The delay in producing the accused person before the Court after a formal arrest through a Prisoner on Transit warrant would violate the liberty guaranteed to him under Article 21 of Constitution of India, Madras High Court.
Brief facts of the Case
- The petitioner has several cases filed against him and he was in judicial custody in some other case. The respondent Police in both the cases affected a formal arrest through Prisoner on Transit Warrant (in short P.T. Warrant) on 03.04.2020 in Crl.O.P.No.18040 of 2020 and on 11.05.2020 inCrl.O.P.No.14411 of 2020, respectively. Even though the formal arrest took place on these two days, the petitioner was not immediately produced before the concerned Magistrate seeking for a remand in those cases.
- Insofar as the case involved in Crl.O.P.No.18040 of 2020 is concerned, the petitioner was produced before the Court below only on 26.06.2020 and similarly in Crl.O.P.No.14411 of 2020, the petitioner was produced before the Court below only on 21.08.2020 and he was remanded in both the cases. Questioning this inordinate delay in producing the petitioner before the Court below and the order of remand passed by the Court below, these criminal original petitions have been filed before the Court.
Observation of the Court
- The Court after carefully considered the submissions made on either side and the materials available on record said that the only issue that requires consideration of this court is as to whether the delay caused by the respondent Police in producing the petitioner before the Court below after formally arresting him through a P.T. warrant, will vitiate the remand order passed by the Court below?
- The Court noted that, the purpose of a P.T. warrant is only to direct the production of a person confined or detained in a prison through a lawful order. Such a warrant cannot be interpreted to mean that the same will authorize the Police to curtail the liberty of a person by keeping the accused person in custody till he is produced before the concerned Court. In other words, a person cannot be kept under remand on the strength of a PT warrant and he has to be necessarily produced before the concerned Court at the earliest point of time.
- A reference was made to the verdicts given in the following cases, CBI v. Anupam J. Kulkarni, reported in (1992) 3 SCC 141, State v. K.N. Nehru, (2012) 1 MWN (Cri) 4 : (2011) 2 LW (Cri) 579, K.S Muthuramalingam v State (2010) 2 MWN (Cri) DB.
- Refereeing the Cases the Court held that, It is clear from the above judgments that where the investigating officer decides to arrest the accused person through a formal arrest, the accused person does not come into the physical custody of the police and for the purpose of calculating the period of 60 days or 90 days as contemplated under the proviso to Section 167(2) of Cr.P.C., it can be computed only from the date of detention as per the orders of the Magistrate and not from the date of formal arrest by the Police. A P.T. Warrant cannot be used for the purpose of keeping a person in detention without producing him before the concerned Court and such non-production will certainly curtail the liberty of a person.
- If an accused person is produced before the Court with an inordinate delay and thereafter if he is remanded to judicial custody, the custody of the accused person in the concerned case will be calculated only from the date of his remand and the period prior to it where he was kept under detention on the strength of the P.T. warrant, will not be taken into consideration. Such a practice has been deprecated by this Court and such delay in producing the accused person before the Court after a formal arrest through a P.T. warrant, will certainly violate the liberty guaranteed under Article 21 of Constitution of India, it said.
- In the present case, the respondent police did not produce the petitioner before the learned Magistrate, till the petitioner was enlarged on bail in all the other cases. That apart, the respondent also took advantage of this situation and filed a final report in both the cases and thereafter produced the petitioner before the concerned Magistrate and secured his judicial custody. It is therefore clear that the respondent police had indirectly achieved on the strength of a P.T. warrant, what they could not have achieved under the Code of Criminal Procedure. Such questionable practises by taking advantage of a P.T.warrant, continue to be adopted by the police. In the present case if the petitioner had been produced before the concerned Magistrate Court immediately after he was formally arrested by the respondent police and the petitioner had been remanded to Judicial Custody, the petitioner would not have lost the important right provided under the proviso to Section 167(2) of Cr.P.C. That apart, the petitioner would have also had the opportunity to apply for bail in these two cases also. The respondent Police by adopting a skewed practice have defeated the right of the petitioner and thereby the liberty of the petitioner was directly violated. This practice must be immediately stopped by the Police and even in case where a person is involved in serious offences, the correct procedure has to be adopted scrupulously. The procedure that has been provided under the Code of Criminal Procedure is common to both lighter offences and serious offences and hence irrespective of the nature of offence, the police is expected to follow the correct procedure failing which it will result in the violation of the fundamental right guaranteed under Article 21 of the Constitution of India.
Case name: M.Kishore vs. Inspector of Police
Citation: Crl.O.P.Nos.18040 and 14411 of 2020
Coram: Justice N. Anand Venkatesh
The delay in producing the accused before the Court after a formal arrest through a Prisoner on Transit warrant would violate the liberty guaranteed to him u/a 21.