M.N. Rao, J. -
(1.)This criminal petition filed by A-1, A-6 and A-13 (three of the thirteen accused) in Crime No. 35/91 of Bapatla Taluk Police Station for alleged offences punishable under Ss. 120B, 44B, 147, 148, 302 read with 149 of the Indian Penal Code, seeking enlargement on bail pending enquiry and trial, has gravitated from a learned single Judge to a Division Bench and eventually to this Full Bench, the question for resolution being :
"Whether non-availability of police escort constitutes a valid ground for extending the period of remand of an accused person by a Magistrate under S. 167(2) of the Code of Criminal Procedure ?"
How the reference has arisen :- The three petitioners herein are among the 13 accused in Crime No. 35/91 of the Bapatla Taluk Police Station. They were arrested on 19-7-91 and produced before the II Addl. Munsif Magistrate, Bapatla on 20-7-91 when an order was passed by the learned Magistrate remanding them to judicial custody for 14 days. Thereafter the remand was extended on six occasions - 5-8-91, 16-8-91, 27-8-91, 10-9-91, 18-9-91 and 1-10-91 without the police producing the petitioners before the learned Magistrate. The charge sheet was filed on 28-9-91 and on 14-10-91 the petitioners were produced before the Magistrate. Criminal petition No. 2861/91 was filed by the petitioners before the Magistrate under section 437, Cr.P.C., praying for their release on bail contending inter alia that the failure of the prosecution to produce them before the Magistrate at the time of seeking extension of remand on the aforesaid six occasions rendered their detention in jail illegal. It was pleaded on behalf of the prosecution that the petitioners were not produced on the six occasions due to non-availability of escort constables : there was law and order problem in Chunduru and Pusuluru villages necessitating deployment of all the available police constables on Bandobast duty and, therefore, it was not possible to provide escort constables for production of the accused, from Rajahmundry Jail where they were lodged, before the Magistrate's Court at Bapatla. The learned Magistrate dismissed the Crl.M.P. No. 2869/91 taking the view that under section 437, Cr.P.C., he had no power to enlarge the petitioners on bail, but at the same time observing that proviso (b) to sub-section (2) of Section 167, Cr.P.C., is in favour of the accused since it authorises the Magistrate to order detention under section 167 when only the accused are produced before him. The present petition was subsequently filed by the petitioners praying for enlargement on bail contending that the failure of the prosecution to produce them before the Magistrate on the six dates mentioned supra when orders extending the remand were passed by the Magistrate, entitles them for bail on the authority of the decision of a Division Bench of this Court in M. A. Dharman v. State of A.P., (1991) 1 ALT 315. The Division Bench in the above case while recognising the fact that situations may arise when it is impossible to produce the accused before the Magistrate for seeking extension of remand, observed :
".......... It is always open to either the prosecuting agency or the jail authority to put forward a plea of impossibility of production of an accused person before the learned Magistrate and if the learned Magistrate is satisfied that the plea is well founded, he may, for special reasons to be recorded in writing, extend the remand of the accused person even without his production. We, however, hasten to add that non-availability of escorts for non-production of the accused person hardly constitutes a ground for infraction of the mandatory requirement of Section 167(2)(b) of the Code of Criminal Procedure."
(2.)The Division Bench expressed the view that production of the accused before the Magistrate for seeking extension of remand is an indispensable requirement of natural justice and fair play and after referring to certain decisions of the Supreme Court (2 to 7), Madras High Court (8 to 10) and also a Full Bench decision of the Patna High Court, Ramprasad v. State of Bihar, AIR 1988 Pat 199 : (1987 Cri LJ 1489) concluded :
"......... Non-availability of escorts to produce the detenus before the learned Special Judge, pleaded by the Jail authority, hardly constitutes a ground for their continued non-production ....."
(3.)Another learned single Judge of this Court in Mohammed Taher v. State of A.P., (1990) 2 ALT 611 after reviewing the case law under Section 167, Cr.P.C., laid down ................................. ................ Raj Narain v. Supdt., Central Jail, AIR 1971 SC 178 : (1971 Cri LJ 244); Gaurishankar v. State of Bihar, AIR 1972 SC 711 : (1972 Cri LJ 505); S. K. Dey v. Officer-in-Charge Sakachi P.S., AIR 1974 SC 871 : (1974 Cri LJ 740); Natabar Parida v. State of Orissa, AIR 1975 SC 1465 : (1975 Cri LJ 1212); Raghubirsingh v. State of Bihar, AIR 1987 SC 149 : (1987 Cri LJ 157); Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1377 : (1979 Cri LJ 1052); Elumalai v. State of T.N., 1983 Mad LW (Crl) 121; G. K. Moopanar v. State of T.N., 1990 Mad LW (Crl) 113 : (1990 Cri LJ 2685); Venkata Subramanyam v. State of T.N., 1984 LW Notes (Crl) p. 211. the following three propositions :
"(i) generally, if not invariably, no Magistrate shall extend the remand under section 167, Cr.P.C., without the accused being produced before him. (ii) the extension of remand in the absence of production of the accused under section 167, Cr.P.C., shall be for special and extra-ordinary reasons specifically recorded while making the order of extension, and (iii) in case where the police or prosecution is not able to furnish proper reasons for non-production of the accused while seeking extension of remand under section 167, Cr.P.C., the competent Court may order release of the accused on bail."