JUDGMENT Shiv Shanker J.
1. This writ petition has been filed under Article 226 of the Constitution of India on behalf of the petitioner, Nabbu @ Navab s/o Babu Sakka praying for direction in the nature of mandamus commanding respondent No. 2, Superintendent of District Jail, Bulandshahar not to transfer the petilioner from District Jail, Bulandshahar to any other district in pursuance of the production warrant issued from the other courts of Additional Chief Judicial Magistrate, Hapur (Ghaziabad) and Chief Judicial Magistrate, Bilaspur (Chhatisgarh) and also direct respondent No. 2 to release the petitioner from the custody.
2. Brief facts of this petition are that the petitioner has been made accused by the police of police station Syana, District Bulandshahar in Case Crime No.63 of 2005, under Sections 379 and 411 I.P.C. and Case Crime No. 66 to 2005, under Section 25 Arms Act. He has also been made accused in case Crime No. Nill of 2005, under Section 41/102 Cr.P.C. and Sections 414, 411 I.P.C. and in Case Crime No. 64 of 2005, under Section 307 I.P.C. and 2/3 U.P. Gangsters Act.
3. After his arrest, he was sent to jail by the police in connection with all the above four cases on 19.6.2005. Since then, he is in jail at Bulandshahar under the custody of respondent No. 2. Thereafter, the requisition dated 3.8.2005 was received by respondent No. 2 from the court of Additional Chief Judicial Magsitrate, Hapur (Ghaziabad) requiring respondent No. 2 to produce the petitioner before him in connection with Case Crime No. 912 of 2002, under Section 379 and 411 I.P.C., Police Station Hapur Nagar, District Ghaziabad.
4. Thereafter, the second set of requisition dated 27.8.2005 was also received by respondent No. 2 regarding the petitioner requiring him to produce him uefore Chief Judicial Magistrate, Bilaspur (Chhattisgarh) on 22.9.2005 at 11.00 A.M. Both production warrants are annexed as Annexure Nos. 3 and 4 to the petition.
5. Petitioner has been granted bail in all the above four cases relating to District Bulandshahar and bail bonds have been filed and a epted and release orders have also been sent to respondent no.2 except in case crime No. 64 of 2005, under Section 307 I.P.C. and 2/3 Gangsters Act.
6. Counsel for the petitioner contacted to respondent No. 2 about this requisition/production/'B' warrant then he informed to the counsel for the petitioner that aforementioned requisition/production/'B' warrants have been received by him. The petitioner furnished bail bonds and were accepted by the court, liven immediately after receiving release order of the petitioner from the custody in the cases of District Bulandshahar, the petitioner shall be transferred to the requisite court. Thereafter, this petition has been filed by the petitioner.
7. Heard the argument of learned Counsel for the petitioner as well as learned A.G.A. for respondents and perused the record available lefore this Court.
8. It is contended on behalf of the petitioner that the production warrant cannot be treated as detention warrant and respondent No. 2 is under obligation to release the petitioner forthwith from the custody after receiving the release order from the court of Bulandshahar but respondent No. 2 did not accept the plea of the petitioner. It is well settled that the requisition/production warrant/ 'B' is not the custody warrant, as it has been held in several pronouncements. It is further contended that no any date has been given in the production warrant sent by the court, of A.C.J.M. Hapur (Ghaziabad) and in another productio warrant the date has already been expired. Therefore, the petitioner cannot be transferred to other courts from the jail of Bulandshahar, In such circumstances, respondent No. 2 has no authority to detain the petitioner without any warrant of District Court, Bulandshahar, and as such his detention becomes illegal and without authority of law. It is further contended that no action can be taken upon the production warrant sent by the court of C.J.M., Bilaspur (Ghhattisgarh) as date mentioned in the production warrant has already been expired. Thereafter, in absence of other production warrant of the same court the petitioner cannot be detained and transferred to other court.
9. On the other hand, it is submitted that respondent No. 2 is bound to send the petitioner in compliance of production warrant of the concerned court. Therefore, this petition is liable to be dismissed.
10. It is essential in deciding the petition to reproduce Section 267(1) Cr.P.C.
267. Power to require attendance of prisoners.- (l)Whenever, in the course of an 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.
11. It is worthwhile to mention here that no order for the transfer of the petitioner has been passed by respondent No. 2 i.e. Superintendent of District Jail, Bulandshahar. Petitioner is still in judicial custody in Case Crime No. 64 of 2005 under Section 307 I.P.C. and 2/3 Gangster Act, as the bail bonds have not been furnished after granting his bail, when the release order in this case will be received in the District Jail of Bulandshahar then the matter will come whether the petitioner may be sent to the above courts in compliance of both the production warrants or not or he may be released forthwith from District Jail, Bulandshahar without complying production warrants. Therefore, this petition is pre-mature.
12. On the other hand, the production warrant is not the custody warrant for the purpose of Section 167 Cr.P.C.. It is the order of the court wherein respondent No. 2 has been directed to produce the petitioner before said courts in connection with the above cases.
13. It has been observed in Mohammad Daud alias Mohd. Saleem v. Superintendent of District Jail, Moradabad and Ors. 1993 CRI. L.J. 1358 that:-
Taking up first the submission .of the petitioner based on Section 267 of the Cr.P.C. that a warrant issued under the said section does not constitute a detention order authorizing detention in prison of a person, it would be found that it is fully borne out from the provisions of Section 267 itself. The head-note as well as the phraseology of the said section indicates that the order envisaged therein is an order to produce a person confined or detained in a prison before a criminal court for answering to a charge or for the purpose of any proceedings against him. An order under this section does not partake the character of a detention order by the court seeking production qua the charge of the proceedings pending before it.
14. In these circumstances, respondent no.2 is bound to comply the order of courts A.C,J.M. Hapur (Ghaziabad) and G.J.M. Bilaspur (Chhattisgarh) if the date of appearance of production has not been expired or the date has not been mentioned in the said 'B' warrant. In such circumstances, such order of production warrant shall be complied, it is important to note here that it is the duty of Superintendent, District Jail to submit a report to the court concerned whereupon the said requisition comes to an end. However, the presence of the petitioner is still required by the said court, the requisite court will have to issue a fresh requisition under Section 3 of the Prisoners (Attendance in Courd) Act, 1955 and Section 267 Cr.P.C. requi ing the Officer-in-Charge of the prison to produce the prisoner before it on the some other date to be nominated by it. The date mentioned in the requisition issued by the said court to produce a prisoner has expired. Thereafter, no other obligation remains upon the Officer-in-Charge of the prison to produce the prisoner before that court on any other date. In the circumstances in no case, a requisition issued by criminal court under Section 3 of the Prisoners (Attendance in Courts) and Section 267(1) Cr.P.C. even be construed as authorizing the Officer-in-Charge of the prison to keep a person under detention after the date mentioned in the requisition has expired and he has made a report to the concerned court stating the reason for his omission to comply with the requisition.
15. In the present case no date in production warrant has been mentioned by the court of A.C.J.M. Hapur (Ghaziabad). Therefore, it is effective and same is to be complied by respondent no.2. So far as the production warrant of the court of C.J.M. Bilaspur (Chhattisgarh) is concerned wherein the date of production of the accused was mentioned and same has already been expired. There is no material on record before us that any fresh production warrant has also been received from the said court by respondent No. 2. In absence of issuance of fresh production warrant by the court of C.J.M Bilaspur (Chhattisgarh) the petitioner cannot be detained in the said previous production warrant whose date has already been expired.
16. Learned counsel for the petitioner has attracted my attention to the pronouncement of Dharam Pal and Anr. v. State of U.P. and Anr. 1981 Allahabad Criminal Ruling 466, wherein it has been observed that:-
Prisoners (Attendance in Courts) Act, 1955, Sections 3(2), 6 Prisons Act, 1894, Section 55 Prisoners Act, 1900, Section 3 Criminal P.C., 1973, Sections 267, 269 Construction of-Petitioners detained in Jail at Meerut were directed to be released on bail-Bail order received by Jailor-No authority remains in him to keep them in custody-Requisition received from Criminal Courts at Haryana under Section 3 of 1955 Act and Section 267 Cr.P.C. cannot confer any valid authority to keep them under detention.
17. The above pronouncement of this Court is not applicable in the present case as the date of production warrant has expired only one production warrant which was issued by the C.J.M. Bilaspur (Chhattisgarh), but no time limit has been given in production warrant issued by the A.C.J.M. Hapur (Ghaziabad) regarding the above case. In such circumstances, respondent No. 2 is bound to comply the order of the production warrant after releasing him from the cases of District Bulandshahar.
18. Thus, the writ petition is, hereby, disposed of accordingly.
19. No order is passed as to costs.
Amitava Lala, J.
20. I agree.