Madras High Court
M.Kishore vs The Inspector Of Police on 6 January, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.01.2021
CORAM
THE HON'BLE MR. JUSTICE N.ANAND VENKATESH
Crl.O.P.Nos.18040 and 14411 of 2020
M.Kishore,
S/o.Murugan. ... Petitioner
in both Crl.O.Ps.
Vs.
The Inspector of Police,
Kaaramadai Police Station,
Coimbatore District.
(Crime No.132 of 2019) ... Respondent
in Crl.O.P.No.18040/2020
The Inspector of Police,
Periyanaayakkan Paalaiyam Police Station,
Coimbatore District. ... Respondent
(Crime No.328 of 2019) in Crl.O.P.No.18040/2020
Crl.O.P.No.18040 of 2020: Criminal Original Petition filed under Section
482 Cr.P.C., to call for the records of the remand order dated 26.06.2020 on
the file of the learned Judicial Magistrate Court, at Mettupalayam pending
trial in C.C.No.166 of 2020 in Crime No.132 of 2019 on the file of the
respondent police and set aside the same.
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2
Crl.O.P.No.14411 of 2020: Criminal Original Petition filed under Section
482 Cr.P.C., to call for the records of the remand order dated 21.08.2020 on
the file of the learned V Judicial Magistrate Court, at Coimbatore in Crime
No.328 of 2019 on the file of the respondent police pending investigation
and set aside the same.
For Petitioner in
Crl.O.P.No.18040/2020 : Ms.S.Suriyakala
Crl.O.P.No.14411/2020 : Mr.B.Thiyagarajan
For Respondents : Mr.C.Raghavan
in both Crl.O.Ps. Government Advocate (Crl.side)
ORDER
The issue involved in both the cases are common and hence they are
taken up together, heard and disposed of through this common order.
2.The petitioner has been arrayed as A1 in Crime No.132 of 2019
(Crl.O.P.No.18040 of 2020) and Crime No.328 of 2019 (Crl.O.P.No.14411
of 2020). The petitioner has several cases filed against him and he was in
judicial custody in some other case. The respondent Police in both the cases
effected a formal arrest through Prisoner on Transit Warrant (in short P.T.
Warrant) on 03.04.2020 in Crl.O.P.No.18040 of 2020 and on 11.05.2020 in
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Crl.O.P.No.14411 of 2020, respectively. Even though the formal arrest took
place on these two days, the petitioner was not immediately produced before
the concerned Magistrate seeking for a remand in those cases.
3.Insofar as the case involved in Crl.O.P.No.18040 of 2020 is
concerned, the petitioner was produced before the Court below only on
26.06.2020 and similarly in Crl.O.P.No.14411 of 2020, the petitioner was
produced before the Court below only on 21.08.2020 and he was remanded
in both the cases. Questioning this inordinate delay in producing the
petitioner before the Court below and the order of remand passed by the
Court below, these criminal original petitions have been filed before this
Court.
4.The learned counsel for the petitioner by relying upon the judgment
of the Division Bench in the case of State by Inspector of Police Vs.
K.N.Nehru reported in 2012 (1) Madras Weekly Notes (Crl.) 4 submitted
that the accused person who is secured through a P.T. warrant, should be
produced immediately before the concerned Court, failing which, the
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detention becomes illegal and the same will violate the fundamental right
guaranteed under Article 21 of the Constitution of India. The leaned counsel
submitted that in the present case, the petitioner was produced before the
Court below after an inordinate delay of nearly two months in
Crl.O.P.No.18040 of 2020 and three months in Crl.O.P.No.14411 of 2020.
The court below did not take into consideration this inordinate delay and
had mechanically remanded the petitioner from the date of his production
and as a result of the same, the petitioner lost his fundamental right of
liberty guaranteed under the constitution of India. The learned counsel
further submitted that by the time the petitioner was remanded in these two
cases, he was enlarged on bail in all the other cases.
5.Per contra, the learned Government Advocate appearing on behalf
of the respondent Police by relying upon the status report/counter filed in
these cases submitted that there are several serious criminal cases pending
against the petitioner and in the present cases, final report has already been
filed against the petitioner and the same has been taken on file by the Court
below in C.C.No.166 of 2020 (Crl.O.P.No.18040 of 2020) and in
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C.C.No.1443 of 2020 (Crl.O.P.No.14411 of 2020). The learned Government
Advocate submitted that these cases are now at the stage of trial and a
direction may be issued by this Court for early disposal of these cases.
6.This Court has carefully considered the submissions made on either
side and the materials available on record.
7.The only issue that requires consideration of this court is as to
whether the delay caused by the respondent Police in producing the
petitioner before the Court below after formally arresting him through a
P.T. warrant, will vitiate the remand order passed by the Court below?
8.The purpose of a P.T. warrant is only to direct the production of a
person confined or detained in a prison through a lawful order. Such a
warrant cannot be interpreted to mean that the same will authorize the
Police to curtail the liberty of a person by keeping the accused person in
custody till he is produced before the concerned Court. In other words, a
person cannot be kept under remand on the strength of a PT warrant and he
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has to be necessarily produced before the concerned Court at the earliest
point of time. It will be relevant to take note of the following judgements ;
(a) CBI v. Anupam J. Kulkarni, reported in (1992) 3 SCC 141.
“13.Whenever any person is arrested under
Section 57 CrPC he should be produced before the
nearest Magistrate within 24 hours as mentioned therein.
Such Magistrate may or may not have jurisdiction to try
the case. If Judicial Magistrate is not available, the police
officer may transmit the arrested accused to the nearest
Executive Magistrate on whom the judicial powers have
been conferred. The Judicial Magistrate can in the first
instance authorise the detention of the accused in such
custody i.e. either police or judicial from time to time but
the total period of detention cannot exceed fifteen days in
the whole. Within this period of fifteen days there can be
more than one order changing the nature of such custody
either from police to judicial or vice-versa. If the arrested
accused is produced before the Executive Magistrate he
is empowered to authorise the detention in such custody
either police or judicial only for a week, in the same
manner namely by one or more orders but after one
week he should transmit him to the nearest Judicial
Magistrate along with the records. When the arrested
accused is so transmitted the Judicial Magistrate, for the
remaining period, that is to say excluding one week or
the number of days of detention ordered by the
Executive Magistrate, may authorise further detention
within that period of first fifteen days to such custody
either police or judicial. After the expiry of the first period
of fifteen days the further remand during the period of
investigation can only be in judicial custody. There
cannot be any detention in the police custody after the
expiry of first fifteen days even in a case where some
more offences either serious or otherwise committed by
him in the same transaction come to light at a later stage.
But this bar does not apply if the same arrested accused
is involved in a different case arising out of a different
transaction. Even if he is in judicial custody in connection
with the investigation of the earlier case he can formally
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be arrested regarding his involvement in the different
case and associate him with the investigation of that
other case and the Magistrate can act as provided under
Section 167(2) and the proviso and can remand him to
such custody as mentioned therein during the first period
of fifteen days and thereafter in accordance with the
proviso as discussed above. If the investigation is not
completed within the period of ninety days or sixty
days then the accused has to be released on bail
as provided under the proviso to Section 167(2).
The period of ninety days or sixty days has to be
computed from the date of detention as per the
orders of the Magistrate and not from the date of
arrest by the police. Consequently the first period of
fifteen days mentioned in Section 167(2) has to be
computed from the date of such detention and after the
expiry of the period of first fifteen days it should be only
judicial custody.”
(b) State v. K.N. Nehru, (2012) 1 MWN (Cri) 4 : (2011) 2 LW (Cri) 579
42.From the above discussions, the following conclusions
emerge:
• (1) ……………….
•(2) If the Investigating Officer in the latter case decides to arrest
the Accused, he can go over to the prison where the Accused is
already in judicial remand in connection with some other case and
effect a formal arrest as held in Anupam Kulkarni case. When
such a formal arrest is effected in prison, the Accused does not
come into the physical custody of the Police at all, instead, he
continues to be in judicial custody in connection with the other
case. Therefore, there is no legal compulsion for the production of
the Accused before the Magistrate within 24 hours from the said
formal arrest.
• (3) For the production of the Accused before the Court after such
formal arrest, the Police Officer shall make an Application before
the Jurisdictional Magistrate for issuance of P.T. Warrant without
delay. If the conditions required in Section 267 of the Code of
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Criminal Procedure are satisfied, the Magistrate shall issue P.T.
Warrant for the production of the Accused on or before a specified
date before the Magistrate. When the Accused is so transmitted
from prison and produced before the Jurisdictional Magistrate in
pursuance of the P.T. Warrant, it will be lawful for the Police
Officer to make a request to the learned Magistrate for authorising
the detention of the Accused either in Police custody or in judicial
custody.
• (4) After considering the said request, the representation of the
Accused and after perusing the case diary and other relevant
materials, the learned Magistrate shall pass appropriate orders
under Section 167(1) of the Code of Criminal Procedure.
• (5) If the Police Officer decides not to effect formal arrest, it will
be lawful for him to straightaway make an Application to the
Jurisdictional Magistrate for issuance of P.T. Warrant for
transmitting the Accused from prison before him for the purpose of
remand. On such request, if the Magistrate finds that the
requirements of Section 267 of the Code of Criminal Procedure
are satisfied, he shall issue P.T. Warrant for the production of the
Accused on or before a specified date.
• (6) When the Accused is so transmitted and produced before the
Magistrate in pursuance of the P.T. Warrant from prison, the
Police Officer will be entitled to make a request to the Magistrate
for authorising the detention of the Accused either in Police
custody or in judicial custody. On such request, after following the
procedure indicated above, the Magistrate shall pass appropriate
orders either remanding the Accused either to judicial custody or
Police custody under Section 167(1) of the Code of Criminal
Procedure or dismissing the request after recording the reasons.
• (7) Before the Accused is transmitted and produced before the
Court in pursuance of a P.T. Warrant in connection with a latter
case, if he has been ordered to be released in connection with the
former case, the Jail Authority shall set him at liberty and return
the P.T. Warrant to the Magistrate making necessary endorsement
and if only the Accused continues to be in judicial custody, in
connection with the former case, he can be transmitted in
pursuance of P.T. Warrant in connection with the latter case.”
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(c) K.S Muthuramalingam v State (2010) 2 MWN (Cri) DB
“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 authorisation 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 authorisation for detaining a
person beyond the period for which he was remanded or
committed to undergo punishment.
13. From the above, it is quite obvious that the scope of the
P.T. Warrant cannot be enlarged by assuming the same to be
an authorisation for detaining the prisoner beyond the period
of detention. It will be effective only if his detention is
otherwise authorised as on the date on which he is supposed
to be produced before the Court issuing P.T. Warrant.”
9. It is clear from the above judgments that where the investigating
officer decides to arrest the accused person through a formal arrest, the
accused person does not come into the physical custody of the police and
for the purpose of calculating the period of 60 days or 90 days as
contemplated under the proviso to Section 167(2) of Cr.P.C., it can be
computed only from the date of detention as per the orders of the Magistrate
and not from the date of formal arrest by the Police. A P.T. Warrant cannot
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be used for the purpose of keeping a person in detention without producing
him before the concerned Court and such non-production will certainly
curtail the liberty of a person. If an accused person is produced before the
Court with an inordinate delay and thereafter if he is remanded to judicial
custody, the custody of the accused person in the concerned case will be
calculated only from the date of his remand and the period prior to it where
he was kept under detention on the strength of the P.T. warrant, will not be
taken into consideration. Such a practice has been deprecated by this Court
and such delay in producing the accused person before the Court after a
formal arrest through a P.T. warrant, will certainly violate the liberty
guaranteed under Article 21 of Constitution of India.
10. In the present case, the respondent police did not produce the
petitioner before the learned Magistrate, till the petitioner was enlarged on
bail in all the other cases. That apart, the respondent also took advantage of
this situation and filed a final report in both the cases and thereafter
produced the petitioner before the concerned Magistrate and secured his
judicial custody. It is therefore clear that the respondent police had
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indirectly achieved on the strength of a P.T. warrant, what they could not
have achieved under the Code of Criminal Procedure. Such questionable
practises by taking advantage of a P.T.warrant, continue to be adopted by
the police. In the present case if the petitioner had been produced before the
concerned Magistrate Court immediately after he was formally arrested by
the respondent police and the petitioner had been remanded to Judicial
Custody, the petitioner would not have lost the important right provided
under the proviso to Section 167(2) of Cr.P.C. That apart, the petitioner
would have also had the opportunity to apply for bail in these two cases
also. The respondent Police by adopting a skewed practice have defeated
the right of the petitioner and thereby the liberty of the petitioner was
directly violated. This practice must be immediately stopped by the Police
and even in case where a person is involved in serious offences, the correct
procedure has to be adopted scrupulously. The procedure that has been
provided under the Code of Criminal Procedure is common to both lighter
offences and serious offences and hence irrespective of the nature of
offence, the police is expected to follow the correct procedure failing which
it will result in the violation of the fundamental right guaranteed under
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Article 21 of the Constitution of India.
11.The respondent Police have completed the investigation in both
the cases and a final report has been filed and it has also been taken on file
by the Court below. This Court has to necessarily interfere with the order of
remand of the petitioner in both the cases since the petitioner has been
produced after an inordinate delay before the concerned Magistrate Court
after being formally arrested through a P.T. warrant. Accordingly, they are
set aside.
12.Taking into consideration the facts and circumstances of the case,
these Criminal Original Petitions are disposed of as follows:
(a) the petitioner is enlarged on bail in Crime No.132 of 2019
(Crl.O.P.No.18040 of 2020) on the file of the Inspector of Police,
Kaaramadai Police Station, Coimbatore District, subject to the condition
that the petitioner executes a bond for a sum of Rs.5,000/- with two sureties
for a like sum, to the satisfaction of the learned Judicial Magistrate,
Mettupalayam.
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(b) the petitioner is enlarged on bail in Crime No.328 of 2019
(Crl.O.P.No.14411 of 2020) on the file of the Inspector of Police,
Periyanaayakkan Paalaiyam Police Station, Coimbatore District, subject to
the condition that the petitioner executes a bond for a sum of Rs.5,000/-
with two sureties for a like sum, to the satisfaction of the learned Judicial
Magistrate No.V, (FAC), Coimbatore.
(c) the petitioner shall report before the concerned respondent Police
in both the cases, every Friday at 5.30 p.m., till the disposal of the cases in
C.C.No.166 of 2020, on the file of the learned Judicial Magistrate,
Mettupalayam and in C.C.No.1443 of 2020, on the file of the learned
Judicial Magistrate No.V, (FAC), Coimbatore.
(d) the petitioner shall be present during every date of hearing before
the concerned Court in both the calendar cases without fail.
(e) the learned Judicial Magistrate, Mettupalayam, in C.C.No.166 of
2020 and the Judicial Magistrate No.V, (FAC), Coimbatore, in
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C.C.No.1443 of 2020, shall commence the proceedings immediately and
shall dispose of the cases within a period of three months from the date of
receipt of copy of this order and;
(f)The trial shall be conducted on a day to day basis in accordance
with the guidelines given by Hon'ble Supreme Court reported in Vinod
Kumar Vs State of Punjab [2015 (1) MLJ (Crl) 288 SC]. If the petitioner
adopts any dilatory tactics, it is open to the Court below to insist upon the
presence of the petitioner and remand him to custody as per the
judgment of the Hon'ble Supreme Court in State of Uttar Pradesh Vs.
Shambhu Nath Singh (JT 2001 (4) SC 3191).
06.01.2021
Note: Upload order copy by 11.01.2021.
Speaking order/Non-Speaking order
Index :Yes
Internet:Yes
rm
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To
1.The Inspector of Police,
Kaaramadai Police Station,
Coimbatore District.
(Crime No.132 of 2019)
2.The Inspector of Police,
Periyanaayakkan Paalaiyam Police Station,
Coimbatore District.
(Crime No.328 of 2019)
3.The Public Prosecutor,
High Court, Madras.
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N.ANAND VENKATESH, J.,
rm
Crl.O.P.Nos.18040 and 14411 of 2020
06.01.2021
https://www.mhc.tn.gov.in/judis/
