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Cy The sixth respondent filed his counter denying the allegations made in the writ affidavit stating that a warrant issued under Section 267 Cr.P.C., though does not authorize detention of a person in prison, but it can be invoked to peaduce a person confined or detained in a prison before a criminal court for answering the charge. As such, it is submitted that the understanding of the petitioner that the alleged detenue was detained merely on the basis of PT warrant under Section 267 Cr.P.C., is not correct and if founded. lt is further submitted that in pursuance of the PT warrants issued, the Jail Authorities produced the alleged detenue before the Court and having heard the parties, the court passed an order under Section 167 Cr.P.C, authorizing the Superintendent, Central Prison, Kadapa to detain the alleged detenue in custody and the same is being extended from time to time. Hence, it is submitted that as the order passed under Section 167 Cr.P.C., is a judicial order and untess and until the said judicial order is set-aside by a competent court, the custody cannot be termed as iHegal. [t is also stated that since the detenue is involved in number of crimes, in different police stations of YSR Kadapa District, petitions for issuance of PT warrants were required to be filed and ifall the police stations file applications for issuance of PT warrants on a given date, it would be impossible to produce the alleged detenue before various courts at various places on a particular date and eventuality the orders of the court could not be complied with. -- It is further stated that since the alleged detenue has committed offences and is in judicial custody, the police are left with no other option except filing applications for PT warrants and the said action cannot be termed as illegal or contrary to law. [Ifthe alleged detente is not produced between the period specified in the PT warrant, then it ceases to operate. On the other hand, if the alleged detenue is produced before the efflux period and the court. passes an order under Section 167 Cr.P.C. then the issue of co-terminus with the end of detention, would not arise. Hence, prays to dismiss the Writ Petition.

6. Before proceeding further, tt would be | appropriate to know the legislative history of Section 267 Cr.P.C., since the main plank of argument is that the detenue has been illegally and unlawfully detained, thereby warranting issuance of fabeas corpus, more so, when there is no remand under Section 167 Cr Pc, Q

7. The Law Commission in its 40° and 41" repart recommended that section 491 be omitted and more comprehensive provisions be incorporated under the new Code. The reason for suggesting the change appears to be that Section 491(1) carrespands to writ of dabeas corpus. Since Article 226 of the Constitution of India confers wide and comprehensive powers for the High Courts of the States to issue to any person, ar authority, including, in appropriate cases, any Government, directions, orders or writs, including Writs 10 the nature of writ of habeas corpus for any purpose. In view of this provision, clauses (a) and (b) of Section 491(1) became practically superfluous. Further, the Law Commission recommended the provisions of clauses (c}, (dj) and (e) relating to production of prisoners ia Court for various purposes should be omitted and more detailed provisions securing the attendance of prisoners in criminal courts on the lines of those contained inthe Prisoners (Attendance in Courts) Act, 1955 should be included in this chapter. [tis on the lines of these recommendations made by t the Law Comimission, that Chapter 22 containing Section 267 was brought on record. The objects.and reasons for this amendment clearly point out the mind of the legislature, which is to secure the attendance of the prisoner in Court and not to be a help in aid to investigating agency, nor the legislature intended that these provisions be invoked in order to facilitate the investigating agency to calla prisoner through court from another jail in order to make formal arrest or LO Interragaie in tovestigation. The heading of the chapter itself shows that the attendance of persons confined or detained in person in Court. Therefore, the Court can exercise the power under Section 267 Cr.P.C. only for the purpose of asking to answer the charge in an inquiry or trial or in the proceeding pending before him, or for giving evidence as witness in the a Court, but cannot require his attendance to answer the charge in the investigation.

"He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand te judicial ar other custody. He can be siated to be in judicial custody when he surrenders before the Court and submits to its directions."

16. From the judgment of Niranjan Singh's case (supra) it is very clear that an accused can be in custody not only when the Police arrests him, but also when remanded on his surrender before the court and submitting to its jurisdiction. Therefore, as observed by the Apex Court in Aaupant, Jf Aulkarii's case (supra) arrest shall never be a pre-condition for remand, and that one need not be arrested and produced before the Court, for the purpose of remand and to the judicial custody of the Court. He can be stated to be in judicial custody when remanded on his surrender before the Court and submits to its jurisdiction. Hawever, his physical control or at least physical presence, coupled with submission to the jurisdiction and orders of Court, is a sine que non, Be it on the production by the investigating agency, or on his own before the court. Hf the Court is of the opinion that he has committed cognizable offence and that his remand is warranted, it can direct him to be remanded to judicial custody under Section 167 Cr.P.C., though + f€1980) 2 SCO $50} not arrested by any investigating agency. That being the position, the argument of the learned counsel for the petitioner that arrest is a pre- condition for remand may not be correct. But however, the power of remand is to be exercised under Section 167 Cr.P.C. only and not ander Section 267 CrP.C, As held by us earlier, remand of an accused under Section 267 CrP.c. itself may not be correct, but remanding an accused by an order of court iS a pre-requisite for the purpose of making an application for secking bail, i7. lis well established that a remand of an accused on production before the court.can only be under the provisions of section 167 CrP.C., but non- menGoning the provision of law while ordering remand of the accused by itself shall not make a remand, an legal one. Ifa specific provision is made while remanding the accused, which is contrary io the provision of Cr.P.C., then definitely one can point out the mistake in passing the order. The counsel for the petitioner placed on record a copy of the recall petition, in an application objecting far remand. A perusal of the order passed in Criminal M.PL Nowlt 8 of 2018 in crime No.96 of 2017 would clearly show that the petitioner/aceused was ordered to be detained in judicial custody by invoking the power under Section 167(2) CrP.C. No material is placed before the Court to show that a remand order came to be passed under Section 267 Cr.P.C. or that a remand has been ordered automatically on production under Section 267 CrP.C. The wording in Section 267 Cr.P.C. relates to securing attendance of prisoners in the course of 'inquiry' or 'trial' or "ather proceedings under the code', it appears to the criminal court that a person confined or detained in prison should be brought before the court.

The stress is on the words confined or detained in prison, meaning thereby that a P.T. warrant can be issued to a prisoner, who is confined or detained in prison, meaning thereby, the confinement or detention in prison should be < fawful one, only then, warrant issued under Section 267 Cr.P.C. can be executed, Section 267 Cr.P.C., as observed earlier, only speaks about the production of the accused before the Court. It does not anywhere contemplate remand of the accused under the said provision. It is also to be noted here that Sections 267 to 270 Cr.P.C. contemplate production of the prisoner before the Court by the Officer in-charge of the prison. It is also evident that at times, the investigating agency in one case may not be aware about the production of the prisoner before another court, in another crime, where arrest is effected till then.