KAPUR, J. - (1.) The question to be decided in this habeas corpus petition is whether under Section 267 of the Code of Criminal Procedure (for short *the Code*) production warrant can be issued to require attendance of a prisoner in custody for purposes of investigation in a case registered against him or the production warrant can he issued only for purposes of answering the charge of an offence, or attending any proceedings against him or for examining such prisoners as a witness in the Court.
(2.) The detenu Moti Lal Sachdeva is a resident of Kota. Two first information reports were registered against him. One at Police Station Bhimganj Mandi, Kota and another at Police Station Tukoganj, Indore (MP). It is not necessary to go into the details of the cases but it may be stated that they relate to stock investments. The detenu was arrested in the case registered at Indore and was detained in the Jail at Indore. The S.H.O. Police Station Bhimganj Mandi, Kota applied before the Additional Chief Judicial Magistrate No. 2 Kota for issuance of production warrant of the detenu so that he could be brought from Indore to Kota. The ACJM passed the order and a formal production warrant was issued. The detenu was produced before the ACJM No. 2 Kota and in spite of objections on behalf of the detenu the ACJM Kota passed orders authorising the police to arrest him in the case registered at Kota Police Station. Formal arrest of the detenu was shown on 9-2-95. Remand for police custody was granted from time to time. This detention under the orders of ACJM, Kota is said to be illegal and without jurisdiction. Section 267 of the Code reads as under :- 267. Power to require attendance of Prisoners. (1) Whenever, in the course of an inquiry, trial or other proceedings 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 Magistrate is subordinate. (3) Every order submitted for countersigning under sub-Section (2) shall be accompanied by a statement of facts which in the opinion of the Magistrate, render the order necessary and the Chief Judicial Magistrate to whom if is submitted may, after considering such statement, decline to countersign the order. Learned counsel for the petitioner (who is wife of the detenu) has contended that the detenu was arrested in the case registered against him at Indore and once he was arrested in the Indore case he could not be brought for purposes of investigation to Kota because, the only provision in the Code under which the attendance of a prisoner can be required is Section 267 and under this provision, a prisoner's attendance, can be required only in the course of inquiry, trial or other proceedings, In the present matter no inquiry, trial or proceeding was pending before the ACJM, Kota hence he could not direct for the production of the detenu and then detain him in Judicial Custody. The detention is said to be ab initio void. It is contended that the word *other proceedings* used in Section 267 of the Code does not relate to investigation by the police.
(3.) Learned counsel for the petitioner has placed reliance on the, decision of the Delhi High Court in Harshad S. Mehta v. C.B.I. (1992) 3 CCR 2793). In this case it has been held that the Court can exercise the powers under Section 267 Cr. P.C. only for the purpose of asking an accused detained in a case in another Jail to answer to the charge in inquiry or trial or in the proceedings pending before him, or for giving evidence as witness in Court but cannot require his attendance to answer the charge in investigation. The term 'other proceedings' has been examined at length in order to hold that this does not include investigation by the police.;