K.S.Muthuramalingam v. State & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 1.7.2010C O R A MThe Honourable Mr. Justice C.NAGAPPANandThe Honourable Mr. Justice P.R.SHIVAKUMARHabeas Corpus Petition No.1151 of 2010K.S.Muthuramalingam.. PetitionerVs.1. State, rep. by the Inspector of Police,District Crime Branch,Commissioner Office,Coimbatore.2. The Superintendent,Central Prison,Coimbatore-18... RespondentsPRAYER : Petition under Article 226 of the Constitution of Indiaseeking to issue a Writ of Habeas Corpus for a direction to therespondents to produce the petitioner's son Sundar alias Raja,S/o.Muthuramalingam, aged about 35 years, now confined in CentralPrison, Coimbatore, before this Hon'ble Court and set him at liberty.For Petitioner : Mr. M.Radhakrishnan for M/s.P.Pugalenthiand P.K.IlavarasanFor 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 inthis Habeas Corpus Petition and he has sought for issuance of a writ https://hcservices.ecourts.gov.in/hcservices/ of Habeas Corpus directing the release of the above said detenu whohas been lodged in Central Prison, Coimbatore. 2. As per the petition allegations, the detenu Sundar aliasRaja was arrested and remanded to judicial custody in CrimeNo.16/2009, registered on the file of District Crime Branch,Coimbatore, for offences punishable under Sections 406 and 420 IPCon 29.5.2009 and he was granted bail by the learned JudicialMagistrate, Palladam, imposing conditions to produce documentsshowing assets worth Rupees One Crore and two sureties, havingproperty worth Rs.50,00,000/- and to jointly execute a bond for a sumof Rs.10,000/-. However, the said order was subsequently modifiedby removing the other conditions and imposing a condition to executea bond for a sum of Rs.1,00,000/- with two sureties each for alikesum and the said order of modification was passed on 10.6.2010.It has also been stated in the petition that pursuant to the saidorder, bail bond was executed on 18.6.2010 by the sureties and thebail bond was sent to the Superintendent, Central Prison, Coimbatoreon the same day. However, the detenu Sundar alias Raja was notreleased by the Prison Authorities even after the submission of thebail bond as per the requirements found in the bail order granted bythe learned Judicial Magistrate, Palladam. Hence the petitioner hascome forward with the present petition contending that the continueddetention of the detenu in the Central Prison is not authorised bylaw and his right guaranteed under Article 21 of the Constitution ofIndia has been violated, necessitating this Court to exercise thepower under Article 226 of the Constitution of India for issuance ofa writ of Habeas Corpus for production of the detenu and set him atliberty.3. The second respondent has filed a counter affidavit statingthat even before the bail bond was received by the Jail Authoritiesin the case in which the detenu had been remanded to judicialcustody, a P.T. Warrant was received from the III Additional CivilJudge and Judicial Magistrate of First Class, Porbandar, Gujarat inconnection with Crime No.2576/2009, a case registered for an offencepunishable under Section 138 of Negotiable Instruments Act; that dueto non-availability of the escort police, the detenu could not betaken to Porbandar to be produced before the said Court and thatsubsequently on intimation to the said Court, successive P.T.Warrants came to be issued till date and a P.T. Warrant is pending atpresent, directing the production of the detenu on 23.7.2010. Ithas also been stated in the counter affidavit that two more P.T.Warrants, one from III Additional Civil Judge (Junior Division) andIII Judicial Magistrate of First Class, Bijapur and another from IAdditional Civil Judge (Junior Division) and Judicial Magistrate ofFirst 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] respectivelywith requests to produce the above said detenu before the said Courts https://hcservices.ecourts.gov.in/hcservices/ on 23.7.2010, are pending execution and that the same was the reasonwhy the detenu was not released pursuant to the execution of bailbond. 4. We heard the submissions made by Mr.M.Radhakrishnan,learned counsel for the petitioner and the submissions made byMr.Hassan Mohammed Jinnah, learned Additional Public Prosecutorrepresenting the respondents. 5. It is the contention of the learned counsel for thepetitioner that the very purpose of issuing a P.T. Warrant is toproduce a person who is lawfully confined in a prison to answer acharge or to be examined as a witness before a Criminal Court andthe mere fact that P.T.Warrants have been issued shall notauthorise the Prison Authorities to keep the prisoner in continuedcustody 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 orother proceeding under this Code, it appears to aCriminal Court, -(a) that a person confined or detained in aprison should be brought before the Court foranswering to a charge of an offence, or for thepurpose of any proceedings against him, or(b) that it is necessary for the ends of justiceto examine such person as a witness, the Court maymake an order requiring the officer in charge of theprison to produce such person before the Court foranswering to the charge or for the purpose of suchproceeding or, as the case may be, for givingevidence.(2) Where an order under sub-section (1) is madeby a Magistrate of the second class, it shall not beforwarded to, or acted upon by, the officer in chargeof the prison unless it is countersigned by the ChiefJudicial Magistrate to whom such Magistrate issubordinate.(3) Every order submitted for countersigningunder sub-section (2) shall be accompanied by astatement of the facts which, in the opinion of theMagistrate, render the order necessary, and the ChiefJudicial Magistrate to whom it is submitted may, after https://hcservices.ecourts.gov.in/hcservices/ considering such statement, decline to countersign theorder."7. Section 267 of the Code of Criminal Procedure, 1973 dealswith P.T. Warrant. It says, whenever it appears to a CriminalCourt dealing with an inquiry, trial or other proceeding, in thecourse of such inquiry, trial or other proceeding under the CriminalProcedure Code that a person confined or detained in a prison shouldbe brought before the Court for answering to a charge of an offence,or for the purpose of any proceeding against him or it isnecessary to examine such person as a witness, such Court maymake an order requiring the officer in charge of the prison toproduce such person before the Court for answering to the charge orfor the purpose of such proceeding or, as the case may be, for givingevidence. A reading of the said section itself suggests that suchan order of a Criminal Court for production of the person detained inprison shall be executable only if the person is detained on the dateon which, production is to be made. This position is furtheramplified by sub-section (c) of Section 269 of Criminal ProcedureCode. For better appreciation, the entire Section 269 of the Codeof Criminal Procedure is re-produced hereunder: "269. Officer in charge of prison to abstain fromcarrying out order in certain contingencies.- Where theperson in respect of whom an order is made undersection 267- (a) is by reason of sickness or infirmity unfitto be removed from the prison; or (b) is under committal for trial or under remandpending trial or pending a preliminary investigation;or (c) is in custody for a period which wouldexpire before the expiration of the time required forcomplying with the order and for taking him back tothe prison in which he is confined or detained; or (d) is a person to whom an order made by the StateGovernment under section 268 applies,the officer in charge of the prison shall abstain fromcarrying out the Court's order and shall send to theCourt a statement of reasons for so abstaining; Provided that where the attendance of suchperson is required for giving evidence at a place notmore than twenty-five kilometres distance from the https://hcservices.ecourts.gov.in/hcservices/ prison, the officer in charge of the prison shall notso abstain for the reason mentioned in clause (b)."8. Section 269 of Cr.P.C prescribes the circumstances underwhich a jail authority has to abstain from carrying out the orderpassed under Section 267 Cr.P.C. The contingencies under which theperson in-charge of the prison has to abstain from producing theprisoner on P.T. warrant are: a) unfitness of the prisoner to beremoved from the prison by reason of his sickness or infirmity makingthe prisoner unfit to be removed from the prison; b) the prisonerbeing under orders of committal for trial or under remand pendingtrial or pending preliminary investigation; c) the period ofauthorised custody would expire before the prisoner could be producedin compliance with the P.T. warrant before the court which issued theorder and brought back to the prison in which he is confined ordetained and d) The State Government has passed an order underSection 268 Cr.P.C that the person should not be removed from theprison and such order remains in force. The proviso to Section 269Cr.P.C provides an exception and prescribes the circumstances underwhich a jail authority shall not abstain from carrying out the orderpassed under Section 267 Cr.P.C.9. Clause (c) of section 269 Cr.P.C specifically provides thatthe officer in-charge of the prison shall abstain from carrying outthe production order, if the person sought to be produced is incustody for a period which would expire before the expiration of thetime required for complying with the order and for taking him back tothe prison in which he is confined. A reading of clause (c) shallmake it clear that unless there is sufficient time for takingprisoner to the court which issued the production warrant and to takehim back to the prison before expiry of the authorised period ofdetention, an order passed by the court under Section 267 Cr.P.C forproduction of the prisoner shall not be complied with.10. As per the proviso, when a prisoner is required to beproduced before a criminal court situated at a place not more than 25miles away from the prison for giving evidence, then the officer in-charge of the prison shall not so abstain for the reason mentioned inclause (b), namely 'the prisoner is under committal for trial orunder remand pending trial or pending a preliminary investigation'.The conjunction used for the four exceptions (a) to (d) in Section269 Cr.P.C is 'OR' and not 'AND'. If any one of the fourcontingencies is proved to exist, then the prison authority has toabstain 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 makeit clear that the purpose of P.T. warrant is to direct the production https://hcservices.ecourts.gov.in/hcservices/ 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 anauthorisation to curtail the liberty of the person and keep him incustody till the date on which his production is sought for. Themere pendency of a P.T. warrant shall not be enough to keep aprisoner in the prison beyond the date of expiry of the sentence, ifhe is a convict or beyond the date on which the remand expires unlessthe remand is extended by a competent court. The pendency of a P.T.warrant cannot be equated with a remand and the same cannot beconstrued to be an authorisation for detaining a person beyond theperiod 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. & Anotherreported in 1992(1) MWN (Cri)/Mad 68 shall have bearing, though notdirectly applicable. In the said case it has been observed that theissue of a P.T. warrant when the person is not confined or detainedin a prison in respect of any other case is not justifiable and whensuch a fact is brought to the notice of the court which had issuedP.T. warrant, the same should be recalled. The judgment went furtherto state that the recalling of the P.T. warrant will not bar thesubsequent arrest of the person in execution of an NBW. 13. From the above, it is quite obvious that the scope of theP.T. warrant cannot be enlarged by assuming the same to be anauthorisation for detaining the prisoner beyond the period ofdetention. It will be effective only if his detention is otherwiseauthorised as on the date on which he is supposed to be producedbefore the court issuing P.T. warrant. 14. The decision of the Apex court in Ram Dass Ram v. State ofBihar and another reported in AIR 1987 SUPREME COURT 1333 will makeit abundantly clear that the issuance of P.T. warrant cannot beconstrued to be an order of remand. A person, who has been acquittedor granted bail in the cases in which he was remanded to judicialcustody, cannot be detained further on the sole ground that a P.T.warrant has been issued by another court. In the said case decidedby the Supreme Court, the accused was acquitted in two Sessions casesin which he had been remanded and even after the acquittal in thosecases he was continued to be detained in the prison on the basis of aP.T. warrant issued for his trial in another case. Such a detentionwas held to be unjustified. The facts of the case before the SupremeCourt reveal that there was no warrant (remand order) for detainingthe detenu in jail in the third case in which P.T. warrant was issuedor in any other case after the detenu had been acquitted in the twocases in which he had been remanded.15. P.T. Warrants can be classified into two categories: https://hcservices.ecourts.gov.in/hcservices/ 1)directing production of the person confined in the prisonon the date of hearing specified in the order, and3)directing production without specifying a date forproduction. In either case, the P.T.Warrant cannot be construed to be anauthorisation to detain the person in jail beyond the period ofremand 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 directedto be produced in the sine qua non for such production. Therefore,the first category of P.T. Warrant, namely specifying a particulardate on which production is to be made, shall be issued in cases whenproduction is sought for for being examined as a witness or foranswering a charge or facing other proceedings in which he hasalready been granted bail. In such cases, the prisoner shall bereleased if, before the date fixed for his production, his period ofsentence expires or the period of remand comes to an end. Secondtype of P.T. Warrants viz. without specifying the date for productioncan be issued, in cases wherein the prisoner has to answer the chargeor face a proceeding when he was not granted bail or bail granted wascancelled. In such cases, the prison authority is bound to producesuch person on receipt of P.T. Warrant. Even in such cases, hecannot be detained for being produced in the court in compliance withthe P.T. Warrant if the sentence or remand period expires before thereceipt of P.T.Warrant.16. Hence, we are convinced with the contention of the learnedcounsel for the petitioner that the continued detention of thepetitioner beyond 19.6.2006, the date on which the bail bond wasreceived by the Superintendent of Prisons, Central Prison,Coimbatore, is illegal and this Court has to issue a directionfor his release, especially when it is not the case of therespondents that he has been remanded in any other case or hiscontinued custody is authorised in connection with any other case. 17. In the result, the Habeas Corpus Petition is allowed andthe detenu Thiru. Sundar alias Raja is ordered to be set atliberty forthwith, unless his custody is authorised inconnection with any other case.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ Vks/asrCopy to:-1. The Inspector of Police,District Crime Branch,Commissioner Office,Coimbatore.2. The Superintendent,Central Prison,Coimbatore-18.3.The Joint Secretary to Govt.,Public (Law and Order)Fort St. George, Chennai-9.4. The Public Prosecutor,High Court, Madras-104.+1cc to Mr.P.Pugulenthi, Advocate Sr 47119GV(CO)km/2.8.H.C.P. No.1151 of 2010