Karnataka High Court

M.Shashidhara @ Shashi vs State Of Karnataka on 11 March, 2022

Bench: V Srishananda

                        1                      R
  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 11TH DAY OF MARCH, 2022

                     BEFORE

     THE HON'BLE MR. JUSTICE V. SRISHANANDA

       CRIMINAL PETITION NO. 1396/2022

BETWEEN

1 . M.SHASHIDHARA @ SHASHI
    - SON OF MUNIRAJU
    AGED ABOUT 34 YEARS
    R/AT NEAR MANDAR SCHOOL
    DODDA BIDARAKALLU
    8TH MAILIKALLU
    BENGALURU -560 073

2 . SRI ABHISHEK @ ABHI
    S/O KENCHAPPA
    AGED ABOUT 19 YEARS
    R/AT NEAR MARAMMA TEMPLE
    2ND CROSS, NELAGADARAHALLI
    8TH MAILIKALLU
    BENGALURU 560 073

   PERMANENT RESIDENT OF
   TADAKALUR, HULIKUNTE
   HOBLI, SIRA TALUK
   TUMKUR DISTRICT-572 113
                                    ...PETITIONERS

(BY SRI SURESH M CHARAMAGOL, ADVOCATE)
                                2

AND

STATE OF KARNATAKA
BY JAYANAGARA POLICE STATION
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE - 560 001
                                              ...RESPONDENT
(BY SRI V.S.HEGDE, SPP-II
A/W SRI RAHUL RAI.K, HCGP)

     THIS PETITION IS FILED UNDER SECTION 439 OF
THE CR.P.C. PRAYING TO ENLARGE THE PETITIONERS ON
BAIL IN THE EVENT OF THEIR ARREST IN CR.NO.20/2021
OF JAYANAGARA P.S., TUMAKURU DISTRICT FOR THE
OFFENCE P/U/S 392 OF IPC ON THE FILE OF THE LEARNED
IV ADDL. CIVIL JUDGE (JR.DN) AND 5TH J.M.F.C AT
TUMAKURU.

     THIS PETITION COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:-

                            ORDER

The present petition is filed under Section 439 of

Cr.PC., with the following prayer:

"Wherefore, the above named petitioners 1 and 2 most respectfully pray that this Hon'ble Court be pleased to order for release of the

on bail in Crime No.20/2021 of Jayanagara Police Station, Tumkur, for the offence punishable under Section 392 of the Indian

Penal Code, which is now pending before the learned IV Addl. Civil Judge (Jr.Divn.) and 5th J.M.F.C., at Tumkur and pass such other order/s as this Hon'ble Court deems fit under the circumstances of the above case, in the interest of Justice and equity."

2. Brief facts of the case are as under:

The petitioners herein were arrested by the Police of

New Extension Town Police Station, Tumakuru on

06.12.2021 in respect of Crime No.87/2021. They were

sent to judicial custody. Thereafter, Jayanagar Police,

Tumkuru, registered a case in Crime No.20/2021 against

the petitioners. Since the custodial investigation of the

petitioners was necessary in Crime No. 20/2021,

Jayanagar Police filed an application before the

Jurisdictional Magistrate in Crime No. 20/2021 seeking

custody of the petitioners as is contemplated under Section

267 Cr.P.C., on 08.12.2021. The said application was

allowed on 27.12.2021 and thereafter, the custody of the

petitioners was granted to Jananagar Police Station for the

period from 29.12.2021 to 30.12.2021. Admittedly, the

said order came to be passed by exercising the powers

vested with the learned Trial Magistrate under Section 267

Cr.P.C. The order of handing over the custody of the

petitioners to Jayanagar Police in respect of investigation

in Crime No. 20/2021 from custody in Crime No. 87/2021

was as per Form No.36 of Cr.P.C. On completion of the

custodial investigation, the petitioners were sent back to

the judicial custody in Crime No.87/2021.

3. The petitioners were enlarged on bail by order

dated 18.01.2022 in Crime No.87/2021. However, the

petitioners were not released by the jail authorities though

they had the benefit of grant of bail in Crime No. 87/2021

purportedly on the ground that there is a body warrant

issued by the learned Magistrate in respect of Crime

No.20/2021.

4. Therefore, the petitioners approached learned

District Judge for grant of bail under Section 439 of Cr.P.C.

in Criminal Misc. Petition No.66/2022. Learned III Addl.

District and Sessions Judge, Tumakuru after hearing the

Public Prosecutor, on merits dismissed the application filed

under Section 439 of Cr.P.C. Thereafter, the petitioners are

before this Court with the aforesaid prayer.

5. Learned counsel for the petitioners vehemently

contended that the petitioners are entitled to be enlarged

on bail in view of the fact that they have been enlarged on

bail in Crime No. 87/2021 by order dated 18.01.2022 and

petitioners are continued in custody on the basis of the

body warrant issued in Crime No. 20/2021.

6. The same is opposed by the learned High Court

Government Pleader stating that the petitioners are known

criminals.

7. Apart from the merits of the matter, while

hearing the parties, this Court raised a technical point to

be satisfied on behalf of the petitioners inasmuch as the

petitioners were not at all arrested and sent to judicial

custody in respect of Crime No. 20/2021 as such, how a

bail petition is maintainable under Section 439 Cr.P.C. In

reply to the same learned counsel for the petitioners,

contended that though they are not arrested, the Jail

Authorities are not releasing the petitioners on the ground

that there is a body warrant issued in Crime No. 20/2021.

8. In order to appreciate the said aspect of the

matter, it is necessary for this Court to cull out the

provisions of Sections 439 and 267 of Cr.P.C., which reads

as under:

"439. Special powers of High Court or Court of Session regarding bail.

(1) A High Court or Court of Session may direct -

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in subsection (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub- section;

(b) that any condition imposed by a Magistrate when releasing an person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the

Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody."

267. Power to require attendance of prisoners.

(1) Whenever, in the course of an 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) 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 charge of the prison to produce such person before the Court for answering to the charge or for the purpose of such proceeding or, as the case may be, for giving evidence.

(2) Where an order under sub- section (1) is made by a Magistrate of the second class, it shall not be forwarded to, or acted upon by, the officer in charge of

the prison unless it is countersigned by the Chief Judicial Magistrate to whom such Magistrate is subordinate.

(3) Every order submitted for countersigning under sub- section (2) shall be accompanied by a statement of the facts which, in the opinion of Magistrate, render the order necessary, and the Chief Judicial Magistrate to whom it is submitted may, after considering such statement, decline to countersign the order."

9. It is also necessary for this Court to find out

whether at all an order passed under Section 267 of

Cr.P.C, could be termed as a warrant or not and also to

find out whether an order passed under Section 267 of

Cr.P.C. would authorize any Jail Authorities to detain a

person in the prison or not, it is necessary for this Court to

cull out the Forms prescribed under Cr.P.C., directing a

person to be produced before another Court, when he has

already in custody in a given case.

10. The relevant Forms are Form Nos.36 and 37 of

Schedule-II of Cr.P.C. For ready reference those forms are

culled out hereunder:

ORDER REQUIRING PRODUCTION IN COURT OF PERSON IN PRISON FOR ANSWERING TO CHARGE OF OFFENCE

(See section 267)

To the Officer-in-charge in the Jail at...............................

WHEREAS the attendance of ............(name of prisoner) at present confined/detained in the above mentioned prison, is required in this Court to answer to a charge of ................ (state shortly the offence charged) or for the purpose of a proceeding ..................... (state shortly the particulars of the proceeding);

You are hereby required to produce the said ..............under safe and sure conduct before this Court ..............on the day of ....., 20....., by .........A.M. there to answer to the said charge, or for the purpose of the said proceeding, and after this Court has dispensed with his further attendance, cause him to be conveyed under safe and sure conduct back to the said prison.

And you are further required to inform the said ...........of the contents of this order and deliver to him the attached copy thereof.

Dated, this................. day of...........,20.......

(Seal of the Court)                                        (Signature)

                                                      Countersigned.
(Seal)
(Signature)

------------------------------------------------------------------------

ORDER REQUIRING PRODUCTION IN COURT OF PERSON IN PRISON FOR GIVING EVIDENCE

(Refer section 267)

To the Officer-in-charge in the Jail at ...............................

WHEREAS complaint has been made before this cort that ______ (name of the accused) of ________ has committed the offence of ________ (state the offence concisely with time and place) and it appears that ______ (name of prisoner) at present confined/detained in the above mentioned prison, is likely to give material evidence for the prosecution/defence.

You are hereby required to produce the said ..............under safe and sure conduct before this Court at ..............on the _____ day of ....., 20....., by .........A.M. there to give evidence in the matter now pending before this court, and after this court has dispensed with his further attendance, cause him to be conveyed under safe and sure conduct back to the said prison.

And you are further required to inform the said ...........of the contents of this order and deliver to him the attached copy thereof.

Dated, this................. day of...........,20.......

(Seal of the Court)                                         (Signature)

                                                       Countersigned.
(Seal)                                                  (Signature)"

                                 *******

11. On careful and conjoint reading of Sections

439 and 267 Cr.P.C. and also the contents of Form Nos.36

& 37 of Cr.P.C., the following aspects would emerge;

• A person can be in custody at any given point of time only in one case.

• If at all if the same person is required to be produced before the Investigating Agency or before the Court as the case may be or to meet different contingencies enumerated in Section 267 of Cr.P.C, he can be temporarily taken out from that custody and produce before the Investigating Agency or before the Jurisdictional Court in terms of the order passed by exercising power under Section 267 Cr.P.C.

• After the said contingency is fulfilled the accused (under trial prisoner or convict) would be brought back to the judicial custody.

• The temporary transit of the accused in pursuance of the order passed under section 267 Cr.P.C. would not authorize the jail authorities to detain him in the custody.

12. To meet such contingencies, different Forms

have also been provided under the Cr.P.C. as is referred to

in Form Nos.36 & 37. Form Nos.36 and 37 deals with

answering to charge of offence and leading evidence by a

person, who is in custody.

13. Taking note of the orders being passed in

issuing body warrant in large number of cases across the

State and accused persons detained in judicial custody

even after the accused obtained the bail in a given case

where he has been remanded to judicial custody by the jail

authorities under the guise of body warrant, this Court

sought the assistance of the learned State Public

Prosecutor-II to address the arguments in the present

case. Accordingly, learned State Public Prosecutor-II

submitted his arguments.

14. Further, the accused (under trial prisoners or

the convict as the case may be), who have been brought

before the Investigating Agency or before the Court of law,

would not seize to remain in custody, where the accused

has been remanded. But, he has been temporarily taken

out of the custody by orders of the Court passed under

Section 267 Cr.P.C. Except this mechanism, there is no

other method, where a person in custody can be taken out

from the custody for any purpose.

15. Therefore, from the above discussion, it is

crystal clear that the petitioners, who were in judicial

custody in Crime No.87/2021, were given to the custody of

the Investigating Officer in respect of investigation in

Crime No. 20/2021 of Jayanagar Police Station by virtue of

the order passed by the learned Magistrate in Crime

No.20/2021 dated 27.12.2021. They were given to

custody on 29.12.2021 and 30.12.2021. After the custodial

investigation is concluded in respect of Crime No. 20/2021,

it is pertinent to note that the petitioners have been sent

back to the judicial custody in Crime No. 87/2021.

Issuance of body warrant in Crime No.20/2021 therefore,

did not authorize the Jail Authorities to detain them in

custody any longer especially, when the petitioners had

the benefit of grant of bail by order dated 18.01.2022 in

respect of crime No.87/2021.

16. Therefore, what emerges from the above

discussion is that an order issued under Section 267

Cr.P.C. by the Court seeking the presence of the accused,

who had already been in judicial custody in another case,

would result in dispel the custody of that accused in earlier

case for a temporary period for the purpose of meeting the

contingencies enumerated in Section 267 Cr.P.C. In other

words, order issued under Section 267 Cr.P.C., does not

authorize the custody of that particular accused in

subsequent case/s.

17. Thus, for all practical purposes, the custody of

the accused remains with the court which has sent him to

judicial custody at the first instance. Therefore, a body

warrant issued under Section 267 Cr.P.C., at no stretch of

imagination would authorize the prison authorities to

detain that particular accused in custody, if the accused

has already been granted bail in a case where he has

remanded to judicial custody at the first instance.

18. The issue on this point is no longer res-integra.

A Division Bench of this Court had an occasion to deal

with the similar situation in a Writ Petition (Habeas

Corpus) in the case of Gourav Geol Vs. State of

Karnataka represented by its Principal Secretary,

Department of Home and Prisons and Others reported in

ILR 2015 KAR 4675, wherein the principles of law

enunciated by the Hon'ble Apex Court in the case of Ram

Dass Ram Vs. State of Bihar and Another reported in 1987

SUPP. (1) SCC 143 has been referred and held as under:

"6. If a person is detained legally in connection with any crime by the order passed by "A" Court, such person if required in another crime in "B" Court, the provisions of Section 267 of Cr.PC shall be employed. Section 269 of Cr.PC is an adjunct to Section 267 of Cr.PC and the two provisions have to be read harmoniously. The main purpose of Section 267 of Cr.PC is to check delays when criminal proceedings are pending in different Courts.

7. It is clear from the provisions of Sections 267 and 269 of Cr.PC that they are akin to Sections 3 and 6 of the Prisoners Act. Section 6 of the Prisoners Act and Section 269 of Cr.PC authorizes the officer in-charge of the Prison to abstain from complying with the order issued under Section 3 of the Prisoners Act or under Section 267 of Cr.PC as the case may be, requiring the officer in-charge of the Prison to produce the person detained in prison, before the Court.

8. Admittedly, in the matter on hand, the JMFC Court, Tiptur has given the date as 17.7.2015 for production of the petitioner's father (detenue) before the said Court and for the said purpose the body warrant is issued by the JMFC Court, Tiptur and the same is communicated to the Prison authorities, Bangalore wherein the detenue is imprisoned. It is not in dispute that the detenue was imprisoned and sent to Central Prison, Bangalore in connection with Crime No.10/2015 registered by the Special Investigation Team, Karnataka Lokayukta, Bengaluru. Admittedly, the Special Court has granted an order of bail in favour of the detenue on 19.6.2015 in the said matter. The release order is also issued by the Special Court after complying with the conditions imposed by the said Court in the order of bail. Despite the same, the prison authorities have not released the

detenue on the ground that the body warrant is issued against the detenue by the JMFC Court, Tiptur in CC Nos.309/2009 and 63/2009. In our considered opinion, mere pendency of body warrant/production warrant will not be enough to keep a prisoner in prison beyond the date of expiry of the sentence or beyond the date of release order, in case if he is granted an order of bail and the release order is made. The pendency of Production Warrant cannot be equated with the pendency of remand order or the warrant of arrest The Production warrant/body warrant cannot be construed to be an authorization for detaining a person illegally. As aforementioned, the date fixed by the JMFC Court, Tiptur for production of detenue in CC Nos.309/09 and 63/09 is 17.7.2015. The body warrant is issued on the ground that the detenue was detained in Central Prison, Bangalore in connection with Crime No.10/15 of Special Investigation Team, Karnataka Lokayukta, Bengaluru. Undisputedly, the detenue is granted an order of bail by the Special Court in Crime No.10/2015 on 19.6.2015 and release order was also issued immediately after complying with the conditions of bail. If it is so, the detention of the detenue subsequent to service of the release order issued by the Special Court in Crime No.10/2015, on the Prison Authorities, would be illegal. The

Prison Authorities could not have detained the prisoner in Crime No.10/2015 subsequent to passing of the release order dated 19.6.2015. On that day itself, the detenue should have been released by the Prison Authorities. Citing the reason of issuance of body warrant by the JMFC Court, Tiptur in CC Nos.309/2009 and 63/2009, the Prison Authorities have wrongly detained the detenue till this date. As aforementioned, the pendency of the body warrant/Production Warrant cannot be equated to the order of remand and the same cannot be construed to be an authorization for detaining a person beyond the period. Body Warrant is issued only for the purpose of securing the appearance of a person who is already detained in custody. Admittedly, there is no order or authorization for detaining the detenue after 19.6.2015 by any Court including the JMFC Court, Tiptur. So also the arrest warrant is not issued by any Court after 19.6.2015. It is not disputed by the Government Advocate that the offences alleged against the detenue before the JMFC Court, Tiptur are bailable in nature. Hence in our considered opinion, the detention of the detenue subsequent to service of release order on the Prison Authorities, Bengaluru is illegal and unauthorized.

9. Similar situation arose before the High Court of Judicature at Madras in Habeas Corpus

Petition No.1151/2010. While deciding the said Habeas Corpus Petition on 1st July 2010, the Madras High Court has observed thus:

"11. A conjoint reading of Sections 267 and 269 Cr.P.C will make it clear that the purpose of P.T. warrant is to direct the production of a person who is confined or detained in prison by a lawful order. It cannot be interpreted to mean that the P.T. warrant shall be an authorization to curtail the liberty of the person and keep him in custody till the date on which his production is sought for. The mere pendency of a P.T. warrant shall not be enough to keep a prisoner in the prison beyond the date of expiry of the sentence, if he is a convict or beyond the date on which the remand expires unless the remand is extended by a competent court. The pendency of a P.T. warrant cannot be equated with a remand and the same cannot be construed to be an authorization for detaining a person beyond the period for which he was remanded or committed to undergo punishment.

From the above, it is clear that the scope of body warrant/P.T. warrant cannot be enlarged by assuming the same to be an authorization for detaining the prisoner beyond the period of detention. It will be effective only if his detention is otherwise authorized as on the date on which he is

supposed to be produced before the Court issuing P.T. warrant.

10. It is also relevant to note that in the case of RAM DASS RAM .vs. STATE OF BIHAR AND ANOTHER (reported in 1987 Supp(1) SCC 143), under the similar facts and circumstances, the Apex Court has observed that the detention of the concerned person in Jail is illegal inasmuch as there was no warrant for detaining him in jail after his acquittal in two criminal matters; merely because of issuance of Production Warrant by another Criminal Court, the said person cannot be continued in Prison without there being specific order relating to his arrest.

11. The Division Bench of this Court had an occasion to deal with similar matter in the case of ARUN KRISHNA SAIL .vs. THE STATE OF KARNATAKA (in WPHC No.243/2014 decided on 26th December 2014). This Court after discussing the facts and law on the point directed that the concerned person should be set at free if there is no order passed by any Court against the said person directing him to be in judicial custody."

19. However, during the course of hearing, learned

SPP-II brought to the notice of this Court few unreported

Judgments of the Division Bench of this Court, wherein the

Division Bench has taken note of the fact that the body

warrant can be recalled by filing an application and

therefore, the prayer of the petitioners, who had

approached this Court in Habeas Corpus Petition cannot be

granted.

20. This Court perused those orders passed by the

Co-ordinate Division Benches of this Court meticulously.

In all such petitions, it is pertinent to note that there is no

reference to the order of the Division Bench of this Court in

Gaurav Geol's case supra which is also reported.

21. Therefore, necessity has arisen for this Court

to consider the principles of law enunciated in Gaurav

Geol's case vis-a-vis, the subsequent orders.

22. On such perusal, this Court is of the considered

opinion that the order passed by the Division Bench in

Gaurav Geol's case supra refers to the principles of law

enunciated by the Hon'ble Supreme Court in the case of

Ram Dass Ram's case supra and discussed in detail the

inter play of the relevant provisions of Cr.P.C. and also

discussed in detail about the power of the jail authorities to

detain a person on the ground of pending body warrant

issued under Section 267 of Cr.P.C.

23. It is pertinent to note that in the State of

Karnataka, the order passed by the Court under Section

267 Cr.P.C., is popularly called as 'body warrant' and in

the other parts of the country, it is called as 'production

and transit order' or in some States, it is also called as 'PT

Warrant' (Production & Transit warrant'). The usage of the

word warrant in such type of orders is in the considered

opinion of this Court misnomer having regard to the

contents of the Forms in Form Nos.36 and 37, referred to

supra. Wherever legislation wanted the use of the word

'Warrant', they have used so (Ex. Form Nos.34 and 35).

24. On careful consideration of the contents of the

above Forms, it is crystal clear that there is no warrant to

the Jail Authority to detain a person while passing an order

under Section 267 Cr.P.C. Therefore, the framers of

legislation have carefully used in the heading of the above

Forms that it is an order and not warrant. May be

colloquially the word warrant has been attached to the

above orders and it should not have any other effect as the

contents of the Forms are important to be seen and not

the nomenclature. Therefore, the question of Jail

Authorities detaining the petitioners in the prison in

respect of the body warrant issued in Crime No. 20/2021 is

incorrect and without authority. Lest it could be termed as

illegal detention.

25. At this stage, it is submitted by the leaned

SPP-II that after this Court heard the parties yesterday,

the Jail Authorities have released the petitioners from the

prison and therefore, the petition relief has become

infructuous. Said submission is placed on record and for

the academic purpose, matter is further discussed.

26. Having said thus, the prosecution expressed

few apprehensions. It is common experience that the

learned trial Judges, often use the expression that "body

warrant extended". In some cases, "re-issue body warrant

and judicial custody extended". It is pertinent to note

that while exercising the power under Section 267 Cr.P.C.,

the court before whom a person who has already in

custody is produced before the court which has issued

order u/s.267 Cr.PC, will not have any authority to extend

the body warrant or give him to the custody in the said

case. If his presence is required further, fresh order is to

be issued.

27. As could be seen from the contents of Forms

supra, when once the purpose is served for a particular

day/days, the order passed under Section 267 Cr.P.C.,

seized to exist and the accused, who has been produced

before the Court or before the Investigating Agency as the

case may be will have to return the accused to the judicial

custody, wherein he is originally remanded by the orders

of the court in the original case. Therefore, it is crystal

clear that the learned Magistrate and the district judges as

the case may be will not have the power to order for "body

warrant extended/judicial custody extended" in case where

an accused is produced before that court under the orders

passed under Section 267 Cr.P.C., and such practice needs

to be discontinued henceforth.

28. It is the further apprehension of the

prosecution that an accused in custody may be necessary

for investigation in several other cases especially when

the accused is a known criminal. When he is enlarged on

bail in one case, apprehending the very same accused

again in respect of other case/s would be a herculean task

and therefore, the State machinery would be put to un-

necessary hardship. Needless to emphasize that a suitable

mechanism needs to be evolved by the Home Department

to protect their interest to meet such contingency.

29. It is to be noted that an web application is

developed by NIC (National Information Centre) called 'E-

prisons'. It is always open for the Home Department to

make necessary and suitable module in the said web

application to track an accused, who is already in custody

in one case, number of body warrants issued against him

and number of cases, where he is required for

investigation. All those features can be made available in

the said web application whereby there would be a

proper mechanism by which, State machinery would be

made known about release of an accused in a given case.

It would probably sufficient enough to safeguard the

apprehension expressed by the prosecution Department.

It is to be clarified at any rate, such apprehensions would

not permit the Jail Authorities to detain a person who has

the benefit of grant of bail by a duly constituted Court

even for a minute under the pretext of body warrant

issued in another case.

30. Learned SPP-II during the course of hearing,

produces the copy of Circulars issued by the Office of the

Director General of Police, Prisons and Correctional

Services, dated 10.03.2022 and 11.03.2022 with a memo.

The circulars reads as under:

"GOVERNMENT OF KARNATAKA (Prisons and Correctional Services)

No:J2/CR-05/2022

Office of the Director General of Police

Prisons & Correctional Services #4, Seshadri Road,Bengaluru-09 Dated: 10.03.2022

"Hon'ble High Court Matter-

Most Urgent"

CIRCULAR

Sub: Observations of the Hon'ble High Court of Karnataka in Criminal Petition Nos. 1396/2022, 1488/2022 and 1445/2022 on the file of the High Court of Karnataka at Bengaluru - Sri M. Shashidhara Shashi and another /Vs/ The State by Jayanagara Police - Reg.

Ref: State Public Prosecutor-Il. High Court of Karnataka, letter dated: 10.03.2022

***

With reference to the above subject, the State Public Prosecutor-II has conveyed the observations of the Hon'ble High Court of Karnataka, Bengaluru vide his letter at reference above, regarding release of prisoners from the prisons in the State, who are detained only under the body warrants. Copy of the letter is enclosed herewith.

As per the letter at reference above, the Hon'ble High Court of Karnataka in Criminal Petition Nos. 1396/2022, 1488/2022 and 1445/2022-Sri M. Shashidhara @ Shashi and another /Vs/ The State by Jayanagara Police, has observed that the petitioners are detained only under body warrant issued under Section 267 of Cr.P.C without there being any judicial remand or legal detention. Hence, they are entitled to be

released in view of the judgment reported in 1987 (Supp) Supreme Court case 143 and ILR 2015 KAR 4675.

Therefore, it is hereby directed to comply with the observations of the Hon'ble High Court by releasing such prisoners from the prisons in the State, if they are only detained under body warrant issued under Section 267 of Cr.P.C without there being any judicial order or detention order. The local and concerned Police shall be kept informed of the release of such prisoners.

Compliance report on the release of such prisoners detained only on body warrants shall be submitted to this office immediately without fail.

Encl: 02 pages

Sd/-

(Dr. ALOK MOHAN, IPS) Director General of Police Prisons & Correctional Services Karnataka State.

To,

- All the Chief Superintendents / Superintendents of Central Prisons.

- All the Superintendents of District / Taluk / Revenue Prisons.

Copy for necessary action to:

- Deputy Inspector General of Prisons, Head Quarters, Bengaluru.

- Deputy Inspector General of Prisons, North Range Belagavi / South Range, Bengaluru.

- Superintendent of Prisons, Head Quarters, Benglauru.

- Office Copy.

Copy for information to:

- Sri. V.S. Hegde, State Public Prosecutor-II, Office of the Advocate General, High Court building, Bengaluru.

Copy with compliments to: -

- The Additional Chief Secretary, Home Department, Vidhana Soudha, Bengaluru.

- The Principal Secretary (PCAS), Home Department, Vidhana Soudha, Bengaluru."

******

"GOVERNMENT OF KARNATAKA (Prisons and Correctional Services)

No: 12/CR-05/2022 Office of the Director General of Police Prisons & Correctional Services #4, Seshadri Road, Bengaluru-09 Dated: 11.03.2022

"Hon'ble High Court Matter -

Most Urgent"

CIRCULAR

Sub: Observations of the Hon'ble High Court of Karnataka in Criminal Petition Nos. 1396/2022, 1488/2022 and 1445/2022 on the file of the High Court of Karnataka at Bengaluru - Sti M. Shashidhara @ Shashi and another /Vs/ The State by Jayanagara Police - Reg.

Ref: 1) State Public Prosecutor II, High Court of Karnataka, letter dated: 10.03.2022 2) This office circular of even No. dated: 10.03.2022.

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In continuation of this office circular of even number dated: 10.03.2022, wherein it was directed that as per the observations of the Hon'ble High Court of Karnataka in Criminal Petition Nos. 1396/2022, 1488/2022 and 1445/2022-Sri M.

Shashidhara @ Shashi and another /Vs/ The State by Jayanagara Police, the prisoners who are detained only under body warrant issued under Section 267 of Cr.P.C without there being any judicial remand or legal detention, are entitled to be released in view of the judgment reported in 1987 (Supp) Supreme Court case 143 and ILR 2015 KAR 4675.

It is further directed that as stipulated under Section 269 of Cr.P.C the prison Superintendents shall keep the concerned courts who have issued the body warrants informed of the release of such prisoners.

(Dr. ALOK MOHAN, IPS) Director General of Police Prisons & Correctional Services Karnataka State.

To,

- All the Chief Superintendents / Superintendents of Central Prisons.

- All the Superintendents of District / Taluk / Revenue Prisons."

31. A bare reading of the above circulars makes it

clear that the same would sufficiently secure the rights of

the under trial prisoners like petitioners. This Court

records the appreciation for the prompt efforts made

especially by the Director General of Police, Prisons &

Correctional Services, Karnataka State. The said Circulars

may also be circulated to all the Prosecutors across the

State by the concerned department so as to make