( 1 ) (ORDER criminal petition filed by A-1, A-6 and A-13 (Three of the thirteen accused) in Crime No. 35/91 of Vapaatla Taluk Police station for alleged offences punuishable under Sections 120-B, 448,147,148,302 read with 149 of the Indian penal Code, seeking enlargement on bail pending enquiry and trial, has gravitated from a learned single judge to a Division Bench and eventually to this full Bench the question for resolution being whether non-availability of Police escort constitutes a valid ground for extending the period of remand of an accused person by a Magistrate under section 167 (2) of the Code of Criminal Procedure?

( 2 ) HOW the reference has arisen:- The three petitioners herein are among the 13 accused in Crime No. 35-91 of the Bapatla Taluk Police Station. They were arrested on 19-7-91 and produced before the IInd Addl. Munsif Magistrate, remanding on 20-7-91 when an order was passed by the learned Magistrate remanding them to judicial custody for 14 days. Thereafter the remand was extended on six occations 5-8-91, 16-8-91, 27-8-1991, 10-9-91, 18-9-91 and 1-10-91 without the police producing the petitioners before the learned magistrate. The charge sheet was filed on 28-9-91 and on 14-10-91 the petitioners were produced before the Magistrate. Criminal Petition No. 2861/91 was filed by the petitioners before the Magistrate under Sec. 437 Cr. P. C. praying for their release on bail contending inter alia that the failure of the prosecution to produce them before the Magistrate at the time of seeking extension of remand on the aforesaid six occasions rendered their detention in jail illegal. It was pleaded on behalf of the prosecution that the petitioners were not produced on the six occasions due to non-availability of escort constables: there was law and order problem in Chunduru and Pusuluru villages necessitating deployment of all the available police constables on "bandobast" duty and, therefore, it was not possible to provide escort canstables for production of the accused, from rajahmundry Jail where they were lodged, before the Maeistrate s Court at bapatla. The learned Magistrate dismissed the Crl. M. P. No. 2869/91 taking the view that under Section 437 Cr. P. C. he had no power to enlarge the petitioners on bail, but at the same time observing that proviso (b) to sub-section (2) of section 167 Cr. P. C. , is in favour of the accused since it authorises the Magistrate to order detention under Sec. 167 when only the accused are produced before him. The present petition was subsequently filed by the petitioners praying for enlargement on bail contending that the failure of the prosecution to produce them before the Magistrate on the six dates mentioned supra when orders extending the remand were passed by the Magistrate, entitles them for bail on the authority of the decision Of a Division Bench of this Court in M. A. Dharman vs. State of A. P. The Division Bench in the above case while recognising the fact that situations may arise when it is impossible to produce the accused before the Magistrate for seeking extension of remand, observed:"it is always open to either the prosecuting agency or the jail authority to put forward a plea of impossibility of production of an accused person before the learned Magistrate and if the learned Magistrate is satisfied that the plea is well founded, he may, for special reasons to be recorded in writing, extend the remand of the accused person, even without his production. We, however, hasten to add that non-availability of escorts for non-production of the accused person hardly constitutes a ground for infraction of the mandatory requirement of Section 167 (2) (b) of the Code of Criminal Procedure. "the Division Bench expressed the view, that production of the accused before the Magistrate for seeking extention of remand is an indispensable requirement of natural justice and fair-play and after referring to certain decisions of the Supreme Court, Madras High Court and a

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