An order under Section 267 of the CrPC can be passed against an accused who is already confined in prison in another case, provided that the commitment proceedings, trial, or investigation in respect of the earlier case is not in actual progress.

( 1 ) HEARD Sri Raza Zaheer on behalf of the applicant and Sri Bireshwar Nath and Sri Janardan Singh for the State.

( 2 ) BY means of this application Ranjeet Singh alias Laddu Singh has prayed for the quashing of the order of the Chief Judicial Magistrate, Lucknow purporting to have been passed under S. 267 of the Code of Criminal Procedure (for short, the Code) in respect of crime No. 496 of 1994 under Ss. 302/120-B, I. P. C. of police station Aliganj, district Lucknow.

( 3 ) THE deceased Sri Susheel Kumar Misra was the Chief Engineer, Mandi Parishad, Uttar Pradesh. He is alleged to have been shot while going on usual morning walk at about 7 a. m. on 7/08/1994. He was rushed to the hospital, but he succumbed to his injuries. The crime was reported by Sri Vinod Kumar younger brother of the deceased at P. S. Aliganj, Lucknow. The applicant is not named in the F. I. R. but his complicity emerged during the course of investigation. The applicant is accused in yet another murder case at Faizabad, that is, Crime No. 326 of 1989 under Ss. 302/323/308/147/148/149, I. P. C. P. S. Cantt. Faizabad. It is averred in paragraph 3 of the affidavit that the applicant is confined in District Jail, Faizabad pending commitment of the case there and is under remand under S. 309 of the Code. The learned counsel for the applicant has stated that the applicant, who was on bail in respect of murder case at Faizabad, himself surrendered on 12-8-1994 by getting his bail bonds cancelled and since then he is confined in Faizabad Jail.

( 4 ) SRI Raza Zaheer, learned counsel for the applicant who argued the case with great proficiency, has contended that since the applicant is confined in Faizabad Jail in another case pending commitment, it was beyond the competence of the learned Chief Judicial Magistrate, Lucknow to make an order under S. 267 of the Code. Learned counsel has referred to the following extract of S. 267 which states :"267.- (1) Whenever, in the course of any inquiry, trial or other proceeding under this Code, it appears to a Criminal Court - (a) 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 (b ). . . . . . . . . . . . . " (The underlining is mine) sri Raza Zaheer has urged that S. 267 and S. 269 are to be read together and has laid emphasis on the following extract of S. 269 :"269.- Where the person in respect of whom an order is made under Sec. 267 - (a ). . . . . . . . (b) is under committal for trial or under remand pending trial or pending a preliminary investigation; or (c ). . . . . . . . . . . (d ). . . . . . . . . . the officer-in-charge of the prison shall abstain from carrying out the Courts order and shall send to the Court a statement of reasons for so abstaining. "

( 5 ) THE contentions of Sri Raza Zaheer are twofold. His first contention is that a plain reading of S. 267 of the Code shows that an order under S. 267 of the Code can be made if a person confined or detained in any prison is required by the Court for answering to a charge of an offence. Sri Zaheer has submitted that in the present case, no charge-sheet has been filed in Court against the applicant and the applicant is not required for answering to a charge of any offence in the Court. The second contention of Sri Raza Zaheer is that S. 267 and S. 269 of the Code are to be read in harmony and S. 269 requires the officer-in-charge of the prison to abstain from carrying out the Courts order passed under S. 267 if the person (in respect of whom an order under S. 267 is made) is under committal for trial or under remand pending trial or pending preliminary investigation. According to Sri Raza Zaheer since the applicant is in custody in Faizabad Jail pending committal in respect of crime No. 326 of 1989 it was beyond the competence of the learned Chief Judicial Magistrate, Lucknow to make an order under S. 267 of the Code.

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