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https://twitter.com/sekarreporter1/status/1687373961884266496?t=K49MMzNuodhojRiYbGvzsA&s=08 madurai adv pt warrent case Crl.O.P.(MD).No.14374 of 2023 DR.D.NAGARJUN,J. order

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Crl.O.P.(MD).No.14374 of 2023

DR.D.NAGARJUN,J.

This Criminal Original Petition is filed calling for the records

pertaining to the Crime No.277 of 2023 dated 09.07.2023 pending on the file of the fourth respondent questioning the issuance of Prisoner Trial Warrant (P.T.Warrant) issued by learned Magistrate No.1, Madurai.

  1. The facts in brief as per the petition is as under:-
  • The petitioner is the mother of one M.Mohamed Abbas/Accused No.1 in Crime No.277 of 2023 pending on the file of the fourth respondent police which is registered on 09.07.2023, for the offences under Sections 341, 352, 353, 201, 153(A)(1)(a), 506(i) and 506(ii) of IPC, basing on a complaint by one Senthil Kumar, Deputy

Superintendent of Police, National Investigation Agency (in short “NIA”), Chennai.

  • One Mohamed Abbas, a practising Advocate, who is son of the petitioner was arrested by NIA on 09.05.2023 in Crime No.RC-42/2022/NIA/DLI and was remanded to judicial custody by the Special Court for NIA cases, Poonamallee, Chennai. He has moved bail application before the same Court but the bail was declined. Aggrieved by the same, the said Mohamed Abbas has filed the bail application before a Division Bench of this Court in Criminal Appeal No.678 of 2023 and same was allowed on 01.08.2023 ordering the release of the said Mohamed Abbas.
  • On 02.08.2023, the fourth respondent went to the Central Prison, Puzhal-1 at about 11:30 AM where the accused Mohamed Abbas was lodged in Crime No.RC-42/2022/NIA/DLI and attempted to effect formal arrest in Crime No.277 of 2023, which was registered against him, however, the said Mohamed Abbas has allegedly resisted to get himself arrest, on which the fourth respondent police basing on such refusal has filed petition before the learned Magistrate, Madurai, for issuance of P.T.Warrant and same was considered and the P.T.Warrant was issued at 1:30 PM on 02.08.2023. The P.T.Warrant so issued was produced before the jail authorities at Puzhal-1 and the jail authorities, having accepted the same handed over Mohamed Abbas to the fourth respondent police.

Accordingly, he is taken out of the Central Prison, Puzhal-1 and is being transported to produce him before learned Magistrate No.1, Madurai.

  1. It is submitted by learned counsel for the petitioner that only

in order to frustrate the orders of release of Mohamed Abbas and to see that he is not released as per Criminal Appeal No.678 of 2023 in RC-42/2022/NIA/DLI, the fourth respondent police has deliberately got

P.T.Warrant by placing certain manipulated papers before learned Magistrate in respect of refusal of arrest of Mohamed Abbas. It is submitted that subsequent to remanding of Mohamed Abbas to judicial custody on 09.05.2023 in RC-42/2022/NIA/DLI, if at all the fourth respondent intends to effect arrest of Mohamed Abbas in Crime No.277 of 2023 also, the steps could have been taken much earlier.

  1. Learned counsel for the petitioner has submitted that the

fourth respondent police as per the directions of NIA have deliberately not mentioned about the pendency of Crime No.277 of 2023 against Mohamed Abbbas during the submissions before the Division Bench in

Criminal Appeal No.678 of 2023.

  1. Learned Senior Counsel has also relied upon a decision of

this Court in Crl.O.P.Nos.18040 and 14411 of 2020 dated 06.01.2020, wherein, in a similar circumstances, it is held as follows:-

“10. In the present case, the respondent police did

not produce the petitioner before the learned Magistrate, till the petitioner was enlarged on bail in all the other cases. That apart, the respondent also took advantage of this situation and filed a final report in both the cases and thereafter produced the petitioner before the concerned Magistrate and secured his judicial custody. It is therefore clear that the respondent police had indirectly achieved on the strength of a P.T. warrant, what they could not have achieved under the Code of Criminal Procedure. Such questionable practises by taking advantage of a P.T.warrant, continue to be adopted by the police. In the present case if the petitioner had been produced before the concerned Magistrate Court immediately after he was formally arrested by the respondent police and the petitioner had been remanded to Judicial Custody, the petitioner would not have lost the important right provided under the proviso to Section 167(2) of Cr.P.C. That apart, the petitioner would have also had the opportunity to apply for bail in these two cases also. The respondent Police by adopting a skewed practice have defeated the right of the petitioner and thereby the liberty of the petitioner was directly violated. This practice must be immediately stopped by the Police and even in case where a person is involved in serious offences, the correct procedure has to be adopted scrupulously. The procedure that has been provided under the Code of Criminal Procedure is common to both lighter offences and serious offences and hence irrespective of the nature of offence, the police is expected to follow the correct procedure failing which it will result in the violation of the fundamental right guaranteed under Article 21 of the

Constitution of India.”

  1. Learned Additional Public Prosecutor, on the other hand,

submits that the fourth respondent police have not violated any procedure in respect of issue of P.T.Warrant as it was obtained by submitting required documents before learned Magistrate No.1, Madurai. It is submitted further that P.T.Warrant was issued in Crime No.277 of 2023 registered by the State police whereas, the bail orders passed in RC-42/2022/NIA/DLI is a case filed by NIA, therefore, there is no correlation between passing of bail orders in RC-42/2022/NIA/DLI and issue of P.T.Warrant in Crime No.277 of 2023. It is also submitted that since P.T.Warrant has already been executed this morning thereby, this petition has become infructuous and whatever grounds raised by the petitioner can be urged before learned Magistrate at the time of production of  remand and if required, in the bail application to be filed.

  1. Learned Additional Public Prosecutor has filed the orders of this Court in State by Inspector of Police v. K.N.Nehru & Ors., in Crl.O.P.(MD) No.13683 of 2011 dated 03.11.2011, wherein, this Court held as follows:-

“42. From the above discussions, the following

conclusions emerge:-

1). When an accused is involved in more than one case and has been remanded to judicial custody in connection with one case, there is no legal compulsion for the Investigating Officer in the other case to effect a formal arrest of the accused. He has got discretion either to arrest or not to arrest the accused in the latter case. The police officer shall not arrest the accused in a mechanical fashion. He can resort to arrest only if there are grounds and need to arrest.

2). If the Investigating Officer in the latter case decides to arrest the accused, he can go over to the prison where the accused is already in judicial remand in connection with some other case and effect a formal arrest as held in Anupam Kulkarni case. When such a formal arrest is effected in prison, the accused does not come into the physical custody of the police at all, instead, he continues to be in judicial custody in connection with the other case. Therefore, there is no legal compulsion for the production of the accused before the Magistrate within 24 hours from the said formal arrest.

3). For the production of the accused before the Court after such formal arrest, the police officer shall make an application before the Jurisdictional Magistrate for issuance of P.T.Warrant without delay. If the conditions required in Section 267 of the Code of Criminal Procedure are satisfied, the Magistrate shall issue P.T. Warrant for the production of the accused on or before a specified date before the Magistrate. When the accused is so transmitted from prison and produced before the Jurisdictional Magistrate in pursuance of the P.T.Warrant, it will be lawful for the police officer to make a request to the learned Magistrate for authorising the detention of the accused either in police custody or in judicial custody.

4). After considering the said request, the representation of the accused and after perusing the case diary and other relevant materials, the learned Magistrate shall pass appropriate orders under Section 167(1) of the Code of

Criminal Procedure.

5). If the police officer decides not to effect formal arrest, it will be lawful for him to straightaway make an application to the Jurisdictional Magistrate for issuance of P.T.Warrant for transmitting the accused from prison before him for the purpose of remand. On such request, if the Magistrate finds that the requirements of Section 267 of the Code of Criminal Procedure are satisfied, he shall issue P.T.Warrant for the production of the accused on or before a specified date.

6). When the accused is so transmitted and produced before the Magistrate in pursuance of the P.T.Warrant from prison, the police officer will be entitled to make a request to the Magistrate for authorising the detention of the accused either in police custody or in judicial custody. On such request, after following the procedure indicated above, the Magistrate shall pass appropriate orders either remanding the accused either to judicial custody or police custody under Section 167(1) of the Code of Criminal Procedure or

dismissing the request after recording the reasons.

7). Before the accused is transmitted and produced before the Court in pursuance of a P.T.Warrant in connection with a latter case, if he has been ordered to be released in connection with the former case, the jail authority shall set him at liberty and return the P.T.Warrant to the Magistrate making necessary endorsement and if only the accused continues to be in judicial custody, in connection with the former case, he can be transmitted in pursuance of

P.T.Warrant in connection with the latter case.”

  1. Considering the discussions and submissions made by

learned Senior Counsel appearing for the petitioner as well as learned Additional Public Prosecutor for the respondents and on perusal of records, it is clear that the fourth respondent police acted hastily and has shown special interest in obtaining the P.T.Warrant before learned Magistrate No.1, Madurai. It is difficult to understand as to why the police were so desperate in executing the P.T.Warrant before formal release of Mohamed Abbas on bail in RC-42/2022/NIA/DLI.

  1. According to the petitioner the accused has refused to accept the arrest at 09:30 AM on 02.08.2023 and not at 11:30 AM on 02.08.2023, as contended by prosecution. Even if the prosecution version of 11:30 AM is accepted, it is very difficult to reach Madurai in order to present the relevant documents before learned Magistrate No.1 at 01:30 noon to obtain P.T.Warrant.
  2. Further, it is to be seen that learned Magistrate also appears

to have accepted the request of the respondent police without any delay in giving P.T.Warrant. Learned Magistrate prior to issue of P.T.Warrant required to conduct an enquiry but the way P.T.Warrant was given immediately raises a question whether learned Magistrate has satisfied all the requirements prior to issue of P.T.Warrant. Therefore, it is required to be examined as to what are the documents placed before learned Magistrate No.1 on 02.08.2023 during the lunch time at about 01:30 noon to convincing the learned Magistrate to issue P.T.Warrant. Unless the records pertaining to issue of P.T.Warrant is verified, it is very difficult to comment on the orders passed by learned Magistrate, in issue of P.T.Warrant. As rightly questioned by the learned Senior Counsel for the petitioner within two hours it is not possible to send relevant papers from Chennai to Madurai so that orders can be obtained at 01:30 PM. According to learned Senior Counsel, the fourth respondent has manipulated documents in order to see that Mohamed Abbas is not released from jail, even though he has released in Criminal Appeal No.

678 of 2023.

  1. Further the offences allegedly to have committed by

Mohamed Abbas in Crime No.277 of 2023 are under Sections 341, 352, 353, 201, 153(A)(1)(a), 506(i) and 506(ii) of IPC. These offences are not that serious which requires immediate arrest and detaining him in the prison without letting him and on bail.

  1. The allegations levelled against Mohamed Abbas is that he

has resisted the arrest by NIA officials on which Senthil Kumar, DSP, stated to have sent the complaint by post on 22.06.2023 in respect of offence that has taken place on 09.05.2023, being the police officer, in case if the offence committed on 09.05.2023, he is expected to go over personally to the police station and file a complaint or he should have sent it by online or in any other means immediately. Further, the said complaint though received on 22.06.2023 by the fourth respondent, the FIR has been registered only on 26.06.2023 and even though the FIR has registered on 26.06.2023, an attempt was made to effect arrest on 02.08.2023 only after the orders have passed in Criminal Appeal No.678 of 2023 directing the accused to release.

  1. On considering these aspects, it is clear that the fourth

respondent has acted only to frustrate the orders passed in Criminal Appeal No.678 of 2023 and to see that the accused is not enlarged on bail. This Court  deprecates the envious attitude of the respondent police in taking the things very personally to see that the accused is not enlarged of the bail. The respondent police is aware that the accused is a practising advocate, thereby, it cannot be contended that in case if he is not remanded in Crime No.277 of 2023, he may likely to abscond. Therefore, considering from any angle, the act of the fourth respondent cannot be appreciated.

  1. However, as I mentioned above, this petition is for seeking

for quashment of the P.T.Warrant, unless the relevant documents of the learned trial Court are placed before this Court, this Court cannot consider quashment of P.T.Warrant on the grounds alleged by the

petitioner.

  1. Further the P.T.Warrant issued under Section 267 of Cr.P.C. has already been executed this morning, once P.T.Warrant is presented before the jail authorities, and once having accepted the same handed over the prisoner/accused in Crime No.277 of 2023 to the police authorities, the purpose of issue of P.T.Warrant is over thereby, this petition which is filed for quashment of P.T.Warrant issued against the accused becomes infructuous. In addition to the above, the documents which are required to be considered in order to hold that issuance of P.T.Warrant itself is bad, the file relating to Crime No.277 of 2023 in respect of issuance of P.T.Warrant is also required to be considered closely.
  2. Further when the orders are under typing, learned Additional Public Prosecutor appears to have informed the Registry of this Bench that the accused is produced before the learned Magistrate who in turn has remanded him to the judicial custody. This Court is hopeful that learned Judicial Magistrate will consider the observations of this Court while considering the bail application if filed by Mohamed Abbas for his release in Crime No.277 of 2023.
  3. List the matter on 08.2023.

03.08.2023

PKN                                                            

DR.D.NAGARJUN,J.

Crl.O.P.(MD).No.14374 of 2023

03.08.2023

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