The words "or other proceeding" in section 267 of the Code of Criminal Procedure (hereinafter referred to as "the said Code") has to be construed on the principle of ejusdem generis.

( 1 ) IN C. R. R. No. 478 of 2002 with C. R. R. No. 188 of 2003 on 24. 6. 2004 could not agree with the ratio of the decision in Sk. Ismail Ali vs. State of W. B, 2001 Cr. LJ 3831, His Lordship after formulating the following point -"whether an order and warrant under section 267 of the new Code in form No. 36 of Second Schedule thereof can be issued by a Criminal court on the request of the police investigating agency in course of investigation". referred the matter before His Lordship The Hon'ble The Acting Chief justice.

( 2 ) IT is pursuant to an order of assignment, made by The Hon'ble The acting Chief Justice, the matter has been placed in our Roster for answering the REFERENCE.

( 3 ) WE have had the assistance at the Bar of Shri Hazra, learned senior advocate and Shri Bagchi per contra to the REFERENCE; while learned public Prosecutor in support of the same. Elaborate submissions have been made at the Bar by the respective Counsels. We set out the same according to their serial.

( 4 ) SHRI Hazra learned senior Advocate appearing with Shri Abhijeet Auddy has submitted that the words "the other proceeding" in section 267 of the code of Criminal Procedure (hereinafter referred to as "the said Code") has to be construed on the principle of ejusdem generis. According to him, it means a proceeding other than an inquiry and trial pending in a Criminal court. He has stated that in the said Code there are three distinct spheres-investigation, inquiry and trial. All these are defined in the said Code and when the Legislature for some reasons or the other has omitted the word 'investigation' from the wording of section 267 of the said Code it is not just an omission but it should have to be understood in the context of the legislative intent that the other proceeding would not include the stage of investigation and the Court cannot fill up the gap in the said provision. Shri hazra has referred to the various scheme of the Code with regard to the jurisdiction of Criminal Court, condition of initiation of a proceeding, taking of cognizance and compelling the production of articles etc.

( 5 ) SHRI Bagchi with Shri Kallol Mondal, Shri N. N. Ray and Smt. Sharmila talukdar has submitted that the word 'investigation' has been defined in section 2 (h) of the said Code. According to Shri Bagchi both- an inquiry and a trial-are proceedings before a Court of Law. The proceeding means one which is pending before the Court and it is not a proceeding by way of a remand order. He also submitted that a proceeding before a Court of Law cannot include a proceeding before a police officer. He expanded his argument with reference to the decision of the Supreme Court in H. N. Rishbud and anr. vs. State of Delhi, AIR 1955 SC 196 and showed that the stage of the investigation was different and the Court has no power to monitor an investigational process.

( 6 ) ACCORDING to him, without the production warrant, the Investigating officer is not toothless he submitted that section 167 of the said Code takes care of the situation. He outlined the definition of the word 'arrest' and submitted issuance of production warrant is an effort of a Court to produce an accused before it. A production, warrant should be in an investigation stage and not either at the time of an inquiry or a trial and expansive definition of section 267 of the said Code is not the legal mandate because legislature has akeady given power to the police in section 47 of the said code in that direction.

( 7 ) HE also outlined the provisions of section 268 of the said Code and showed that production warrant cannot be executed at the stage of an inquiry or a committal proceeding or a trial.

( 8 ) SHRI Bagchi submitted that the word 'other proceeding" in section 267 (1)of the said Code must be in existence when prayer for production warrant is made; otherwise, the futuristic proceeding goes against the word of section 267 of the said Code. According to him