2000 Supreme(All) 272

IN THE HIGH COURT OF ALLAHABAD
PALOK BASU, S. P. SRIVASTAVA, JJ.
BOBBY ALIAS PREMVEER - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
CRI. MISC. APPLN. 4934 Of 1999
Decided On : 02/16/2000

Headnote:

Whether an order u/s. 257 Cr. P. C. in Form No. 35 of Second Schedule of Cr. P. C. can be issued on the request of the police during investigation of some other offence, even if no inquiry or trial is pending in the Court.

Fact of the Case:

The applicants were arrested in a case registered against them in District Ghaziabad and were lodged in District Jail, Ghaziabad. The Investigating Officer of Case Crime No. 88 of 1999 in Mathura Case moved an application for obtaining b Warrant for production of the applicants which was served on 9-7-1999 to the jail authorities in Ghaziabad. It was stated that on coming to know of issuance of the b Warrant, an application was moved on behalf of the applicants in the Court of the Chief Judicial Magistrate, Mathura that since no case is pending against them in the Court at Mathura, therefore, b Warrant be cancelled. Upon this, the Chief Judicial Magistrate issued an order dated 30-8-1999 requiring the production of two applicants in his Court by the Superintendent, District Jail, Ghaziabad.

Finding of the Court:

The Court held that the expression "other proceedings under this Code", as mentioned in the first part of the parent clause in sub-section (1) of Section 267 and expression "for the purposes of said proceeding" in the last part thereof, includes "investigation" under the new Code.

Issues: Whether an order u/s. 257 Cr. P. C. in Form No. 35 of Second Schedule of Cr. P. C. can be issued on the request of the police during investigation of some other offence, even if no inquiry or trial is pending in the Court.

Ratio Decidendi: The Court observed that the legislature being the author of the laws is fully aware of the inapplicability of the provisions in the Prisoners (Attendance in Courts) Act, 1955, came to enact the provisions of Sections 267 to 271 in the new Code and introduced a parallel new Chapter XVI-A of the Civil Procedure Code. It is also aware that Section 542 of the old Code was also no more available. It is also aware that the Investigating Officer is within his rights to investigate a cognizable offence and every Magistrate having local jurisdiction shall be bound to unless for special reasons, it is refused, issue bailable or non-bailable warrant for production of an accused under arrest whenever the Investigating Officer successfully makes out a case for such warrant being issued. It has also been noticed that appendix "q" provides detailed directions with regard to the transfer of the prisoner on b warrant. No material has been furnished which may indicate that said appendix has been obliterated. Without going into the issue as to whether the said appendix can still operate, the existing provisions in Sections 267 to 271 of new Code take care of necessary situations which may have to be encountered by a Jailer at the place where accused is in custody and also the Jailer at the prison where he may have to be sent on execution of b Warrant. The relevant provisions of new Code regarding these steps have also been noticed above. Legislature also remembers that any body who is lodged in Jail, cannot come out unless a Court or authority directs him to be taken out of the said jail custody. This will be permissible only by a suitable order or warrant as envisaged or empowered by the provisions of the new Code. In view of the language expressed and provisions made in various sections of the new Code, it has to be held that the moment the application is moved by the investigating authority before the criminal Court under Section 267 (1) of the new Code, it is prima facie shown his inability to obtain the presence of that accused for interrogation or examination during the investigation and that is enough information to the Court that the Investigating Officer requires the physical presence of the said detained or imprisoned, who is, therefore, required "for answering a charge of an offence, or for the purpose of any proceeding before him."

Final Decision: The Court held that the expression "other proceedings under this Code", as mentioned in the first part of the parent clause in sub-section (1) of Section 267 and expression "for the purposes of said proceeding" in the last part thereof, includes "investigation" under the new Code.