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Showing contexts for: criminal procedure code section 267 in Bobby Alias Premveer And Anr. vs State Of U.P. on 16 February, 2000Matching Fragments
I, THEREFORE, RESPECT FULLY DIFFER WITH THE VIEW TAKEN BY THE HON'BLE J. C. GUPTA, J. IN THE ABOVE CASE AND THE FOLLOWING POINT IS REFERRED TO FOR THE DECISION BY THE DIVISION BENCH "WHETHER AN ORDER Under Section 257 Cr.P.C. IN FORM No. 35 OF SECOND SCHEDULE OF Cr.P.C. CAN BE ISSUED ON THE REQUEST OF THE POLICE DURING INVESTIGATION OF SOME OFFENCE, EVEN IF NO INQUIRY OR TRIAL OR PROCEEDINGS ARE PENDING IN THE COURT.
8. With great respect to the learned referring Judge, it appears that in framing of the aforesaid question, it has been inadvertently again added "or proceedings are pending in the Court." In the earlier part of the referring order, the learned Judge proposed to include investigation as a proceeding under the Code as the expression proceedings is referred to in the provisions contained under Section 155, Cr.P.C. as also Section 157, Cr.P.C. and then dealt with the language used under Section 267, Cr.P.C. Before the order quoted above, the learned Judge has reached to the following conclusion:-
55. Coming now to the arguments of the rival parties, it was vehemently argued on behalf of the applicant's counsel that if legislature had thought to include "investigation" as one of the contingencies where Section 267 Cr.P.C. was to be attracted, it may well have used the expression "investigation" and nothing prevented legislature from doing so. It was strongly argued that there are several other Sections such as Sections 210 and 428 wherein the legislature has used all the three expressions i.e. investigation, inquiry and trial and therefore, only one inference should be drawn by this Court that investigation was not to be included under Section 267, Cr.P.C. and therefore specifically the words inquiry and trial alone have been used. It is contended that the expression "other proceeding under the Code" after the words "enquiry and Trial," deliberately exclude the word "investigation". Another argument on the part of the accused applicants was that no advantage or help from Section 167 new Code can be drawn in order to interpret the Section 267 of new Code because while Section 167 refers only to Magistrate, the powers under Section 267 are to be exercised by a "criminal Court" when prayer to it for an order under Section 167 if necessary.
76. With great respect to the Division Bench decision, it may be pointed out that neither all the provisions in the old Code and new Code and other relevant laws noted above have been taken note of nor the quoted observations would go beyond "obiter Dicta," therefore, in spite of best efforts this Court could not peruse itself to follow the said reasoning.
C. Natesan v. State of Tamil Nadu 1999 Cri LJ 1382 (Mad).
77. C. Natesan accused/prisoner had crime No. 1431 of 1998 under Sections 409 and 420, I.P.C. registered against him in Madras in which he was arrested and was remanded to in judicial custody. Other First Information Reports against C. Natesan came to be registered in Ahmedabad, Hyderabad and State of Maharashtra also alleging duping people and collecting several crores rupees through fraudulent financial "chemes. The Sub-Inspector of Police, Detective Branch, Ahmedabad regarding one first information report there and Inspector of Police, Crime Branch, Hyderabad as also the Inspector of Police, Crime Branch, State of Maharashtra appear to have approached the criminal Court at Chennai for transfer of C. Natesan to their respective States in connection with cases registered against him at respective Police Stations. The prosecution application was allowed and Prisoner Transfer Warrant (for short P.T.W) was directed for the production of C. Natesan from Jail at Tamil Nadu to the Courts at Hyderabad, Ahmedabad etc. On these facts a petition under Section 482, Cr.P.C. was filed challenging the issuance of the P.T.W. and consequent order of transfer of the prisoner C. Natesan to Hyderabad. Learned single Judge who heard the matter dismissed the petition, upholding the order with the further directions that arrest shall be shown in the case where prisoner C. Natesan was required to be produced. It was held that transfer order under Section 267, Cr.P.C. does not affect the personal liberty of the accused nor the desire of the person to be obtained before passing such an order. It was said that the recourse of the provisions of Sections 267 to 271, Cr.P.C. could be taken during investigation under the new Code.
84. With profound respect to the Hon'ble Judge deciding the C. Natesan Case 1999 Cri LJ 1382, and the Hon'ble Judge deciding Harshad Mehta's case 1992 (3) Cur Cri R 2793, this Court would prefer to hold that the concept of what has been referred to as "formal arrest" in Anupam Kulkarni case AIR 1992 SC 1768 : 1992 Cri LJ 2768 (supra) need not be brought in while getting an order under Section 267 of the New Code. There can be no doubt that necessary entries must be in existence in the case diary of the case in which the Investigating Officer may be requiring the 'B' Warrant under Section 267, Cr.P.C. and therefore, may Justify the moving of the said application. If and when the said person in custody is produced, the question of continuing his custody by judicial or police remand through appropriate warrant will arise for determination by the criminal Court subject to the restrictions existing in the provisions contained in Sections 267 to 271 read with Section 167 of the new Code and nothing more should be read in the language used therein.