Bobby @ Premveer and Another vs State of U.P.

B.K. Rathi, J.—This is an application u/s 482 Code of Criminal Procedure to quash the order dated 30.8.99, Annexure-4 to the petition, passed by Chief Judicial Magistrate, Mathura u/s 267 Code of Criminal Procedure issuing warrant ''B'' against the Petitioners in Crime No. 88 of 1999 u/s 395 and 412 I.P.C., P.S. Govind Nagar, District Mathura.

In brief, the relevant facts are that both the Petitioners are presently lodged in District Jail Ghaziabad. An application was moved before C.J.M., Mathura by the police of P.S. Govind Nagar, Mathura that the Petitioners are wanted in Crime No. 88 of 1999 under Sections 395 and 412 I.P.C and therefore, they may be summoned u/s 267 Code of Criminal Procedure from District Jail, Ghaziabad. The learned C.J.M. has issued notice under that section in Form No. 36 to the Jail Superintendent, Ghaziabad to transfer the Petitioners to District Jail, Mathura. This order dated 30.8.99 Annexure-4 to the petition has been challenged before me. It has been argued that the order is illegal as no inquiry, trial or proceeding is pending in the court of C.J.M,. Mathura and therefore, an order u/s 267 Code of Criminal Procedure cannot be passed. The learned Counsel, in support of his argument, has referred to the case of "Mukesh and Ors. State of U.P. and Ors. 1998 A.C.C. 434," decided by Hon''ble J.C. Gupta. J. The Hon''ble Judge considered Section 267 Code of Criminal Procedure and also Form No. 36 prescribed in the Code of Criminal Procedure It is proper to reproduce below Sub-clause (1) and its Clause (a) of Section 267 Code of Criminal Procedure The same read as under:

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 change of an offence, or for purpose of any proceeding against him, or ...

After considering this provision and Form No. 36, the learned Single Judge observed that the expression "other proceeding under this Code" read with Form No. 36 leaves no room of doubt that it would mean only such proceeding as may be pending in a court. He further held that "other Proceeding" does not include the investigation by the police and the investigation of the offence by the police and interrogation cannot fall under other proceedings under the Code for the purposes which are included in Section 267 Code of Criminal Procedure .

With great respect to the Hon''ble Single Judge, I am of the view that the words "other proceeding under this Code and prescribed Form No. 36" have not been properly interpreted. The words "other proceeding under this Code" Cannot be interpreted to mean that the proceeding should be in the Court. It means any proceeding under the Code of Criminal Procedure. Had the intention of the Legislature been as interpreted by the Hon''ble Judge, the words used would have been "other proceeding in the Court." The Legislature in its Wisdom has not been used the word ''court''. On the other hand, the words used are other proceeding under this Code". Therefore, the same cannot be interpreted to mean only the proceeding of the court and excluding proceedings under any other provision of the Code of Criminal Procedure, such as recording of F.I.R., investigation, arrest, summoning of the accused for interrogation, search etc. In my opinion the proceedings concerning investigation are also proceedings under the Code of Criminal Procedure.

My view gets support from the other provisions of the Code of Criminal Procedure The preamble of this Act is "An act to consolidate and amend the laws relating to Criminal Procedure." As against this in CPC of 1908 the preamble is "An act to consolidate and amend the laws relating to the procedure of the court of Civil Judicature. The words "procedure of court of civil Judicature" have been intentionally omitted by the Legislature in preamble of Code of Criminal Procedure and "procedure of the court of Criminal Judicature" has not been mentioned. This cannot be said as omission, But it appears that the words have intentionally been omitted. The C.P.C, applies to the proceedings of the Court only as it speaks; whereas the entire criminal proceedings under Code of Criminal Procedure whatever may be the stage, are the proceedings under the Code.

It will also be useful to mention some other provisions of Code of Criminal Procedure Definitions have been given in Section 2. Clause (h) of Section 2 reads as follows:

(h)""investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf:

This definition of investigation does not leave any room of doubt that the investigation is a proceeding under the Code within the meaning of Section 267 Code of Criminal Procedure .

The other relevant provision, in my opinion, for the purposes of controversy in issue is Section 156 Code of Criminal Procedure which confers power to the police Officers to investigate the cognizable case. Clause (2) of Section 256 Code of Criminal Procedure is relevant and is reproduced below:

156 Police Officer''s power to investigate cognizable case (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this Section to investigate.

This clause also shows that the proceedings of investigation before the police officer are also the proceedings under the Code. The heading of Section 157 Code of Criminal Procedure is "Procedure for investigation.

All these provisions show that the investigation of an offence is also a proceeding before the police Officer under the Code of Criminal Procedure and there can be no reason for limiting the interpretation of the words used in Section 267 Code of Criminal Procedure to the proceedings in the court only.

For the sake of clarity and removal of doubts it may also be mentioned that the argument that the Magistrate cannot interfere in the investigation and therefore, he should not pass any order u/s 367 Code of Criminal Procedure during investigation, also does not hold good. There are many provisions in the Code of Criminal Procedure for providing assistance by the Magistrate in the investigation of the cases by the police. For example, a Magistrate u/s 82 Code of Criminal Procedure can issue proclamation in respect of absconding accused,; u/s 83 Code of Criminal Procedure he can order for attachment of the property of the absconding accused, u/s 94 Code of Criminal Procedure he can issue a warrant empowering the police to search any place, u/s 97 Code of Criminal Procedure he can issue search warrant for a person wrongly confined, u/s 156(1) Code of Criminal Procedure he may permit the investigation of a non-cognizable offence, under Clause (3) of this section he may direct the police to register a case and to investigate, u/s 164 Code of Criminal Procedure he can record statement and confession and can conduct test identification, and u/s 167 Code of Criminal Procedure he may remand the accused to judicial custody and even to the police custody for interrogation and recovery. All these powers can be exercised on the request of the police Officer investigating the offence and to aid and assist the investigation. The Magistrate can also order for inquiry by the police regarding any matter u/s 202 Code of Criminal Procedure and may also release the accused persons on bail during investigation u/s 437 Code of Criminal Procedure All these provisions in the Code of Criminal Procedure have been incorporated for providing assistance to the police in investigation under the supervision of the Magistrate. Similarly in a case where there is allegation against a person that he is in possession of stolen goods, which may be recovered on an interrogation, or the complicity of certain persons in the crime can be ascertained by conducting test identification parade, there can be no reason as to why the Magistrate cannot provide assistance to the police in calling the accused to the jail concerned if the person is detained in prison in some other district or State. Section 267 Code of Criminal Procedure provides remedy for such a situation for the crime and interrogation, recovery of stolen or incriminating articles etc.

For the above reasons, with great respect I think that the narrow interpretation of the words "other proceeding under this Code" as meaning only the proceeding in the court is not a correct interpretation and the investigation of the offence by the police u/s 156 Code of Criminal Procedure is also a proceeding under the Code and for that purpose a Magistrate can exercise power u/s 267 Code of Criminal Procedure to issue an order in Form No. 36,if the person is detained in some other prison.

I, therefore, respectfully differ with the view taken by the Hon''ble J.C. Gupta, J. in the above case and the following point is referred to for the decision by the Division Bench "whether an order u/s 267 Code of Criminal Procedure in Form No. 36 of second schedule of Code of Criminal Procedure can be issued on the request of the police during investigation of some offence, even if no inquiry or trial or proceedings are pending in the court"

Let the record be placed before the Hon''ble The Chief Justice for nominating a Bench for the decision of the above question at an early date, as this question is of very vital importance for investigation of offences.

This petitions shall be disposed of after the question is answered.