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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 :

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."

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.

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.