Madras High Court
K.S.Muthuramalingam vs State on 1 July, 2010
Author: C.Nagappan
Bench: C.Nagappan, P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 1.7.2010 C O R A M The Honourable Mr. Justice C.NAGAPPAN and The Honourable Mr. Justice P.R.SHIVAKUMAR Habeas Corpus Petition No.1151 of 2010 K.S.Muthuramalingam .. Petitioner Vs. 1. State, rep. by the Inspector of Police, District Crime Branch, Commissioner Office, Coimbatore. 2. The Superintendent, Central Prison, Coimbatore-18. .. Respondents PRAYER : Petition under Article 226 of the Constitution of India seeking to issue a Writ of Habeas Corpus for a direction to the respondents to produce the petitioner's son Sundar alias Raja, S/o.Muthuramalingam, aged about 35 years, now confined in Central Prison, Coimbatore, before this Hon'ble Court and set him at liberty. For Petitioner : Mr. M.Radhakrishnan for M/s.P.Pugalenthi and P.K.Ilavarasan For Respondents : Mr.Hassan Mohd. Jinnah Additional Public Prosecutor O R D E R
(Order of the Court was made by P.R.SHIVAKUMAR, J.) The father of the detenu Sundar alias Raja is the petitioner in this Habeas Corpus Petition and he has sought for issuance of a writ of Habeas Corpus directing the release of the above said detenu who has been lodged in Central Prison, Coimbatore.
2. As per the petition allegations, the detenu Sundar alias Raja was arrested and remanded to judicial custody in Crime No.16/2009, registered on the file of District Crime Branch, Coimbatore, for offences punishable under Sections 406 and 420 IPC on 29.5.2009 and he was granted bail by the learned Judicial Magistrate, Palladam, imposing conditions to produce documents showing assets worth Rupees One Crore and two sureties, having property worth Rs.50,00,000/- and to jointly execute a bond for a sum of Rs.10,000/-. However, the said order was subsequently modified by removing the other conditions and imposing a condition to execute a bond for a sum of Rs.1,00,000/- with two sureties each for a likesum and the said order of modification was passed on 10.6.2010. It has also been stated in the petition that pursuant to the said order, bail bond was executed on 18.6.2010 by the sureties and the bail bond was sent to the Superintendent, Central Prison, Coimbatore on the same day. However, the detenu Sundar alias Raja was not released by the Prison Authorities even after the submission of the bail bond as per the requirements found in the bail order granted by the learned Judicial Magistrate, Palladam. Hence the petitioner has come forward with the present petition contending that the continued detention of the detenu in the Central Prison is not authorised by law and his right guaranteed under Article 21 of the Constitution of India has been violated, necessitating this Court to exercise the power under Article 226 of the Constitution of India for issuance of a writ of Habeas Corpus for production of the detenu and set him at liberty.
3. The second respondent has filed a counter affidavit stating that even before the bail bond was received by the Jail Authorities in the case in which the detenu had been remanded to judicial custody, a P.T. Warrant was received from the III Additional Civil Judge and Judicial Magistrate of First Class, Porbandar, Gujarat in connection with Crime No.2576/2009, a case registered for an offence punishable under Section 138 of Negotiable Instruments Act; that due to non-availability of the escort police, the detenu could not be taken to Porbandar to be produced before the said Court and that subsequently on intimation to the said Court, successive P.T. Warrants came to be issued till date and a P.T. Warrant is pending at present, directing the production of the detenu on 23.7.2010. It has also been stated in the counter affidavit that two more P.T. Warrants, one from III Additional Civil Judge (Junior Division) and III Judicial Magistrate of First Class, Bijapur and another from I Additional Civil Judge (Junior Division) and Judicial Magistrate of First Class, I Court GADAG, in connection with C.C.Nos.04/10 [P.C.No.123/2009] and C.C.No.05/2010 [P.C.No.124/2009] respectively with requests to produce the above said detenu before the said Courts on 23.7.2010, are pending execution and that the same was the reason why the detenu was not released pursuant to the execution of bail bond.
4. We heard the submissions made by Mr.M.Radhakrishnan, learned counsel for the petitioner and the submissions made by Mr.Hassan Mohammed Jinnah, learned Additional Public Prosecutor representing the respondents.
5. It is the contention of the learned counsel for the petitioner that the very purpose of issuing a P.T. Warrant is to produce a person who is lawfully confined in a prison to answer a charge or to be examined as a witness before a Criminal Court and the mere fact that P.T.Warrants have been issued shall not authorise the Prison Authorities to keep the prisoner in continued custody unless his custody is otherwise legally authorised.
6. Section 267 Cr.P.C reads as follows:-
"267. Power to require attendance of prisoners. - (1) Whenever, in the course of an inquiry, trial or other proceeding under this Code, it appears to a Criminal Court, -
(a) that a person confined or detained in a prison should be brought before the Court for answering to a charge of an offence, or for the purpose of any proceedings against him, or
(b) that it is necessary for the ends of justice to examine such person as a witness, the Court may make an order requiring the officer in charge of the prison to produce such person before the Court for answering to the charge or for the purpose of such proceeding or, as the case may be, for giving evidence.
(2) Where an order under sub-section (1) is made by a Magistrate of the second class, it shall not be forwarded to, or acted upon by, the officer in charge of the prison unless it is countersigned by the Chief Judicial Magistrate to whom such Magistrate is subordinate.
(3) Every order submitted for countersigning under sub-section (2) shall be accompanied by a statement of the facts which, in the opinion of the Magistrate, render the order necessary, and the Chief Judicial Magistrate to whom it is submitted may, after considering such statement, decline to countersign the order."
7. Section 267 of the Code of Criminal Procedure, 1973 deals with P.T. Warrant. It says, whenever it appears to a Criminal Court dealing with an inquiry, trial or other proceeding, in the course of such inquiry, trial or other proceeding under the Criminal Procedure Code 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 proceeding against him or it is necessary to examine such person as a witness, such Court may make an order requiring the officer in charge of the prison to produce such person before the Court for answering to the charge or for the purpose of such proceeding or, as the case may be, for giving evidence. A reading of the said section itself suggests that such an order of a Criminal Court for production of the person detained in prison shall be executable only if the person is detained on the date on which, production is to be made. This position is further amplified by sub-section (c) of Section 269 of Criminal Procedure Code. For better appreciation, the entire Section 269 of the Code of Criminal Procedure is re-produced hereunder:
"269. Officer in charge of prison to abstain from carrying out order in certain contingencies.- Where the person in respect of whom an order is made under section 267-
(a) is by reason of sickness or infirmity unfit to be removed from the prison; or
(b) is under committal for trial or under remand pending trial or pending a preliminary investigation; or
(c) is in custody for a period which would expire before the expiration of the time required for complying with the order and for taking him back to the prison in which he is confined or detained; or
(d) is a person to whom an order made by the State Government under section 268 applies, the officer in charge of the prison shall abstain from carrying out the Court's order and shall send to the Court a statement of reasons for so abstaining;
Provided that where the attendance of such person is required for giving evidence at a place not more than twenty-five kilometres distance from the prison, the officer in charge of the prison shall not so abstain for the reason mentioned in clause (b)."
8. Section 269 of Cr.P.C prescribes the circumstances under which a jail authority has to abstain from carrying out the order passed under Section 267 Cr.P.C. The contingencies under which the person in-charge of the prison has to abstain from producing the prisoner on P.T. warrant are: a) unfitness of the prisoner to be removed from the prison by reason of his sickness or infirmity making the prisoner unfit to be removed from the prison; b) the prisoner being under orders of committal for trial or under remand pending trial or pending preliminary investigation; c) the period of authorised custody would expire before the prisoner could be produced in compliance with the P.T. warrant before the court which issued the order and brought back to the prison in which he is confined or detained and d) The State Government has passed an order under Section 268 Cr.P.C that the person should not be removed from the prison and such order remains in force. The proviso to Section 269 Cr.P.C provides an exception and prescribes the circumstances under which a jail authority shall not abstain from carrying out the order passed under Section 267 Cr.P.C.
9. Clause (c) of section 269 Cr.P.C specifically provides that the officer in-charge of the prison shall abstain from carrying out the production order, if the person sought to be produced is in custody for a period which would expire before the expiration of the time required for complying with the order and for taking him back to the prison in which he is confined. A reading of clause (c) shall make it clear that unless there is sufficient time for taking prisoner to the court which issued the production warrant and to take him back to the prison before expiry of the authorised period of detention, an order passed by the court under Section 267 Cr.P.C for production of the prisoner shall not be complied with.
10. As per the proviso, when a prisoner is required to be produced before a criminal court situated at a place not more than 25 miles away from the prison for giving evidence, then the officer in-charge of the prison shall not so abstain for the reason mentioned in clause (b), namely 'the prisoner is under committal for trial or under remand pending trial or pending a preliminary investigation'. The conjunction used for the four exceptions (a) to (d) in Section 269 Cr.P.C is 'OR' and not 'AND'. If any one of the four contingencies is proved to exist, then the prison authority has to abstain from carrying out the order in the form of P.T. warrant. However, the proviso provides an exemption to sub clause (b) alone, provided the conditions found in the proviso are satisfied.
11. A conjoint reading of sections 267 and 269 Cr.P.C will make it clear that the purpose of P.T. warrant is to direct the production of a person who is confined or detained in prison by a lawful order. It cannot be interpreted to mean that the P.T. warrant shall be an authorisation to curtail the liberty of the person and keep him in custody till the date on which his production is sought for. The mere pendency of a P.T. warrant shall not be enough to keep a prisoner in the prison beyond the date of expiry of the sentence, if he is a convict or beyond the date on which the remand expires unless the remand is extended by a competent court. The pendency of a P.T. warrant cannot be equated with a remand and the same cannot be construed to be an authorisation for detaining a person beyond the period for which he was remanded or committed to undergo punishment.
12. In this regard, the judgment of this court in Kattan @ Subramani vs. State by Inspector of Police, Avadi P.S. & Another reported in 1992(1) MWN (Cri)/Mad 68 shall have bearing, though not directly applicable. In the said case it has been observed that the issue of a P.T. warrant when the person is not confined or detained in a prison in respect of any other case is not justifiable and when such a fact is brought to the notice of the court which had issued P.T. warrant, the same should be recalled. The judgment went further to state that the recalling of the P.T. warrant will not bar the subsequent arrest of the person in execution of an NBW.
13. From the above, it is quite obvious that the scope of the P.T. warrant cannot be enlarged by assuming the same to be an authorisation for detaining the prisoner beyond the period of detention. It will be effective only if his detention is otherwise authorised as on the date on which he is supposed to be produced before the court issuing P.T. warrant.
14. The decision of the Apex court in Ram Dass Ram v. State of Bihar and another reported in AIR 1987 SUPREME COURT 1333 will make it abundantly clear that the issuance of P.T. warrant cannot be construed to be an order of remand. A person, who has been acquitted or granted bail in the cases in which he was remanded to judicial custody, cannot be detained further on the sole ground that a P.T. warrant has been issued by another court. In the said case decided by the Supreme Court, the accused was acquitted in two Sessions cases in which he had been remanded and even after the acquittal in those cases he was continued to be detained in the prison on the basis of a P.T. warrant issued for his trial in another case. Such a detention was held to be unjustified. The facts of the case before the Supreme Court reveal that there was no warrant (remand order) for detaining the detenu in jail in the third case in which P.T. warrant was issued or in any other case after the detenu had been acquitted in the two cases in which he had been remanded.
15. P.T. Warrants can be classified into two categories:
1)directing production of the person confined in the prison on the date of hearing specified in the order, and
3)directing production without specifying a date for production.
In either case, the P.T.Warrant cannot be construed to be an authorisation to detain the person in jail beyond the period of remand or beyond the date of expiry of the sentence of imprisonment, as the case may be. Legal custody on the date on which he is directed to be produced in the sine qua non for such production. Therefore, the first category of P.T. Warrant, namely specifying a particular date on which production is to be made, shall be issued in cases when production is sought for for being examined as a witness or for answering a charge or facing other proceedings in which he has already been granted bail. In such cases, the prisoner shall be released if, before the date fixed for his production, his period of sentence expires or the period of remand comes to an end. Second type of P.T. Warrants viz. without specifying the date for production can be issued, in cases wherein the prisoner has to answer the charge or face a proceeding when he was not granted bail or bail granted was cancelled. In such cases, the prison authority is bound to produce such person on receipt of P.T. Warrant. Even in such cases, he cannot be detained for being produced in the court in compliance with the P.T. Warrant if the sentence or remand period expires before the receipt of P.T.Warrant.
16. Hence, we are convinced with the contention of the learned counsel for the petitioner that the continued detention of the petitioner beyond 19.6.2006, the date on which the bail bond was received by the Superintendent of Prisons, Central Prison, Coimbatore, is illegal and this Court has to issue a direction for his release, especially when it is not the case of the respondents that he has been remanded in any other case or his continued custody is authorised in connection with any other case.
17. In the result, the Habeas Corpus Petition is allowed and the detenu Thiru. Sundar alias Raja is ordered to be set at liberty forthwith, unless his custody is authorised in connection with any other case.
(C.N.J.) (P.R.S.J.)
1.7.2010
Index: yes
Internet: yes
Vks/asr
Copy to:-
1. The Inspector of Police,
District Crime Branch,
Commissioner Office,
Coimbatore.
2. The Superintendent,
Central Prison,
Coimbatore-18.
3. The Public Prosecutor,
High Court, Madras-104.
C.NAGAPPAN, J.
and
P.R.SHIVAKUMAR, J.
vks/asr
H.C.P. No.1151 of 2010
1.7.2010