intelligence, Madras intercepted the vessel at the coast near Narsapur in Andhra Pradesh on 12-7-90 and arrested all of them under Section 104 of the Customs Act for contravention of the provisions of Section 135 of the Customs Act. When produced before the VIII Metropolitan Magistrate, Visakhapatnam on 15-7-90, they were remanded to judicial custody by the learned Magistrate till 30-7-90 with a direction to produce them before the Court of Special Judge for Economic Offences, Hyderabad for further remand on 30-7-90. When they were produced before the Special Judge on 30-7-90 they were remanded to judicial custody for a further period of 14 days viz., up to 13-
8-90. From 13-8-90 to 20-9-90, the learned Special Judge extended their remand on five occasions even though the detenus were not produced before him. The reason for seeking extension of remand on each of the five occasions was the non-availability of escort. Several Habeas Corpus writ petitions were filed in this Court assailing the orders of the learned Special Judge contending that the orders of detention passed without the production of the detenus were illegal under section 167(2), Proviso (b) of the Cr.P.C. The Directorate of Revenue Intelligence which was impleaded as third respondent took the stand that the mandatory requirement under Section 167(1) and (2) was limited to the extent of producing the detenus only on the first occasion to secure authorisation of detention for a period not exceeding 15 days and, thereafter, production of the detenus was not necessary. It was also pleaded by the Directorate of Revenue Intelligence that as the Special Judge had taken cognizance on 7-9-90 of the offences against the detenus under section 135 of the Customs Act, Section 167 was no longer applicable and the learned Special Judge was, therefore, competent to extend the period of remand under section 309 of the Cr.P.C. On behalf of the prosecution, it was also contended that as the detenus were nationals of Pakistan they were not entitled to invoke the jurisdiction of the High Court for the enforcement of any fundamental rights. The contention that non-citizens cannot invoke the writ jurisdiction for enforcement of the right to personal liberty was negatived by the Division Bench observing that non-citizens also are governed by the Code of Criminal Procedure and in the matter of human rights, India being a signatory to the Universal Declaration of Human Rights and the Covenant on Civil and Political Rights, such a plea was unsustainable. After noticing the legal position obtaining under the old Code of 1898, the new Code of 1973 and the Amendment Act 45 of 1978 and after reviewing the case law, the Division Bench interpreted the scope of Section 167(2)(b) as follows :-
"It is true that under S. 167(2)(b) of the Code of Criminal Procedure, production of the accused person before the Magistrate both at the time of seeking his remand and extension of the remand, is compulsory. In our opinion, though physical production of the accused before the Magistrate at the time of seeking his initial remand can never be dispensed with, absence of his physical production would not not incurably vitiate a subsequent order of extension of his remand, if it is physically impossible to produce him in person. For instance, if the accused person is mortally injured or grievously ill and in the hospital, he may not be in a position to be produced before the Magistrate. The law would not and cannot possibly require that he should nevertheless be produced before the Magistrate even to his detriment and danger to his very life. Instances are not lacking where an accused person charged with many offences may have to be produced on a particular date at two different places and it is obvious that by no magic can he be produced at both the places at the same time. Yet another instance is where curfew is imposed and an accused person cannot possibly be carried to the relevant Magistrate without infracting the law. Instances listed are only illustrative but not exhaustive, as there may be many other factors which may hinder or bar the actual physical production of an accused. The law does not therefore compel or insist upon impossibility of performance of the requirement enacted under S. 167(2)(b) of the Code of Criminal Procedure. In other words, it is always open to either the prosecuting agency or the jail authority to put forward a plea of impossibility of production of an accused person before the learned Magistrate and if the learned Magistrate is satisfied that the plea is well founded, he may, for special reasons to be recorded in writing, extend the remand of the accused person even without his production. We, however, hasten to add that non-availability of escorts for non-production of the accused person hardly constitutes a ground for infraction of the mandatory requirement of S. 167(2)(b) of the Code of Criminal Procedure" (p. 333)
10. With great respect to the learned judges, we express our inability to agree with the view that non-availability of escort for non-production of the accused person can never be a ground for not complying with the mandatory requirement of S. 167(2)(b). Sub-section (2) of S. 167 of the old Code provided :
"The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has not jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction".
Although the old Code did not specifically provide for production of the accused person before the Magistrate for authorisation of detention in any custody, either police or judicial, from the words "the Magistrate to whom an accused person is forwarded under this section", it is clear that the prosecution was under a duty to produce the accused person before the Magistrate not only at the stage of obtaining initial remand but also on subsequent occasions having regard to the specific powers of the Magistrate to authorise detention "from time to time". The power to authorise detention was only in the event of the police forwarding an accused person to the Magistrate; if there was no forwarding of the accused person there was no authorisation of detention. As the authorisation of detention was only subsequent to the forwarding of the accused person, it necessarily implies that the accused person must be produced every time an authorisation for detention was sought.
11. The old Code did not provide as to what would be the consequence of an order of authorisation of detention passed by a Magistrate when the accused person was not produced before him. The question directly fell for consideration before the Supreme Court in at least three cases. In Raj Narain v. Superintendent, Central Jail, (1971 Cri LJ 244) (supra), the petitioner Raj Narain was originally remanded to judicial custody till 28-8-1970 by the City Magistrate, Lucknow. As he filed a Writ of Habeas Corpus in the Supreme Court, he was transferred to Thihar Central Jail, Delhi by an order of the Supreme Court, dated 22-8-70. On 28-8-70 the Supreme Court was informed that as the detention of Raj Narain would expire at mid night on 28-8-70, the Superintendent, Central Jail would not be able to detain Raj Narain thereafter. On that representation, the Supreme Court passed an order that Raj Narain :
"Shall be remanded back to the custody to which he belongs and that he may be taken to U.P. if so desired, to be produced before us on the next date of hearing to be fixed in this case. If the fresh remand order is not received by the Superintendent of the Jail by mid-night, the petitioner shall not be detained as directed by this Court, and he shall be set at liberty at mid-night".
On the same day, a wireless message was received by the Superintendent, Thihar Jail informing him that Raj Narain was remanded for further jail custody up to 10-9-70 by the City Magistrate. On the next day i.e., 29-8-70, the Superintendent Thihar Jail received a message from the City Magistrate, Lucknow informing that the detention of Raj Narain was extended up to 10-9-70. The question before the Supreme Court was whether the order passed by the City Magistrate extending the period of judicial custody from 28-8-70 to 10-9-70 without the production of Raj Narain was illegal ? By a majority of five to two the Supreme Court sustained the legality of the order. Speaking for the majority Hidayatullah, C.J., observed :
"There is nothing in the law which required his personal presence before the Magistrate because that is a rule of caution for Magistrates before granting remands at the instance of the police. However, even if it be desirable for the Magistrate to have the prisoner produced before them, when they recommit him to further custody, a Magistrate can act only as the circumstances permit. Where the prisoner's custody is transferred to a superior Court such as this the Magistrate can only adjourn the case at the same time extending the period of remand. It is for this Court to see that the custody by it continues under proper orders and if this Court is satisfied that the prisoner is in proper custody under a proper order of remand, the prisoner will not be released. This Court does not order detention and cannot extend the remand. Its custody is conterminous with the remand ordered by the Magistrate. If the Magistrate extends the period of remand and communicates the order to the person having the immediate custody of the prisoner with intimation to this Court and the prisoner, nothing more is expected of him. The object of production of the prisoner before the Magistrate is more than answered by his production before this Court because the prisoner has the protection of his interest transferred from the Magistrate to this Court. (p. 180) (of AIR) : (at pp. 246-47 of Cri LJ).
The majority judgment did not agree with the ruling of the Madras High Court in In Re Venkataraman, (1948-49 Cri LJ 41 : AIR 1948 Mad 100), fact situation was different. In the minority judgment of Shelath and Vaidialingam, JJ. (delivered by the latter), why the presence of the accused before the Magistrate was necessary was emphasised :
"It stands to reason that an order of remand will have to be passed in the presence of the accused. Otherwise the position will be that a Magistrate or Court will be passing orders of remand mechanically without having heard the accused for a considerably long time. If the accused is before the Magistrate when a remand order is being passed, he can make representations that no remand order should be passed and also oppose any move for a further remand. For instance, he may rely upon the inordinate delay that is being caused by the prosecution in the matter and he can attempt to satisfy the Court that no further remand should be allowed. Again it may be that an accused, on a former occasion may have declined to execute a bond for getting himself released; but on a later occasion when a further remand is being considered, the accused may have reconsidered the position and may be willing to execute bond in which case a remand order will be totally unnecessary. The fact that the person concerned does not desire to be released on bail or that he can make written representations to the Magistrate are, in our opinion, besides the point. For instance, in cases where a person is sought to be proceeded against under Chapter VIII of the Criminal Procedure Code, it would be open to him to represent that circumstances have materially changed and a further remand has become unnecessary. Such an opportunity to make a representation is denied to a person concerned by his not being produced before the Magistrate. As the Magistrate has to apply his judicial mind, he himself can take note of all relevant circumstances when the person detained is produced before him and decide whether a further remand is necessary. All these opportunities will be denied to an accused person if he is not produced before the Magistrate or the Court when order of remand are being passed."
(pp. 185-186) (of AIR) : (at p. 252 of Cri LJ).
In Gauri Shankar v. State of Bihar, (1972 Cri LJ 505) (SC) (supra), the accused person refused to go to the Magistrate's Court on 5-3-68, 20-3-68 and 4-4-68 on the ground that the identification parade for him had not yet been held and his going to and appearing in the Court would expose him to possible witnesses. The Magistrate, therefore, had to pass remand orders in the absence of the accused. The question before the Supreme Court was whether the two remand orders passed by the Magistrate in the absence of the accused were illegal ? Upholding the validity of the orders Shelat, J. speaking for the Division Bench after referring to the fact that the accused refused to appear before the Magistrate, held :
"He, therefore, cannot legitimately make a grievance that those orders were passed in his absence. Those order could be passed validly in his absence if his presence at the time could not be secured. This has been held by the majority judgment of this Court recently in Raj Narain v. Superintendent, Central Jail, New Delhi, W.P. 330 of 70 Dt. 1-9-70, ." (p. 714) (of AIR 1972 SC 714) : (at p. 508 of 1972 Cri LJ 505).
12. Raj Narain case was again followed in S. K. Dey v. Officer-in-Charge, Sakachi P.S. (1974 Cri LJ 740) (supra). After the initial remand order was passed by the Sub- Divisional Magistrate, all the subsequent orders extending the remand were passed without the production of the accused. The copy of the proceedings of the Magistrate's Court did not indicate clearly whether the petitioner was produced before the Court when remand orders were passed. While holding that the orders of remand passed in the absence of the accused were not illegal Chandrachud, J. (as he then was) speaking for the Bench severely criticised the practice of Magistrate in not mentioning the details in the proceeding as to the presence or absence of the accused :
"This is a highly unsatisfactory state of affairs and must be deprecated. Orders of remand ought not to be passed mechanically and even though this Court has ruled that the non-production of the accused will not vitiate an order of remand, the Magistrate passing an order of remand ought, as far as possible, to see that the accused is produced in the Court when the order of remand is passed." .
13. The ratio of Raj Narain, (1971 Cri LJ 244) (SC), is that, "a Magistrate can act only as the circumstances permit"
while granting an extension of remand. In other words if there are circumstances necessitating the absence of the accused and the Magistrate is satisfied that the plea of non-production was due to circumstances beyond the control of the police or jail authorities, as the case may be, the order of extension of remand passed by the Magistrate would not be afflicted with any illegality. In Elumalai case (1983 Mad LW (Cri) 121) (supra), a Division Bench of the Madras High Court interpreting S. 167(2)(b) after the 1978 Amendment Act held :
"Under no circumstances a Magistrate can order the detention of any person in custody or extend such detention without the production of the accused before him in violation of the provision of the Code, viz., proviso (b) to S. 167(2), whatever may be the reason stated by the authorities concerned for the non- production of the accused before the Court, such as the non-availability of police escorts, etc., as shown in the charts, given by the learned Public Prosecutor in pursuance of the directions of this Court" (p. 141) In spite of stating the rule so peremptorily, the Division Bench of the Madras High Court had taken cognizance of the fact that some times practical difficulties necessitate non-production of the accused before the Magistrate for obtaining authorisation of detention in custody :
"It is true that there may be some grave and explosive circumstances when it would become practically difficult to bring the arrested accused persons to Court for their being produced before the magistrate and there may be a possible apprehension of the disturbance of the law and order when leaders of some organizations or political parties or huge numbers of person arrested in connection with agitations, are involved, and the question may arise as to the procedure to be adopted in passing the orders of remand or extension of remand in their case. This position, in our view, has to be examined by the Rules Committee and necessary amendments to the Criminal Rules of Practice have to be made taking into consideration the various circumstances and at the same time complying with the mandatory provisions of s. 167(2)" (p. 138).
If the mandate of the law as to the production of accused under S. 167(2)(b) is absolute, as interpreted by the Madras High Court, it may not be possible to carve out any exceptions by inserting a suitable provision in the Criminal Rules of Practice providing for exceptions. In Elumalai case, it was brought to the notice of the Madras High Court that innumerable prisoners were in detention in various prisons and the Magistrate in the absence of the accused persons passed orders extending the periods of remand in a routine and mechanical manner without assigning any reasons, but only acting on the representation of the prosecution that for want of police escort, the prisoners could not be produced. The Division Bench of the Madras High Court directed the Public Prosecutor to get the data of the under-trial prisoners kept in detention in Tamil Nadu with all necessary particulars. The information furnished to the High Court disclosed very alarming state of affairs. Remand orders were extended some times even up to two years condemning the accused without trial in custody and no attempts were made even to file charge-sheets for commencing trails. The prisoners were not even informed of their right to be enlarged on bail under proviso
(a) to S. 167(2) in cases where the prosecution failed to file charge-sheet within sixty or ninety days as the case may be of the order of first detention. There was utter deriliction of duty on the part of the concerned officials and the Magistrate did not bestow even elementary care to ascertain the real state of affairs but merely acting at the instance of the police went on extending the periods of remand in utter violation of the law. In such circumstances the Court ruled that under no circumstances, the Court ruled that under no circumstances, the detention in custody should be extended by a Magistrate in the absence of the production of the accused.
14. G. K. Moopanar case, (1990 Cri LJ 2685) (Mad.) (supra), a public interest litigation relating to the arrest of twenty thousand Congress (I) members came up for consideration before a Division Bench of Madras High Court. The Court after scrutinising the orders passed by the Magistrate authorising extension of remands after the initial remand period of fifteen days was over, observed that under S. 167(2), Cr.P.C., after the first spell of remand of fifteen days was over, "...... the provision under S. 167(2) would come into operation whereunder special reasons must be given for extending the period of remand originally granted. A reading of the common order passed by the learned Magistrate clearly indicates that this distinction was not kept in mind at the time when the remand was extended. As a matter of fact, the mandate contained in sub-section (2) was not at all taken note of and there is no reference to any adequate grounds for extending the period of remand beyond 15 days in total". (p. 129) (of 1990 Mad LW (Cri) 113) : (at p. 270 of 1990 Cri LJ 2685).
On that view the Court held that the subsequent remand was unsustainable in law. It was also observed by the Court that the remand orders passed by the Magistrates were vitiated as no reasons, whatsoever were given and in that context reference was made to the observations in Elumalai case, (1983 Mad LW (Cri) 121) (supra).
15. The interpretation placed upon S. 167(2)(b) by the Madras High Court in Elumalai case, with great respect to the learned Judges, cannot be extended to situations where circumstances exist necessitating non-production of the accused before the Magistrate for seeking extension of remand. When hundreds of persons were condemned to jail custody in utter defiance of the law, a situation amounting to subversion of rule of law by the very guardians of law, and when the Magistrate had abdicated its responsibilities, the proposition of law laid down by the Madras High Court interpreting S. 167(2)(b) was perhaps a necessity to set right the situation. Even so the Madras High Court has recognised the fact that non-production of the accused by the Magistrate for seeking authorisation in custody may not always be possible. Extending the Elumalai principle to individual cases without any enquiry as to whether the stated reason of non-availability of the escort personnel for non- production of the accused is genuine or otherwise, in our considered view, does not merit acceptance.
When legal principles are propounded in general terms on the basis of proved facts in a particular case, extending the same to other totally different fact-situations on the assumption that the general principle contains the exposition of the whole law may not be a sound legal principle clothed with the authority of a precedent (see Quinn v. Leatham, (1901) AC 495).
16. The change brought about in the new Code by the incorporation of Proviso
(b) to S. 167(2) obligating that no Magistrate shall authorise detention in any custody under S. 167 unless the accused is produced before him, in our view, does not automatically empower the Magistrate to release the accused in bail. Despite the mandatory language in which S. 167(2)(b) is couched, the Section does not direct the Magistrate to release the accused with or without conditions, unlike the mandate contained in Proviso (a) under which the failure of the police to complete the investigation within sixty days or ninety days, as the case may be, imposes an obligation on the Magistrate to release the accused on bail if the accused is, "prepared to and does not furnish bail," with a consequential declaration that such release shall be deemed to be a release under the provisions of Chapter XXXIII for the purposes of that Chapter.
17. The absence of a mandatory requirement obligating the Magistrate to release the accused for non-compliance of S. 167(2)(b) cannot be overlooked. If an enactment imposes conditions which are to be construed as conditions precedent for the exercise of power, if compliance with these conditions is impossible, the enactment has to be construed as dispensing with compliance with such conditions. (see Maxwell on Interpretation of Statutes XII Edition, p. 326). The negative language employed in S. 167(2)(b) coupled with the absence of conferral of a right on the accused to seek release for non-compliance with the condition, will not in all circumstances invalidate the order passed by the Magistrate in breach of S. 167(2)(b).
That does not appear to be the intention of the Parliament. We are conscious of the fact that we are interpreting a procedural penal statute. Even so the legislative intent as expressed in the enactment cannot be disregarded. The expression "shall" in S. 167(2)(b) does not necessarily bar an enquiry into the intention and scope of the provision and the setting in which it occurs. Speaking for the majority in State of U.P. v. Babu Ram, , Subba Rao, J.
(as he then was) stated the principle thus :
"The relevant rules of interpretation may be briefly stated thus : When a statute uses the word "shall", prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the Legislature the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and above all, whether the object of the legislation will be defeated or furthered".
Every field of law has its factual side : how law is manifested in its actual operation in legal interpretation, if ignored, would undermine the very foundation on which the law rests. Any practically minded judge or lawyer cannot ignore the primordial truth that criminal law operates principally in a teleological fashion, its interpretation must be in terms of the purpose for which it was enacted. In Craies on Statute Law, Seventh Edition at page 531, the following passage occurs :
"The distinction between a strict and liberal construction has almost disappeared with regard to all classes of statutes, so that all statutes, whether penal or not, are now construed by substantially the same rules".
The Supreme Court approvingly referred to the above passage in K. Veeraswami v. U.O.I., 1991 (2) Scale p. 150 at 170.
"The construction which would promote the general legislative purpose underlying the provision in question, is to be preferred to a construction which would not. If the literal meaning of the legislative language used would lead to result which would defeat the purpose of the Act the Court would be justified in disregarding the literal meaning and adopt a liberal construction which effectuates the object of the legislature".
The Court has to ascertain the true meaning and real intention of the law making body. A construction which would promote the legislative purpose rather than defeat it must be adopted by the Court despite the apparent ambiguous language of the statutory provision.
18. Section 167 although is part of Chapter XII which deals with information to police and their powers to investigate, casts an onerous duty on the Magistrate. Its object is to ensure that the persons arrested by the police are produced before the Magistrate so as to enable him to pass appropriate orders for the custody of the accused. At the time of passing of the initial order authorising the custody of the accused (either judicial or police custody), not exceeding fifteen days in the whole, the Magistrate is required to apply his mind by examining the copy of the entries in the diary submitted by the concerned police officer. The power to remand an accused in police custody is limited to a period of fifteen days only the Magistrate shall record his reasons for so doing. The Magistrate having jurisdiction to try the case is required to satisfy himself that adequate grounds exist for authorising detention of the accused in custody for a total period of not exceeding sixty days or ninety days as the case may be as enjoined in proviso (a). The duty to release an accused on bail for the failure of the prosecution to complete the investigation within sixty days or ninety days as the case may be is a positive mandate which cannot be flouted by the Magistrate. The power conferred under sub-section (5) to stop further investigation is also of a very vital nature. These provisions are designed to set the criminal law in motion without allowing either the prosecution or the accused to have an unfair advantage. The functions discharged and the powers exercised by the Magistrate under S. 167 are judicial in nature and not administrative.
19. What is the degree of judicial scrutiny required to be made by the Magistrate at the time of granting remand in any custody from time to time not exceeding fifteen days and thereafter authorising judicial custody ? The words :
"..... authorise the detention of the accused in such custody as such Magistrate thinks fit"
occurring in sub-section (2) clearly confer discretionary power on the Magistrate either to grant police custody or judicial custody from time to time not exceeding 15 days in the whole. After the expiry of fifteen days, unless the Magistrate, "is satisfied that adequate grounds exist" he cannot authorise the detention under proviso (a) to sub-section (2). On both the occasions the Magistrate discharges judicial functions. On the first occasion the scope for a detailed scrutiny is limited. The police diaries do not clearly disclose to any appreciable extent the role of the accused in the commission of the crime. But on the second occasion as fifteen days time has rolled by to facilitate the completion of investigation, the diaries produced must necessarily disclose a clearer picture of the part alleged to have been played by the accused in the commission of the crime. That is why the Legislature advisedly used the expression that while authorising custody after the initial period of fifteen days is over, the Magistrate must be "satisfied that adequate grounds exist"
for doing so. This "satisfaction", obviously is only for the purpose of authorising further detention. When an accused is in judicial custody, it means he is in the custody of the Court which authorised such detention. Having authorised judicial custody could it be said that the Magistrate would be helpless and bound to release the accused if he was not produced for any reason before the Court for passing further order of remand ? We do not think so. As the accused is in the custody of the Court, the Magistrate can always compel the police or the jail authorities as the case may be to produce the accused before him. If the accused is not produced the Magistrate can enquire into the reasons for such non-production. It is only when the non-production is due to reasons beyond the control of the police or jail authorities, he can authorise further remand but before doing so, he must be satisfied that there are adequate grounds for so doing. The mere default on the part of the jail or police authorities in producing the accused before the Magistrate cannot be a valid reason to release the accused either on bail or without any conditions. Such a course of action, in our view, would amount to abdication of his judicial functions. Why the presence of the accused is necessary under S. 167 was explained by Vaidialingam, J. in his minority judgment in Raj Narain case, (1971 Cri LJ 244) (SC) (supra) which is already extracted supra. The accused can make a representation that no remand order should be passed and also oppose any move for further remand; he can take the advantage of the inordinate delay caused by the prosecution in conducting the investigation and may satisfy the Court than no further remand should be permitted. If he had declined to execute a bail bond on the previous occasion, he may do so on the subsequent occasion and obtain his release. When production of accused becomes impossible or beyond the control of the police or jail authorities, the judicial function of the Magistrate does not cease. He must still be satisfied on the basis of the record placed before him in the form of police diaries whether there is any need for granting further extension of remand. A similar question arose before a Full Bench of the Patna High Court in Ramesh Kumar Ravi v. State of Bihar, (1987 Cri LJ 1489) (supra). Negativing the plea that non-production shall entail the release of the accused under S. 167(2)(b), the Full Bench ruled :
"If it is physically impossible to produce the accused in person then his mere non-production would not render his remand to further custody illegal. The wholesome provisions of the Code requiring physical production have to be viewed reasonably and not to an impossible logical extreme. One example which inevitably comes to one's mind is where the accused person himself may be not in a position to be produced before the Magistrate - he may be mortally injured or grievously ill and lying in hospital. The law would not and cannot possibly require that he must nevertheless be produced in person before the Magistrate even to his detriment and danger to his very life. Cases are not lacking where an accused person charged with many offences may have to be produced on a particular date in two different courts at two different places. It is obvious that by no magic can he be physically produced at both the places at the same time. There may be many other factors which may hinder or even bar the actual physical production of the accused. In the somewhat turbulent times through which we are passing a patent one is where a curfew is imposed and the accused person cannot possibly be carried to the venue of the Magistrate's Court without infracting the law. Examples of this nature can be multiplied ad infinitum and it is somewhat unnecessary to labour the obvious. .
The above statement of law was laid down by the Patna High Court after noticing the change brought about by the new Code and the Amendment Act of 1978 and after reviewing the decisions rendered by the Supreme Court under the old Code. The Full Bench observed :
"The core of the rationale of the judgments aforesaid is that the law does not contemplate an impossibility and it is vain to expect the impossible from the police or the prosecution by producing the accused in person if the circumstances for his non-production are beyond their control. That logic and reasoning, to my mind, is equally applicable and attracted to the provisions of S. 167 of the present Code". (p.
206).
20. In the present case, the reason stated by the prosecution for failure to produce the accused-petitioners on the six occasions was non-availability of escort personnel as all the available police constable were deployed on "Bandobast" duty in Chunduru and Pusuluru because of grave law and order problems. The accused were to be escorted from the Rajahmundry Central Jail where they were lodged to the Court Munsif Magistrate at Bapatla. Whether or not the plea put forth by the prosecution was genuine has not been enquired into by the Magistrate since he dismissed the application of the petitioners on the ground that under S. 437 he had no power to release them on bail.
21. As the petitioners have already been released on bail by the learned Sessions Judge, Guntur, we are not inclined to go into the genuineness or otherwise of the plea put forth by the prosecution.
22. We agree with the view of the Division Bench in Dharman case, (1991 (1) Andh LT 315) (supra) to the extent it held :
"..... It is always open to either the prosecuting agency or the jail authority to put forward a plea of impossibility of production of an accused person before the learned Magistrate and if the learned Magistrate is satisfied that the plea is well founded, he may, for special reasons to be recorded in writing, extend the remand or the accused person even without his production". (p. 333).
With great respect to the learned Judges, we express our inability, for the reasons already stated, to agree with the view that :
"Non-availability of escorts for non-production of the accused person hardly constitutes a ground for infraction of the mandatory requirement of Section 167(2)(b) of the Code of Criminal Procedure". (p. 333).
Our disagreement does not mean, as we have already explained, that the prosecution can always take the plea of non-availability of escort for non-production of the accused and the Magistrate is bound to accept that plea and pass an order extending the period of remand. The Magistrate must be satisfied that as a fact escort personnel were not available and so could not be provided for reasons beyond the control of the police or jail authorities. There may be cases where it may not be possible for the police or jail authorities to spare escort personnel for production of the accused; grave law and order situations necessitating diversion of the entire police force for that purpose are not uncommon contemporary phenomena. Natural disasters may some times compel the Government or District Administration to divert the police force to render help to the victims or to engage in salvaging operations. Communal riots, group clashes and inter-caste feuds threatening the even tempo of the society are no longer rare occurrences. It is not possible to enumerate instances or causes resulting in non-availability of escort personnel for production of the accused before a Magistrate under S. 167. Therefore, non-availability of police escort is a valid ground for non-production of the accused before the Magistrate for extending remand under S. 167, Cr.P.C., provided there are justifiable causes for such non-availability of escort.
23. Whenever it is not possible to produce an accused before the Magistrate, the concerned Investigating Officer or any other responsible Police Officer in charge of the case or the jail Superintendent shall file a detailed report before the Magistrate explaining the circumstances under which it was not possible to produce the accused on that particular day. If the Magistrate is satisfied after going through the report, he may dispense with the production of the accused and pass appropriate order under S. 167, Cr.P.C., as to the detention of the accused. The Magistrate should not pass an order in this regard mechanically in a routine manner : the order should be a well considered reasoned one. If the Magistrate has reason to believe that the report filed as to the non-availability of the police escort contains incorrect facts, he shall initiate action in accordance with law against the officer who filed the report.
24. At the conclusion of the hearing Shri T. Balireddy the learned counsel for the petitioners has brought to our notice that the petitioners have already been released on bail by the learned Sessions Judge, Guntur under S. 439, Cr.P.C., on an application filed by them. Therefore, as already stated, it is not necessary for us to consider the merits of the present petition. For these reasons, answering the question referred to us in the affirmative we dismiss the petition. Before closing the case we would like the emphasised one aspect : when the present petition was pending before this Court, it was improper on the part of the petitioner to file another bail application before the Sessions Judge, Guntur obviously suppressing the pendency of this petition and obtain orders of their release on bail. Filing of bail applications simultaneously in different Courts may lead to passing of conflicting orders. As a matter of practice, we direct that no bail application shall be filed in any Court when another application already filed in another Court is still pending. In every application for enlargement on bail there should be a specific mention that no other application for bail is pending in any other Court.
25. Petition dismissed.