- (1.) B. K. Rathi, J. This is an application under Section 482, Cr. P. C. to quash the order dated 30-8-99, Annexure-4 to the petition, passed by Chief Judicial Magistrate, Mathura under Section 267, Cr. P. C. issuing warrant 'b' against the petitioners in Crime No. 88 of 1999 under Sections 395 and 412, I. P. C. , P. S. Govind Nagar, District Mathura.
(2.) IN brief, the relevant facts are that bofh the petitioners are presently lodged in District Jail, Gha/. iabad. An application was moved before C. J. M. , Mathura by the police of P. S. Govind Nagar, Mathura that the petitioners are wanted in Crime No. 88 of 1999 under Sections 395 and 412, l. P. C. and therefore, they may be summoned under Section 267, Cr. P. C. from District Jail, Ghaziabad. The learned C. J. M. has issued notice under that Section in Form No. 36 to the Jail Superintendent, Ghaziabad to transfer the petitioners to District Jail, Mathura. This order dated 30-8-99 Annexure-4 to the petition has been challenged before me. It has been argued that the order is illegal as no in quiry, trial or proceeding is pending in the Court of C. J. M. , Malhura and therefore, an order under Section 267, Cr. P. C. cannot be passed. The learned counsel, in support of his argument, has referred to the case of "mukesh andothers\. State of U. P. andothers, 1998 ACC page 434 :1998 (1) JIC 132 (SC) (All)", decided by Hon'ble J. C. Gupta, J. The Hon'ble Judge considered Section 267, Cr. P. C. and also Form No. 36 prescribed in the Cr. P. C. It is proper to reproduce betow sub-clause (1) and its clause (a) of Section 267, Cr. P. C. The same read as under: "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 purpose of any proceeding against him, or. . . " After considering this provision and Form No. 36, the learned Single Judge observed that the expression "other proceeding under this Code" read with From No. 36 leaves no room of doubt that it would mean only such proceeding as may be pending in a Court. He further held that "other proceeding" does not include the investigation by the police and the inves tigation of the offence by the police and interrogation cannot fall under other proceedings under the Code for the pur poses which are included in Section 267, Cr. P. C. With great respect to the Hon'ble Single Judge, I am of the view that the words "other proceeding under this Code and prescribed Form No. 36" have not been properly interpreted. The words "other proceeding under this Code" can not be interpreted to mean that the proceeding should be in the Court. It means any proceeding under the Code of Criminal Procedure. Had the intention of the Legislature been as interpreted by the Hon'ble Judge, the words used would have been "other proceeding in the Court". The Legislature in its Wisdom has not been used the word 'court'. On the other hand, the words used arc "other proceeding under this Code". Therefore, the same can not be interpreted to mean only the proceeding of the Court and excluding proceedings under any other provision of the Cr. P. C, such as recording of F. I. R. , investigation, arrest, summoning of the accused for interrogation, search etc. In my opinion the proceedings concerning investigation are also proceedings under the Code of Criminal Procedure.
(3.) MY view gets support from the other provisions of the Cr. PC. The preamble of this Act is "an act to con sofidate and amend the laws relating to Criminal Procedure. " As against this in C. P. C. of 1908 the preamble is "an act to consofidate and amend the laws relating to the procedure of the Court of Civil Judica ture. The words "procedure of Court of Civil Judicature" have been intentionally omitted by the Legis latureinpre amble of Cr. P. C. and "procedure of the Court of Criminal Judica ture" has not been mentioned. This cannot be said as omission. But it appears that the words have intentionally been omitted. The C. P. C. applies to the proceedings of the Court only as it speaks; whereas the entire criminal proceedings under __ Cr. P. C. whatever may be the stage, are the proceed ings under the Code. It will also be useful to mention some other provisions of Cr. P. C. Defini tions have been given in Section 2, Clause (h) of Section 2 reads as follows: '' (h) "investigation" includes all the proceedings under this code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf. " This definition of investigation does not leave any room of doubt that the inves tigation is a proceeding under the Code within the meaning of Section 267, Cr. P. C.;