Allahabad High Court
Pramod Kumar S/O Ramesh Chandra vs The State Of U.P. on 24 August, 1990
Equivalent citations: 1991CRILJ1063
ORDER Kamlakar Chaubey, J.
1. This application Under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter called Code) has been moved for the release of the applicant on bail in Crime NO. 166 of 1989 Under Section 147, 148, 149, 307 and 302, I.P.C. of P.S. Etmadpur, district Agra. The learned counsel for the applicant, the learned counsel for the complainant and the learned A.G.A. have already been heard at length.
2. Before looking to the merits of the argument of the learned counsel for the parties, it is necessary to note down relevant facts leading to the present bail application.
3. On 31-7-1989 first informant Harish alias Kallu Chauhan, r/o Nagla Prem, Mazra Chauli, P.S. Etmadpur, district Agra handed over a written report at Police Station on the basis of which the above case was registered. In this report it was alleged that on 31-7-1989 at about 5.30 P.M. Rajveer Singh, Jagraj Singh, Dharma and Raj Kumar along with two unknown persons committed murder of the father of the first informant. The brother of the first informant had also sustained fire arm injuries, who subsequently expired. After registration of the case, investigation proceeded and complicity of the applicant also came to light. From the Court of Judicial Magistrate III (L.C.C.) Agra, 'B' warrant was sent on 1-1-1990 to the Superintendent, District Jail, Kanpur for applicant's transfer to his Court. It appears that applicant was detained in District Jail, Kanpur in connection with crime No. 510 of 1989 under Section 307, I.P.C. of Police Station Govindnagar, of Kanpur Nagar. The applicant was said to have fired at Sub-Inspector of the Police Station and was arrested and sent to District Jail, Kanpur on 27-12-1989. Since then he is in that jail. Coming to know of these facts, the aforesaid 'B' warrant was sent to Superintendent of Jail, Kanpur by the Magistrate concerned from Agra. The Superintendent, District Jail, Kanpur did not comply with this requisition because of the pendency of 307, I.P.C. case of Kanpur Nagar. From the record it further appears that in the 307, I.P.C. case at Kanpur Nagar, the applicant had been ordered to be released on bail but he has not submitted the necessary bail bonds as yet.
4. Besides requisition of the applicant by the Criminal Court of Agra, a Sub-Inspector came from Agra and moved the court of the Chief Metropolitan Magistrate, Kanpur Nagar, for remand of the applicant in Agra case under Section 167 of the Code. The Chief Metropolitan Magistrate granted first remand presumably under Sub-section (2) of Section 167 of the Code and directed him to be proceeded before the Agra Court on 21-2-1990. This order of the Chief Metropolitan Magistrate is dated 7-2-1990. No compliance of this order regarding production of the applicant before Agra Magistrate appears to have been done.
5. The applicant moved an application before the Magistrate at Agra for releasing him on bail, which was rejected. Thereafter he moved the Sessions Court. The Incharge Sessions Judge, Agra, Sri R.K. Gupta vide his order dated 2-3-1990, rejected the bail application of the applicant as premature and thereafter the applicant has come to this Court.
6. The learned counsel for the applicant vehemently argued that by virtue of Warrant 'B' and remand taken in Agra case, the applicant is in custody of Agra case also and so he should be admitted to bail. The learned counsel for the complainant, however, contended that the applicant could not be said to be in custody in Agra case and so the question of releasing him on bail did not arise.
7. The relevant portion of Section 439 of the code provides "A High Court or Court of Sessions may direct that any person accused of an offence and in custody, be released on bail........" It would thus appear that bail may be granted to any person, firstly, if he is an accused of an offence and, secondly, if he is in custody. The applicant is, no doubt, an accused in Agra case. Hence the question for consideration is as to whether he is in custody? At this very place it is also important to note that the custody of the applicant in crime case, in which bail is sought, is relevant and not the custody in any other case.
8. No doubt the applicant has been in custody of Kanpur Nagar case but it has to be seen if he should be deemed to be into custody in Agra case also, because a requisition for his transfer was made by Agra Court and a Sub-Inspector of Agra took first remand from the Chief Metropolitan Magistrate, Kanpur Nagar, with no further remand from any Court. Firstly, the requisition of Agra Court (noted as Warrant 'B') may be considered. In the old Code of Criminal Procedure, 1898 there was not any provision empowering Courts to require appearance of prisoners, to answer a charge or to give evidence. In the Prisoners' Act, 1900, Part IX laid down the provisions for requiring the attendance of prisoners and obtaining their evidence or answer a charge. Earlier, the Courts used to require the attendance of Prisoners under the provisions of Part IX of Prisoners Act. Section 37 of this Act empowered the Criminal Courts to require attendance of prisoners to give evidence or answer a charge. Under this section a form of requisition was given in the Second Schedule of the Prisoners Act, 1900. The proforma of this Second Schedule is identical to proforma of the Second Schedule given in the subsequent legislation, that is, the Prisoners (Attendance in Courts) Act, 1955.
9. It was felt that Part IX of Prisoners Act, 1900 dealing with the attendance of the prisoners for obtaining their evidence in the Court contained cumbersome provisions, which usually resulted in avoidable delay in the trial of criminal cases and needless detention of the prisoners under the trial. Therefore, the Prisoners (Attendance in Courts) Act, 1955 was enacted for attendance to courts of persons confined in the prisons for obtaining their evidence or for answering a criminal charge. This new Statute empowered civil or criminal Courts to require appearance of prisoners to give evidence or answer a charge. Section 10 of this Act repealed Part IX of the Prisoners Act, 1900 and First and Second Schedules of the said Act. In the Prisoners (Attendance in Courts) Act, 1955, in fact, both the Schedules of earlier Act were appended. Thus, after the enactment of the Prisoners (Attendance in Courts) Act, 1955, civil or criminal Courts could make an order in the forms set-forth in the Schedules directing the Officer-in-charge of the prison concerned to produce a prisoner before it for answering a charge or giving evidence. Under the new Code of Criminal Procedure, 1973, the provisions of the Prisoners (Attendance in Courts) Act, 1955 relating to criminal Courts were incorporated in Chapter XXII from Sections 266 to 271. It is, therefore, clear that the requisition for transferring a person confined or detained in prison, by a Magistrate shall be deemed to have been made Under Section 267 of the Code and Section 3 of the Prisoners (Attendance in Courts) Act, 1955. The relevant portion of Section 267 reads:
"Power to require attendance of prisoner:
(1) Whenever, in the course of an enquiry, 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."
10. Section 269 of the Code provides that where the person in respect of whom an order is made under Section 267 is under committal for trial or under remand pending trial or pending a preliminary investigation, 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 reason for so abstaining. Therefore, because the applicant's trial in case under Section 307, I.P.C. of Kanpur Nagar was pending, the Superintendent, District Jail, Kanpur was justified in abstaining from transferring him to Agra. The transfer of the applicant in compliance of the requisition of Agra Court was possible only if the applicant was released on bail or the case itself was disposed of at Kanpur. It leads us to another question as to what is the effect of receipt of requisition by the Superintendent, District Jail, Agra. In fact, the requisition by itself did not authorise the detention of the applicant in Agra case. It merely required the Superintendent of District Jail, Agra to produce the applicant before the Magistrate concerned and after the purpose of the requisition was over, to take him back and to keep him in custory in accordance with the directions of the Court, Which had authorised his detention in jail. Merely because a requisition had been received which was not complied with by the Superintendent, District Jail, Kanpur under Section 269 of the Code, it could not be said that by receipt of this requisition, the applicant could be deemed to be in the custody of the Magistrate, III (L.C.C.) Agra.
11. Now it has to be seen as to what is the effect of remand taken by Agra police from the Court of the Chief Metropolitan Magistrate, Kanpur Nagar under Section 167 of the Code. Of course, under the said provision, a Magistrate having no jurisdiction could not grant successive remands. In compliance of-the first remand order if the accused had been produced before the Magistrate having jurisdiction, then he could alone take the accused in custody in the criminal case of his jurisdiction and remand him to judicial custody. Only thereafter the accused could be said to be in the custody of the said Court. Prior to that he could not be deemed to be in the custody of that Court.
12. Not only that even if the first remand order was made by the Court having no jurisdiction, the accused should have been produced before the competent Magistrate, but if he was not so produced, the first remand would become meaningless. In the instant case, if the applicant had been transferred to Agra in compliance of the requisition or the first remand order and the Agra Magistrate had remanded him to judicial custody in the Agra crime case, then alone the applicant could be said to be in the' custody of Agra case. Learned counsel for the complainant placed reliance in Dharampal v. State of U. P., (1982 (19) ACC Page 98) in which it has been observed:
"...........the requisition under Section 3(2) of the Prisoners (Attandance in Courts) Act, 1955 and Section 267(1) of the Code of Criminal Procedure can be addressed to Superintendent of a Distritct Jail who is already holding a prisoner under an authority of law. The requisition by itself does not authorise the detention of any person. It merely requires the Officer-in-Charge of the prison (1) to produce the detenu before the requisitioning Court on the date fixed by it and (2) after the purpose of requisition is over, to take him back and to keep him in custody in accordance with the writ or direction issued by the Court which had authorised his detention in jail."
13. In this case, a photo copy of the requisition issued by the Judicial Magistrate, III (L.C.C.) Court, Agra (Annexure 2 to the application) has been filed. No doubt, it has not been printed correctly but it is the same requisition as mentioned in Schedule II of the Prisoners (Attendance in Courts) Act, 1955 and Form 36 of Schedule II prepared under Section 267 of the Code.
14. The learned Additional Sessions Judge in his order rejecting the application has rightly remarked that once a requisition for transfer of the applicant from Kanpur Jail to Agra was issued by the Court concerned, it was meaningless for the police of Agra to seek remand under Section 167 of the Code from the Chief Metropolitan Magistrate, Kanpur Nagar. Therefore, after careful consideration of the aforesaid legal position, there remains no doubt that the applicant was not in the custody of Crime NO. 166 of 1989 under Sections 147/148/149/307/302, I.P.C. of Police Station Etmadpur district Agra. As the applicant was not in the custody in that crime case, the courts at Agra had no jurisdiction to release him on bail. The bail application was rightly held to be premature by the Additional Sessions Judge. The present bail application relating to aforesaid crime case of Agra is also held to be premature and is accordingly rejected. .