K DASARATHARAMAIAH Vs. STATE OF ANDHRA PRADESH
LAWS(APH)-1992-1-10
HIGH COURT OF ANDHRA PRADESH
Decided on January 01,1992

K.DASARATHARAMAIAH Appellant
VERSUS
STATE OF ANDHRA PRADESH Respondents


Referred Judgements :-

HUSSAINARA KHATOON VS. STATE OF BIHAR [REFERRED TO]
G.K.MOOPANAR AND OTHERS VS. STATE OF TJN. [REFERRED TO]
S.K. DEY VS. QFFICER-IN-CHARGE SAKACHI P.S. [REFERRED TO]
RAGHUBIRSINGH VS. STATE OF BIHAR [REFERRED TO]
BUMALAL VS. STATE OF TJSI [REFERRED TO]
RARNPRASAD AND OTHERS VS. STATE OF BIHAR [REFERRED TO]
V O TRAGTOROEXPORT MOSCOW VS. TARAPORE AND COMPANY [REFERRED TO]
GOURI SHANKAR JHA VS. STATE OF BIHAR [REFERRED TO]
SANDIP KUMAR DEY VS. OFFICER IN CHARGE SAKCHI P S JAMSHEDPUR [REFERRED TO]
RAGHUBIR SINGH SIMRANJIT SINGH MANN VS. STATE OF BIHAR [REFERRED TO]
M A DHARMAN VS. STATE OF ANDHRA PRADESH [REFERRED TO]
RAMESH KUMAR RAVI VS. STATE OF BIHAR [REFERRED TO]


JUDGEMENT

- (1.)(Order criminal petition filed by A-1, A-6 and A-13 (Three of the thirteen accused) in Crime No. 35/91 of Vapaatla Taluk Police station for alleged offences punuishable under Sections 120-B, 448,147,148,302 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 section 167(2) of the Code of Criminal Procedure?
(2.)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 IInd Addl. Munsif Magistrate, remanding 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 occations 5-8-91, 16-8-91, 27-8-1991, 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 Sec.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 canstables for production of the accused, from Rajahmundry Jail where they were lodged, before the Maeistrate'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 Sec.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 vs. State of A.P. 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."
The Division Bench expressed the view, that production of the accused before the Magistrate for seeking extention of remand is an indispensable requirement of natural justice and fair-play and after referring to certain decisions of the Supreme Court, Madras High Court and also a Full Bench decision of the Patna High'Court 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...."
Another learned single judge of this Court in Mohammed Taher vs. State of A.P. after reviewing the case law under Sec.167 Cr.P.C, laid down 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 Sec.167 Cr.P.C. shall be for special and extraordinary 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 Sec.167 Cr.P.C, the competent Court mayorder release of the accused on bail."

(3.)When the present petition came up before a learned single judge of this Court (G. Radhakrishna Rao, J) he expressed the view that both the Dharman case (supra) and Mohammed Taker case (supra) required reconsideration observing:
"Any mischief can be made by the accused persons for their non- production before court with the active connivance and support of the police. That aspect was not considered by the abovesaid two decisions of this Court."
The matter was, therefore, placed for consideration before a Division Bench consisting of one of us (M.N.Rao, J) and P.L.N. Sarma, J. The Division Bench after hearing the counsel for both sides expressed its inability to agree with the propositionlaid downin DhAaman case and so referred the matter for consideration by a Full Bench formulating the question extracted supra. The Division Bench speaking through one of us (M.N.Rao, J) in the order of reference dated 4-11-91 has stated the reasons as to why the question needs to be resolved by a Full Bench:
"In the present case, the reason for non-production of the petitioners before the learned Magistrate was non-availability of escort police constables as all the police constables were sent on duty to Chundur and Pusulur. The petitioners were to be brought from Rajahmundry jail to the Court of the Munsif Magistrate at Bapatla. So far as Mohammed Taker's case is concerned, decided by a learned single judge, the propositions of law stated therein, in our considered view, accord with the extant legal position. That was a case where no reasons were stated for the non- production of the accused and the conjecture resorted to was that there might have been good and valid reasons for non-production, and that conjecture was very rightly rejected by the learned single judge (Y. Bhaskar Rao, J.). We are, therefore, not inclined to agree with that part of the order of reference which says that Mohammed Taker's case also requires re-consideration.

As regards the Dharman's case decided by the Division Bench, we are inclined to take the view that the same requires reconsideration by a Full Bench. The Division Bench accepted the proposition of law laid down by a Division Bench of the Madras High Court in Elumalai vs. State of Tamil Nadu & Two others which is to the effect:

"(ii) Under no circumstance a Magistrate can order the detention of any person in custody or extend such detention without the production of the accused before him in violation of the provisions of the Code viz., proviso (b) to Sec.167(2), whatever may be the reason stated by the authorities concerned for the non-production of the accused before the Court, such as the non-availability of police escorts, etc."
Non-production of the accused before the court may be due to various reasons. When the law mandates production of the accused before the court for the purpose of passing an order of extension of remand, it is needless to mention that the provision has to be complied with. The accused has a right to represent to the court that there was no further need to grant extension of remand. But, we must also take into consideration that situations may arise when it may not be possible for police or jail authorities to produce the accused persons before courts for seeking extension of remand. Sometimes escort police personnel may not be available for genuine reasons as was claimed in the present case. To expect the prosecution agency to produce accused persons before courts when escort police personnel are not available is to ask for compliance with the impossible. Pragmatism should not be divorced from legalism in statutory interpretation. It should be the duty of the court to consider the question whether non-production of the accused was deliberate, or, there are justifiable reasons for such non-production. If the court is satisfied, we are inclined to think, that non-production of the accused was due to reasons beyond the control of the jail authorities or the prosecuting agencies, it should pass an order extending the period of remand notwithstanding the peremptory language in which Proviso (b) to Section 167(2) Cr.P.C, is aquched. The Division Bench in Dharman's case, while taking cognizance of the fact that impossibility of production of an accused person before the Magistrate constitutes valid ground for extending the period of remand, excepted from the range of such impossibility non-availability of escort personnel. This exception, in our view, is without any justification.
In the interest of fairness in administration of justice Section 167(2), Proviso (b) Cr.P.C., was inserted, viz., to facilitate accused person to represent to the court that there are circumstances warranting rejection of request of prosecution for extension of remand period. But, if non- production of an accused before the Magistrate was due to reasons beyond the control of the prosecution, it could not be said that it would result in unfair treatment to the accused. Fairness in administration of justice implies fairness to prosecution as well as to the accused. Each case has to be decided on individual merits; whether non-production of the accused was deliberate or due to reasons beyond the control of the prosecution. No inflexible rule is desirable. Looked at from this point of view, we are of the view that the judgment of the Division Bench in Dharman's case requires re-consideration by a Full Bench."

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