Bail granted by High Court can not be cancelled by a Subordinate Court on the ground of violation of bail conditions
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Palanivel v. State, (Madras) : Law Finder Doc Id # 1538772
MADRAS HIGH COURT
Before:- Mr. N.Anand Venkatesh, J.
CRL.O.P.No.14320 of 2019. D/d. 11.07.2019.
Palanivel – Petitioner
Versus
The State, represented by Inspector of Police, Veeranam Police Station, Salem District. – Respondent
For the Petitioner :- Mr.R.Sankarasubbu, Advocate.
For the Respondent :- Mr.M.Mohamed Riyaz, Additional Public Prosecutor.
IMPORTANT
Bail granted by High Court can not be cancelled by a Subordinate Court on the ground of violation of bail conditions.
A. Criminal Procedure Code, 1973 Section 267 When an accused person is on bail and he fails to appear before the trial Court resulting in a non-bailable warrant issued against him and the accused gets arrested in another case and he is produced before the trial Court through the PT warrant, in execution of the non-bailable warrant, whether the PT warrant can be converted into a regular warrant and the accused person can be remanded to custody? – Held that A person who has already been granted bail, when produced under the PT warrant while he is detained in the another case, cannot be remanded without cancelling the earlier bail – PT warrant can never be converted into a regular warrant.
[Paras 27 and 28]
B. Criminal Procedure Code, 1973 Section 267 Whether the bail granted by this Court can be cancelled by a Subordinate Court on the ground of violation of bail conditions? – No – Held that bail granted by a Superior Court or Higher Court cannot be cancelled by Magistrate Court/Subordinate Court.
[Paras 36 and 37]
C. Criminal Procedure Code, 1973 Section 267 When the accused person is produced before the Court through PT warrant, in execution of non-bailable warrant, and at that point of time the trial is going on for the co-accused, will it not be appropriate for the trial Court to have merged the split up case of the petitioner along with the main case and made the petitioner also face trial along with the co-accused and by not adopting this procedure, whether the petitioner has been put to prejudice and thereby the proceedings against him stands vitiated? – Yes – Held that petitioner was available before the Court and the trial was under process and there was no reason why the petitioner’s case should not have been merged with the main case – This would have saved the time and energy of the Court and by now the petitioner would have known the result of the case.
[Para 40]
Cases Referred :
Appu @ Santhanakumar v. State, 2004 (1) T.N.L.R.599 (Mad) : 2004 MLJ (Crl) 440
Gurdev Singh v. State of Bihar 2000(4) Crimes 103 : AIR 2000 SC 3556
H.Aarun Basha v. The State represented by the Inspector of Police, E-5 Cholavaram Police Station, Thiruvallur District 2019 (1) LW Crl 15.
Jagannath Rout v. State of Orissa (1975 Cri.L.J.1684)
Jaleel Ramjan Sha v. State 2008 (1) CTC 619
K.S.Muthuramalingam v. State 2010 (4) MLJ Crl 161
Kattan alias Subramani v. State, represented by Inspector of Police, Avadi Police Station (1992)1 M.W.N. (Crl.) 3 and 68 (Mad.)
Mahadeo Amrut Gajbhiye v. The State of Maharashtra [1974 Crl.L.J. 1075 (V 80 C 332]
Mahesh v. State of Kerala [2009 SCC Online Ker. 6601].
Narata Ram v. State of Himachal Pradesh, 1994 Cri.L.J.491
P.K.Shaji v. State of Kerala [(2005) AIR SCW 5560]
Pankaj Jain v. Union of India [2018 SCC OnLine SC 160]
Pillappan @ Ravikumar v. State 2018 (3) CTC 156
Prabakaran v. The State rep. by Inspector of Police, Kavindapadi Police Station, Erode District, [2010 (2) MLJ (Crl.) 353] Crl.O.P.No.1439 of 2010 dated 25.01.2010
R.Muthumari v. State 2010 (4) MLJ Crl 295
Ram Dass Ram v. State of Bihar AIR 1987 Supreme Court 1333
Sham Sunder v. State of Delhi (1990 Cri.L.J.2370)
Shanmughiah Pandian v. State by Sub-Inspector of Police, Ramanathapuratn Bazar Police Station, Ramanathapuratn (1999)1 M.W.N.(Crl.) 21
Simranjit Singh Mann v. State of Bihar, 1988 L.W. (Crl.) 304
State of Uttar Pradesh v. Shambhu Nath Singh (JT 2001 (4) SC 319)
The State of Maharashtra v. Dadamiya Babumiya Sheikh, [(1972) 3 SCC 85]
Vinod Kumar v. State of Punjab 2015 (1) MLJ (Crl) 288 SC.
ORDER
Mr. N.Anand Venkatesh, J. – This Criminal Original petition has been filed challenging the order passed by the Court below cancelling the bail granted in favour of the petitioner.
- This is a text book case of how the trial Courts are being hoodwinked and proceedings are virtually frustrated and stalled by a devious and wily practice adopted by accused persons, where multiple accused persons are involved in a single case and each of them keeps absconding in turns and thereby blunt and make the proceedings ineffective.
- An FIR came to be registered in Crime No.538 of 2003 for a major offence under Section 302 of IPC, which consisted of nearly 23 accused persons and petitioner was ranked as A4. The investigation was completed and final report was filed and the case was taken on file in SC No.34 of 2005 by the 1st Additional Sessions Judge, Salem. Immediately after the FIR was registered, the petitioner herein surrendered before the Judicial Magistrate No.4, Salem on 25.08.2003 and he was remanded to judicial custody. Later, the petitioner filed the petition in Crl.O.P.No.44625 of 2003 seeking for bail before this Court and this Court by an order dated 06.01.2004 enlarged the petitioner on bail by imposing certain conditions.
- It will be relevant to extract the Court proceedings that took place from 28.01.2005 to 25.06.2007, as follows:
28.01.05
Received by transfer from Principle District Court ,Salem. Issue Proceedings to the Committal Court for appearance of the accused by 10.2.2005
10.02.05
Letter sent in D.No 73/05 dated 31.1.05 for apparance.A10 to A14 and A16 to 24 present.A15 produced.Mr.P.Perumal files MOA for A10 to A12,A14,A22.Mr.A.Murugesan filed MOA for A18 .Engaging dwfence counsel for A1 to A9,A13,A15 to A17,A19 to A21,A23 to A24 by 24.02.05.Remand extended till then for A15.
24.02.05
For engaging defence lawyer for A1 to A9,A13,A15 to A17,A19 to A21 ,A23 and A24 .A1 absent.Mr.A.S.Anbu files MOA to A16,A19,A20.A2 to A14 , A16 to A24 present. A15 produced .Mr.A.Vanthamathatharam filed MOA to A15.Engage defence counsel for A2 to A9,A13,A17,,A21,A23 and A24. A1 absent.Issue NBW for A1.A15 to be produced on 9.3.05 if he is custody.
9.3.05
A2 to A14,A16 to A24 present.Mr.A. Vanthamathatharam files MOA for A9,A17.A15 not produced and not present.NBW pending against A1. Call on 24.3.05.For engaging defence counsel for A2 to A4,A13,A17,A2,A23 and A24.Addres central prison authorities.
24.3.05.
A2 to A24 present.Mr.A.S.Anbu files MOA for A13,A23.Engage defence counsel for A2 to A12,A14 to A22 and 24 by 7.4.05 .NBW pending against A1.
7.4.05
A2 to A24 present.Engaging defence counsel for A2 to A18 ,A15 to A24 by 27.4.05.NBW against A1 pending.
27.4.05
A2 to A24 present.For engaging defence counsel for A2 to A8,A15,A21,A24 by 12.5.05 NBW pending against A1. 12.5.05 A2 to A24 present.Mr.P.Chandra sekaran ,files MOA for A2 and A23. NBW pending against A1 Call on 26.5.05
26.5.05
A2 to A24 present. Mr.P.Chandra sekaran ,files MOA for A13 and A23. NBW pending against A1 Call on 8.6.05
8.6.05
A2 to A24 present.Call on 28.6.05
28.6.05
A2 to A24 present.Call on 12.07.05
12.7.05
A2 to A24 present. NBW pending against A1. Call on 2.8.05
2.8.05
A2 to A24 present. NBW pending against A1. Call on 24.8.05
24.8.05
A2 to A24 present. NBW pending against A1. Call on 15.9.05
15.9.05
A2 to A24 present. NBW pending against A1.29.9.05
29.9.05
A2 to A24 present. NBW pending against A1. Call on 20.10.05.
20.10.05
A2 to A24 present. NBW pending against A1. Call on 15.11.05
15.11.05
A2 to A24 present. NBW pending against A1. Call on 29.11.05
29.11.05
A2 to A24 Present, NBW Pending against A1.Call on 20.12.05
20.12.05
A2 to A18 and A20 to A24 Present, A19 absent. Petition us 317CrPC filed and allowed NBW pending against A1 .Call on 10.01.06
10.01.06
A2 to A24 present, A1 NBW Oending and the Police not executed the NBW till today learned Addl PP files memo for split up the case.Address to PDJ for split up the case against A1, call on 31.1.16
31.01.06
NBW against A1 pending , A2 to A4 A5, A5 to A24 Present. Await orders from District Court. Called on 24.02.06
24.02.06
A2 to A24 Present. Await Await orders from District Court for split up by 15.3.06
15.03.06
A2 to A4 , A6 to A23 Present A5 and A24 Absent. Petition filed and allowed . Await District Court orders by 04.04.06
04.04.06
A2 to A24 Present. Framing of charges by 17.04.06
17.04.06
A2 to A24 Present. Framing of charges by 28.04.06
28.04.06
Suomoto hearing advanced. Asper the proceeding of the principal District Judge Salem in D.No. 3717, Dated : 28.04.06 Transfered to IADJ , Salem for disposal according to Law
01.06.06
Received by Transfer From FTC – I , Salem as per order of the principal sessions judge, Salem and posted to 7.06.06 For appearance of the accused
07.06.06
For appearance of the accused for consideration. A1 to A3 , A5, A6, A8 to A24 present. Case Against A1 have already been splitop and numbered in SC 109/06 and the remaining accused i.e A2 to A24 arranged as accused A1 to A23 in this case A1 to A, A15, A6, A8 to A23 present A4 and A7 absent. No representation. Issue NBW against A5 and A7. Case adjourned to 26.06.06 for further proceedings.
26.06.06
NBW pending A4, A7 , A1 to A3, A8 to A23 present NBW pending against A4 and A7. Call on 19.07.06 for excution of NBW.
30.06.06
Take up today. A7 surrendered, accepted and recall NBW case adjourned to 19.07.06
19.07.06
NBW pending A4. A1 and A2 present . A5 to A13, A15 to A23 present. A3 absent. No representation for A3. Issue NBW, A14 absent petition under section 317 Cr.P.C, 1973 is filed allowed. NBW pending against A4 . Case adjourend to 10.08.06
10.08.06
NBW pending A3 A4 , A1, A2, A5 and A23 present. A3 surrenderd. NBW pending against A3, A4 . Case adjourened to 07.09.06. For further proceedings petition to recall NBW filed and allowed.
07.09.06
NBW pending against A4. A1 to A3 A5 to A23 Present. NBW pending against A4 . Case adjourened to 06.10.06. For execution of NBW.
06.10.06
NBW pending against A4. Taken up today. A4 surrendered. Petition re call NBW filed and allowed . Recall NBW. Case adjourened to 06.10.06
06.10.06
For clarification. Today declared as holiday. Reposted to 02.11.06
02.11.06
For consideration. A1 to A23 present and request of the council for the accused case adjourened to 01.12.06 for consideration.
1.12.06
A1 to A23 present. Adjourned to 16.12.06
16.12.06
For consideration. A1 to A23 present. At request of the counsel case adjourned to 21.12.06 for consideration.
21.12.06
For consideration. A1 to A7 and A9 to A23 present. A8 absent. Petition under section 317 CrPC, 1973 is filed and allowed. Case adjourned to 5.1.07 for further proceedings.
05.1.07
Connected SC.109/06 NBW pending. For Consideration A1 to A4,A6 to A23 present. A5 absent. Petition under section 317 CrPC, 1973 filed and allowed. Case adjourned to 5.2.07 for consideration.
5.2.07
A1 to A5,A7 to A23 present. A6 absent. Petition under section 317 CrPC, 1973 is filed and allowed. Case adjourned to 27.2.07 for further proceedings.
27.2.07
For consideration. A1 to A23 present. Case adjourned to 6.3.07 for consideration.
6.3.07
A1 to A22 present. A23 absent. Petition under section 317 CrPC, 1973 is filed and allowed. Thiru A.S.Anbu filed MOA for A10,A11,A12,A14 and A22 and Thiru.Vathematharam filed MOA for A19. Case adjourned to 15.3.07 for consideration.
15.3.07
For consideration. A1 to A23 present. Connected SC.109/06 accused present. He is main and 1st accused as per charge sheet connected to SC.109/06 as clubbed in this case. Accused rearranged as per charge sheet. Now the case against A1 to A24 in this case. Heard both sides. Records perused. On a perusal of case records it is seen that there is a prima facie case there are grounds to proceed the case. Hence charge under Section 148 I.P.C. against A5,A6,A7,A9,A16,A17,A19 and A20 ; under Section 147 I.P.C. against A21 to A23; under Section 302 I.P.C. against A6,A7,A16 and A17; under section 302 r/w. 149 IPC against A1 to A5,A8 to A15, and A18 and A20; under Section 302 I.P.C. against A5,A9 and A20; under section 302 r/w. 149 IPC against A1 to A4,A6 to A8,A10 to A18; under section 302 r/w. 114 IPC against A21 to A23; and under section 120(b) r/w. 302 IPC against A1 to A4,A9,A20 and A24 framed against the A1 to A24 and read over to them and they denied them wants to try the case. Hence case adjourned to 12.4.07 for fixing trial date.
12.4.07
A1 custody. A1 produced. A2,A4 to A24 present. A3 absent. No representation for A3. Issue NBW. Case adjourned to 25.4.07 for fixing trial date. Remand extended till then for A1.
25.4.07
A1 produced. A2,A4 to A24 present. NBW pending against A3. Case adjourned to 14.6.07 for execution of NBW for further proceedings. Remand extended till then.
14.6.07
A1 produced. A24 absent. All other present. Issue NBW for A24. Adjourned to 28.6.07. Send letter to DGP by 14.6.07 at request of PP. Remand extended till then.
25.6.07
Taken up today. A24 surrendered. Accepted and recalled NBW. Adjourned to 28.6.07 for further proceedings.
- The petitioner was arrested in another case by Periyakulam Police Station, Theni District in Crime No.232 of 2007 and was remanded and lodged at Madurai prison on 26.06.2007. The petitioner was transferred from Madurai prison to Trichy prison on administrative grounds on 12.08.2007. Subsequently, the petitioner was enlarged on bail in Crime No.232 of 2007, by an order dated 25.09.2007.
- It will be relevant to extract the Court proceedings from 28.06.2007 to 19.12.2007 hereunder:
28.6.07
A1 produced. A4 NBW pending. A6 absent. 317 petition filed and allowed. All others present. Adjourned to 4.7.07. On requisition issue PT warrant to A4. Remand extended till then.
4.7.07
A4 under Police custody in connection with other case. All others present. Adjourned to 18.7.07
18.7.07
A1 produced. All others present, adjourned to 24.7.07. Remand extended till then for A1. Palanivelu/A4 produced at 3.55 pm on PT warrant. Accused questioned. Advocate on boycott. Accused not meet his counsel, wants time adjourned to 24.7.07. Accused sent back to jail.
24.7.07
A4 produced under PT warrant. A4 submitted that he has engaged Mr.Haribaskar as his counsel and he has gone to Madras to attend other cases, he wants time. APP filed petition APP filed petition regarding to remand the accused in this case for which the petitioner wants to submit his reply after consulting his lawyer. Hence case adjourned to 7.8.07. A1 produced. All others present. A4 sent back to jail. A1 remaned to custody till then.
7.8.07
A4 produced under PT warrant. Filed petition seeking legal aid lawyer. A1 to A8,13,15,21,23 and 24 were also submitted that pray time seeking for legal aid lawyer Address Secretary, Legal aid, adjourned to 21.8.07. A1 remand extended till then. A4 sent back to jail.
21.8.07
A4 not produced. Address jail authority. A4 produced under PT warrant. All others present. Mr.K.Thirumurugan filed memo of appearance for A13,A15,21,23,24 mR.Senthilkumar filed memo of appearance for A1 to A4. Out of which A4 is not willing to face trail submitted by his council. He filed petition to that effect send letter to Legal Aid Services Authority Salem. Mr.R.Venkatasubramaniyan filed memo for A5, A15, A8. Adjourned to 6.9.2007. Passed over for prisioners. A4, A11 filed petitions seeking for appointment of Advocate and of their own choice (2 petitions filed seperately). Both petitions are forwarded to the Legal Aid Secretary. Additional petition of A4 asking for food etc. Is also forwarded to Superientendent of Central Priso Trichy. Adjourned to 6.9.2007.
4.9.2007
Taken up today.
6.9.2007
A1 produced. A4 produced under PT warrant. Others present. Await report from Legal Aid Services. Adjourned to 20.9.2007. A1 submitted petition. Forwarded to legal Aid.
20.9.2007
A6 Absent. A1 produced. A4 produced under PT warrant. All other accused present. Reply received from Legal Aid that they can not spare advocates from other places. Passed over. A4 filed petition for appointment of Advocate and of their own choice. The councel for accused No 10, 11, 12, 14, 16, 18, 23 filed petition to split up the case. Notice to APP adjourned to 4.10.07. P.Damayanthi files MOA, along with 317 petition, accused admitted in the Erode hospital. Petition allowed. A1 remand extended till then. A4 sent back to prison. Petition of A1 filed and pending.
4.10.2007
A1 produced. A4 produced under PT warrant. Mr Vanthematharam filed MOA for A9, A17, A20. He filed petition to split the case against the above said three accused. A18 filed separate petition to split up the case against him. Councel for A10, A11, 12,14,16,19 AND 22 filed petition to split up the case against them. All split up petitions are allowed. Case against them are split up and assigned separate SC number today and posted 23.10.2007 for further proceedings. Accused No 1 to A18, A13, 15,21,23 and 24 filed petition to appointment of counsel by their own choice with regarding with requisition forwarded to legal aid Salem for further action. Other accused are party to the main case. Hence call on 23.10.07. A1 remand extended. A4 sent back to prison.
23.10.07
The case against the following accused 1.Sadaiyan(A9), 2. Karuppannan(10), 3.Selvam(A11), 4.Thiyagarajan(A12), 5.Dharmalingam(A14), 6.Selvam(A16), 7.Murugesan(A17), 8.Kumaresan(A18), 9.Manickam(A19), 10.Kalaivanan(A20), 11.Krishnammal(A22) are split up from this case and assigned new sessions case No.184/2007 as per proceedings of the Principle Sessions Judge, Salem in Roc.No.9298 dated 10.10.2007. The remaining accused rearranged as follows:
- Natesan, S/o. Nallagounder
- Jagan @ Jaganathan, S/o. Srithar
- Kumaravel, S/o. Subramani
- Palanivel, S/o. Sankar
- Annamalai, S/o.Sankar
- Sekar, S/o. Sankar
- Kutti @ Selvam, S/o. Subramani
- Poosari @ Arunachalam, S/o.Arumugam
- Selvaraj, S/o. Kolanthai gounder
- Nila, S/o. Annaigounder
- Vijaya, W/o.Natesan
- Madhu, W/o. Selvaraj
- Manimaran, S/o. Chinnaiyan
Jagan @ Jaganathan, Selvaraj, Natesan and Madhu – 4 alone have filed petition to split up them from SC.34/2005. No Objection endorsed by APP. Petition allowed. Case against said 4 accused are splitted. Address to PDJ for assigning SC.No.to the above said 4 accused. A1 produced. A4 produced under PT warrant. 11 others present. Counter of APP filed in CMP.51/07. Reply received from legal aid, Salem that they address to state legal aid, Madras. CMP also pending. Adjourned to 20.11.07. A1 remanded extended till then. A4 sent back to jail.
20.11.07
Case against A2,A13,A15 and A23 are split up and numbered as SC.225/07 remaining accused arranged as follows; - Natesan(A1)
- Kumaravel(A3), 3. Palanivel (A4), 4. Annamalai (A5)
5.Sekar (A6)
6.Kutti @ Selvam (A7)
7.Poosari @ Arunachalam (A8)
8.Vijaya (A21)
9.Mani,aran(A24)
Reply not received from State Legal authority,Chennai.Produced A3 under PT warrant.C.M.P. 51/07 ordered.CMP .62/07 ordered. Adjourned to 5.12.07 for further proceedings.Since legal authority request has not been received by this court..A3 sent back to jail.
5.12.07
A3 under custody not produced under Video conference.All other produced .Letter received from Legal aid.Inform the accused.Adjourned to 19.12.07.
19.12.07
As the presiding Officer is on leave reposted to 22.1.08 - The petitioner came to be arrested in another case registered at Orissa and he was transferred from Trichy to Orrisa prison in the strength of PT warrant issued by the Sub Divisional Judicial Magistrate, Koraput, Orrisa, on 24.01.2008.
- It will be relevant to extract the Court proceedings from 22.01.2008 to 05.10.2009 hereunder:
22.1.08
A5 absent. 317 petition filed and allowed.Thiru.Nagarathinam filed MOA for A5.All others present except A3.Passed over.Adjourned to 18.2.08.Letter received from Central prison, Trichy for want of production of the accused through video conference since he was produced in a case at Orissa state.Adjourned to 18.2.08.Accused shall be made available in video conference on that date.
18.2.08
A1,A2,A5,A9 present. A4 absent.No representation .Issus NBW against A4.A2,A8 engaged counsel from legal aid..Letter received from Legal Aid..A5 Mr.Nagsrathinam filed memo of appearance .A1,A3,A4,A6,A7 filed memo .A3 not prodiced through video conference.Letter received from prison in 5071/08 dated 18.2.08.Accused shall be made available on 7.3.08 through video conference.
7.3.08
A4 pending NBW.A1 A2,A9 present.Tr. P.Mayavan advocate filed memo of a appearance for A9.Await reply from Legal AiD fpr counsel for Some of the accused.Letter received from Jail.A3 not yet returned for from Orissa Anjourned ti 31.3.08. Sent intimation to jail fir A3.
31.3.08
A1,A2,A5,A9 present. A4 NBW pending.Memo of appearance for A2 Mr.Haribabu. filed and Miss.P.Damayanthi filed memo of appearance fpr A8 .A3 not produced through conference.Letter received from Central Prison,Trichy for engaging counsel for A1,A3,A6and A7 at request adjourned to 28.4.08.
28.4.08
Except A3,A4 all other present at request of counsel adjourned to 3.6.08.
Letter not received from Legal Aid.PT warrant for A3 received from Central Prison, Trichy A4 NBW pending. Addressed to SP. A3 to be produced on 3.6.08.through video conference if available.
3.6.08
Mr.B.Mohan filed memo appearance for A1,A3,A7.Mr.A.Nagarathinam , filed memo of appearance for A6.A2 absent.317 filed and allowed.A4 absent, issue NBW.A3 not produced.Others present.APP is directed to ascertain the nature of the case under which the accused detailed etc particulars for the hearing date 26.6.08.
26.6.08
A3 not produced. A4 already NBW .Others present.Adjourned to 21.7.08.
21.7.08
A3 not produced. A4 under NBW .A9 absent. Petition under section 317 filed and allowed. Others present.Notice to the surity of A4 for the hearing 14.8.08.
14.8.08.
A3 not produced. Others present.Adjourned to 29.8.08.
18.8.08
Taken up today.Letter received from Central Prison, Trichy.Accused not produced .Accused order to the produced on 29.8.08. through Video conference.
29.08.08
CMP 43/08 is pending Call on 2.9.08
1.9.08
Taken up today.Since PT warrant and letter in Dis. No 5070/J.1/07dated 30.8.08.Letter in Dis. No 5070/J/1/07 dated 30.8.08. are produced. Letter returned with direction to produce particulars of the accused.Accused under PT warrant, Anjourned to 15.9.08 to …….Call On 2.09.08.
02.09.08
A4 under NBW A3 absent. All others present. Adjourened to 15.09.08
15.09.08
CMP .43/08 is pending . Today declared as Holiday due to 100th birthday of Annadurai.
16.09.08
CMP.43/08 is pending. Except Ex, A3 and A4 all other accused are present. Adjourened to 29.09.08.
29.09.08
A3 at Orissa central jail A4 NBW pending. All others present. Adjourened to 20.10.08
20.10.08
A3 at Orissa. A4 NBW pending. Others present. Adjourened to 20.11.08
20.11.08
A3 absent A4 NBW pending A1 absent. 317 petition filed and allowed other accused present adjourened to 28.11.08.
21.11.08
A4 NBW. Remainder to S.P A3 absent NBW pending CMP is pending. Call on 10.12.08
10.12.08
A3 at Orissa. A4 absent NBW all other present. At request of PP adjourened to 30.12.08
30.12.08
S.I present. Represented that they are taking steps to produce A3, A4 in custody. Others present. A2 produced. Remand extended till 20.01.09
20.01.09
A3 at Orissa A4 produced. All others present. SI present represented that steps being taken and requested adjourn to 06.02.09. remand extended till then.
06.02.209
A3 at Orissa A4 Produced. Others present case adjourened to 25.02.09. remand extended till then for A4
25.02.09
A3 absent. A4 not produced. A1, A2 ,A5 to A9 present. Call on 18.03.09
18.03.09
A3 absent. A4 not produced. All others present. APP present. Police absent for steps at request adjourened to 03.04.09
03.04.09
A4 custody produced. A3 at Orissa prison and all other accused are present. SC 84/07 all the accused are ordered to be clubbed along with other accused. For rearranging the accused asper charge sheet adjourened to 13.04.09 after split up the accused No .3 (Palanivel ) in view of the order passed in CMP .53/08 in SC 184/07 Dated : 24.03.07 remand extended till then for A4 address to PDJ assign New Number to be splited accused 12.00 noon – APP filed petition to issue PT warrant against A3 Palanivel, He is at Orissa center jail P.T Warren issued . No need to split up the case against A3 Palanivel
13.04.09
A24 absent. 317 petition filed and allowed. A4 absent. Police absent. A5 produced . All others present. P.O. 3.00 PM. Police present. Await PT Warrant letter from Orissa adjourened to 24.04.09. remand extended till then.
24.04.09
A4 absent. At Orissa , A15 absent. 317 petition filed and allowed.A5 Not produced others present adjourened to 05.06.09
05.06.09
Thiru DSP Rajendran filed MOA by the district level services authority. A4 under P.T warrant A1 absent 317 petition filed and allowed. A4 others present adjourened to 26.06.09
26.06.09
Judge is on OD. Reposted to 09.07.09
09.07.09
A3 at Orissa. A8 absent 317 petition filed and allowed. Others present at request of APP adjourened to 14.07.09.
14.07.09
A4 at Orissa. A3 absent 317 petition filed and allowed. APP filed petition to splitup the case against A4 Palanivel is pending . Call on 22.07.09
22.7.2009
A4 at Orissa jail as per APP representation. A1 and A16 absent. 317 petition filed and allowed. CMP is allowed. Split the case against A4. Call for FP 3.8.09. Sent letter to PDJ.
3.8.09
A2 absent. others present. split up order for A4 not yet received in the court from PDJ, Salem. Adjourned to 14.8.09.
14.8.09
A1, A2, A12, A20 absent. 317 petition filed and allowed. A4 reported to be at Orissa. All others present. Await split up order from PDJ, call on 1.9.09.
1.9.09
A6, A8, A16, A20 absent. 317 petition filed and allowed. All others present.Adjourned to 9.9.09 for appearance of accused.
9.9.09
A1 absent. 317 petition filed and allowed. At request of accused counsel to file the hearing date of the completing their counsel at request adjourned to 14.09.09.
14.9.09
A8, A11, A20, A23 absent. 317 petition filed and allowed. All others present. Trail date fixed with consultation of all counsel on record and hearing date 5.10.09 to 8.10.09. Issue proceedings.
5.10.09
The case against A4 namely Palanivel, s/o Sankar split up from this case and numbered as SC 217/09 remaining accused 23 as arranged in this case for altering the change and Trail. 15 witnesses present. For A18 Thiru Muthusamy filed memo of appearance. Passed over. All other present. A1 absent. Issue NBW. Call on 15.10.09.
- It is seen from the above extract of proceedings that the case was split up insofar as the petitioner is concerned and was assigned SC.No.217 of 2009. The Trial Court was repeatedly communicating with the Additional Sessions Court, FTC, Jaipur, Korakupt, Orissa, to produce the petitioner at the Salem Court. This communication was going on from 05.10.2009 onwards. However, the petitioner was not produced before the Court. Ultimately a message was received on 10.01.2011 from the Superintendent of District Jail, Korakput to the effect that the petitioner has been acquitted in the Orissa case by judgment dated 06.01.2011. The accused was produced under PT warrant on 21.02.2011 before the Salem Court and ultimately the PT warrant was returned since the petitioner was already acquitted in the Orissa case and the petitioner was already on bail in the present case. Thereafter, the petitioner started appearing in the present case from 07.04.2011 onwards. The petitioner again absented himself from 29.11.2011 and a non-bailable warrant came to be issued against the petitioner by the Court below on 29.11.2011. The non-bailable warrant was pending without being executed from 29.11.2011 till 08.11.2016 for nearly five years.
- The petitioner came to be arrested by the Salem Q Branch in another case in Crime No.01 of 2016 and was remanded to judicial custody on 01.10.2016. This was brought to the notice of the Court below and the Court below issued a PT warrant on 03.10.2016 directing the petitioner to be produce before the Court and the petitioner was brought before the Court on 08.11.2016.
- It will be relevant to extract the proceedings from 26.10.2016 till 10.08.2018 hereunder:
26.10.2016
NBW Pending. Reminder sent to the Commissioner of police Salem. D.No 7209/16 Dt:27.09.2016 As per requisition of I/O Dt:03.10.2016 PTW issued in D.No.7382/16 Dt: 03.10.2016. Accused produced through PTW. Produced the accused before this court on 08.11.2016 The Inspector of Police Veeranam PS is directed to file a detailed report to this accused by 09.11.2016
23.11.2016
Accused Produced through PTW. Produced the accused by 07.12.2016 for engaging Council.
07.12.2016
Accused not produced. Produce the accused through PTW on 21.12.2016 for engaging council.
21.12.2016
Accused Produced through PTW to engaging the council on 03.01.2017
03.01.2017
Accused produced through PTW Mr.P.Chandrasekaran filled memo for the accused.
10.01.2017
Accused Produced through PTW produce the accused by 24/1
24.01.2017
Accused not Produced through PTW. To produced accused by 07.02.2017
07.02.2017
Accused Produced through PTW. To produced the accused by 14.02.2017
14.02.2017
Accused Produced through PTW. For Clarification and perusal of F/P accused to be produce by 20.02.2017.
20.02.2017
Accused Produced through PTW. Since the accused has produced by 23.02.2017
23.02.2017
For Clarification and Perusal F/P. PO is on Leave.
27.02.2017
Accused Produced through PTW. Directed to produced on 08.03.2017
08.03.2017
Accused Produced through PTW. Notice given to the accused.
16.03.2017
Memo filled by the council of accused. Accused not produced.
21.03.2017
Accused Produced through PTW. Reply filled.
01.04.2017
Holiday
03.04.2017
Accused not produced.
10.04.2017
Accused not produced. Intimation received.
24.04.2017
Accused Produced through PTW for perusal and reply and ordered by 29.04.2017
29.04.2017
Accused not produced.
29.06.2017
Accused not produced.
27.07.2017
Accused Produced through PTW. To perusal the reply by the accused by 10/08/7
10.08.2017
Accused not produced. Intimation received.
11.09.2017
10.10.2017
24.10.2017
Accused Produced through PTW.
02.11.2017
Accused Produced through PTW. For perusal and reply by 06/11
06.11.2017
Accused Produced through PTW. For perusal and reply by 07/11
07.11.2017
Accused Produced through PTW.
24.11.2017
Accused Produced through PTW.
11.12.2017
Accused Produced through PTW.
18.12.2017
Accused not produced.
08.01.2018
Accused Produced through PTW
22.01.2018
29.01.2018
Accused not produced.
07.02.2018
Accused Produced through PTW.
16.02.2018
Accused not produced. Intimation received.
01.03.2018
Copy Communication received from DISA that Thiru.P.Chandrasekaran Advocate is appointed for the accused through legal Aid as per the requision given by the accused Dt on 16.02.2015. for filling memo of appearance by Thiru.P.Chandrasekaran.Accused Produced through PTW
08.03.2018
Accused not produced. Intimation received.
22.03.2018
02.04.2018
10.04.2018
12.04.2018
12.06.2018
Accused Produced through PTW.
19.06.2018
Accused Produced through PTW. Thiru.P.Chandrasekaran appeared.
21.06.2018
Accused Produced through PTW. Issue summon to the witness as per the defence council by 28.06.2018, 29.06.2018.
28.06.2018
Accused Produced through PTW. Petition filled by accused appointment of legal Aid Council by 12.07.2018
12.07.2018
Report received from DSLA as Thiru S.D.Manickavasagam appointed through legal Aid to the accused. For filling memo of appearance by Thiru.S.D. Manickavasagam. DSLA has appointed Mr.S.D Manickavasagam Advocate for the accused. Accused filled a petition. Ordered on the petition by 19.07.2018
19.07.2018
Petition pending. Accused not produced.
25.07.2018
Accused Produced. Accused petition pending.
30.07.2018
03.08.2018
10.08.2018
Accused Produced. CMP Pending. (CMP No.237/2018 – Accused filled petition to appoint P.Mohan Advocate for him through DSLA.)
- In the meantime, the trial went on insofar as other accused persons are concerned in SC No.34 of 2005 and by judgment dated 12.04.2018 five accused persons were acquitted and fifteen accused persons were convicted and three of the accused persons died during the proceedings and the proceedings abated insofar as they are concerned.
- From the proceedings extracted hereunder above, it can be seen that the petitioner was produced before the Court on PT warrant from 08.11.2016 onwards and it is not clear as to why the case of the petitioner which was split up in SC No.217 of 2009 was not merged along with the main case and the petitioner was also made to face the trial in the main case itself along with the other accused persons. There was no meaning in repeatedly producing the petitioner before the Court from 08.11.2016 till 12.04.2018, when the final judgment was passed in SC No.34 of 2005, without making him face the trial during this period. It was a wasteful exercise which was going on for nearly one and half years and no useful purpose was served by repeatedly producing the petitioner before the trial Court on PT warrant when the co-accused were facing trial for the same case. The trial Court had an easy option of making the petitioner face the trial along with the co-accused and unfortunately that chance was missed by the trial Court.
- From 10.08.2018 onwards, the status quo continued up to 29.03.2019. On 29.03.2019, the Investigation Officer gave a requisition before the Court below to cancel the PT warrant and to issue a regular warrant. It is not known under what provision of law, this requisition was made, since admittedly the petitioner was on bail in the present case.
- On 29.03.2019 the Court below suo moto initiated proceedings for cancellation of bail and put the petitioner on notice. The petitioner represented before the Court that he was not able to be present before the Court due to circumstances beyond his control and he was arrested in two other cases. However, the Court below on the very same day proceeded further to cancel the bail granted in favour of the petitioner on the ground of breach of bail condition and the petitioner was again remanded to judicial custody. This order has now been put to challenge before this Court in the present Criminal Original Petition.
- Mr.R.Sankarasubbu, the learned counsel appearing on behalf of the petitioner submitted that the procedure adopted by the Court below is illegal. He attacked the order of the Court below on the following grounds:
Bail was granted by this Court and therefore the Court below did not have the power to cancel it.
The PT warrant cannot be converted into a regular warrant and it is alien to the provisions contained under the code of criminal procedure.
The petitioners ought to have been tried along with the other co-accused persons, when he was produced before the Court from the year 2016 onwards for every hearing through PT warrant and the Court below should not have kept the split up case of the petitioner pending and made him attend the Court proceedings for more than one and a half years.
The detention of the petitioner for such a long time and the cancellation of the bail granted in favour of the petitioner, is illegal and violates the right of liberty guaranteed under Article 21 of the Constitution of India.
The bail granted to the petitioner cannot be cancelled by producing the petitioner through PT warrant when the petitioner has been arrested in another case.
- Mr.M.Mohamed Riyaz, the learned Additional Public Prosecutor appearing on behalf of the respondent police submitted that the petitioner is a habitual offender who is involved in various cases. He further submitted that the petitioner was dragging on the proceedings for a very long time and it is to be borne in mind that the sessions case was pending from the year 2005 onwards. The learned Additional Public Prosecutor submitted that the non appearance of the petitioner before the trial Court on 29.11.2011 was will full and wanton and the non-bailable warrant was pending against the petitioner from 29.11.2011 till 08.11.2016, for nearly five years, when the petitioner was produced through PT warrant after he was arrested by the Q Branch in another case and thereafter the petitioner had violated the bail conditions and the Court below had the power to cancel the bail bond which had the effect of automatic cancellation of the bail under Section 446-A of Cr.P.C. and therefore the order passed by the Court below is perfectly in accordance with law. In order to substantiate his arguments, the learned Additional Public Prosecutor relied upon the judgment by this Court in the case of Pillappan @ Ravikumar v. State reported in 2018 (3) CTC 156.
- This Court has carefully considered the submissions made on either side and the materials available on record.
- Three important questions that arises for consideration in this case are;
(a)When an accused person is on bail and he fails to appear before the trial Court resulting in a non-bailable warrant issued against him and the accused gets arrested in another case and he is produced before the trial Court through the PT warrant, in execution of the non-bailable warrant, whether the PT warrant can be converted into a regular warrant and the accused person can be remanded to custody?
(b)Whether the bail granted by this Court can be cancelled by a Subordinate Court on the ground of violation of bail conditions? and
(c) When the accused person is produced before the Court through PT warrant, in execution of non-bailable warrant, and at that point of time the trial is going on for the co-accused, will it not be appropriate for the trial Court to have merged the split up case of the petitioner along with the main case and made the petitioner also face trial along with the co-accused and by not adopting this procedure, whether the petitioner has been put to prejudice and thereby the proceedings against him stands vitiated?
- It will be relevant to extract section 267 of Cr.P.C., 1973 as follows:
- Power to require attendance of prisoners –
(1) Wherever, 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 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. - This Section empowers the Court to direct the Officer In-charge of the prison to produce the detenue before it, if the Court is of the opinion that his presence is necessary.
I. For answering to a charge of an offence (or)
II. For the purpose of any proceedings against him (or)
III. If it is necessary for the ends of justice to examine such person as a witness. - This Court had an occasion to deal with the scope of PT warrant and it will be a relevant to take note of those judgments.
- In the case of Appu alias Santhakumar and other v. State reported in 2004 MLJ (Crl) 440, this Court has held as follows:
- The point arises for consideration in these petitions is that when a person (who was granted bail by the competent Court and released after furnishing sureties, but was subsequently arrested and remanded in connection with another offence) is produced before the Court in the first case under a P.T.Warrant, whether that Court can remand him again in the first case till the next hearing date.
- In view of the importance of the question involved, the Court requested the learned Public Prosecutor to clarify the position of law and he appeared and submitted his arguments.
- Mr.I.Subramanian, learned Public Prosecutor, submitted that a person commits an offence and he is arrested and remanded to judicial custody; he obtains bail and produces sureties and is let on bail; the very same accused commits another offence and for that offence he is arrested and remanded to judicial custody; therefore, the accused was unable to attend the Court, in the case in he was granted bail; under the circumstances a P.T.Warrant, as contemplated under Section 267, Crl.P.C, is issued and the accused is so produced; subsequently, if he is granted bail and released on producing sureties in the second case as well, the Court of first instance before which he was produced under a P.T.Warrant cannot remand him till the next hearing date before it. He further submitted that the bail granted by the Court pursuant to which sureties were produced and bonds were executed, can be cancelled only in the manner known to law. Such a cancellation is provided under Sections 437(5) and 439(2), Crl.P.C. The circumstances under which a bail can be cancelled has been set out in Sanjay Gandhi’s case and subsequent pronouncements by the Supreme Court. Therefore, the order passed under Section 272, Crl.P.C. pursuant to which a P.T. Warrant is issued can, by no stretch of imagination, supersede an order of bail granted to the accused. That is not the intent and purpose of a P.T.Warrant, which is purely a temporary order (directing the production of an accused to answer a charge or to give evidence, etc. as contemplated under Section 267, Crl.P.C). Therefore, merely because the accused is remanded to custody, when produced under a P.T.Warrant, that he should again seek bail in the Court of first instance, is against the provisions of law. 14. The learned Public Prosecutor wanted certain remedial measures be taken and suggested the following remedies:13. Mr.I.Subramanian, learned Public Prosecutor, submitted that a person commits an offence and he is arrested and remanded to judicial custody; he obtains bail and produces sureties and is let on bail; the very same accused commits another offence and for that offence he is arrested and remanded to judicial custody; therefore, the accused was unable to attend the Court, in the case in he was granted bail; under the circumstances a P.T.Warrant, as contemplated under Section 267, Crl.P.C, is issued and the accused is so produced; subsequently, if he is granted bail and released on producing sureties in the second case as well, the Court of first instance before which he was produced under a P.T.Warrant cannot remand him till the next hearing date before it. He further submitted that the bail granted by the Court pursuant to which sureties were produced and bonds were executed, can be cancelled only in the manner known to law. Such a cancellation is provided under Sections 437(5) and 439(2), Crl.P.C. The circumstances under which a bail can be cancelled has been set out in Sanjay Gandhi’s caseand subsequent pronouncements by the Supreme Court. Therefore, the order passed under Section 272, Crl.P.C. pursuant to which a P.T. Warrant is issued can, by no stretch of imagination, supersede an order of bail granted to the accused. That is not the intent and purpose of a P.T.Warrant, which is purely a temporary order (directing the production of an accused to answer a charge or to give evidence, etc. as contemplated under Section 267, Crl.P.C). Therefore, merely because the accused is remanded to custody, when produced under a P.T.Warrant, that he should again seek bail in the Court of first instance, is against the provisions of law.
- The learned Public Prosecutor wanted certain remedial measures be taken and suggested the following remedies:
(1) A general direction may be issued to Magistrates in such cases to issue a P.T. Warrant by the Court of first instance only if the case is posted for trial.
(2) Under no circumstances, a remand order issued pursuant to a P.T.Warrant, be treated on par with a regular order of remand under Section 167, Crl.P.C. or 309, Crl.P.C. as the case may be.
(3) The decision in Anupam Kulkarni’s case, A.I.R. 1992 S.C. 1768 has relevance only when during the course of investigation, the accused, who is already in judicial custody, is found to have been involved in an earlier case, under such circumstances a formal arrest can be made by the officer concerned for the purpose of investigation of the case, so that, police custody could be taken within the first 15 days as contemplated under Section 167, Crl.P.C. - The learned Public Prosecutor also pointed out that in Kattan alias Subramani v. State, represented by Inspector of Police, Avadi Police Station (1992)1 M. W.N. (Crl.) 3 (Mad.), Pratap Singh, J, has directed that the P.T.Warrant be recalled. In Shanmughiah Pandian v. State by Sub-Inspector of Police, Ramanathapuratn Bazar Police Station, Ramanathapuratn (1999)1 M.W.N.(Crl.) 21, B.Akbar Basha Khadiri, J., has granted bail in a case where application for recalling warrant was filed.,
- In common parlance a warrant issued under Section 267, Crl.P.C. is called as “P.T. Warrant”. The format is proved in the Second Schedule of the Code of Criminal Procedure, as follows:
Form No.36 Order Requiring Production In Court Of Person In Prison For Answering To Charge Of Offence.
(See Section 267)
To
The Officer in charge of 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 purposes 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 ….19, 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……19
(Seal of the Court)
(Signature)
Countersigned.
(Signature)
(Seal).
As per Section 267, Crl.P.C. – Whenever, in the course of an enquiry, trial or other proceeding under this Code, it appears to a Criminal Court, that a person 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 “to examine such a 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 the above purpose, exercising the power conferred under Section 267, Crl.P.C, the P.T. Warrant is issued. Reading Section 267, Crl.P.C. with Form 36, it is clear that a person shall be produced before a Court when a P.T.Warrant is issued and that he must be conveyed back to the prison. It appears that, the words “after this Court has dispensed with his further attendance”, found in Form 36, are taken by the Court below as if it confers the power on the Court to remand such person for a further period. These words must be read along with the provisions of Section 267, Crl.P.C. When so read, it could be seen that the purpose of issuing such warrant is to produce the person before the Court “for answering to a charge” or “for any proceedings” or “for giving evidence”. When a person has already been granted bail by a competent Court, that can be cancelled only as provided under Section 437(5) or 439(2), Crl.P.C. Unless and until the bail is so cancelled, the person produced under a P.T.Warrant, cannot be “remanded”.
- That is, if a person is granted bail by a competent Court he has to execute a bail bond as directed; and then he is released from the prison. Such a person when produced under a P.T.Warrant, (in some proceedings in a case in which he was already granted bail) cannot be “remanded”. Such person can only be “conveyed” back to the prison. It is for the prison authority to see whether he was remanded in any other case. If he is not validly remanded in any other case, the prison authorities cannot continue to keep that person in custody. Under those circumstances, when the person is granted bail in the second case in which he was remanded, then, in view of the fact that he was already granted bail for the earlier offence, there would be no valid remand to continue to keep him in jail.
- The Code of Criminal Procedure does not contemplate “remanding” a person produced under P.T.Warrant. The person produced under P.T.Warrant is only to be “conveyed” to the prison. If the bail granted to such person is not cancelled, there is no necessity to grant bail again. Bail cannot be granted for a second time, merely because he was produced under P.T.Warrant and the Court remanded him again. Issuance of P.T.Warrant is not tantamount to cancellation of the bail.
- If a person released on bail does not appear before the Court and a non-bailable warrant was issued by the Court against that person, as and when he is arrested and produced before the Court, the Court which issued non-bailable warrant has to pass an order specifically whether the bail bond executed by him was forfeited. If the Court passes an order forfeiting the bonds executed by the sureties as well as by the accused, it can seek for fresh sureties. Unless and until the bail is cancelled by the same Court or by a superior Court as per Section 437(5) or 439(2), Crl.P.C. or the bail bonds were cancelled for valid reasons, a person already granted bail but produced under a P.T.Warrant (under Section 267, Crl.P.C.) cannot be “remanded” by the Court before which he was so produced. Such a person shall only be “conveyed” to prison.
- A P.T.Warrant is issued as a temporary measure for the production of a person confined in prison before the Court. Such person shall be sent back to prison at the end of the day unless the Court sets him at liberty. A person produced under P.T.Warrant cannot be “remanded” in a case he was granted bail by a competent Court, to be produced on a subsequent date when neither the bail nor the bail bonds were cancelled.
- In view of the importance of the matter, the following directions are issued to Magistrates and Sessions Judges:
(i) The Courts shall not issue P.T.Warrant unless it is absolutely necessary that such person shall be present on a day for any proceedings before the Court, such as for framing of the charges, or when the trial is on and the witnesses are being examined, and his presence is necessary, or for questioning the accused under Section 313, Crl.P.C, or if such person is to be examined as witness in any case.
(ii) After the day’s proceedings are over, that person shall be sent back or “conveyed” to prison.
(iii) In case the presence of that person is necessary on any other day a fresh P.T.Warrant shall be issued. - In the case of Jaleel Ramjan Sha v. State reported in 2008 (1) CTC 619, this Court has held as follows:
- The respondent filed a report before the Chief Judicial Magistrate, Krishnagiri, stating that since the petitioner was lodged in Kalamba Central Jail, Kolhapur, a P.T.Warrant might be issued to cause production of the accused, namely, the petitioner, before the Court.
- Acting upon it, on 07.04.2006, the said Court issued an Official Memo to the Superintendent of Central Prison, Kalamba, for production of the petitioner, stating that in spite of issuance of P.T.Warrant, the petitioner was not produced, thereby requesting to cause his production on 17.04.2006. The respondent also requested the Superintendent of Central Prison for production of the accused. Since the said Official Memo did not yield any result, the Chief Judicial Magistrate, Krishnagiri, issued another Official Memo on 11.05.2006, addressing the Superintendent of Central Prison, Kolhapur, directing him to cause production of the petitioner on 25.05.2006. As the petitioner was not produced on the said date also, the said Court again issued another Official Memo on 25.05.2006 to the said Superintendent of Central Prison, to produce the accused on 06.06.2006. Ultimately, on 06.06.2006, the petitioner was produced before the Chief Judicial Magistrate, Krishnagiri, who remanded him till 12.06.2006, and from the said date, the petitioner has been in jail.
- Learned counsel for the petitioner would argue in vehemence that the committal Court had erred in remanding the petitioner to custody on 06.06.2006, though he was on bail. It is the backbone of his contention that when the bail granted to him was not cancelled by a judicial order, remanding him to custody on other circumstance is alien to law.
- The matter with reference to the subsequent involvement of the petitioner in another case in Crime No.4 of 2005 on the file of Kolhapur Police Station was intimated to the Chief Judicial Magistrate, who, in turn, directed for production of the petitioner before the Court, by issuing a P.T.Warrant, on the strength of which the petitioner was produced before the said Court and remanded. Hence, it is to be seen, whether the order of remand by the Chief Judicial Magistrate is legally valid ? .
- After hearing both sides, the I Additional Sessions Judge dismissed the petition on 14.08.2007. He observed in his order that when the accused was produced before the committal Court and the said Court remanded him to judicial custody, automatically, the P.T.Warrant ceased to exist and once an NBW was issued and subsequently the accused was arrested and remanded, the bail already granted stood cancelled automatically, because he committed breach of his undertaking executed at the time of his being released on bail. The Additional Sessions Judge also touched the merits of the case and the nativity of the petitioner i.e. to say, he hailed from Madhya Pradesh and opined that if the prayer was granted and he was released on bail, there was every possibility for him to abscond and as per the directions of the Supreme Court and the Madras High Court, the trial could not be completed expeditiously.
- Adverting to the above said factual scenario, learned counsel for the petitioner contends that the Chief Judicial Magistrate was not at all empowered to remand the petitioner nor had he got any authority to extend the remand. In support of his contention, he placed much reliance upon a decision of the Apex Court in Simranjit Singh Mann v. State of Bihar, 1988 L.W. (Crl.) 304, wherein it was observed as follows :
“20…..The argument of the learned counsel for the State of Bihar was that the order for release on bail stood extinguished on the remand of the accused to custody under section 309(2) of the Code of Criminal Procedure, 1973. There is no substance whatever in this submission. Section 309(2) merely enables the Court to remand the accused if in custody. It does not empower the Court to remand the accused if he is on bail. It does not enable the Court to ‘cancel bail’ as it were. That can only be done under Section 437 (5) and 439 (2). When an accused person is granted bail, whether under the proviso to Section 167(2) or under the provisions of Chapter 33 the only way the bail may be cancelled is to proceed under Section 437 (5) or Section 439 (2).” - Learned counsel for the petitioner also garnered support from a decision of this Court in Appu @ Santhanakumar and others v. State and others, 2004 (1) T.N.L.R.599 (Mad), in which it was held as under:
“13….The circumstances under which a bail can be cancelled have been set out in Sanjay Gandhi’s case and subsequent pronouncement by the Supreme Court. Therefore, the order passed under Section 272 Cr.P.C., 1973 pursuant to which a P.T.Warrant is issued can, by no stretch of imagination, supersede an order of bail granted to the accused. That is not the intent and purpose of a P.T.Warrant, which is purely a temporary order (directing the production of an accused to answer a charge or to give evidence etc. as contemplated under Section 267 Cr.P.C., 1973). Therefore, merely because the accused is remanded to custody, when produced under a P.T.Warrant, that he should again seek bail in the Court of first instance, is against the provisions of law.” - As a mater of fact, the bail granted to the petitioner has not been cancelled by any means. The then Chief Judicial Magistrate, Krishnagiri, has miserably failed to notice that the NBW should not have been allowed to continue after 09.02.2006. On the hearings following 09.02.2006, the Court should have mentioned about the pendency of P.T.Warrant, instead of NBW. When it was brought to the knowledge of the Court that the petitioner/accused was unable to attend the Court on the date of hearing, not on account of his inability but due to the reason of his being arrested and lodged in prison for some other case, it should have either recalled the Non Bailable Warrant or made a direction to the police not to execute it. Without doing so, the Court acted in such a way, which has caused prejudice to the petitioner. The fact of issuance of P.T.Warrant on 09.02.2006 should have been taken into consideration by the Court during the hearings on relevant dates in the month of February,2006. After issuance of P.T.Warrant, the continuance of NBW could not be justified. As laid down in the above said decision of the Supreme Court, when the bail granted to the accused was in existence, remanding him while he was produced on P.T.Warrant is not legally sustainable.
- In the case of K.S.Muthuramalingam v. State reported in 2010 (4) MLJ Crl 161, this Court has held as follows:
- It is the contention of the learned counsel for the petitioner that the very purpose of issuing a P.T. Warrant is to produce a person who is lawfully confined in a prison to answer a charge or to be examined as a witness before a Criminal Court and the mere fact that P.T.Warrants have been issued shall not authorise the Prison Authorities to keep the prisoner in continued custody unless his custody is otherwise legally authorised.
- Section 267 Cr.P.C, 1973 reads as follows:-
“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 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.” - section 267 of the Code of Criminal Procedure, 1973 deals with P.T. Warrant. It says, whenever it appears to a Criminal Court dealing with an inquiry, trial or other proceeding, in the course of such inquiry, trial or other proceeding under the Criminal Procedure Code 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 proceeding against him or it is necessary to examine such person as a witness, such 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. A reading of the said section itself suggests that such an order of a Criminal Court for production of the person detained in prison shall be executable only if the person is detained on the date on which, production is to be made. This position is further amplified by sub-section (c) of section 269 of Criminal Procedure Code, 1973. For better appreciation, the entire section 269 of the Code of Criminal Procedure, 1973 is re-produced hereunder:
“269. 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 under section 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 the prison in which he is confined or detained; or
(d) is a person to whom an order made by the State Government under section 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 kilometres distance from the prison, the officer in charge of the prison shall not so abstain for the reason mentioned in clause (b).” - section 269 of Cr.P.C, 1973 prescribes the circumstances under which a jail authority has to abstain from carrying out the order passed under Section 267 Cr.P.C., 1973 The contingencies under which the person in-charge of the prison has to abstain from producing the prisoner on P.T. warrant are: a) unfitness of the prisoner to be removed from the prison by reason of his sickness or infirmity making the prisoner unfit to be removed from the prison; b) the prisoner being under orders of committal for trial or under remand pending trial or pending preliminary investigation; c) the period of authorised custody would expire before the prisoner could be produced in compliance with the P.T. warrant before the court which issued the order and brought back to the prison in which he is confined or detained and d) The State Government has passed an order under Section 268 Cr.P.C, 1973 that the person should not be removed from the prison and such order remains in force. The proviso to Section 269 Cr.P.C, 1973 provides an exception and prescribes the circumstances under which a jail authority shall not abstain from carrying out the order passed under Section 267 Cr.P.C., 1973
- Clause (c) of section 269 Cr.P.C, 1973 specifically provides that the officer in-charge of the prison shall abstain from carrying out the production order, if the person sought to be produced 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 the prison in which he is confined. A reading of clause (c) shall make it clear that unless there is sufficient time for taking prisoner to the court which issued the production warrant and to take him back to the prison before expiry of the authorised period of detention, an order passed by the court under Section 267 Cr.P.C, 1973 for production of the prisoner shall not be complied with.
- As per the proviso, when a prisoner is required to be produced before a criminal court situated at a place not more than 25 miles away from the prison for giving evidence, then the officer in-charge of the prison shall not so abstain for the reason mentioned in clause (b), namely ‘the prisoner is under committal for trial or under remand pending trial or pending a preliminary investigation’. The conjunction used for the four exceptions (a) to (d) in Section 269 Cr.P.C, 1973 is ‘OR’ and not ‘AND’. If any one of the four contingencies is proved to exist, then the prison authority has to abstain from carrying out the order in the form of P.T. warrant. However, the proviso provides an exemption to sub clause (b) alone, provided the conditions found in the proviso are satisfied.
- A conjoint reading of sections 267 and 269 Cr.P.C, 1973 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