J.K.Mathur - (1.) IN the Court of Special AddL Chief Judicial Magistrate constituted to try offences relating to Ayodhya incident, charge-sheets were filed against the certain accused on 7.12.1993. Some of them including also L. K. Advani and Kalyan Singh appeared before the said Court in compliance with the summons issued against them. They were directed to be released on bail but in view of the fact that none of them furnished personal bonds, they were remanded to judicial custody fixing 20.12.1993. These accused were lodged in a temporary jail at Pipri and Chunar under the appropriate provisions of the Prisoners Act and the Jail Manual. They were, however, not produced before the Court on 20.12.1993 as an order was issued by the State Government purporting to exercise the powers vested in it under Section 268, Cr. P.C. The order was thereupon passed by the learned Magistrate finding that it had been almost compelled to release the accused by the said order. IN this order certain observations were made by the learned Magistrate which are sought to be expunged in this application under Section 482, Cr. P.C moved before this Court. These observations are contained in clauses 'a' to 'e' mentioned in the first para of the application.
(2.) ONE of the observations which is sought to [be expunged, as contained in clause 'b' is that the order passed by the State Government under Section 268, Cr. P.C. and not producing the accused was grave error on the part of the Government while another part of the order sought to be expunged is that wrong assumptions had been raised by the State Government in passing the order. So far as the other remarks were concerned, the only thing to be seen is whether the Court was justified in recording these remarks specially in view of the fact that the State Government was not represented were the Magistrate. So far as the aforesaid two remarks were concerned, they were passed on finding that the Government do not have any power under Section 268,, Cr. P.C. to pass the order or to produce the accused. It was asserted that this remark was also wrongfully made inasmuch as the State Government patently has the power under Section 268, Cr. P.C. to pass an order directing the accused not to be produced before the Court. No notices were issued to the opposite party No. 1 who was the Special Addl. Chief Judicial Magistrate having passed the aforesaid order as it is not proper to summon a presiding officer of a court to explain the reasons for having passed an order, even if such an order is alleged to be erroneous. It is only for the contesting interest to justify or assail the order and for this Court to decide about the correctness of the order. No Court should be called upon to justify its order in open judicial proceedings in a court except perhaps in very abnormal circumstances. It is necessary to maintain dignity of the Court, howsoever down in ladder. In these circumstances, a request was made to Advocate General to assist the Court in construing the provisions of Section 2957 and Section 268, Cr. P.C. which a view to find whether the learned Magistrate was justified in recording remarks which he did in these two clauses. The contention raised by the learned Government Advocate representing the State of U. P. and Sri Chaubey appearing on behalf of the Central Bureau of Investigation who is prosecuting the aforesaid cases, was that the provisions of Section 267 apply to all the productions of prisoners in the court including the production of the persons who have: been remanded to the custody under the provisions of Section 309, Cr. P.C. even before the Court who has so remanded him. As the provisions of Section 267, Cr. P.C. apply to such production, the Government is empowered to pass an order under Section 268 (i), Cr. P.C. and no order made under Section 267, Cr. P.C. requiring the production can, therefore, have effect as long as the order passed under Section 268, Cr. P.C. is in force in view of the provisions contained in Section 268 (1) itself.
(3.) THE competing consideration was that the Section 267, Cr. P.C. applies only to summoning of a person who is in jail, not having been remanded by the very court which requires his production and if any court not having remanded him requires him for the reasons disclosed in clauses (a) and (b) of Section 267 (1), Cr. P.C. the provision of Section 267, Cr. P.C. w?uld apply and such a requisition can be stalled by the State Government by passing order under Section 268 (1), Cr. P.C. Sections 267, 268 and 309, Cr. P.C. run as follows :- "267. Power to require attendance of prisoners-(1) Whenever, in the course of an enquiry, 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 sudd statement, decline to countersign the order. "268. Power of State Government to exclude certain persons from operation of Section 267.-(1) The State Government may, at any time, having regard to the matters specified in sub-section (2) by general or special order, direct that any person or class of persons shall not be removed from the prison in which he or they may be confined or detained, and thereupon, so long as the order remains in force, no order made under Section 267, whether before or after the order of the State Government, shall have effect in respect of such person or class of persons. (2) Before making an order under sub-section (1), the State Government shall have regard to the following matters, namely :- (a) the nature of the offence for which, or the grounds on which, the person or class of persons has been ordered to be confined or detained in prison ; (h) the likelihood of the disturbance of public order if the person or class of persons is allowed to be removed from the prison ; (cj the public interest, generally." "309. Power to postpone or adjourn proceedings.-(1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. (2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody. Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen clays at a time. Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing. Provided also that no adjournment shall for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him. Explanation J.-If sufficient evidence has obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand. Explanation 2.-The terms on which an adjournment or postponement may be granted include, in appropriate cases the payment of cost by the prosecution or the accused." ;