Delhi High Court

Harshad S. Mehta vs Central Bureau Of Investigation on 1 October, 1992

Equivalent citations: 1992 (24) DRJ 392, ILR 1993 Delhi 274
Author: U Mehra
Bench: U Mehra
JUDGMENT
Usha Mehra, J.
(1) Mr. Harshad S. Mehta a broker of Bombay Stock Exchange was lodged in Byculla
jail Bombay in August, 1992. C.B.I, at Delhi registered a case vide F.I.R.
No.RC2(A)/92-ACU(V) dated 25th July, 1992, against him along with Mr. V.
Krishnamurthy, M/s, KJ. Investments Private Ltd. and other unknown under Sections
11,12,13(2) and 13(l)(d) of Prevention of Corruption Act, 1988 (hereinafter called as
'P.C. Act') read with Section 120B Indian Penal Code .
(2) That since the petitioner during the relevant time was in Byculla jail Bombay,
therefore, C.B.I, moved an application before Special Judge Delhi on 12th August,
1992 under Section 267 Criminal Procedure Code . for the production of the
petitioner. The Special Judge, Delhi vide his order dated 12th August, 1992 directed
the Supdt. Jail, Byculla Bombay to produce Mr. Harshad S. Mehta in the Court as his
presence was required for interrogation in connection with the investigation of this
case.
(3) That the petitiner, in pursuance to the said order was produced before the Special
Judge, Delhi on 17th August, 1992. On being produced, petitioner was formally
arrested in this case on 17th August, 1992 itself. Police remand was sought which was
given till 20th August, 1992. Thereafter police remand was extended till 22nd August,
1992. However, vide order dated 22nd August, 1992, Mr. Kuldip Singh, Special
Judge, Delhi did not grant police remand but remanded the petitioner to judicial
custody till 25th August, 1992 at Central Jail, Tihar.
(4) That the petitioner was taken to Bombay on 24th August, 1992 and thereafter
never produced before the Special Judge, Delhi. The remand after 25th August, 1992
was neither sought nor given to the petitioner.
(5) It is in this background Mr. Dinesh C. "Mathur, Sr. Advocate for the petitioner has
raised very important questions of law. So 'far there is no decision of any High Court
or of the Apex Court on these points. These are:

I)Whether for the sake of interrogation in connection with the investigation, the
prosecuting agency can invoke the provisions of Section 267 Criminal Procedure
Code .?
II)Whether remand under Section 167(2) Criminal Procedure Code . has to be taken
after every 15 days or not and whether after the initial remand of 15 days, the accused
can be remanded in perpetuity subject of course to the outer limit of 60/190 days?
(6) On question No.1, the rival contention of the counsel for the parties can be sumed
up thus, that the production of the petitioner from Byculla Jail in order to answer the
charge in investigation is contrary to law. The provisions of Section 267 Criminal
Procedure Code . can only be invoked in case proceedings are pending in Court
pertaining to Inquiry or trial. Investigation is neither Inquiry nor trial. Further this
provision is a help in aid to the Criminal Court for summoning the accused from
another jail for the purpose of answering a charge in Inquiry or trial; and to appear as
witness or for giving evidence. The intention of the legislature was not to allow
investigating agency to use this provision for the purpose of summoning the accused
from another jail in order to answer a charge in investigation. That is why the word
investigation has been omitted in this Section. The provision of Section 267 Criminal
Procedure Code . can not be invoked in order to facilitate the investigating agency to
make formal arrest. On the other hand, C.B.I's contention is that the word other
proceeding' appearing under Section 267 Criminal Procedure Code . would include
investigation. Interpretation of the statute should be liberal and harmonious. It should
not be construed in such a way that it should whittle down the powers of the Court.
(7) That, while interpreting the statute, ascertainment of the legislature's, intention is a
must. Legislature speaks its mind by use of correct expression and unless there is an
ambiguity in the language of the provision the Court should adopt literal construction
if it does not lend to absurdity. Language used, in fact speaks the mind of Parliament.
There is no need to look somewhere else to discover the intention or meaning. To
ascertain the literal meaning it is equally necessary first to ascertain the juxtaposition
in which the rule is placed, the purpose for which it is required to subserve and the
authority by which is to be used. So held by the Supreme Court in the case of Lt. Col.
Prithi Pal Singh Bedi Vs. Union of India and others . Keeping this principle in mind,
we have to see what was the intention of the legislature while incorporating Section
267 in the Criminal Procedure Code .
(8) Section 267 Criminal Procedure Code . reads as under; Section 267
(1)Whenever, in the course of any 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 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 such statement, decline to countersign the order."
(9) This Section provides that a criminal Court in the course of an inquiry or trial or
other proceeding could direct the production of an accused detained in an other prison
for the purposes of answering to a charge or for the purposes of any proceeding
against him. He could also be called for to appear as a witness for the purposes of
giving evidence. Admittedly this case is at investigation. No inquiry or trial is
pending. The only question for consideration is whether "other proceedings" used in
this Section would include investigation, Investigation has been defined under Section
2(h) as under: "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 authorised by a Magistrate in this behalf."
(10) From the reading of the above provisions, it is clear that inquiry, trial and
investigation are not of same class or thing.
(11) Mr. Mathur contended that the word "other proceeding" has to be a proceeding in
the Court whereas investigation is conducted by investigating agency/ police. The
legislature deliberately omitted the word "investigation" in Section 267 Criminal
Procedure Code . The general word appearing in the Section i.e. "other proceeding"
has to be read with the words of a particular and specific meaning, such general words
are not to be construed in their widest extent, but are to be held as applying only to
persons or things of the same general kind or class as those specifically mentioned.
The rule of construction requires that the general provision be limited in its scope to
the identical things specifically named. Under "ejusdem generis" cannon of statutory
construction, where general words follow the enumeration of particular classes of
things, the general word will be construed as applying only to things of the same
general class as those enumerated. Hence "other proceeding" has necessarily to go

with inquiry and trial and not investigation. The "other proceeding" cannot be
construed as an investigation. If it is construed, it would mean reading the provision
out of context.
(12) The legislature intentionally omitted the word investigation under Section 267
Cr.P.C. The underlying reason for requiring the attendance of a prisoner from another
prison is primarily to answer a charge of an offence in inquiry or trial pending in
Court or for such proceedings. His attendance can also be required for the purpose of
being examined as witness or for giving evidence.
(13) Mr. Saxena on the other hand forcefully argued that "other proceeding" would
include investigation because rule of "ejusdem generis" does not necessarily require
that general provision be limited in its scope to the identical thing specifically named
nor does it apply when the context manifests a contrary intention. He drew my
attention to the provision of Sections 91, 92 and 93 of the Code which corresponds to
the Provisions of Sections 94 to 96 of the Old Code. Section 91 which corresponds to
Section 94 of the Old Code deals with summons to produce document or things.
Whenever any Court or any officer in charge of a Police Station considers that
production of any document or thing is necessary or desirable for the purposes of any
investigation, inquiry, trial or other proceedings such Court may issue summons.
Similarly Section 92 prescribes that if any document, parcel or thing in the custody of
a postal or telegraph authority is, in the opinion of the Court wanted for the purposes
of any investigation, inquiry, trial or other proceedings such Court may direct the
same to be delivered. Sub Section (1) of Section 93 corresponds to Section 96(1) of
the Old Code. Sub- Section 2 of Section 93 corresponds to Section 97 and Section 3 to
Section 96(2) of the Old Code. Section 93 is reproduced as under: "Section 93
"(1)(a) Where any Court has reason to believe that a person to whom a summons or
order under Section 91 or a requisition under sub-Section (1) of Section 92 has been,
or might be, addressed, will not or would not produce the document or thing as
required by such summons or requisition, or (b) where such document or thing is not
known to the Court to be in the possession of any person, or (c) where the Court
considers that the purposes of any inquiry, trial or other proceeding under this Code
will be served by a general search or inspection, it may issue a search-warrant, and the
person to whom such warrant is directed, may search or inspect in accordance
therewith and the provisions hereinafter contained.
(2)The Court may, if it thinks fit, specify in the warrant the particular place or part
thereof to which only the search or inspection shall extend, and the person charged
with the execution of such warrant shall then search or inspect only the place or part
so specified.

(3)Nothing contained in this section shall authorise any Magistrate other than a
District Magistrate or Chief Judicial Magistrate to grant a warrant to search for a
document, parcel or other thing in the custody of the postal or telegraph authority."
(14) Mr. Saxena contended that reading of Clause l(c) of Section 93 would make it
clear that search warrants can be issued only for the purposes of any inquiry, trial or
other proceeding under this Code and the person to whore such warrant is directed,
may search or inspect in accordance with the provisions contained therein. The
reading of this Section shows that the word 'investigation' has been omitted under
Section 93, but still, the Magistrate do issue search warrants for the purposes of
investigation. If the magistrates can exercise the power of issuing warrants under
Section 93 because of the enabling provision and taking recourse to the word "other
proceedings" which provision is general in nature. Similarly for requiring the
attendance of an accused lodged in another jail can be sought by invoking Section 267
Criminal Procedure Code . for the purposes of interrogation and investigation. In this
regard, he has placed reliance on the decision of Mysore High Court in the case of
M.P. Kevarappa Vs. D. Sankannayya Setty 1965(2) Crl.L.J. 225. in that case the Court
was dealing with the provisions of Section 94 and 96 of the Old Code. The facts of
that case were that the word Circle Inspector of Police at ercara acquired information
that two persons had printed and circulated a pamphlet containing matters falling witn
the purview of of Section 124A and Section 153A of the Penal Code. The Circle.
Inspector wanted to collect the evidence so that the prosecution could be commenced
in respect of those offences. He applied to the First Class Magistrate Mercara for
sanction to investigate those offences since those offences were non-cognizable
offences, hence permission was necessary. The Magistrate accorded the permission to
investigate the offences which he presumably did under the provisions of Section
155(2) of the Code of Criminal Procedure and thereafter a case was registered. The
police wanted to search the houses of the accused and asked for the general search
warrants. The general search warrants were issued by the Magistrate authorising the
police to search the premises of the complainant. The complainant filed a suit for
damages against the Magistrate for issuing search warrants illegally. The District
Magistrate upheld the contention of the complainant and awarded damages against the
magistrate. Against that order the matter went up in appeal. The point raised before
the High Court was whether the Magistrate had the power to issue the general search
warrant when there was no matter pending before him either in which he had to make
an inquiry or trial, and that the magistrate did not consider that for the purposes of any
inquiry, trial or other proceeding before the Court to which there is a reference in para
3 of Sub Section 96 of the Code of Criminal Procedure, it was necessary that a general
search should be made. Para 3 of Sub Section (1) of Section did not authorise the
Magistrate to issue search warrant for the purposes of investigation. The Court
considered the provision of Section 94(1) of the Old Code as well as of Section 96 of

the Old Code which are corresponding to Section 91 and 93 of the present Code, and
came to the conclusion that it does not appear reasonable to say that a general search
warrant which may be made under the third paragraph of Section 96(1) for an inquiry
which is made by a Magistrate to determine prima facie the truth and falsity of certain
facts in order to take further action thereon, cannot be made during an investigation
whose purpose is in substance similar. Relying on the various other judgments the
High Court came to the conclusion that although the word Investigation' occurring in
Section 94(1) does not occur in para 3 of Section 96(1) of the Code. So long as that
paragraph employs the comprehensive words 'or other proceeding under this Code'
and the definition of an 'investigation' contained in S. 4(1)(1) of the Code makes it
clear that an investigation like the one in the present case, is a proceeding under the
Code, it would not be, right for the Court to depend upon the inexistence of the word
'investigation' in para 3 of Section 96(1) for founding the conclusion that an
investigation is not a proceeding under the Code or that a general search to aid an
investigation is not within para 3 of Section 96(1) of the Code. Therefore, relying on
these observations, Mr. Saxena contended that inexistence of the word 'investigation'
in Section 267 will not make any difference. The word 'other proceedings' is
comprehensive enough to include investigation. The scope of the word 'other
proceeding' should not be restricted only to the inquiry or trial pending in the Court
because if that had been the import of the legislature it would have manifestly made it
clear in its language as was done under Section 491(1)(C) of the Old Code. In fact in
order to enlarge the scope of this Section the word 'other proceeding' has been used.
(15) I have considered the rival contentions put forward by the counsel. So far as the
case of Mysore High Court is concerned, that is distinguishable on the facts. There the
High Court was dealing with the issuing of general search warrant for the purpose of
collecting evidence in the investigation for which investigation sanction was accorded
by the Magistrate himself. Moreover, the Court took the view that for the purposes of
collecting evidence in respect of an offence suspected to have been committed it can
issue search warrant even if it is at the stage of investigation because Section 4(1) of
the Old Code (which corresponds to Section 2(h) of the new Code defines
'investigation'. It means 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 authorised by a Magistrate in this behalf. Search warrant under section 93 are also
issued for the purposes of collecting such evidence. Therefore, it was in this
background that the Court took the view that the commission of the word
'investigation' from para 3 of Section 96(1) Is immaterial because there the police
officer wanted to collect the evidence and the Magistrate by issuing the search warrant
aided him to do so. But in the present case that is not so. So far as Section 267
Criminal Procedure Code . is concerned it cannot be used as a sheet anchor by the
police, to serve its purpose. The police cannot use the services of the Court for

requiring the attendance of an accused from another jail to enable the police to arrest
him in another case. There is no difficulty in reaching to this conclusion. In arriving at
the decision I am supported from the language used in the Forms No.36 and 37 of the
Second Schedule to the Code of Criminal Procedure which are used under Section
267 Criminal Procedure Code . Reading of Form 36 makes it clear that the attendance
of the person is required in the Court to answer to charge or the proceeding pending in
the Court. Form No.37 Schedule two deals with.. the production of the person from
another jail for the purposes of giving evidence. There is no other form prescribed in
the Schedule to the Criminal Procedure Code under Section 267 empowering the
Magistrate to issue the warrants compelling the attendance of the person from another
jail in order to answer a charge in investigation. Therefore, the observation made by
the Mysore High Court while interpreting para 3 of Section 96(1) of the Old Code will
have be of no help in the interpretation of Section 267 of the new Code nor the word
"other proceeding" used in Section 267 Criminal Procedure Code . can be stretched to
such an extent that the word 'investigation' could be covered.
(16) The word "other proceedings" used in Section 267 Criminal Procedure Code .
would mean proceedings pending in Court. For example case under Section 145 and
146 Criminal Procedure Code . are neither inquiry nor trial. Such cases are in fact
covered under the definition of "other proceedings" appearing under Section 267
Criminal Procedure Code . It is keeping in view such like cases that legislature used
the expression 'any other proceedings'. But this by no stretch of imagination would
mean investigation. The import of the legislature becomes clear from the reading of
the title under chapter Xxii which indicates attendance of persons confined Section
267 Criminal Procedure Code . deals with Court's power to require attendance of a
prisoner. Now this power to my mind cannot be used to facilitate the investigating
agency. It is only when Court requires the attendance of a person lodged in another
jail it will exercise this power and that too for limited purpose i.e. to answer a charge
in a trial or inquiry or in the proceedings pending before him or to require his presence
as a witness for giving evidence and for no other purpose. The legislature in order to
ensure that this power may not be misused made it sure that it be exercised by a senior
judicial officer. Therefore when attendance is required by a Magistrate of second
class, it made it clear that the said order shall not be acted upon by the officer in
charge of the prison unless counter signed by the Chief Judicial Magistrate.
(17) From this we can infer the mind of the Parliament. Prior to the amendment of the
Code under the Old Code, there was only one Section dealing with the power of the
court to seek the attendance of a prisoner and that was Section 491 under Chapter
xxxvII. It was more in the nature of writ of Habeaus Corpus. Section 491 of the Code
of 1898 reads as under: 491. "POWER To Issue Directions Of The Nature Of A
Habeaus CORPUS;

(1)Any High Court may, whenever it thinks fit, direct (a) That a person within the
limits of its appellate criminal jurisdiction be brought up before the Court to be deal
with according to law: (b) that a person illegally or improperly detained in public or
private custody within such limits be set at liberty, (c) that a prisoner detained in any
jail situate within such limits be brought before the Court to be there examined as a
witness in any matter pending or to be inquired into in such Court, (d) that a prisoner
detained as aforesaid be brought before a Court-martial or any Commissioners ...for
any trial or to be examined touching any matter pending before such Court-martial or
Comissioners respectively, (e) that a prisoner within such limits be removed from one
custody to another for the purpose of trial, and (f) that the body of a defendant within
such limits be brought in on the Sheriffs return of habeas corpus to writ of attachment.
(2)The High Court may, from time to time, frame rules to regulate the procedure in
cases under this section.
(3)Nothing in this section applies to persons detained under the Bengal Slate
Prisoners' Regulation 1818 Madras Regulation Ii of 1819, or Bombay Regulation Xxv
of 1827, or the State Prisoners Act, 1850, or the State Prisoners Act, 1858."
(18) The law commission in its 40th and 41st report recommended that this Section
491 be omitted and more comprehensive provisions be incorporated under the new
code. This chapter Xxii is substituted for Chapter xxxvii of the Code of 1898. The
reason for suggesting the charge was that Section 491(1) correspond to the writ of
habeas corpus. That Art.26 of the Constitution of India confer wide and
comprehensive powers as the High Court of states to issue to any person or authority,
including in appropriate cases any Government, directions, orders or writs,including
writs in the nature of habeas corpus etc. for any purpose. In view of this provision.
Clause (a) and (b) of Section 491 (1) became practically superflous. Further
recommended that the provisions of clause (c) (d) and (e) relating to production of
prisoners in court for various purposes should be omitted and more detailed provisions
securing the attendance of prisoners in criminal courts on. the lines of those contained
in the prisoners (Attend pursuance in Courts) Act, 1955 should be included in this
chapter. It is on the lines of these recommendations of the Law Commission that
present Chapter Xxii containing Section 267 was brought on the 'statute. The objects
and reasons for this amendment clearly points out the mind of the legislature. This
was to secure the attendance of the prisoner in Court and not to be a help in aid to
investigating agency nor the legislature intended that these provisions be invoked in
order to facilitate the investigating agency to call a prisoner through court from
another jail in order to make a formal arrest or to interrogate in investigation. The
every heading shows that the attendance has to be in the court and not for the benefit
of investigating agency. By doing so Court would be exceeding its jurisdiction
because that is not the mandate given in this Section. The court can exercise the power

under Section 267 only for the purpose of asking him to answer to the charge in
inquiry or trial or in the proceeding pending before him, or for giving evidence as
witness in Court but cannot require his attendance to answer to the charge in
investigation. This answer the first point raised.
(19) So far as the second point raised by Mr. Mathur, Sr. Advocate is concerned, the
true test for legality or otherwise of the detention is on the date of the hearing itself. In
the case of Ramesh Kumar Vs. State of Bihar A.I.R.1988 page 199 it was observed
that a defect in an earlier order of remand of an accused person is not incurable and he
cannot claim a writ of Habeaus Corpus on this score alone if on the date of hearing he
is in custody under a valid order of remand. As per Noor Mohd's case (Noor Mohd.
Vs. State I.L.R.1978 page 442, the Delhi High Court held that the Magistrate has the
power to authorise the detention of the accused in. such custody as he think fit for not
more than 15 days on the whole. But he can authorise the detention of the accused
otherwise than in police custody beyond the period of 15 days if he is satisfied that
there are adequate grounds to do so. It should not, however, exceed a total period of
60 days or 90 days as the case may be. On the expiry of that period of 60 days/ 90
days, the accused shall be released on bail if he is prepared to and does furnish the
bail. In such a case granting of bail itself is mandatory and it cannot be refused on any
ground. Nor can the accused be remanded to custody for a further period. Section
167(2)(a) is mandatory in nature. Magistrate has no power to delaine an accused after
that period. Neither Section 436(1) nor Section 437(1) relating to bail enjoins the
filing of an application. An application is needed only during the remand period. If the
prayer for remand fails, the inevitable result would be that the accused must be
released on bail. Thus the accused can always obtain bail without an application by
merely showing that the prosecution has not established sufficient grounds for remand
to detain an accused after that period. Neither Section 436(1) nor Section 437(1)
relating to bail enjoins the filing of an application. An application is needed only
during the remand period. If the prayer for remand fails, the inevitable result would be
that the accused must be released on bail. Thus the accused can always obtain bail
without an application by merely showing that the prosecution has not established
sufficient grounds for remand.
(20) Mr. D.C. Mathur urged that the law does not permit an accused to be in custody
without an order of remand. He has placed reliance on the Provision of Section 167 of
the Cr.P.C. which provides that:
(1)Whenever any person is arrested and detained in custody, and it appears that the
investigation cannot be completed within the period of twenty four hours fixed by
Section 57, and there are grounds for believing that the accusation or information is
well founded, the officer in charge of the police station or the police officer making
the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit

to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter
prescribed relating to the case, and shall at the same time forwarded the accused to
such Magistrate.
(2)The Magistrate to whom an accused person is forwarded under this section may,
whether he has or has not jurisdiction to try the case, from time to time, authorise the
detention of the accused in such custody as such Magistrate thinks fit, for a term not
exceeding Fifteen days in the whole; and if he has no jurisdiction to try the case or
commit it for trial, and considers further detention unnecessary, he may order the
accused to be forwarded to a Magistrate having such jurisdiction: Provided that - (a)
the magistrate may authorize the detention of the accused person, otherwise than in
the custody of the police, beyond the period of fifteen days, if he is satisfied that
adequate grounds exist for doing so, but no Magistrate shall authorise the detention of
the. accused person in custody under this paragraph for a total period exceeding, - (i)
ninety days, where, the investigation relates to an offence punishable with death,
imprisonment for life or imprisonment for a term of not less than ten years, (ii) sixty
days, where the investigation relates to any other offence, and, on the expiry of the
said period of ninety days, or sixty days,s the case may be, the accused person shall be
released on bail if he is prepared to and does furnish bail, and every person released
on bail under this sub-section shall be deemed to be so released under the provisions
of Chapter Xxxiii for the purposes of that Chapter, (b) no Magistrate shall authorise
detention in any custody under this section unless the accused is produced before him,
(c) no Magistrate of the second class, not specially empowered in this behalf by the
High Court, shall authorise detention in the custody of the police."
(21) Provision (a) to Sub Section (2) of Section 167 provides that the Magistrate may
authorise detention beyond 15 days if he is satisfied that adequate grounds exists for
doing so in order to arrive at his satisfaction, Magistrate must be supplied the diary as
mentioned in Section 172 Cr.P.C. Diary contains full and unabridged statements of
persons examined. This furnishes the complete source of information which would
enable the Magistrate to make up his mind whether or not accused should be detained
in custody. Transmission of a copy of the diary is mandatory, and failure to send it to
the Magistrate leads to the inference that the diary had not by then come into
existence. The Magistrate exceeds his authority in ordering further remand where
police fails to produce the diary to justify the remand.
(22) In no case the Magistrate can authorise the detention beyond 90 days or 60 days
as the case may be. But even beyond 15 days and up to the period of 60 days, the
remand has to be taken of the accused as is apparent from the reading of Proviso (a) of
sub Section 2 of Section 167 Cr.P.C. and i.e. 15 days each time. Even if the accused is
not produced before the Magistrate for any sufficient reasons, still there has to be

order by the Magistrate authorising the detention of the accused as held by Supreme
Court in the case of Raj Narain Vs. Supdt. Jail .
(23) The detention of the petitioner has to be in the this case and not of a case pending
at Bombay. Each case will have separate cause of action and pursuance to Section 57
of the Cr.P.C. the petitioner after having been arrested has to be produced before the
Magistrate within 24 hours but in this case as per prosecution's own showing, he was
arrested in Court on 17th August, 1992 but was never produced within 24 hours
before the Magistrate. Rather he was produced on 20th August, 1992 for seeking the
remand, therefore, this is a clear case of violation of Section 57 of the Cr.P.C. After
the arrest, the accused has to be produced by the police for seeking remand as held by
Supreme Court in the case of Khatri and others Vs. State of Bihar and others .
(popularly known as Bhagal Pur blind case). In that case, the Supreme Court was
discussing the duty of the Magistrate and the Sessions Judge and also the obligations
of the State when the accused is first produced before the Magistrate. It was further
held that when the petitioners are not produced before the Magistrate subsequent to
their First production and they continued to remain in jail without any remand orders
this was plainly contrary to law. In that case from the record it was found that in few
cases the accused persons were not produced before the Judicial Magistrate within 24
hours of the arrest as required by Article 22 of the Constitution of India therefore it
was held that police authorities were required under the constitutional mandate to
produce an arrested person before a Judicial Magistrate within 24 hours of the arrest
and this has to be observed scruplously. In other cases, the Supreme Court found that
some of the accused person were not produced before the Judicial Magistrate
subsequent to their first production and -they continuously remained in Jail without
any remand orders being passed by the Judicial Magistrates. In the light of this
discovery, the Supreme Court observed that this was plainly contrary to law. It was
difficult to understand how the State continue to detain these accused person in jail
without any remand orders hence expressed. the hope and trust that the State
Government will inquire as to why this irregularity was allowed to be perpetrated and
will see to it that in future no such violations of law are permitted to be committed by
the administrators of the law. The provision inhibiting detention without remand is a
very healthy provision which enables the magistrates to keep check over the police
investigation and it is necessary that the Magistrates should try to enforce this
requirement and where it is found to be disobeyed, come down heavily upon the
police. Mr. Mathur further placed reliance on the case of Ram narayan Singh Vs. The
State of Delhi and others . There while interpreting Section 167 Cr.P.C. and
Section 344 of the Old Code, (corresponding to Section 309 of the new code) the
Supreme Court held that the detention of a person in custody after the expiry of the
remand order without any fresh order of remand committing him to further custody
while adjourning the case under Section 344 Cr.P.C. is illegal, it was further observed

that in a question where the lawfulness or otherwise of the custody of the persons
concerned is in queston, the documents containing order of remand would be of vital
importance and should be produced at the time of Filing return. Relying on the
observations made in this judgment, Mr. Mathur contended that the C.B.I, was duty
bound to seek the remand of the petitioner even after the initial remand. Having not
done so, the detention became illegal.
(24) The reason why legislature wants accused to be produced every time, when
remand is sought, it is to ward off malpractice and is in fact a counter check to
safeguard the liberty of an accused. By process of remand, the Magistrate monitors
the proceeding in such a manner so that a full account of the remand is handy and bail
is offered to such accused person at the end of 90 or 60 days as the case may be. In the
case of Madhu Limaya and others A.I.R. 1969 Sc 1014 Supreme Court has deprecated
the routine remand under Section 167 Cr.P.C.
(25) That Section 167 Cr.P.C. makes the production of the accused mandatory.
Therefore Mr. Mathur contends that the legislature could not have intended that there
should be no production of the accused after the initial period of 15 days till the expiry
of 60/90 days. There is no provision under the statute authorising the detention in
perpetuity law enjoins upon the state to produce the accused for remand or for
authorised detention before the Magistrate after every 15 days. This is a healthy rule
made with a purpose which purpose cannot be allowed to be flouted at the whim of
the investigating agency if Section 167 Cr.P.C. is interpreted then why Mr. Saxena
urges. As per the rule of construction, the function of a proviso merely limit or qualify
rather than to add to the substantive provision. The word of the proviso are to be
construed with the proceeding words. The substantive provision is prescribed under
sub Section 2 of Section 167 Cr.P.C. The proviso (a) merely qualify that after 15 days
of such custody i.e. police or judicial custody, the Magistrate can refuse further
detention if he is not satisfied and in case he is satisfied he can extend the detention
but again it would not be more than 15 days at a time. The purpose behind is to
monitor remand proceedings, otherwise situation can arise to what happened in
Bhagalpur blind cases where accused remained in custody without remand for years
and Supreme Court deprecated such practice
(26) In the case of Raj Narain Vs. Supdt. Central Jail , it was held that it would be
desirable for the
Magistrate to have the person produced before him when he continues to be in
custody. Proviso (b) to sub clause of Section 167 Cr.P.C. of the Code provides that no
Magistrate shall authorise detention in any custody under this Section unless the
accused is produced before him. In view of this provision it has become mandatory

for the magistrate to have the accused produced before him when he continues to be in
custody.
(27) On the other hand, Mr. Saxena, appearing for the C.B.I. contended that the
Supreme Court, in the Case of The Central Bureau of Investigation, Special
Investigation Cell-1 Vs. Anupam J. Kulkarni 1992(2) Crimes has held .that if a person
is in judicial custody in another case, his formal arrest in the second case is
permissible. Therefore, remand for police custody was sought of accused Harshad S.
Mehta for seven days by intimating the Court that Harshad S. Mehta has been put
under arrest in this case. On this application of the C.B.I., the Court passed an order
remanding the petitioner to police custody till 20th August, 1992 and in the detail
order of the same day 17th August, 1992 Shri Kuldeep Singh, Special Judge, has
mentioned that Harshad S. Mehta was produced in his Court and thereafter he was
formally arrested by the C.B.I. in this case. Mr. Saxena contended that pursuance to
C.B.I. Vs. Anupam J. Kulkarni's judgment the action of the C.B.I. is justified. Because
if there are number of cases against the accused, the subsequent arrest in other case is
permissible and not barred by any provision of law. Moreover, when the petitioner
was produced before Shri Kuldeep Singh, Special Judge, he was formally arrested in
this case and it was only after his arrest he was produced in the Court and the police
remand was sought. Therefore, there is no infringement of the provisions under
Section 57 of the Cr.P.C.
(28) According to Mr. Saxena in Section 309 Cr.P.C. the word "remand" has been used
whereas under Section 167 of the Cr.P.C. the word "authorization of detention" is only
used. For the purposes of authorised detention legislature has not placed any
restriction for producing the accused after every 15 days though such restriction has
been placed under Section 309 while seeking remand. It is only when the Magistrate
takes the cognizance that the question of remand will arise but in a case where the
Magistrate has not taken the cognizance, the question of remand does not arise. It is at
the stage of investigation that authorization of detention order are passed under
Section 167 Cr.P.C. Drawing attention to the provision of Section 167(2) Cr.P.C. Mr.
Saxena contended that the Magistrate can authorise detention of the accused "in such
custody" for a term not exceeding 15 days in the-whole. Such custody could be police
custody or judicial custody. Such custody has to be determined by the Magistrate at
the time of passing the detention order and such custody is not to exceed 15 days in
the whole. This 15 days is the initial custody. Thereafter the proviso (a) will apply.
While interpreting the proviso(a) of Sub Section 167 Cr.P.C., Mr. Saxena contended
that the bare reading of the same will show that beyond the period of 15 days which is
the initial 'period, there is no restriction or impediment under this provision which
prohibits the detention for more than 15 days at a time nor does it stipulates that
beyond 15 days every time the accused was to be produced before the Magistrate. The
only restriction which is imposed under the Proviso (a) is that the outer limit cannot

be exceeded i.e. 90 days or 60 days as the case may be. As regards sub Section 2(b)
the accused has to be produced when the order of detention is to be passed. And if for
any reason accused cannot be produced his detention will not become illegal.
Investigating agency can satisfy the court by giving reasonable explanation for not
producing the accused physically.
(29) Mr. Saxena further contended that even if the Magistrate omits to mention about
the remand of the accused in his order still it will get cured while issuing the warrant
for judicial custody. The Magistrate can mention the period of remand in the warrant,
then that omission made in the order does not make the detention illegal as held by
Allahabad High Court in the case of Dr. Ram Manohar Lohia . He further contended
that there is in 'fact initial and outer limit which has been fixed by the statute under
Section 167 Cr.P.C. for passing the order of detention. But after the expiry of the
initial period up to the outer limit, there is no such provision in Section 167 Cr.P.C.
which prescribes any limit. However, by practice police has started seeking remand
after every 15 days. So far reading of Section 167 Cr.P.C. it does not stipulate any
such condition. To strengthen his arguments he placed reliance on the Full Bench
Judgment of the Gujarat High Court in the case of Shardul Bhai Laxman Pancholi Vs.
State of Gujrat 1990 Crl.LJ. page 1275 where it was held that even if on account of
non-obtaining of the remand, the detent in which has become illegal, can still be
cured. Moreover, if a reasonable explanation is given for not producing the accused
for seeking his further detention because of his being in legal custody in other court,
then. the detention in the previous case as well as in this case will not become illegal.
In this regard he has placed reliance on the decision of the Allahabad High Court in
the case to Ishar Ahmad Vs. State 1978 Crl.LJ. page 58. In that case, during the course
of investigation first remand was taken for 15 days. Thereafter the remand was taken
on four occasions. On the last four days the accused was not produced before the
judicial magistrate when the remand order was passed. Bail was sought because the
detention without remand was illegal. The Court repelling this submission held that
accused persons should not be released on bail simply because their detention at the
stage of Section 167 Cr.P.C. was illegal. The question before the Allahabad High
Court was whether that illegal detention of the applicants would entitle them to be
released on bail and it was answer that because of that illegal detention they could not
be released on bail because their detention which was illegal at the stage of Section
167 Cr.P.C. stood cured on proper order of remand having been passed by the
Magistrate under Section 209 Cr.P.C. after the charge sheet having been submitted.
Therefore, the Court opined that it was to be seen whether the order of remand passed
on the stage of Section 209 Cr.P.C. was a valid order or not because the stage of
Section 167 Cr.P.C. was over. In that case the accused was not produced either at the
stage of Section 167 Cr.P.C. or at the stage of Section 209 Cr.P.C. or at the stage of
Section 209 Cr.P.C.therefore the detention was declared illegal and the accused were

released on bail on this technical ground. Mr. Saxena contended that in the present
case, the presence of the accused person is not necessary because of an order
authorising the detention in perpetuity having been passed by the Special Judge,
Delhi. Similarly in the case of Shardul Bhai, the Full Bench of the Gujrat High Court
came to the conclusion that this is a curable irregularity. He further placed reliance on
the Full Bench decision of the Patna High Court in the case of Ramesh Kumar alias
Ram Prasad Vs. State of Bihar and another 1987 Crl.L.J.1489. The Court while
holding that the formal application for remand or in any case an insistant request is
not necessary. The whole spirit of the Code is that the custody and liberty of the
accused is entirely governed by the authority and sanction of a Court of law beyond
the initial period of 24 hours between the first arrest and the production before the
Magistrate thereafter. Once an accused person is produced before the Magistrate he is
in local senses in custodia legis and it is the Courts responsibility and power whether
he is to be remanded to further custody or granted bail or released altogether. By no
stretch of imagination can this power of the Court be whittled down and be indeed
passed on to the mere discretion of the investigating agency alone. Though physical
production of the accused before the Magistrate is desirable, yet the failure to do so
would not per se vitiate the order of remand if the circumstances for non- productions
were beyond the control of the prosecution or the police. It was further observed that
one cannot possibly go to the extreme and accept the doctrinaire stand that the
absence of the physical production of an accused person would vitiate the order of
remand incurably. If it is physically impossible to produce the accused in person then
his mere non production would not render his remand to further custody illgal.The
wholesome provisions of the Code requiring physical production have to be received
reasonably and not to an impossibly logical extreme. A defect in an earlier order of
remand of an accused person is not incurable and he cannot claim a writ of habeaus
corpus on that score alone if on the date of hearing he is in custody under a valid order
of remand. Mr. Saxena thereafter contended that the anology can be drawn from the
proviso (a) of Section 167(2) which prescribes that on the expiry of the period of 60
days or 90 days no further remand can be given but that does not mean that if the
accused does not seeks the bail his detention would become illegal. Reading
Explanation I of Section 167 makes it clear that notwithstanding the expiry of the
period specified, the accused shall be detained in custody so long as he does not
furnish the bail. Once the accused fails to furnish the bail and the charge sheet is filed
then because of the default of Filing the charge sheet, he will not be entitled to bail.
On the basis of this .interpretation, Mr. Saxena contended that because of nonproducing of the accused and on account of non-seeking the remand, his detention
will not become illegal nor by any stretch of imagination it can be said that he should
be set free. He further contended that the right of bail extinguishes if not availed
immediately after 60 or 90 days by seeking bail when the charge sheet is filed then
bail for default cannot be granted. Producing the accused physically is not a rule of

law but a rule of caution. Therefore, according to Mr.Saxena no irregularity has been
committed by the C.B.I. either in non producing the petitioner before the Special
Judge or for non seeking of further remand.
(30) From the above discussion a foregone conclusion can be drawn that an accused
against whom investigation is going on under Section 167 Cr.P.C. has to be physically
produced before the Magistrate for seeking his remand/authorized detention and if for
any reason it is not possible then the Investigating Agency must furnish reasons before
the Court concerned for not doing so. In the absence of these two conditions, the
detention of the accused in such circumstances will be illegal. The innovative
argument of Mr. Saxena while interpreting proviso (a) to Sub Section 2 of Section 167
Cr.P.C. that after the initial remand of 15 days, the Magistrate has the power to
remand the accused in perpetuity, to my mind is against the very mandate of the
legislature. The remand or the authorised detention cannotes that the Court has to
monitor the remand proceedings in order to satisfy itself that further detention of the
accused warrants his detention in judicial custody or not. The reading of this Proviso
shows that there has to be satisfaction of the Magistrate and this satisfaction cannot be
in perpetuity. The Supreme Court in the case of Chaganti Vs. State of Andhra Pradesh
while interpreting sub section 2 of Section 167 as well as proviso to Sub Section (2) of
Section 309, observed that these two provisions relate to the powers of remand of a
Magistrate, though under different situation. The two provisos called for a harmonious
reading in so far as the period of remands are concerned. Therefore what the Supreme
Court has interpreted is that even under Section 167 Proviso (a) Sub section(2) also
talks about the remand though using the word authorised detention but it has to be 15
days at a time. I am therefore of the view that there is no provision under Section 167
where the Magistrate could give a remand in perpetuity after the initial period of 15
days. Remand or the authorised detention has to be for a specific period and that too
subject to the satisfaction of the Magistrate. Specific period has been prescribed in the
substantive provision of the Section 167(2). Proviso cannot extend or alter that period
because proviso cannot add to the substituting provision. Therefore, I find no force in
the submission of Mr. Saxena that the Magistrate could give the remand in perpetuity,
or that the petitioner was not required to be produced for further remand. Even
otherwise from the record it is apparent that the Special Judge, Delhi remanded the
petitioner in judicial custody only up to 28th August, 1992 and not in perpetuity as
alleged by Mr. Saxena. Nor the reading of production warrants shows that remand was
in perpetuity. Law is well settled that if the accused is not produced .before the
Magistrate subsequent to his production and he continue to remain in Jail without any
remand order being passed this is plainly contrary to law. His continuouss detention
would be illegal. This would amount to depriving the right of the Court to know
whether accused is required to be in custody at all.

(31) Admittedly, in this case the remand was not sought nor the police diary as
required was produced before the Magistrate after 25th August, 1992. Nor any
application filed by C.B.I. giving reason for non-production of the petitioner after
25th August 1992. Therefore, his detention after 25th August, 1992 was illegal. But
the question which arises is whether the detention which became illegal, automatically
entitled him to bail? The law is now well settled that if the detention is illegal, the
remedy is not the bail but a petition for habeaus Corpus as held in the case of Mahesh
Chand Vs. State of Rajasthan 1985 Crl.LJ. 301. Though there is a Single Bench
Judgment of our own High Court in the. case of Prof. Darshan Singh Vs. State in
Crl.M.(M) 1306/86 dated 10th October, 1986 decided by M.K. Chawla, J. wherein the
bail was granted taking this also as a factor but this was not the main ground for
granting the bail. There is no quarrel with the proposition that this can also be a factor
while considering for the grant of the bail. This is so far as the legal position is
concerned. So far as the grant of bail is concerned the bail can only be granted if the
person is in custody. But in the present case, Mr. Harshad S. Mehta is not in custody.
Therefore, Mr. Saxena appearing for the C.B.I. fairly conceded that the person who is
not. in custody cannot be granted bail and therefore, so far as the bail is concerned, it
has become infructuous. With these observations the petition stands disposed of.