J. K. MATHUR, J. In the Court of Special Addl. Chief Judicial Magistrate con stituted to try offences relating to Ayodhya incident, charge-sheet were filed against the certain caused on 7-12-1993. Some of them including also L. K. Advani and Kalyan Singh appeared before the said Court in compliance with the summons, issued against them. They were directed to be released on bail but in view of the fact that none of them furnished personal bonds, they were remanded to judicial custody fixing 20-12-1993. These caused were lodged in a temporary Jail at Pipri and Chunar under the appropriate provisions of the Prisoners Act and the Jail Manual. They were, however, not produced before the Court on 20-12-1993. as an order was issued by the State Government pur porting to exercise the powers vested in it under Section 268, Cr. P. C. The order was thereupon passed by the learned Magistrate finding that it had been almost compelled to release the accused by the said order. In this order certain observations were made by the learned Magistrate which are sought to be expunged in this application under Section 482, Cr. P. C. moved before this Court. These observations are contained in clauses a to e mentioned in the first para of the application. 2. One of the observations which is sought to be expunged, as contained in clause b is that the order passed by the State Government under Section 268 Cr. P. C. and not producing the accused was grave error on the part of the Government. While another part of the order sought to be expunged is that wrong assumptions had been raised by the State Government in passing the order. So far as the order remarks were concerned, the only thing to be seen is whether the Court was justified in recording these remarks specially in view of the fact that the State Government was not represented before the Magistrate. So far as the aforesaid two remarks were concerned, they were passed on finding that the Government do not have any power under Section 268, Cr. P. C. to pass the order or to produce the accused. It was asserted that this remark was also wrongfully made inasmuch as the State Government patently has the power under Section 268 Cr. P. C. to pass an order directing the accused not to be produced before the Court. 3. P. C. to pass the order or to produce the accused. It was asserted that this remark was also wrongfully made inasmuch as the State Government patently has the power under Section 268 Cr. P. C. to pass an order directing the accused not to be produced before the Court. 3. No notices were issued to the opposite party No. 1 who was the Special Addl. Chief Judicial Magistrate having passed the aforesaid order as it is not proper to summon a Presiding officer of a Court to explain the reasons for having passed an order even if such an order is alleged to be erroneous. It is only for the contesting interest to justify or assail the order and for this Court to decide about the correctness of the order. No. Court should be called upon to justify its order in open judicial proceedings in a Court except perhaps in very abnormal circumstances. It is necessary to maintain dignity of the Court, howsoever down in ladder. In these circumstances, a request was made to Advocate General to assist the Court in construing the provisions of Section 267 and Section 268 Cr. P. C. with a view to find whether the learned Magistrate was justified in recording remarks which he did in these two clauses. 4. The contention raised by the learned Government Advocate representing the State of U. P. and Sri Chaubey appearing on behalf of the Central Bureau of Investigation who is prosecuting the aforesaid cases, was that the provisions of Section 267 apply to all the productions of prisoners in the Court including the production of the persons who have been remanded to the custody under the provisions of Section 309, Cr. P. C. even before the Court who has so remanded him. As the provisions of Section 267 Cr. P. C. apply to such production, the Government is empowered to pass an order under Section 268 (1) Cr. P. C. and no order under Section 267 Cr. P. C. requiring the production can, therefore, have effect as long as the order passed under Section 268 Cr. P. C. is in force in view of the provisions contained in Section 268 (1) itself. 5. The competing consideration was that the Section 267 Cr. P. C. and no order under Section 267 Cr. P. C. requiring the production can, therefore, have effect as long as the order passed under Section 268 Cr. P. C. is in force in view of the provisions contained in Section 268 (1) itself. 5. The competing consideration was that the Section 267 Cr. P. C. applies only to summoning of a person who is in jail, not having been remanded by the very Court which requires his production and if any Court not having remanded him requires him for the reasons disclosed in clauses (a) and (b) of Section 267 (1), Cr. P. C. the provision of Section 267 Cr. P. C. would apply and such a requisition can be stalled by the State Government by passing order under Section 268 (1) Cr. P. C. 6. Sections 267,268 and 309 Cr. P. C. run as follows : - "267. Power to require attendance of prisoners.- (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 proceedings or, as the case may be, for giving evidence. (2) Where an order under sub-section (1) is made by a Magistrate of the second class, it shall not be forwarded to, or acted upon by, the officer in charge of the prison unless it is countersigned by the Chief Judicial Magistrate to whom such Magistrate is subordinate. (3) Every order submitted for countersigning under sub-section (2) shall be accompanied by a statement of the facts which, in the opinion of the Magistrate, render the order necessary, and the Chief Judicial Magistrate to whom it is submitted may, after considering such statement, decline to countersign the order. "268. (3) Every order submitted for countersigning under sub-section (2) shall be accompanied by a statement of the facts which, in the opinion of the Magistrate, render the order necessary, and the Chief Judicial Magistrate to whom it is submitted may, after considering such statement, decline to countersign the order. "268. Power of State Government to exclude certain persons from operation of Section 267.- (1) The State Government may, at any time, having regard to the matters specified in sub-section (2), by general or special order, direct that any person or class of persons shall not be removed from the prison in which he or they may be confined or detained, and thereupon, so long as the order remains in force, no order made under Section 267, whether before or after the order of the State Government shall have effect in respect of such person or class of persons. (2) Before making an order under sub-section (1), the State Government shall have regard to the following matters, namely: - (a) the nature of the offence for which, or the grounds on which, the person or class of persons has been ordered to be confined or detained in prison; (b) the likelihood of the disturbance of public order if the person or class of persons is allowed to be removed from the prison; (c) the public interest, generally. " "309. Power to postpone or adjourn proceedings.- (1) In every inquiry or trial, the proceedings shall be held as expeditiousty as possible and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. (2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjouf n, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody. Provided that no Magistrate shall remand an accused person to custody under this Section for a term exceeding fifteen days at a time. Provided that no Magistrate shall remand an accused person to custody under this Section for a term exceeding fifteen days at a time. Provided further that when witnesses are in attendance not adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing. Provided also that no adjournment shall for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him. Explanation 1.- If sufficient evidence has obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand. Explanation 2.- The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of cost by the prosecution or the accused. " 7. Section 267 Cr. P. C. provides for production of a person confined or detained in prison, before a Court, either for answering a charge or for any other proceeding or as a witness. When such a requirement is sent to the jail authorities, they may not comply with it if the State Government by a general or a special order passed under Section 268 (1) Cr. P. C. direct that such a person or class of persons to which such a person belongs, shall not be removed from the prison. 8. On an order being passed under Section 268 (1) Cr. P. C. by the Government, any requisition sent under Section 267 Cr. P. C. may not be given effect to. 9. At this stage, it may also be pointed out that under Section 269 Cr. P. C. where a person in respect of whom an order is made under Section 267 for production before a Court is under committal for trial or under remand pending trial or pending a prelimi nary investigation, the officer incharge of the prison may not comply with the said order. 10. The prisoners in the present case had all been remanded to custody after they had appeared in the Court on being so summoned by the learned Magistrate before whom a charge-sheet had been submitted against them. 10. The prisoners in the present case had all been remanded to custody after they had appeared in the Court on being so summoned by the learned Magistrate before whom a charge-sheet had been submitted against them. They were, thus remanded under 309 (2) Cr P. C. which, as given above, permits an accused to be remanded to custody if a case is adjourned till the next date fixed. 11. The provision of Section 309 Cr. P. C. are self-contained inasmuch as when an accused is standing trial before a Court and is in custody, the Court whenever it adjourns the case can and does remand the accused to custody for such period not exceeding 15 days at a time, till the next date for hearing. 12. A person who has been arrested and is produced before a Court in a trial or an accused who is arrested by the Court, are in the custody of the Court during the period of investigation or trial. During trial such accused are kept in custody of the officers of the prison who hold the accused or oehalf of the Court which so remands him. He can be detained in custody only for the period for which he has been so remanded. On expiry of such period he has to be produced before the Court according to the very intention of the provisions of Section 309 Cr. P. C. Any detention beyond the period of remand would be illegal and, therefore, in case such a person is not produced before the Court for such orders as the Court mayjike to pass in this regard, he cannot be detained any longer and shall have to be release. A person can be kept in custody, which is deprivation of his right to liberty, only in accordance with the "procedure established by law" in terms of Article 21 of the Constitution. The only provisions in the Cr. P. C. which permit a person to be detained in jail during investigation or trial are contained in Sections 167, 209 and 309. Section 167 applies to remands during investigation while Section 209 applies to the remands given at the time of cotpmittal of an accused to the Court of Session. It is only Section 309 which permits a remand during trial or inquiry. 13. Section 167 applies to remands during investigation while Section 209 applies to the remands given at the time of cotpmittal of an accused to the Court of Session. It is only Section 309 which permits a remand during trial or inquiry. 13. If we read the provisions of Section 267 and 268 in this context, it will be found that the provisions of Section 267 do not apply to a person who has been remanded to custody under Section 309 Cr. P. C. inasmuch as no specific order is to be issued by the Court for production of such an accused. His productions is only an incidence of the remand. Section 267 Cr. P. C. in its terms applies only to caseswhere a person is in prison in connection with any other cases, either during investigation or trial or even after conviction and he is needed by a Court for answering a charge or for any other proceed ing against him or as a witness. In such circumstances, it being not the Court in whose custody such a prisoner already is, such a Court would send a requisition to the officer-in-charge of the prison for his production for any of the aforesaid purposes. In case a requisitions sent under Section 267 Cr. P. C. the State Government has been empowered under Section 268 to pass an order directing that such a person be not removed from the prison. The person concerned shall then not be produced before the Court. 14. This power can be exercised effectively when in spite of non-production of such a person before the Court concerned, he can be lawfully detained in the prison. There can be no purpose or object for exercising such a power requiring a person not to be produced before the Court if he can in any event be not detained further and shall have to be released in view of the fact that his remand empires, 15. This is one reason to find that the power under Section 268 Cr. P. C. may not be exercised in respect of production of a person before a Court under whose order that person has been remanded to custody. 16. This is one reason to find that the power under Section 268 Cr. P. C. may not be exercised in respect of production of a person before a Court under whose order that person has been remanded to custody. 16. In case such a prisoner is not produced before the remanding Court, lie shall have to be released as pointed out above and subsequently the Court concerned can always require him to be arrested again to be produced before it, frustrating the very object of Section 268. 17. No provision can be interpreted in a manner as would render it ineffective. 18. In case the interpretation suggested by the learned Counsel for the State and by the learned Counsel for the C. B. I. is accepted, it will hit at the very roots of the rule of law. It will be open to the State Government to frustrate any prosecution by requiring a person who is being prosecuted, not to be produced before the Court in which he is being prosecuted. This will necessarily imply that the State Government will have the power to frustrate any prosecution, negating the basic tenet of the rule of law i. e. equal treatment before law. A person who is being prosecuted and is remanded to custody, if permitted not to be produced before the Court, cannot continue to be tried in his absence in view of the fact that his absence from the Court is in voluntary and the proceeding cannot take place in his absence. 19. No provision of law can be so interpreted as to render it unconstitutional. Interpreting a person in such a manner as would make it violative of rule of law is not permissible. A provision is to be so interpreted as to render it constitutional and lawful. 20. In view of the above also, the provision of Section 267 Cr. P. C. and Section 268 Cr. P. C. cannot be read so as to concede power in the State to prohibit production of a person before the Court which has remanded him into custody. Concession of such a power would also be an interference with the functioning of the criminal justice system, at the caprice of the executive and shall afford unbridled power to the State to stall any prosecution. 21. Concession of such a power would also be an interference with the functioning of the criminal justice system, at the caprice of the executive and shall afford unbridled power to the State to stall any prosecution. 21. That the law did not want to confer such a power on the State is also clear from the provision of Section 321 Cr. P. C. where even withdrawal from the prosecution is permissible only with the consent of the Court. This being the intention of the legisla ture, a wider inconsistent power cannot indirectly be conceded to the State in so inter preting Section 267 and Section 268 Cr. P. C. as to confer unfettered power on the State to frustrate a prosecution. 22. In view of the above, I find that not notification could be issued by the State under Section 268 to prevent the production of the accused before learned Judicial Magistrate and the observation of learned Magistrate that such an order was erroneous is not liable to be expunged. The first part of the order sought to be expunged is given in caused (a) of the application where it has merely been said that it was astonishing as to how the accused were shifted to different jails. This does not in any manner cast any aspersion on the conduct of the State Government. However, the observation of the learned Magistrate that the State Government had tried to put unnecessary obstacles and that it had acted with ulterior motive and on flimsy grounds are certain aspersions which need not have been made, especially when the State Government was not represented before the learned Magistrate, to explain its conduct. In judicial proceedings, the Courts Judge the Acts and not the man. It was justified for the Magistrate to say that the Act was erroneous, but he need not have judged the man who committed the same by saying that they had acted with ulterior motive or on flimsy grounds. The Courts have to be circumspect in commenting upon the behavior of any person, especially when that person is not before the Court to explain his conduct. This violates the very basic principle of natural justice. The Courts have to be circumspect in commenting upon the behavior of any person, especially when that person is not before the Court to explain his conduct. This violates the very basic principle of natural justice. In case the learned Magistrate was of the opinion that the order passed by tbe State Government was not justified, he should have called upon the State Government to explain the circumstan ces in which the order has been passed and then to find whether it had been highly passed. Before such an opportunity was afforded, it was not proper for him to have used the language that he did. 23. These expressions as are contained in clauses (c), (d) and (e) in the application moved on behalf of the State are, therefore, liable to be expunged. 24. As a result, the application is allowed in part. The aforesaid three portions of the order passed by the learned Special Judicial Magistrate are hereby expunged. They shall cease to be part of his order. Application allowed. .