IMPORTANT POINT
Remand in the absence of an accused should be granted only under such circumstances where the production of the accused in person before the Magistrate is beyond the control of the State or prosecuting agency.

Headnote:(i) Constitution of India 1950- Article 126 - Writ Jurisdiction - Criminal Procedure Code, 1973 - Section 167 - Remand of accused and under trial prisoners - Ambit and scope of grant of habeas corpus writs - Whether judicial order of the criminal court is amenable to writ jurisdiction of this court? (No). (Paras 16 & 17)
       Held: The writ of habeas corpus is one of those celebrated writs which provide an expeditious procedure to test the propriety of official detention of a person and a protection to his personal liberty. Before the Constitution of India dawned on the blooming horizon of India, the power of issuance of a writ of habeas corpus was a part of the old Code of Criminal Procedure, 1898, in the shape of Section 491, which now stands repealed by the new Code of 1974, which is denuded with any such provision because of Article 226(1) of the Constitution of India which confers comprehensive powers on the High Courts including the power to issue writs in the nature of habeas corpus as well. The expression habeas corpus is a Latin Phrase meaning literally "have the body". The writ of habeas corpus is addressed to the person or authority who is alleged to have detained the person in custody, ordering him to "have the body" of the prisoner/detenue before the Court or Judge on a specified date and time and also to present himself to explain by what authority the prisoner is being held by him. If the custodian's answer does not state an adequate cause for detention the Court or the Judge will order the prisoner's discharge forthwith, but if it does disclose an adequate cause of detention to the satisfaction of the Court or Judge, the writ would be refused.
       (Para 6)
       (ii) Criminal Procedure Code, 1973 - Section 167(2) - Remand of accused and under trial prisoners - Mandate of law is that the accused should be physically produced before the Magistrate at the time when he is to be remanded in custody- However, the order remand would not be vitiated even though passed in the absence of accused, in circumstances where it is almost practically impossible to physically produce the accused in person before the Magistrate.
       Held: There may be situation and circumstances where inspite of all due deligence, bona fide intention and precautions it may not be possible for the State to physically produce the accused in person before the Magistrate and, therefore, due to the absence of the accused the order of remand may not be vitiated. There may not be any dearth of such situations and circumstances, a few of which may, for example, be stated herein. Let us take the cases of terrorists and dangerous criminals whose escort from the place of their custody to the court or Magistrate concerned and back may not be free from hazards and risk of attack by their associates and accomplices with a view to free them from lawful custody. There may also be a case where the accused himself my refuse to appear before the court or Magistrate on the apprehensions of being shown to the witnesses who are supposed to identify him in a test parade. So also, where several cases are pending against an accused at different places or say in different States and if by chance same dates are fixed in two or more such cases or in close proximity so that it may not be practically possible to produce the accused before all the Courts. The accused may have been seriously injured in the same incident or otherwise by reason of which may have been hospitalised making it quite impossible for him to move about. The accused may become seriously ill and it may be only at the risk of his life that he may be produced before the Court or Magistrate. These are only a few instances and there may be many more factors where it may not be practically possible for good and valid reasons to physically produce the accused.
       In the circumstances discussed above, the provisions contained in proviso (b) of Section 167(2) of the Code, therefore, have to be construed reasonably and logically so as to make them effective and not to render them nugatory and meaningless. It is for this reason that the apex Court in its several pronouncements took the view that the order of remand would not be vitiated even though passed in the absence of accused.
       (Para 12 & 13)
       (iii) Criminal Procedure Code, 1973 - Section 167(2) - Remand of accused and under trial prisoners – Petitioners were not produced before the Magistrate on various dates when they were remanded to jail custody on the ground of non-availability of the Police guard- No abnormal circumstances have been mentioned by reason of which the Police guard could not be made available to escort petitioners from jail to the Court- The Magistrate also not insisting upon the physical production of the accused..... Non-availability of Police guard is no excuse for non-production of the accused except in very exceptional circumstances.
       Held: It is not the first case where such lapses have occurred on the part of the State in not producing the accused physically before the Magistrate or Court concerned, but the experience shows that it has become a frequent feature which besides hampering the progress of the case violate the statutory obligations which has to be viewed with great concern and seriousness before it assumes an planning situation. It. is, therefore, expected that the State Government shall make, adequate, arrangements in the State by providing escort and Police guard to escort the prisoners from jail custody to court concerned, to safe-guard the interests of the accused persons and under trial prisoners and to avoid infraction of law.
       (Para 19)
       Result: Petition dismissed.

ORDER

Faizanuddin, J. - This is a petition under Article 226 and 227 of the Constitution of India filed by the three petitioners, namely Raju alias Raj Kumar, Santosh and Mahesh for issuance of a writ of Habeas Corpus on the following averment:

2. All the three petitioners were arrested on 6-4-1989 by Gama Police, in crime No. 240/89 for an alleged offence under Section 376/34 of the Indian Penal Code. They were produced before the Chief Judicial Magistrate, Jabalpur, who by a warrant issued on 7-4-1989 remanded them to judicial custody till 20-4-1989. Thereafter on 20-4-1989 as well in on several subsequent dates, the petitioners were produced before the Chief Judicial Magistrate who grant a judicial remands from time to time in the absence of the petitioners and, therefore, it is alleged that their detention is illegal and they are entitled to be set at liberty by issuance of a writ of Habeas Corpus.

3. The respondent/State had filed the return on 30-6-1989 through Shri C.B. Madan, Superintendent, Central Jail, Jabalpur, as Officer in-charge of this case, candidly admitting that the petitioners were not produced before the court on 30-4-1989; 4-5-1989; 18-5-1989 and 15-6-1989 due to non-availability of Police-guard to escort them before the Court concerned. It has been, however, stated that the petitioners were produced before the Magistrate concerned on 1-6-1989, the date on which charge-sheet was filed on basis of which learned Magistrate took cognizance of the offence, supplied the copies of challan papers to the accused persons and remanded them to jail custody till 15-6-1989. On these premises, it has been submitted that the petition deserves to be dismissed.

4. Shri R.K. Swamkar, learned Counsel for the petitioners, placing his reliance on the provisions contained in Clause (b) of sub-section (2) of Section 167 of the Code of Criminal Procedure (Act No. 2 of 1974), 1974 (for brevity, referred to as the 'Code'), vehemently urged before us that if the Police or judicial remand is granted by any Magistrate authorised to do so, without the accused being physically produced before such Magistrate, the remand and detention of the accused, both will be illegal, and the accused would be entitled to be set at liberty by a writ of habeas corpus. He submitted that in the present case none of the petitioners were produced before the Magistrate on various dates as stated above on which the judicial remands were granted and, therefore, their detention is illegal arid they deserve to be set at liberty. This argument was sought to be supported by two Single Bench decisions of this court rendered in Subhash v. State of M.P.1 and Satish & another v. State of M.P.2. As against this, Shri B.P. Singh, learned Government Advocate, appearing for the respondent/State submitted, that there are occasions when the physical production of the accused becomes impossible on account of the non-availability of the escorts and for that reason the order of remand does not become illegal.

5. Before we plunge into the aforesaid controversy we would first like to expose the ambit and scope of grant of habeas corpus writs and the relevant provisions dealing with the remands of accused and undertrial prisoners.

6. The writ of habeas corpus is one of those celebrated writs which provide an expeditious procedure to test the propriety of official detention of a person and a protection to his personal liberty. Before the Constitution of India dawned on the blooming horizon of India, the power of issuance of a writ of habeas corpus was a part of the old Code of Criminal Procedure, 1898, in the shape of Section 491, which now stands repealed by the new Code of 1974, which is denuded with any such provision because of Article 226(1) of the Constitution of India which confers comprehensive powers on the High Courts including the power to issue writs in the nature of habeas corpus as well. The expression habeas corpus is a Latin Phrase meaning literally "have the bod

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IMPORTANT POINTRemand in the absence of an accused should be granted only under such circumstances where the production of the accused in person before the Magistrate is beyond the control of the State or prosecuting agency.

IMPORTANT POINT
Remand in the absence of an accused should be granted only under such circumstances where the production of the accused in person before the Magistrate is beyond the control of the State or prosecuting agency.