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2001 Supreme(Cal) 95
High Court Of Calcutta
DEBIPRASAD SENGUPTA
ISMAIL ALI - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. R. R. 216 Of 2001
Decided On : 02/22/2001
Phiroz Edulji, RAMPRASAD BHATTACHARYA, SUDIPTA MOITRA
Section 267 of the Code of Criminal Procedure is not applicable to investigation by the Police.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 267 - PRODUCTION OF PRISONER - POWER OF COURT - SCOPE - INVESTIGATION BY POLICE NOT COVERED - SECTION 266(A) - DETENTION - MEANING - SECTION 105(1)(B) - NOT APPLICABLE.
Fact of the Case:
The petitioner, arrested in Calcutta in connection with a case registered with Park Street P.S., challenged the order directing his production before the learned C.J.M., Kamrup, Assam, in connection with a case registered in Assam, for the purpose of investigation/interrogation.
Finding of the Court:
The court held that the order directing the production of the petitioner before the learned C.J.M., Kamrup, Assam, for the purpose of investigation/interrogation was illegal as Section 267 of the Code of Criminal Procedure, which deals with the production of prisoners, is not applicable to investigation by the Police.
Issues: Whether the order directing the production of the petitioner before the learned C.J.M., Kamrup, Assam, for the purpose of investigation/interrogation was legal.
Ratio Decidendi: The court relied on the judgments of the Bombay High Court in B. S. Rawat v. Mohmed Asan Khan and the Rajasthan High Court in Smt. Bharati Sachdeva v. State to hold that Section 267 of the Code of Criminal Procedure is applicable only in cases where the person concerned is "detained" under any preventive detention and not in other cases. The court also held that investigation by the Police does not come within the purview of Section 267 of the Code of Criminal Procedure.
Final Decision: The court allowed the revision petition and set aside the impugned order directing the production of the petitioner before the learned C.J.M., Kamrup, Assam.
( 1 ) THE present revisional application is directed against an order dated 31-1-2001 passed by the learned Chief Metropolitan Magistrate, Calcutta in connection with Dispur P. S. Case No. 1106 dated 27-12-2000 under Section 420 of the Indian Penal Code directing thereby the Superintendent of Presidency Jail to produce the petitioner before the Court of the learned Chief Judicial Magistrate, Kamrup, Guwahati, Assam in connection with Dispur P. S. (Guwahati, Assam) Case No. 1106 dated 27-12-2000.
( 2 ) DISPUR Police Station (Guwahati, Assam) Case No. 1106 dated 27-12-2000 was registered on the basis of a complaint lodged by one M. Bez Baroowa alleging commission of an offence under Section 420 of the Indian Penal Code. On a prayer made by the Investigating Officer of the said Dispur P. S. Case No. 1106, the learned Sub-Divisional Judicial Magistrate (s), Guwahati, Assam by his order dated 25-1-2001 issued production warrant against the present petitioner along with one Rajesh Agarwalla. A copy of the said order was forwarded to the learned Chief Metropolitan Magistrate, Calcutta and the next date was fixed on 7-2-2001.
( 3 ) THE Investigating Officer of said Dispur P. S. case filed an application on 31-1-2001 in the Court of learned Chief Metropolitan Magistrate, Calcutta with a prayer for production of the present petitioner before the learned Chief Judicial Magistrate, Kamrup, Guwahati, Assam in connection with said Dispur P. S. case. On such application the learned Chief Metropolitan Magistrate, Calcutta by his order dated 31-1-2001 directed the Jail Superintendent of Presidency Jail to produce the present petitioner before the learned Chief Judicial Magistrate, Kamrup, Assam at an early date and to report compliance before the learned Magistrate.
( 4 ) IT may be mentioned here that the present petitioner was arrested and now is in judicial custody in Presidency Jail in connection with a case registered with Park Street Police Station being Section 'k' (Park Street) P. S. Case No. 21 dated 17-1-2001 under Section 467/468/471/420/120b/411 of the Indian Penal Code.
( 5 ) CHALLENGING the order dated 31-1-2001 passed by the learned Chief Metropolitan Magistrate, Calcutta the present revisional application has been preferred in this Court.
( 6 ) MR. Sekhar Bose, learned Advocate appearing for the petitioner submits that the only provision in the Code of Criminal Procedure, under which the attendance of a prisoner can be required in such a case, is Section 267. Under this provision a prisoner's attendance can be required only in course of inquiry, trial or other proceeding. Mr. Bose submits that the word "proceedings" in Section 267, Cr. P. C. does not include investigation by the Police. In the present case no inquiry, trial or proceeding is pending before the Chief Judicial Magistrate, Kamrup and hence he cannot be directed to be produced before the learned Magistrate, Kamrup, Guwahati. According to Mr. Bose, learned Advocate of the petitioner, the impugned order dated 31-3-2001 passed by the learned Chief Metropolitan Magistrate, Calcutta is absolutely without jurisdiction and the same is liable to be set aside.
( 7 ) IN support of his contention Mr. Bose relies on a judgment of the Bombay High Court reported in 1991 0 Crlj 820 (B. S. Rawat v. Mohmed Asan Khan ). In the said judgment it was held by the learned single Judge of Bombay High Court as follows (at Page 822) :-"s. 267 (1) of the Code of Criminal Procedure, 1973 provides that whenever in the course of an inquiry, trial or other proceedings under this Code, it appears to the Criminal Court 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 that it is necessary for the ends of justice to examine such person as a witness, the Court may make an order requring the officer in-charge of the prison to produce such person before
