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2015 DIGILAW 655 (KAR)

Gaurav Goel v. State of Karnataka

2015-06-23

MOHAN M.SHANTANAGOUDAR, R.B.BUDIHAL

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Order Petitioner is son of the detenue viz., Vinod Goel. Crime No.10/2015 came to registered against the detenue by the Special Investigation Team, Karnataka Lokayukta, Bengaluru on certain allegations; consequently, remand order dated 12.6.2015 was passed by the Court of XXIII Addl. City Civil & Sessions Judge and Special Judge, Bengaluru City (CCH24) {‘Special Court’ for short}; the detenue was detained pursuant to such order; the detenue filed an application before the Special Court seeking an order of bail; the Special Court enlarged the detenue on bail by the order dated 19.6.2015 and issued a release order which has been duly served on the Central Prison authorities, Bengaluru wherein the detenue – Vinod Goel is imprisoned. In the meanwhile, the learned JMFC, Tiptur issued body warrant (Production Warrant) in CC Nos.309/2009 and 63/2009 seeking production of the detenue from custody {In CC No.309/2009, the detenue is facing trial for the offences punishable under Sections 4(1), 4(1)(A) & 21(16) of MMRD Act and in CC No.63/2009, the detenue is facing trial for the offences under Sections 3A & 3B of the Forest Act}. After issuing the body warrant (Production Warrant), the learned JMFC posted the aforementioned Criminal Cases on 17.7.2015. Thus, according to the Prison Authorities, the detenue will be produced before the JMFC Court, Tiptur in the aforementioned two criminal cases on 17.7.2015 by taking him from Central Prison, Bangalore; till then the detenue will be kept in custody. The offences alleged against the detenue in CC Nos.309/2009 and 63/2009 are bailable. All the aforementioned facts are not in dispute. Despite the order of bail granted in Crime No.10/2015 (in which the detenue is arrested) by the Special Court, the Prison Authorities are not releasing the detenue only on the ground that the body warrant is issued by the JMFC Court, Tiptur in CC Nos.309/2009 and 63/2009 and the same is pending. A representation is made on 20.6.2015 by the petitioner (detenue’s son) to the respondents requesting them to honour the release order passed by the Special Court in Crime No.10/2015 and release the detenue immediately. Till this date, the said representation is not considered and consequently the detenue is not released. Hence this Petition is filed praying for writ in the nature of Habeas Corpus directing the respondents to release the detenue forthwith by honouring the order of bail passed by the Special Court in Crime No.10/2015. 2. Till this date, the said representation is not considered and consequently the detenue is not released. Hence this Petition is filed praying for writ in the nature of Habeas Corpus directing the respondents to release the detenue forthwith by honouring the order of bail passed by the Special Court in Crime No.10/2015. 2. Sri M.T. Nanaiah, learned Senior advocate appearing on behalf of the petitioner submits that the detenue cannot be detained in custody after 19.6.2015, on which date the order of bail/release order is granted in favour of the detenue in Crime No.10/2015 by the Special Court; the body warrant issued by the JMFC Court, Tiptur in CC Nos.309/2009 and 63/2009 is only for production of the detenue if detained in custody legally, for appearance before the said Court; the body warrant so issued cannot be equated to the warrant of arrest and thus according to him, the detention of the detenue citing the reason of issuance of the body warrant by the JMFC Court, Tiptur in CC Nos.309/2009 and 63/2009 clearly violates the spirit of Article 21 of the Constitution of India and it contravenes the order of bail granted by the Special Court in Crime No.10/2015. We have also heard Sri Nagaraj, learned Additional Government Advocate appearing on behalf of the State in the matter. 3. Before proceeding further, at the cost of repetition, it is to be mentioned that the detenue was arrested in connection with Crime No.10/2015 registered by Special Investigation Team, Karnataka Lokayukta. Undisputedly, he is granted the order of bail by the jurisdictional Court on 19.6.2015. The conditions of bail order are satisfied and hence the release order is issued by the Court to the Prison authorities, directing the authorities to release the detenue in Crime No.10/2015. 4. Chapter XXII of the Code of Criminal Procedure (‘Cr.PC’ for short) deals with the attendance of persons confined or detained in Prisons. Section 267 of Cr.PC empowers the Court to make an order requiring the Officer incharge of the Prison to produce the person confined or detained in Prison, before the Court for answering the charge or for the purpose of such proceeding or, as the case may be, for giving evidence. Section 267 of Cr.PC empowers the Court to make an order requiring the Officer incharge of the Prison to produce the person confined or detained in Prison, before the Court for answering the charge or for the purpose of such proceeding or, as the case may be, for giving evidence. The provisions of Section 267 of Cr.PC are employed by the Court to secure the presence of a prisoner who is already facing the criminal proceedings including investigation, trial etc., in one criminal case, for the purpose of answering the charge of an offence, or for the purpose of any proceedings against him in another criminal case. The warrant issued pursuant to the order passed by the Court under Section 267 of Cr.PC is generally called body warrant or Production Warrant or P.T. Warrant. On receiving the body warrant so issued by the Court, the officer incharge of the Prison is required to produce the said prisoner before the Court which has issued the body warrant. However Section 269 of Cr.PC provides for certain contingencies where the officer incharge of the Prison may abstain from carrying out the Court’s order passed under Section 267 of Cr.PC and send to the said Court a statement of reasons for so abstaining. 5. At this stage, it is beneficial to note the relevant portion of Section 269 of Cr.PC for the purpose of decision in this matter: S.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 Sections 267 (a) xxx xxx (b) xxx xxx (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) xxxx; the Officer incharge of the prison shall abstain from carrying out the Court’s order and shall send 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 distant from the prison, the Officer incharge of the prison shall not so abstain for the reason mentioned in clause (b). So also it is beneficial to note the Provisions of Sections 3 and 6 of the Prisoners (Attendance in Courts) Act, 1955 {‘Prisoners Act’ for short}, which reads thus: 3. Power of Courts, to require appearance of prisoners to give evidence or answer a charge. (1) Any civil or criminal court may, if it thinks that the evidence of any person confined in any prison is material in any matter pending before it make an order in the form set forth in the First Schedule, directed to the officer-in-charge of the prison: Provided that no civil court shall make an order under this subsection, in respect of a person confined in a prison situated outside the State in which the court is held. (2) Any criminal court may, if a charge of an offence against a person confined in any prison is made or pending before it, make an order in the form set forth in the Second Schedule, directed to the officer-in-charge of the prison. (3) No order made under this section by a civil court which is subordinate to a District Judge shall have effect unless it is countersigned by the District Judge; and no order made under this section by a Criminal Court which is inferior to the Court of a Magistrate of the first class shall have effect unless it is countersigned by the District Magistrate to whom that court is subordinate or within the local limits of whose jurisdiction such Court is situate. (4) For the purposes of subsection (3), a Court of Small Causes outside a Presidencytown or city of Hyderabad shall be deemed to be subordinate to the District Judge within the local limits of whose jurisdiction such Court is situate. 6. (4) For the purposes of subsection (3), a Court of Small Causes outside a Presidencytown or city of Hyderabad shall be deemed to be subordinate to the District Judge within the local limits of whose jurisdiction such Court is situate. 6. Officer incharge of prison when to abstain from carrying out order.Where the person in respect of whom an order is made under Section 3 (a) xxxx (b) xxxx (c) xxxx (d) is in custody for a period, which would expire before the expiration of the time required for removing him under this Act and for taking him back to the prison in which he is which he is confined, the officer-in-charge of the prison shall abstain from carrying out the order and shall send to the Court from which the order had been issued a statement of reasons for so abstaining: Provided that such officer as aforesaid shall not so abstain where - (i) the order has been made by a Criminal Court; and (ii) the person named in the order is confined under committal for trial or under remand pending trial or pending a preliminary investigation and is not declared in accordance with the rules made in this behalf to be unfit to be removed from the prison where he is confined by reason of sickness or other infirmity; and (iii) the place, where the evidence of the person named in the order is required, is not more than five miles distant from the prison in which he is confined. From the above, it is clear that Section 3 of the Prisoners Act empowers the Court to make an order requiring the person who is confined in any Prison to be produced to answer the charge in another case. Section 6 of the Prisoners Act provides the circumstances under which the officer incharge of Prison shall abstain from carrying out the order and shall send to the Court the statement of reasons for so abstaining. 6. If a person is detained legally in connection with any crime by the order passed by “A” Court, such person if required in another crime in “B” Court, the provisions of Section 267 of Cr.PC shall be employed. Section 269 of Cr.PC is an adjunct to Section 267 of Cr.PC and the two provisions have to be read harmoniously. 6. If a person is detained legally in connection with any crime by the order passed by “A” Court, such person if required in another crime in “B” Court, the provisions of Section 267 of Cr.PC shall be employed. Section 269 of Cr.PC is an adjunct to Section 267 of Cr.PC and the two provisions have to be read harmoniously. The main purpose of Section 267 of Cr.PC is to check delays when criminal proceedings are pending in different Courts. 7. It is clear from the provisions of Sections 267 and 269 of Cr.PC that they are akin to Sections 3 and 6 of the Prisoners Act. Section 6 of the Prisoners Act and Section 269 of Cr.PC authorizes the officer incharge of the Prison to abstain from complying with the order issued under Section 3 of the Prisoners Act or under Section 267 of Cr.PC as the case may be, requiring the officer incharge of the Prison to produce the person detained in prison, before the Court. 8. Admittedly, in the matter on hand, the JMFC Court, Tiptur has given the date as 17.7.2015 for production of the petitioner’s father (detenue) before the said Court and for the said purpose the body warrant is issued by the JMFC Court, Tiptur and the same is communicated to the Prison authorities, Bangalore wherein the detenue is imprisoned. It is not in dispute that the detenue was imprisoned and sent to Central Prison, Bangalore in connection with Crime No.10/2015 registered by the Special Investigation Team, Karnataka Lokayukta, Bengaluru. Admittedly, the Special Court has granted an order of bail in favour of the detenue on 19.6.2015 in the said matter. The release order is also issued by the Special Court after complying with the conditions imposed by the said Court in the order of bail. Despite the same, the prison authorities have not released the detenue on the ground that the body warrant is issued against the detenue by the JMFC Court, Tiptur in CC Nos.309/2009 and 63/2009. In our considered opinion, mere pendency of body warrant/production warrant will not be enough to keep a prisoner in prison beyond the date of expiry of the sentence or beyond the date of release order, in case if he is granted an order of bail and the release order is made. In our considered opinion, mere pendency of body warrant/production warrant will not be enough to keep a prisoner in prison beyond the date of expiry of the sentence or beyond the date of release order, in case if he is granted an order of bail and the release order is made. The pendency of Production Warrant cannot be equated with the pendency of remand order or the warrant of arrest The Production warrant/body warrant cannot be construed to be an authorization for detaining a person illegally. As aforementioned, the date fixed by the JMFC Court, Tiptur for production of detenue in CC Nos.309/09 and 63/09 is 17.7.2015. The body warrant is issued on the ground that the detenue was detained in Central Prison, Bangalore in connection with Crime No.10/15 of Special Investigation Team, Karnataka Lokayukta, Bengaluru. Undisputedly, the detenue is granted an order of bail by the Special Court in Crime No.10/2015 on 19.6.2015 and release order was also issued immediately after complying with the conditions of bail. If it is so, the detention of the detenue subsequent to service of the release order issued by the Special Court in Crime No.10/2015, on the Prison Authorities, would be illegal. The Prison Authorities could not have detained the prisoner in Crime No.10/2015 subsequent to passing of the release order dated 19.6.2015. On that day itself, the detenue should have been released by the Prison Authorities. Citing the reason of issuance of body warrant by the JMFC Court, Tiptur in CC Nos.309/2009 and 63/2009, the Prison Authorities have wrongly detained the detenue till this date. As aforementioned, the pendency of the body warrant/Production Warrant cannot be equated to the order of remand and the same cannot be construed to be an authorization for detaining a person beyond the period. Body Warrant is issued only for the purpose of securing the appearance of a person who is already detained in custody. Admittedly, there is no order or authorization for detaining the detenue after 19.6.2015 by any Court including the JMFC Court, Tiptur. So also the arrest warrant is not issued by any Court after 19.6.2015. It is not disputed by the Government Advocate that the offences alleged against the detenue before the JMFC Court, Tiptur are bailable in nature. Admittedly, there is no order or authorization for detaining the detenue after 19.6.2015 by any Court including the JMFC Court, Tiptur. So also the arrest warrant is not issued by any Court after 19.6.2015. It is not disputed by the Government Advocate that the offences alleged against the detenue before the JMFC Court, Tiptur are bailable in nature. Hence in our considered opinion, the detention of the detenue subsequent to service of release order on the Prison Authorities, Bengaluru is illegal and unauthorized. 9. Similar situation arose before the High Court of Judicature at Madras in Habeas Corpus Petition No.1151/2010. While deciding the said Habeas Corpus Petition on 1st July 2010, the Madras High Court has observed thus: “11. A conjoint reading of Sections 267 and 269 Cr.P.C will make it clear that the purpose of P.T. warrant is to direct the production 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 an authorization to curtail the liberty of the person and keep him in custody till the date on which his production is sought for. The mere pendency of a P.T. warrant shall not be enough to keep a prisoner in the prison beyond the date of expiry of the sentence, if he is a convict or beyond the date on which the remand expires unless the remand is extended by a competent court. The pendency of a P.T. warrant cannot be equated with a remand and the same cannot be construed to be an authorization for detaining a person beyond the period for which he was remanded or committed to undergo punishment. From the above, it is clear that the scope of body warrant/P.T. warrant cannot be enlarged by assuming the same to be an authorization for detaining the prisoner beyond the period of detention. It will be effective only if his detention is otherwise authorized as on the date on which he is supposed to be produced before the Court issuing P.T. warrant. 10. It will be effective only if his detention is otherwise authorized as on the date on which he is supposed to be produced before the Court issuing P.T. warrant. 10. It is also relevant to note that in the case of RAM DASS RAM .vs. STATE OF BIHAR AND ANOTHER reported in 1987 Supp(1) SCC 143, under the similar facts and circumstances, the Apex Court has observed that the detention of the concerned person in Jail is illegal inasmuch as there was no warrant for detaining him in jail after his acquittal in two criminal matters; merely because of issuance of Production Warrant by another Criminal Court, the said person cannot be continued in Prison without there being specific order relating to his arrest. 11. The Division Bench of this Court had an occasion to deal with similar matter in the case of ARUN KRISHNA SAIL .vs. THE STATE OF KARNATAKA in WPHC No.243/2014 decided on 26th December 2014. This Court after discussing the facts and law on the point directed that the concerned person should be set at free if there is no order passed by any Court against the said person directing him to be in judicial custody. In view of the above, we pass the following order: Petitioner’s father namely, Vinod Goel who is detained in Central Prison, Bangalore shall be released forthwith, despite the body warrant issued by the Magistrate Court, Tiptur in C.C.Nos.63/2009 and 309/2009. However, in the interest of State, it has to be observed that Mr. Vinod Goel shall appear before the Magistrate Court at Tiptur in aforementioned two cases on 17.7.2015, without fail and it is open for him to seek appropriate orders, in accordance with law. It is needless to observe that the concerned Magistrate Court at Tiptur shall proceed with aforementioned criminal cases as per law. Petition is disposed of accordingly. Copy of this order shall be sent to the JMFC Court at Tiptur, before which aforementioned criminal cases are pending.