IMPORTANT POINT
Even if a person is under remand by order of a Magistrate in a criminal case, if another case is registered against him in another Magistrate’s Court that Magistrate is justified in issuing production warrant for purpose of investigation in that case u/s 267 CrPC.

ORDER

J.B. Koshy, J. — A learned Single Judge of this Court referred this matter to the Division Bench to consider the question whether under Section 267 of the Code of Criminal Procedure, Magistrate can issue a production warrant and remand the accused who is already in remand in another case, for the purpose of enabling the police for interrogation. In Bineesh v. State of Kerala1 learned Single Judge of this Court held that it is not possible as under section 73 arrest warrant can be issued to a person who is accused in a non-bailable offence only if he is evading arrest and that also can be exercised only against a person residing in the local limits of the Magistrate. Learned Judge held as follows:

“So the question now is that whether the courts of Perum-bavoor and Chavakkad has got the power to issue a production warrant against the petitioner who is already arrested and detained in judicial custody by the Mararikulam Court. The power under S.73 can be exercised by a Magistrate of the First Class only against a person who is within its local limits and also against a person who is evading arrest or escaping from arrest as an escaped accused. The petitioner in this case is not an escaped accused but is retained in judicial custody by a Court of competent jurisdiction. Hence the applications now filed by the officers are irregular and it cannot be entertained by the Magistrates concerned.”

Similar view was taken by a Division Bench of the Rajasthan High Court in Bharti Sachdeva v. State of Rajasthan2. In that case, the court was of the opinion that warrant cannot be issued for production of a prisoner for investigation of another case against him. The above Judgment was overruled by a Full Bench of the Rajasthan High Court in State of Rajasthan v. Santosh Yadav3 and it was held that police can seek permission to remove an accused from judicial custody to police custody for completion of investigation in another case. The Court held as follows:

“28. A bare reading of Section 2(h) Cr.P.C. would show that ‘all the proceedings’ conducted by a police officer for collecting evidence come under the definition of ‘investigation’. The words ‘all the proceedings’ referred in Section 2 (h) in our considered opinion would also include the expression used in the words ‘other proceeding under this Code’ [Section 267 (1)], ‘for the purpose of any proceedings against him’ [Section 267(1)(a)] and ‘for the purpose of such proceeding’ [last portion of Section 267(1)]. In order to further the ends of justice wider meaning is requi-red to be given to the word

‘proceeding’ used in Section 267, Cr.P.C. Had the Legislature intended to give restrictive meaning to the words other proceeding under the Code’ [Section 267 (1) they would not have used the expression ‘for the purpose of any proceedings against him in section 267(l)(a).”

“31. In view of what we have discussed herein above we answer the question referred to us as under:

The police can seek permission to remove an accused from judicial custody to police custody for completion of investigation in another case and for this purpose production warrant under Section 267, Cr.P.C. can be issued. ‘The

expression ‘other proceeding’ used in Section 267 (1) and ‘for the purpose of any proceedings’ occurring in Section 267(1)(a) would include ‘investigation’ as defined under Section 2 (h) Cr.P.C.’.

Similar view was taken by the Madras High Court in C. Natesan v. State of Tamil Nadu4.

2.Section 267 Cr.P.C reads as follows:

“267. Power to require attendance of prisoners. — (1) Wherever, in the course of an inquiry, trial or other proceeding under this Code, it appears to a Criminal Court —

(a)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 charg