Ramesh vs State and Another

The petitioner, who is the brother of the detenu, namely, Lenin alias Nithya Dharmananda who has been detained in the Central Prison, Puzhal,

Chennal, has come forward with this petition seeking for the relief of direction to the second respondent to cause production of the body of the

person Lenin alias Nithya Dharmananda now confined in Central Prison, Puzhal before this Hon''ble Court and set him at liberty. Mrs. K. Sumathi,

learned counsel appearing for the petitioner contended that the detenu has been granted the relief of bail by this Court by the order dated 5-6-

2012 in Crl. O. P. No. 11991/2012 for the alleged offences under Sections 341, 342, 323, 420 and 506(ii) IPC. It is contended that on receipt of

the bail order, sureties has been executed on 7-6-2012 and on the same day, release order was sent from 11th Metropolitan Magistrate (In-

charge Court Saidapet, Chennai) on the execution of the sureties and the same reached the Central Prison, Puzhal on the same day i.e., on 7-6-

2012. It is further contended that inspite of receiving the release order after execution of the sureties, the jail authorities, namely, the second

respondent refused and declined to release the detenu stating that the prison authorities already received ''B'' Warrant from the learned Additional

Judicial Magistrate, Varanasi directing the prison authorities to produce the detenu on 2-7-2012. The learned counsel for the petitioner vehemently

contended that as the detenu has been granted the relief of bail and also executed the sureties and the jail authorities also received the release order

from the concerned Magistrate and there is no legal or judicial order justifying the detention of the detenu in the prison, his continuous detention is

illegal and unjustified as there is no extension of the remand period from any other Court legalizing the detention of the detenu. Therefore, it is

contended that the petitioner has been constrained to approach this Court with this present petition with the above said prayer. The learned

counsel for the petitioner placed reliance on the following decisions:

(i) Ram Dass Ram Vs. State of Bihar and Another,

(ii) Kattan @ Subramani v. State, Rep. by Inspector of Police, Avadi P. S. and another reported in 1992 (1) MWN (Cr.)/Mad

(iii) Division Bench decision of this Court dated 1-7-2010 passed in H. C. P. No. 1151/2010 (K. S. Muthuramalingam v. State, Rep. by the

Inspector of Police, District Crime Branch, Commissioner Office, Coimbatore and another)

and the provisions under Sections 3 and 6 of The Prisoners (Attendance in Courts) Act, 1955.

Mr. S. Shumugavelay Utham, learned Public Prosecutor submitted that the petitioner''s brother, namely, the detenu has been detained in the

Central Prison, Puzhal in respect of his implication in a criminal case in Crime No. 782/2011 on the file of the first respondent for the offence under

Sections 341, 342, 392, 323, 420 and 506 (ii) IPC. It is submitted that the detenu has been granted the relief of bail by this Court by the order

dated 5-6-2012 in Cri. O. P. No. 11991/2012 and he has executed the sureties before the concerned Magistrate on 7-6-2012, but even before

the execution of sureties, the jail authorities, namely, the second respondent received ''B'' Warrant from the learned Additional Chief Judicial

Magistrate, Varanasi on 6-6-2012, directing the prison authorities to produce the detenu on 2-7-2012 and on that ground, the detenu was not

released by the second respondent. It is brought to the notice of this Court that in a similar situation, on the ground of failure of the production of

the detenu before the concerned Court, the said Court imposed a fine of Rs. 10,000/- and as such, apprehending such consequence, the second

respondent has declined to release the detenu on the ground of receipt of ''B'' Warrant from the Varanasi Court.

We have given our careful and thoughtful consideration to the submissions of both sides and perused the entire materials available on record.

At the outset, it is to be stated that the petitioner''s brother namely, the detenu, who has been implicated for the alleged offences under Sections

341, 342, 392, 323, 420 and 506 (ii) IPC in Crime No. 782/2011 on the file of the first respondent police, has been granted the relief of bail by

this Court by the order dated 5-6-2012 in Cri. O. P. No. 11991/2012. The fact remains that on receipt of the said bail order on 7-6-2012, the

detenu has executed the sureties before the concerned Metropolitan Magistrate, Saidapet and the said Metropolitan Magistrate also sent release

order, on the basis of execution of sureties, to the Central Prison, Puzhal, namely, the second respondent and the second respondent also received

the said release order on the same day i.e., on 7-6-2012. However, it is contended by the learned Additional Public Prosecutor that in view of the

receipt of ''B'' Warrant from the learned Additional Chief Judicial Magistrate, Varanasi for production of the detenu in respect of some other case

pending on the file of that Court, the second respondent declined to release the detenu. It is submitted by the learned Public Prosecutor that the

action taken by the second respondent is neither wilful nor wanton, but only due to the above reason. It is also brought to the notice of this Court

by the learned Public Prosecutor that on an earlier occasion in respect of a similar situation, the Delhi Court imposed a fine of Rs. 10,000/- for non

production of the detenu before the said Court.

Though the learned Public Prosecutor has assigned certain reasons and explanations for the action taken by the second respondent for not

releasing the detenu, we are of the considered view that in view of the grant of bail and in view of the release of the detenu on the execution of

sureties and the release order sent by the concerned Magistrate for his release also reached the prison on 7-6-2012 itself, there is no justification

for the continuous detention of the detenu in the Central Prison, Puzhal. It is very much evident from the sequence of events as stated above that as

on 7-6-2012, there is absolutely no other judicial order legalizing the continuous detention of the detenu or there is no extension of his remand

period. It is also brought to the notice of this Court that in yet another case, the petitioner''s brother, namely, the detenu has been implicated, in

which he has been granted bail on 2-5-2012 by the Civil Judge (Jr. Dvn.) & Judicial Magistrate First Class, Ramanagara, Karnataka in P. R. C.

No. 159/2011 and as such, there is absolutely no legal impediment for the release of the petitioner''s brother, namely, the detenu.

At this juncture, it is also relevant to refer an earlier decision of the Division Bench of this Court dated 1-7-2010 in H. C. P. No. 1151/2010

(K. S. Muthuramalingam v. State) wherein the Division Bench happened to consider the similar question by referring the provision under Sections

267 and 269 of the Criminal Procedure Code. It is also relevant to incorporate the provision under Sections 267 and 269 of the Code of Criminal

Procedure, 1973 as hereunder:

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 office 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 unless 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 counter signing under sub-section (2) shall be accompanied by a statement of the facts which, in the opinion of the

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.

Officer in charge of prison to abstain from carrying out order in certain contingencies.- Where the person in respect of whom an order is

made u/s 267.-

(a) is by reason of sickness or infirmity unfit to be removed from the prison; or

(b) is under committal for trial or under remand pending trial or pending a preliminary investigation; or

(c) is in custody for a period which would expire before the expiration of the time required for complying with the order and for taking him back to

prison in which he is confined or detained; or

(d) is a person to whom an order made by the State Government u/s 268 applies, the officer in charge of the prison shall abstain from carrying out

the Court''s order and shall send to the Court a statement of reasons for so abstaining:

Provided that where the attendance of such person is required for giving evidence at a place not more than twenty-five kilometers distance from

the prison, the officer in charge of the prison shall not so abstain for the reason mentioned in clause (b).

Ultimately, it was held by the Division Bench in the said decision cited supra as hereunder:

A conjoint reading of Sections 267 and 269 Cr. P. C. will make it clear that the purpose of P. T. Warrant 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 of 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.

In the said decision, the Division Bench referred the earlier decision of this Court, namely, Kattan @ Subramani v. State (1992 (1) MWN (Cri)

Mad 68) as hereunder:

In this regard, the judgment of this Court in Kattan @ Subramani v. State by Inspector of Police, Avadi P. S. & Another reported in 1992 (1)

MWN (Cri)/Mad 68 shall have bearing though not directly applicable. In the said case it has been observed that the issue of a P. T. Warrant when

the person is not confined or detained in a prison in respect of any other case is not justifiable and when such a fact is brought to the notice of the

Court which had issued P. T. Warrant, the same should be recalled. The judgment went further to state that the recalling of the P. T. Warrant will

not bar the subsequent arrest of the person in execution of an NBW.

The Division Bench also referred the decision of the Hon''ble Apex Court as hereunder:

The decision of the Apex Court in Ram Dass Ram Vs. State of Bihar and Another, will make it abundantly clear that the issuance of P. T.

Warrant cannot be construed to be an order of remand. A person, who has been acquitted or granted bail in the cases in which he was remanded

to judicial custody, cannot be detained further on the sole ground that a P. T. Warrant has been issued by another Court. In the said case decided

by the Supreme Court, the accused was acquitted in two sessions cases in which he had been remanded and even after the acquittal in those cases

he was continued to be detained in the prison on the basis of a P. T. Warrant issued for his trial in another case. Such a detention was held to be

unjustified. The facts of the case before the Supreme Court reveal that there was no warrant (remand order) for detaining the detenu in jail in the

third case in which P. T. Warrant was issued or in any other case after the detenu had been acquitted in the two cases in which he had been

remanded.

As pointed out by the learned counsel for the petitioner, it is also relevant to refer Sections 3 and 6 of The Prisoners (Attendance in Courts)

Act, 1955. Section 6 would be a reply to the compliance of the provision u/s 3 of the said Act. Therefore, it is relevant to incorporate the said

provision as hereunder:

Power of Courts to require appearance of prisoners to give evidence or answer a charge.-

(1) Any Civil or Criminal Court may, if it thinks that the evidence of any person confined in any prison is material in any matter pending before it,

make an order in the form set forth in the First Schedule, directed to the officer in charge of the prison;

Provided that no Civil Court shall make an order under this sub-section in respect of a person confined in a prison situated outside the State in

which the Court is held.

(2) Any Criminal Court may, if a charge of an offence against a person confined in any prison is made or pending before it, make an order in the

form set forth in the Second Schedule, directed to the officer in charge of the prison.

(3) No order made under this section by a Civil Court which is subordinate to a District Judge shall have effect unless it is countersigned by the

District Judge; and no order made under this Section by a Criminal Court which is inferior to the Court of a Magistrate of the first class shall have

effect unless it is countersigned by the District Magistrate to whom that Court is subordinate or within the local limits of whose jurisdiction that

Court is situate.

(4) For the purposes of sub-section (3), a Court of Small Causes outside a Presidency Town or the city of Hyderabad shall be deemed to be

subordinate to the District Judge within the local limits of whose jurisdiction such Court is situate.

Officer in charge of prison when to abstain from carrying out order.-

Where the person in respect of whom an order is made u/s 3-

(a) is, in accordance with the rules made in this behalf, declared to be unfit to be removed from the prison where he is confined by reason of

sickness or other infirmity; or

(b) is under committal for trial; or

(c) is under remand pending trial or pending a preliminary investigation; or

(d) is in custody for a period which would expire before the expiration of the time required for removing him under this Act and for taking him back

to the prison in which he is confined, the officer in charge of the prison shall abstain from carrying out the order and shall send to the Court from

which the order had been issued a statement of reasons for so abstaining:

Provided that such officer as aforesaid shall not so abstain where-

(i) the order has been made by a Criminal Court;

and

(ii) the person named in the order is confined under committal for trial or under remand pending trial or pending a preliminary investigation and is

not declared in accordance with the rules made in this behalf to be unfit to be removed from the prison where he is confined by reason of sickness

or other infirmity; and

(iii) the place, where the evidence of the person named in the order is required, is not more than five miles distant from the prison in which he is

confined.

A conjoint reading of the provisions of Sections 3 and 6 of the Prisoners (Attendance in Courts) Act 1955 would make it crystal clear that a

prisoner is liable to be detained continuously only in the event of a valid, legal or judicial order authorizing the continuous detention of the

concerned prisoner. Section 3 deals with power of Courts to require appearance of prisoners to give evidence or answer a charge and Section 6

deals with the power of the Officer in charge of a prison when to abstain from carrying out the order. Both the said provisions are pari materia to

the general provision under Sections 267 and 269 of the Criminal Procedure Code. As per Section 6 Clause (c) of the Prisoners (Attendance in

Courts) Act, 1955, a prisoner is liable to be kept under continuous detention only in the event of the remand pending trial or pending preliminary

investigation.

At this juncture, it is also relevant to refer a portion of the Statement of Objects and Reasons of the prisoners (Attendance in Courts) Act, 1955,

as hereunder:

.... The Bill also provides (as in Section 43 of the Present Act) that in certain circumstances and subject to certain exceptions, the officer in-charge

of the prison may abstain from carrying out the order, as for example, where the prisoner is unfit to be removed by reason of sickness or other

infirmity or is under committal for trial or is in custody for a period which would expire before the date on which he is required to be produced

before the Court.

The above said Statement of Objects and Reasons would make it crystal clear that a prisoner is liable to be kept under continuous detention only

during the pendency of the period of remand and he cannot be detained further after the expiry of the period of remand.

In view of the aforesaid reasons, we are of the considered view that there is no justification for declining to release the detenu even after the

receipt of the release order from the XI Metropolitan Magistrate (In-Charge Court), Saidapet, Chennai on the basis of execution of sureties

pursuant to the order of granting bail to the detenu- Lenin @ Nithya Dharmananda dated 5-6-2012 in Crl. O. P. No. 11991/2012 by this Court.

Accordingly, we are constrained to direct the second respondent to release the detenu Lenin @ Nithya Dharmananda, forthwith and the detenu

shall be set at liberty. This Habeas Corpus Petition is allowed accordingly.