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2010 DIGILAW 60 (GAU)

Md. Fakrul Islam v. State of Assam

2010-01-29

HRISHIKESH ROY, RANJAN GOGOI

body2010
JUDGMENT Ranjan Gogoi, J. 1. This writ petition has been filed seeking a direction that the detention of the petitioner in the Central Jail at Guwahati on and from 19.10.2009 is illegal and unauthorized; consequential release of the petitioner and further for interference with the production warrants, details of which will be noted in the course of the discussion that follows. Grant of compensation for the illegal detention of the petitioner has also been prayed for. 2. To determine the tenability of the prayers made in the writ petition in the light of the arguments advanced and the attending as well as subsequent facts of the case, the resume that follows has become necessary. 3. The petitioner who claims to be a businessman was arrested on 8.10.2009 in connection with Bhangagarh P.S. Case No. 105 of 2008 under Sections 120B/224/225, IPC. Following his arrest he was lodged in custody in the Central Jail at Guwahati up to 19.10.2009 on which date by orders passed by the learned Sessions Judge, Kamrup in Bail Application No. 1734(K)/2009, he was directed to be released on bail. According to the petitioner, bail bond to the satisfaction of the learned Chief Judicial Magistrate, Kamrup was submitted on 19.10.2009 and the release order of the petitioner was communicated to the Jail authorities on the same date. However, despite the bail order passed by the learned Sessions Judge and the consequential release order passed by the learned Chief Judicial Magistrate, Kamrup, the Jail authorities had not released the petitioner on the ground that on 16.10.2009 a production warrant was received by the Jail authorities for production of the petitioner before the competent court on 28.10.2009 in connection with C.R.(NDPS) Case No. 12/2009 pending before the learned Special Judge (NDPS Act), Siliguri, District - Darjeeling, West Bengal. 4. From the recital of the facts made in the respective pleadings of the parties it appears that the Jail authorities admit the release of the petitioner in connection with Bhangagarh P.S. Case No. 105 of 2008 on the basis of the order passed by the learned Sessions Judge, Kamrup on 19.10.2009 in Bail Application No 1734(K)/2009. However, according to the Jail authorities, as a production warrant has been received by the Jail authorities on 16.10.2009 from the learned Chief Judicial Magistrate, Darjeeling (West Bengal), the petitioner has not been allowed to leave the Central Jail. However, according to the Jail authorities, as a production warrant has been received by the Jail authorities on 16.10.2009 from the learned Chief Judicial Magistrate, Darjeeling (West Bengal), the petitioner has not been allowed to leave the Central Jail. In this regard, it also appears that by a subsequent order dated 23.10.2009 passed by the learned Special Judge (NDPS Act), Siliguri, District - Darjeeling, West Bengal, production warrant against the petitioner has been issued and the Superintendent, Central Jail, Guwahati has been directed to produce the petitioner before the said court on 18.11.2009. It also appears that pursuant to the production warrant earlier issued by the learned Chief Judicial Magistrate, Darjeeling (West Bengal), the Senior Superintendent of Police, Kamrup had informed the said court that it was not possible to ensure products of the petitioner on 28.10.2009 as directed in the said warrant and in the facts and circumstances a fresh date for production may be fixed. Accordingly, the learned Chief Judicial Magistrate, Darjeeling had shifted the date for production of the petitioner to 19.11.2009. 5. While the aforesaid developments were going on the petitioner had moved this writ petition wherein an interim order dated 16.11.2009 has been passed directing the respondents in the writ petition "not to remove the petitioner from Central Jail, Guwahati, where the petitioner is currently lodged, until further orders from this Court." The court has been informed that the petitioner continues to be in prison and further that on 20.11.2009 he has been shown arrested in connection with C.R. (NDPS) Case No. 12/2009 pending before the learned Special Judge (NDPS Act), Siliguri, District - Darjeeling, West Bengal though no record or order to the above effect has been placed before the court. 6. We have heard Sri K. Agarwal, Learned Counsel for the petitioner; Sri P.S. Deka, learned Government Advocate, Assam; Sri Z. Kamar, learned Public Prosecutor, Assam and Sri B, Sarma, learned Central Government counsel. 7. 6. We have heard Sri K. Agarwal, Learned Counsel for the petitioner; Sri P.S. Deka, learned Government Advocate, Assam; Sri Z. Kamar, learned Public Prosecutor, Assam and Sri B, Sarma, learned Central Government counsel. 7. Though the legality of the production warrant(s); the competence of the Special Judge (NDPS Act), Darjeeling, Siliguri to entertain the NDPS case as well as the correctness of the accusations made against the petitioner have been raised in the writ petition, we had made it clear that on grounds of lack of territorial jurisdiction the aforesaid questions would be outside the purview of this Court and the petitioner, if he so chooses, may raise the said issues before the competent forum. We are told by the Learned Counsel for the writ petitioner that a separate proceeding raising the above questions have been initiated by the petitioner in the Calcutta High Court and the same is presently pending. Therefore, the only question that is being gone into by this Court is the legality of the action of the authorities of the Kamrup Central Jail in detaining the petitioner on the strength of the production warrant(s), notwithstanding his release on bail by order dated 19.10.2009. 8. Chapter XXII of the Cr.PC, 1973 contains provisions with regard to attendance of persons confined or detained in prison. Sections 267 and 269 of the Cr.PC, contained in Chapter XXII being relevant it will be necessary to extract herein the provisions of the aforesaid two sections. 267. Power to require attendance of prisoners. - (1) Whenever, in the course of an inquiry, 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 proceeding 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. 269. Officer-in-charge of prison to abstain from carrying out order in certain contingencies. - Where the person in respect of whom an order is made under Section 267 - (a) is by reason of sickness or infirmity unfit to be removed from the prison; or (b) is under committal for trial or under remand pending trial for pending a preliminary investigation; or (c) is in custody for a period which would expire before the expiration of the time required for complying with the order and for taking him back to the prison in which he is confined or detained; or (d) is a person to whom an order made by the State Government under Section 268 applies, the officer in charge of the prison shall abstain from carrying out the court's order and shall sent to the court a statement of reasons for so abstaining; Provided that where the attendance of such person is required for giving evidence at a place not more than twenty-five kilometers distance from the prison, the officer-in-charge of the prison shall not so abstain for the reason mentioned in Clause (b). 9. A close scrutiny of the provisions contained in Sections 267 and 269 of the Cr.PC would go to show that it empowers a criminal court to make an order requiring the officer-in-charge of the prison where a person is confined or detained to produce such person before the court for answering a charge or for giving evidence in connection with any enquiry, trial or other proceeding which may be pending before the particular criminal court. Section 269 is in the nature of an exception to the provisions contained Section 267 inasmuch as Clauses (a), (b), (c) and (d) of Section 269 lays down the situations in which the officer-in-charge of a prison need not carry out a court's order and instead may send to the court a statement of the reasons for not carrying out the order that may have been passed by a court for production of the person detained in prison. 10. The facts of the present case, elaborately recited above, clearly indicate that though the petitioner was in custody on the date of receipt of the production warrant issued by the learned Chief Judicial Magistrate, Darjeeling, i.e., on 16.10.2009, such custody ceased with effect from 19.10.2009 on which date the petitioner was released on bail. In fact, in the affidavit dated 13th November, 2009 submitted by the Superintendent of the Central Jail, Guwahati it has been clearly stated that pursuant to the bail order passed by the learned Sessions Judge, Kamrup the petitioner had been released and his further detention was on the strength of the production warrant issued by the learned Chief Judicial Magistrate, Darjeeling. The date of production in terms of the warrant issued by the learned Chief Judicial Magistrate, Darjeeling was fixed on 28.10.2009. As the custody or detention of the petitioner ceased with effect from 19.10.2009 clearly Clause (c) of Section269, Cr.PC became applicable to the case of the petitioner insofar as the warrant issued by the learned Chief Judicial Magistrate, Darjeeling is concerned. Insofar as the production warrant issued by the learned Special Judge (NDPS Act), Darjeeling, Siliguri on the basis of the order dated 23.10.2009 as well as the fresh date for production of the petitioner fixed by the learned Chief Judicial Magistrate, Darjeeling, i.e., 18.11.2009 and 19.11.2009 is concerned, once again, very clearly, the petitioner not being in custody Clause (c) of Section 269 became applicable in respect of the said warrants. In such a situation it was incumbent on the Superintendent of the Central Jail, Guwahati to inform the concerned courts of the said facts and further that the said facts did not warrant production of the petitioner before the courts in question in terms of the production warrants issued. In such a situation it was incumbent on the Superintendent of the Central Jail, Guwahati to inform the concerned courts of the said facts and further that the said facts did not warrant production of the petitioner before the courts in question in terms of the production warrants issued. The Superintendent, Central Jail, Guwahati did not so act and instead had continued to keep the petitioner in custody and detention on the strength of the production warrant(s). Such action could not have been resorted to by the Superintendent, Central Jail, Guwahati inasmuch as the provisions of Sections 267 and 269 of the Code of Criminal Procedure, 1973 has clearly circumscribed the limits of the legal authority vested in the Jail authorities by a production warrant issued by a criminal court. Such a production warrant only empowers and in fact obliges the Jail authority to produce a person in custody before a competent court provided the circumstances mentioned in Section 269 are not attracted. In the present case Clause (c) of Section 269 having been clearly attracted the mandate of the law required the Jail authority to abstain from carrying out the courts orders and inform the court the reasons therefor. This was not followed. 11. An argument has been made on behalf of the Superintendent of Central Jail, Guwahati, represented by the learned Government Advocate, that under Section 6 of the Prisoners (Attendance in courts) Act, 1955 the actions of the Superintendent, Central Jail would be justified. The provisions of Section 6 read with the proviso thereto may indicate a somewhat different position than what is contemplated by the provisions of Sections 267 and 269, Cr.PC. However, Section 269 having been included in the Code of Criminal Procedure by the 1973 amendment, it has to be understood that with the enactment of the said provision in the Cr.PC the provisions of Sections 267 and 269 as well as the other provisions contained in Chapter XXII of the Cr.PC alone would govern all situations of production of an accused before a court in connection with a case other than in which he has been detained/kept in custody. 12. Notwithstanding our views above we do not think that the petitioner would be entitled to an order for his release. 12. Notwithstanding our views above we do not think that the petitioner would be entitled to an order for his release. This is because Sri B. Sarma, learned Central Government counsel, has informed us that on 20.11.2009 the petitioner has been shown arrested in connection with C.R. (NDPS) Case No. 12/2009 pending before the learned Special Judge (NDPS Act), Siliguri, District - Darjeeling, West Bengal. Under Section 46 of the Code of Criminal Procedure, 1973 an arrest is to be made by confining the body of the person arrested. At the relevant point of time, i.e., on 20.11.2009 the petitioner was already in detention in the Central Jail at Guwahati and by virtue of the interim order dated 16.11.2009 passed in this writ petition he was to be kept lodged in the said Jail until further orders. It is in such a situation that the petitioner was shown to be arrested in connection with C.R. (NDPS) Case No. 12/2009 pending before the learned Special Judge (NDPS Act), Siliguri, District - Darjeeling, West Bengal. Keeping in view the Circumstances in which the petitioner has been shown arrested, no other view can be taken except that the petitioner is presently under arrest in connection with the said case, i.e., C.R. (NDPS) Case No. 12/2009. Such arrest would have required the production of the petitioner before the competent court within the time limit stipulated and would have also entitled the petitioner to seek bail from the competent court. However, in view of the interim order dated 16.11.2009 passed by this Court, production of the petitioner before the competent court in connection with C.R. (NDPS) Case No. 12/2009 was not possible. As the writ petition is now being disposed of by the present order we direct that the petitioner be forthwith produced before the court of Special Judge (NDPS Act), Siliguri, District - Darjeeling, West Bengal and on such production the said court will, naturally, decide on the further custody or grant of bail to the petitioner, as the case may be. 13. We, accordingly, close the writ petition with the above observations.