This is an application filed by the petitioner who is the accused in Crime No.188/2013 of Pazhayangadi Police Station, challenging the order of the 3rd respondent ordering transfer of the petitioner to the Central Prison, Jaipur, under Section 482 of the Code of Criminal Procedure (hereinafter called 'the Code'). 2. It is alleged in the petition that, the petitioner is the accused in Crime No.188/2013 of Pazhayangadi Police Station, registered suo-moto by the police, alleging offences under Section 419, 420, 471 and 201 of Indian penal Code and Section 66-D of Income Tax Act and Section 12 (1) (b) of Indian Passport Act. The allegation of the police against the petitioner is that, petitioner who is an escaped prisoner while on parole, suppressed his real name and making impersonation and by fabricating false documents obtained a job in State Bank of Travancore, also obtained passport etc., and committed the above said offence. When it was brought to the notice of the police that, he is alleged to be the person, who escaped prison in connection with S.C.No.34/2006 of Additional Sessions Court, (Fast Track-I), Alwar of Rajastan State, Sub Inspector of Police, Pazhayangadi police station arrested him and registered the crime. This is produced as Annexure-I. He was arrested on 08.03.2013 and produced before the Judicial First Class Magistrate Court, Payyannur, and from then he is in judicial custody.
3. Though investigation was in progress, no final report has been filed, and the police could not get materials to substantiate their case. They also could not get materials that he is the accused in Sessions Case No.34/2006 of Additional Sessions Judge (Fast Track No.I), Alwar of Rajastan State. Since the investigation agency could not file the final report within 90 days, he filed criminal M.P.No.5426/2013, seeking bail under Section 167 (2) (a) (ii) of Criminal Procedure Code and also filed Criminal M.P.No.5427/2013, seeking permission to deposit the amount in lieu of execution of bond. Learned magistrate as per Annexure-AII order granted default bail under Section 167(2) of Criminal Procedure Code, but dismissed Crl.M.P.No.5427/2013 as per Annexure-III order. The petitioner challenged Annexure-III order and condition No.1 in Annexure-II order by filing Crl.M.C.No.5404/2013 before this court and this court by Annexure-IV order dated 02.12.2013 allowed the application and modified the condition in Annexure-AII order and quashed Annexure-AIII order. He had complied with the conditions imposed as per Annexure-IV order and the learned magistrate issued release order directing the 3rd respondent to release the petitioner from custody. The sealed cover was not handed over to the counsel for the petitioner, instead it was directed to be served on the 3rd respondent by the staff of the court. The staff of the court produced the order before the 3rd respondent on 04.12.2013 at about 8.00 p.m., but the 3rd respondent refused to release the petitioner from custody. On enquiry, the counsel for the petitioner was told by the 3rd respondent that, learned magistrate along with the release order issued a letter addressed to him and forwarded the communications issued by the jail authorities of Jaipur, and directed him to do the needful as per Annexure-V. It is on the basis of Annexure-V communication that the 3rd respondent refused to release the petitioner. The act of the 3rd respondent is illegal. Once the court which remanded the petitioner had issued release order, the 3rd respondent has no authority to detain him, unless there is valid production warrant issued from a court, which requires the presence of the petitioner before that court. No such warrant is pending against the petitioner in this case. So according to him, the action of the 3rd respondent is illegal. So he has no other remedy except to approach this court, seeking the following relief:
“It is most respectfully prayed that this Hon'ble Court may be pleased to direct the 3rd respondent to release the petitioner from custody forthwith.”
4. 3rd respondent filed a detailed statement which reads as follows:
“1. It is respectfully submitted that Bitty Mohanthi @ Raghav Rajan, S/o. B.B. Mohanthi, CV, 17, B2 Contonment, Cuttak P.O, Bhuvaneswar Police Station, State of Orissa, accused U/s. 419, 420, 483 and 471 IPC in Crime No.188/13 (Payangady Police Station) dated 9.3.2013 on the file of Hon'ble Judicial First Class Magistrate, Payannur, was admitted in this jail at 08.40 PM on 9.3.2013 as R.P.No.5062. He was produced before the Hon'ble Judicial First Class Magistrate, Payyannur on 11.03.2013 and remanded to Police Custody till 20.03.2013. He was again produced before the Hon'ble Judicial First Class Magistrate, Payyannur on 23.03.2013, 06.04.2013, 20.04.2013, 03.05.2013 and 17.05.2013 in Crime No.188/13 of Payangadi Police Station. He was produced before the Hon'ble Sessions Court, Thalassery on 16.05.2013 in Crl.A.No.17/2013 (Crime No.188/2013).
2. It is submitted that on 23.05.2013 at 4.00 PM he was sent under the Police escort to be produced before the Hon'ble Additional Chief Metropolitan Magistrate No.2, Jaipur Metro, Rajasthan in case No.1626/09 (FIR No.11/07 Lalkothi Police Station) U/s. 224 IPC) on 27.05.2013. He was produced before the Hon'ble Additional Chief Metropolitan Magistrate No.2, Jaipur Metro, Rajasthan on 27.05.2013 and he was remanded to Central Prison, Jaipur. He was re-admitted to this jail on 07.10.2013 by Civil Police Officer of Payyannur Police Station.
3. It is submitted that he was produced before the Hon'ble Judicial First Class Magistrate, Payyannur on 21.10.2013 and 04.11.2013 in Crime No.188/13 Payangadi Police Station. The Superintendent, Central Prison, Jaipur, Rajasthan has intimated in writing on several times that Bitty Hotra Mohanthi, S/o. V.B.Mohanthi, while undergoing Rigorous Imprisonment for 7 years and to pay fine of Rs.10,000/- i/d Rigorous Imprisonment for 1 year U/s.376 IPC in SC No.34/2006 warrant dated 12.04.2006 on the file of Hon'ble Additional District Judge (Fast Track) No.1, Alwar, had absconded while released on parole on 04.12.2006 and he is wanted in case No.1626/09 on the file of Hon'ble Additional Chief Metropolitan Magistrate No.2, Jaipur Metro, Rajasthan.
4. It is submitted that on 04.12.2013 the Superintenndent of Special Sub Jail, Kannur received the release orders of Sri. Bitty Mohanthy, S/o. B.B. Mohanthi from the Hon'ble Judicial First Class Magistrate Court Payyannur and along with it another envelop of the same magistrate which contained the photocopies of letters dated 05.11.2013, and 07.11.2013 of Superintendent, Central Jail, Jaipur. The photocopy of the letter dated 05.11.2013 is produced herewith and that may be marked AnnexureR3(a). The photocopy of the letter dated 07.11.2013 is produced herewith and that may be marked as Annexure R3(b) and there was a letter from Judicial First Class Magistrate Court Payynnur addressed to the Superintendent to take necessary action on the basis of the letters dated 05.11.2013 and 07.11.2013. The photocopy of the letter dated 04.12.2013 from Judicial First Class Magistrate Court Payyannur addressed to Superintendent is produced herewith and that may be marked as Annexure R3(c). The Magistrte also handed over to the Superintendent the photo copy of committal warrant of SC No.34/2006 dated 12.04.2006 of the Hon'ble District Judge (Fast Track) No.1, Alwar and the photocopy of the same is produced and that may be marked as Annexure R3(d). Prior to the letter from the Magistrate, the Superintendent Special Sub Jail, Kannur received another letter of production from the Superintendent, Central Jail, Jaipur on 27.05.2013 in Case No.1626/2009 of the Hon'ble Additional Chief Metro Politian Magistrate No.2, Jaipur Metro. The photocopy of the same is produced herewith and that may be marked as Annexure R3(e). The Superintendent Central Jail, Jaipur also requested the Superintendent Special Sub Jail, Kannur not to release RP 5062 Bitty Mohanthy since he is wanted in that jail.
5. It is submitted that the Judicial First Class Magistrate, Payyannur has granted bail the accused as per the proceedings in Crime No.188/13 dated 04.12.2013. The accused was kept in this jail to be produced before Hon'ble Additional Chief Metropolitan Magistrate No.2, Jaipur on 09.12.2013 on the strength of warrant of commitment in SC No.34/06 dated 12.04.2006 of the Hon'ble Additional District Judge (Fast Track) No.1, Alwar and in good faith on the written request of Superintendent, Central Prison, Jaipur received through the Hon'ble Judicial First Class Magistrate, Payyannur.
6. It is submitted that on 06.12.2013 at 12.40 Noon RP No.5062 Bitty Mohanthi of this jail was sent under the proper escort of Sri.Sasidharan, Sub Inspector of Police and Sri. Chandran, ASI of Police, Armed Reserve Camp, Kannur to be produced before the Hon'ble Additional Chief Metropolitan Magistrate Court, Jaipur in case No.1626/09 on 09.12.2013.
7. At about 3.45 PM on 06.12.2013 over phone this office came to know of the Hon'ble High Court's Order in Crl.M.C.No.5925/2013 dated 06.12.2013 and all my efforts to contact police escort party over phone to bring prisoner back to jail ended in vain. In view of orders in Crl.M.C.No.5925/13 dated 06.12.2013, the Assistant Commandant AR Camp, Kannur has been requested vide letter No.SSJK 77/13 dated 07.12.2013 to take urgent necessary steps to bring the prisoner back to this jail, the photocopy of the letter is produced herewith and may be marked as Annexure R3(f) on 09.12.2013 at 12.10 PM he is brought back to Kannur Special Sub Jail and he is kept now in the jail.
It is respectfully submitted that this respondent has complied with the orders of this Hon'ble Court and that there is no laches on the part of this respondent.”
5. On the basis of the orders of this court dated 06.12.2013, transfer of the petitioner to Central Prison, Jaipur, was directed to be kept in abeyance and that was extended from time to time by this court.
6. Heard the counsel for the petitioner and Sri.K.Abdul Rasheed, Additional Director General of Prosecution. Considering the question of law involved in the case, senior counsel Advocate Sri. B. Raman Pillai was appointed as Amicus curie to assist the court by this court and he was also heard in the matter.
7. The counsel for the petitioner submitted that, the petitioner was arrested by Pazhayangadi police on the ground that, he was an escaped prisoner from central prison Jaipur, while he was on parole by name Bitti Mohanthi @ Raghav Rajan, S/o. B.B.Mohanthi, C.V. 17/ B-2 Cantonment, Cuttak Post, Bhuvaneswar Police Station, Orissa State and by impersonation as Raghav Rajan, fabricating documents, obtained a job in State Bank of Travancore, and also obtained passport and thereby he had committed the offence punishable under Section 419, 420, 468, 471 and 201 of Indian Penal Code and Section 66-D of Income Tax Act and Section 12 (1) (b) of Indian Passport Act and registered a crime as Annexure-AI first information report. He was arrested by the Pazhayangadi Police in connection with the above crime on 08.03.2013 and produced before the Judicial First Class Magistrate Court, Payyannur, on 09.03.2013 and the learned magistrate has remanded him to Judicial custody. Thereafter, he was kept in Special Sub Jail, Kannur, as an undertrial prisoner. Thereafter, as per Annexure-II order, he was granted default bail as per order dated 06.11.2013. Though he filed an application for exemption to execute bond, instead permitting him to furnish cash security, that was dismissed by the learned magistrate as per Annexure-III order and the petitioner has challenged condition No.1 imposed by the court below for granting bail and also dismissing the application filed by him under Section 445 of Criminal Procedure Code, by filing Crl.M.C.No.5404/2013 before this court and this court, by Annexure-IV order dated 02.12.2013 allowed the application and modified the condition No.1 imposed by the court below and permitted him to furnish cash security in lieu of execution of bond by sureties and according to him, he had complied with the directions and in spite of that he was not released by the 3rd respondent. According to him, on the basis of Annexure-V letter issued by the learned magistrate, the 3rd respondent is trying to transfer him to central Prison, Jaipur, as he is escaped parole while he was undergoing imprisonment as per the committal warrant issued as a convicted prisoner in S.C.No.34/2006 of Additional Sessions Court, (Fast Track-I), Alwar in Rajastan State. In fact, there was no production warrant issued either from the court which convicted him and there is nothing on record to show that any case was registered in respect of his escape while he was on parole in that case. Further, according to him, the question as to whether he is the person so escaped is a matter to be proved in the case. So, as such there is no warrant pending against him and without any such warrant, the 3rd respondent is not entitled to suo-moto transfer him, without following procedure in accordance with law. Further according to him, even assuming that, he is a convicted prisoner wanted in Central prison, Jaipur, he cannot be transferred by 3rd respondent directly and he can only be arrested by a police officer and he has to be produced before the court and only by orders of the court, he can be sent to that jail. He had relied on the decisions reported in 1982 ALL. L. J. 130 (Dharampal and another v. State of U.P. and another); 1993 Crl. L. J. 1358 (Mohammed Daud @ Mohd. Saleem v. Superintendent of District Jail, Moradabad and others); 1994 Crl. L. J. 2987 (Dorai and another v. State of Karnataka); 2011 Crl. L.
J. 3442 (Afroz v. State of Chhattisgarh and Others); 2013 Crl. L. J. 258 (Madras High Court) Ramesh v. State and Another; 1987(4) S.C.C. 58 (Mohinuddin @ Moin Master v. District Magistrate, Beed and Others); AIR 1974 S.C. 2092 (D. Bhuvan Mohan Patnaik and others v. State of Andhra Pradesh and others) in support of this case.
8. On the other hand, learned Additional Director General of Prosecution Sri.Abdul Rasheed, submitted that, the dictums laid down in the above decisions relied on by the learned counsel for the petitioner are not applicable to the facts of this case. In all those cases, he was a remand prisoner and undertrial prisoner and after release of the prisoner by the court which remanded him, he cannot be detained in prison and he has to be released and without valid production of warrant issued from the court where his presence is required in a case pending before that court, he cannot be detained and even in such cases, he will have to be produced before that court which issued the production warrant and get necessary remand order for detaining him in prison. But in this case, he is a convicted prisoner in a sessions case and while he was serving sentence from Central Prison, Jaipur, he was granted parole and while he was on parole, he escaped and when this fact had come to the knowledge of Pazhayangadi Police and also they came to know that he is employed in State Bank of Travancore in another name by creating false documents, he was arrested by the police and Annexure-I crime was registered and stating the fact that he is the escaped accused and also committed the present crime produced him before the Judicial First Class Magistrate Court, Payyannur, and he was remanded in that case. Further he was produced before the court in which a case was registered for escaping parole, on the basis of the complaint given by the Jaipur prison authorities and he was remanded in that case to central prison, Jaipur and after getting production warrant from Judicial First Class Magistrate Court, Payyannur, he was produced before the Payyannur magistrate court and thereafter again he was directed to be detained in Special Sub Jail, Kannur, in connection with Annexure-I crime. Further, Jaipur jail authorities have sent communication to the concerned magistrate not to release him, as he is wanted there as a convicted prisoner in that jail and when bail was granted in Annexure-I crime, the magistrate had sent the request of the jail authorities, Jaipur, to the 3rd respondent and accordingly he made arrangements to send him to central prison and when the 3rd respondent received orders of this court, he was recalled and detained in that prison. Since he is a convicted prisoner and escaped parole and when this was brought to the notice of the jail authorities, he can be produced before that jail authorities, without the intervention of the court and there is no necessity to get any further orders from the court as well in this regard. Further in this case, he was produced before the court in which a crime was registered in respect of his parole escape and he was sent to jail in that case. So under the circumstances, even if bail is granted by the court which remanded him as per Annexure-I crime, since he is an escaped prisoner, he is not entitled to get the benefit of release order. The jail authorities can send him to the central prison where he will have to serve the sentence in the case in which he was convicted. So according to him, there is no illegality in the order passed by the 3rd respondent, directing him to produce before the jail authorities at Jaipur.
9. Learned Senior Advocate Sri. B. Raman Pillai appointed as Amicus curie by this court has submitted that, since he is a convicted prisoner in a Sessions case by the Additional Sessions court, (Fast Track-I), Alwar of Rajastan State and he was sent to jail with a committal warrant issued under Section 418 of the Criminal procedure Code and till the committal warrant is executed in accordance with law, there is no necessity to issue any further committal warrant in respect of a convicted prisoner who escaped from jail or over stayed the parole period. Further it is seen from the statement of the 3rd respondent that, a crime was registered on the basis of the complaint given by the central prison authorities, Jaipur, against the petitioner for escape while on parole and when it was brought to the notice of the prison authorities in Kannur, and on the basis of the production of warrant issued from that court, he was produced before that court and he was sent to central prison, Jaipur and after four months of his stay in that central prison, on the basis of the further production warrant issued by the Payyannur court which remanded him in connection with Annexure-AI crime, he was produced before the Payyannur court and thereafter he was sent to Special Sub Jail, Kannur, by the learned magistrate. While he was in central prison, Jaipur, that he was produced before the Payyannur court on the basis of the production warrant issued and even if bail was granted in this case, the jail authorities are competent to send him to central prison, even without the directions of the court. But it is always proper that, he can be produced before the court which granted bail seeking permission to send him to central prison, to allow him to serve the sentence. Though there is no procedure provided, as to what is to be done in such cases, either in the Criminal Procedure Code or in the Prison Rules, this court can regularize the action of the prison authorities by directing the central prison authorities to produce him before the concerned magistrate court, which granted bail, seeking permission to transmit him to central prison, Jaipur.
10. I have considered the rival contentions of both parties.
11. It is an admitted fact that, the present petitioner is accused in Crime No.188/2013 of Pazhayangadi Police Station, which was suo-moto registered by the Sub Inspector of Pazhayangadi Police, when it was brought to his notice that, Bitti Mohanthi was accused in S.C.No.34/2006 of Additional Sessions Court, (Fast Track-I), Alwar of Rajastan State and he was convicted in that case and while he was undergoing the sentence, he was granted parole and he did not return to jail but escaped from there and created false documents by name Raghav Rajan and obtained an employment in State Bank of Travancore, Madai Branch and on enquiry he was convinced about those facts and accordingly he had registered Annexure-I first information report as Crime No.188/2013 of Pazhayangadi Police Station against the petitioner, alleging offences under Section 419, 420, 468 and 471 of Indian Penal Code. It is also seen from the statement of the 3rd respondent that later offences under Section 66-D of Income Tax Act and Section 12 (1) (d) of Indian Passport Act were also included. It is also an admitted fact that, he was arrested in connection with the Annexure-AI crime on 08.03.2013 and produced before the Judicial First Class Magistrate Court, Payyannur, on 09.03.2013 and he was remanded in that case by the learned magistrate. It is also an admitted fact that, after the period mentioned in 167(2) of the 'Code', the petitioner filed Criminal M.P.No.5427/2006 for granting default bail and also filed Crl.M.P.No.5427/2013 under Section 445 of the 'Code', seeking to exempt him from executing a bond with sureties and accept cash deposit in lieu of execution of bond by sureties, and the learned magistrate by Annexure-AII order granted default bail with condition inter alia to execute a bond for ₹ 1,00,000/- with two solvent sureties for the like sum each with one of the sureties having landed property and residing within the jurisdiction of that court and one surety as a close relative of the accused and dismissed the Crl.M.P. No.5427/2013 as per Annexure-AII and Annexure-AIII orders respectively both dated 06.11.2013. Condition No.1 as per Annexure-AII and dismissal of the application Crl.M.P.No.5427/2013 as per Annexure-AIII were challenged by the petitioner by filing Crl.M.C.No.5404/2013 before this court and this court, by Annexure-IV order, allowed the application and modified the conditions and the petitioner has complied with direction and intimation was given to the 3rd respondent to release him in this crime along with Annexure-V letter. It is on the basis of Annexure-V letter and the request of the Central Prison authority, Jaipur, that 3rd respondent had made arrangements to send him to Jaipur Central Prison, which is being challenged by the petitioner by filing this application. Before going into the legal aspects, provisions relating to this aspect can be considered first.
12. Section 60 of the Code of Criminal Procedure deals with power on escape to pursue and retake, which reads as follows:
60. Power, on escape, to pursue and retake- If a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was rescued may immediately pursue and arrest him in any place in India.
(2) The provisions of Section 47 shall apply to arrests under sub-section (1) although the person making any such arrest is not acting under a warrant and is not a police officer having authority to arrest.
60A. Arrest to be made strictly according to the Code - No arrest shall be made except in accordance with the provisions of this Code or any other law for the time being in force provision for arrest.
13. Section 267 of the 'Code' deals with power to require attendance of prisoners, which reads as follows:
267. Power to require attendance of prisoners.- (1) 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.
(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.
14. Section 269 of the 'Code' deals with the procedure to be followed by officer in charge of prison to abstain from carrying out order in certain contingencies, which reads as follows:
269. Officer in charge of prison to abstain from carrying out order in certain contingencies. - Where the person in respect of whom an order is made under section 267,-
(a) is by reason of sickness or infirmity unfit to be removed from the prison, or
(b) is under committal for trial or under remand pending trial or pending a preliminary investigation; or
(c) is in custody for a period which would expire before the expiration of the time required for complying with the order and for taking him back to the prison in which he is confined or detained, or
(d) is a person to whom an order made by the State Government under Section 268 applies, the officer in charge of the prison shall abstain from carrying out the Court’s order and shall send to the Court a statement of reasons for so abstaining:
Provided that where the attendance of such person is required for giving evidence at a place not more than twenty-five kilometers distance from the prison, the officer in charge of the prison shall not so abstain for the reason mentioned in clause (b).
15. Section 270 of the Code of Criminal Procedure deals with custody of the prisoner so brought, which reads as follows:
270. Prisoner to be brought to Court in custody. – Subject to the provisions of section 269, the officer in charge of the prison shall, upon delivery of an order made under sub- section (1) of section 267 and duly countersigned, where necessary, under sub-section (2) thereof, cause the person named in the order to be taken to the Court in which his attendance is required, so as to be present there at the time mentioned in the order, and shall cause him to be kept in custody in or near the Court until he has been examined or until the Court authorities him to be taken back to the prison in which he was confined or detained.
16. Section 418 of the Code of Criminal Procedure deals with execution of sentence of imprisonment, which reads as follows:
418. Execution of sentence of imprisonment.- Where the accused is sentenced to imprisonment for life or to imprisonment for a term in cases other than those provided for by section 413, the Court passing the sentence shall forthwith forward a warrant to the jail or other place in which he is, or is to be, confined, and, unless the accused is already confined in such jail or other place, shall forward him to such jail or other place, with the warrant:
Provided that where the accused is sentenced to imprisonment till the rising of the Court, it shall not be necessary to prepare or forward a warrant to a jail, and the accused may be confined in such place as the Court may direct.
(2) Where the accused is not present in Court when he is sentenced to such imprisonment as is mentioned in sub-section (1), the Court shall issue a warrant for his arrest for the purpose of forwarding him to the jail or other place in which he is to be confined; and in such case, the sentence shall commence on the date of his arrest.
17. Sections 419 and 420 of the 'Code' deal with the particulars to be mentioned in the committal warrant and when it is deemed to be lodged, which reads as follows:
419. Direction of warrant for execution.– Every warrant for the execution of a sentence of imprisonment shall be directed to the officer in charge of the jail or other place in which the prisoner is, or is to be, confined.
420. Warrant with whom to be lodged.- When the prisoner is to be confined in a jail, the warrant shall be lodged with the jailor.
18. Section 426 of the Code deals with sentence on escaped convict when to take effect, which reads as follows:
426. Sentence on escaped convict when to take effect.- (1) When a sentence of death, imprisonment for life or fine is passed under this Code on an escaped convict, such sentence shall, subject to the provisions hereinbefore contained, take effect immediately.
(2) When a sentence of imprisonment for a term is passed under this Code on an escaped convict,-
(a) if such sentence is severer in kind than the sentence which such convict was undergoing when he escaped, the new sentence shall take effect immediately;
(b) if such sentence is not severer in kind than the sentence which such convict was undergoing when he escaped, the new sentence shall take effect after he has suffered imprisonment for a further period equal to that which, at the time of his escape, remained unexpired of his former sentence.
(3) For the purposes of sub-section (2), a sentence of rigorous imprisonment shall be deemed to be severer in kind than a sentence of simple imprisonment.
19. Section 430 of the Code of Criminal Procedure deals with return of warrant on execution of sentence, which reads as follows:
430. Return of warrant on execution of sentence.- When a sentence has been fully executed, the officer executing it shall return the warrant to the Court from which it is issued, with an endorsement under his hand certifying the manner in which the sentence has been executed.
20. Chapter 16 of Kerala Prisons and Correctional Services (Management) Act, 2010 deals with remission, parole, over stay and premature release.
21. Section 74 of the above Act deals with prisoner to surrender himself on the expiration period of parole, which reads as follows:
74. Prisoner to surrender himself on the expiration of the period of parole.- .
(1) On the expirty of the period for which a prisoner was released on parole under Section 73, he shall surrender himself to the officer in charge of the prison from which he was released.
(2) If a prisoner fails to surrender himself as required by sub-section (1), he may be arrested by any Police Officer without a warrant and produced before a Judicial Magistrate who shall commit him to undergo the unexpired portion of the sentence.
22. Chapter XLIV of Kerala Prison Manual Rules deals with Prison Escape and Procedure. Rule 770 of the manual cast a duty on jailor regarding escape prisoner, which reads as follows:
770. Upon a report of an escape being received the Jailor or Senior Officer on duty shall:-
(1) Despatch a party of sufficient strength to search the locality in which the escape occurred, and
(2) Send immediate information of the escape to the Superintendent.
23. Rule 771 of the manual deals with the duty of the Superintendent.
24. Rule 775 of the manual deals with procedure on recapture which reads as follows:
Procedure on recapture
775. (1) If the prisoner is recaptured, intimation of the fact shall be given to any Officer who has been addressed under Rule 771.
(2) A recaptured prisoner may be admitted back into Prison on his original warrant.
25. Rule 777 of the manual says as follows:
777. The warrant of a prisoner who escape from Prison shall be retained in the Prison for a period of ten years from the date of his escape. If he is not recaptured within that period, it shall be returned to the committing court with an endorsement that the prisoner escaped from the Prison ten years ago and has not been recaptured.
26. Chapter XXXV of the Kerala Prisons Rules, 1958 deals with prison escape and Rule 582 of the Kerala Prison Rules deals with procedure on recapture which reads as follows:
582. Procedure on recapture.- (1) If the prisoner is recaptured, intimation of the fact shall be given to any officer who has been addressed under Rule 575.
(2) A recaptured prisoner may be received back into Jain on his original warrant.
27. Rule 584 of the Kerala Prisons Rules deals with procedure regarding disposal of warrants of escaped prisoner which reads as follows:
584. Procedure regarding disposal of warrants of escaped prisoners.- The warrant of a prisoner who escapes from jail shall be retained in the jail for a period of ten years from the date of his escape. If he is not recaptured within that period, it shall be returned to the committing court with an endorsement that the prisoner escaped from the jail ten years ago and has not been recaptured.
28. The counsel for the petitioner also relied on Section 3 of the Transfer of Prisoners Act, 1950 regarding Removal of Prisoners from one State to another, which reads as follows:
3. Removal of prisoners from one State to another. - (1) Where any person is confined in a prison in a State, -
(a) under sentence of death, or
(b) under or in lieu of, a sentence of imprisonment or transportation, or
(c) in default of payment of a fine, or
(d) in default of giving security for keeping the peace or for maintaining good behaviour;
the Government of that State may, with the consent of the Government of any other State, by order, provide for the removal of the prisoner from that prison to any prison in the other State.
(2) The officer in charge of the prison to which any person is removed under sub-section (1) shall receive and detain him, so far as may be, according to the exigency of any writ, warrant or order of the court by which such person has been committed or until such person is discharged or removed in the course of law.
29. It is clear from the above provisions that as regards the convicted prisoner who is in jail, but later on escape parole is concerned, there is no necessity to issue any further warrant from the court which convicted him and committed him to prison after he was recaptured. Further, till the execution of committal warrant is completed, the jail authorities are expected to keep the prisoner in the prison in which he was admitted after conviction and the jail anuthorites will have to return the warrant after execution of the warrant after the period mentioned in the committal warrant expired, stating the manner in which the release of the convicted prisoner was done and expiry of the period of sentence was calculated etc.
30. Further it is also seen from the above provisions that, once it is brought to the notice of the police officer and when he satisfied that, the person is an escaped prisoner, then, he can under Section 60 of the Criminal Procedure Code, arrest him without warrant and produce him before the magistrate having jurisdiction within that local limit and that magistrate can pass appropriate orders regarding re-transmission of that prisoner to the concerned jail from where he escaped.
31. In the decision reported in D. Bhuvan Mohan Patnaik and others v. State of Andhra Pradesh and others (AIR 1974 S.C. 2092), the Hon'ble Supreme Court while considering the fundamental freedoms of prisoners in jail namely right of prisoner's liberty and other fundamental rights held that, personal safety of the prisoner has to be protected and personal liberty of movement in the jail of the convicted prisoner has to be safeguarded. In that case installing live wire mechanism on the top of the compound wall of the jail for preventing escape of prisoners was challenged by the inmates of the jail on the ground that, it will affect the fundamental freedom of convicts and it will affect their personal safety and the Hon'ble Supreme Court held they are entitled to limited right of enjoyment of fundamental freedom including safety to their lives and if it is affected, they can come to court to safeguard that right.
But in that case, it was held that, considering the circumstances, it cannot be said that, it will affect the safety of the prisoners and the act of jail department in providing live wire at top of the walls of the prison will not affect the right of the prisoners.
32. In the decision reported in Dharampal and another v. State of U.P. and another (1982 ALL. L. J. 130), it has been held that, accused who had been committed to jail by one criminal court and subsequently that court granted bail to him, then accused cannot be refused to be released on bail by the jail authorities, on the ground that, they received requisition issued by other criminal court to produce the accused particularly when the date in requisition for producing accused has already expired. That was a case where the accused was remanded to custody in one case and later he was grantned bail by the court which remanded him. At the same time, he was accused in some other case and production warrants were issued by the other courts and the period mentioned in the production warrant had expired and in such circumstances, the Alahabad High Court has held that, without getting proper production warrant or further remand order from that court, the accused who got bail in the case in which he was remanded cannot be denied the release from jail in that case. The scope of Section 439, 437, 267, 269 of the Code along with Section3(2) and 6 of Prisoners Attendance in Court Act, 1955 and Section 3 of the Prisoners Act were considered in the case. That decision is not applicable to the facts of this case as it relates to an undertrial prisoner and not a convicted prisoner.
33. In the decision reported in Mohinuddin @ Moin Master v. District Magistrate, Beed and Others, (1987(4) S.C.C. 58), it has been observed that, it is enough for the detenue to say that he is under wrongful detention and the burden lies on the detaining authority to satisfy the court that the detention is not illegal or wrongful and the petitioner is not entitled to the relief claimed. This court on more occassions than one has dealt with the question and it is now well settled that it is incumbent on the State to satisfy the court that the detention of the petitioner/detenue was legal and in confirmity not only with the mandatory provisions of the Act but also strictly in accordance with the constitutional safeguards embodied in Article 22 (5) of the Constitution. That was a case where the petitioner was detained in prison under the preventive detention laws and the representation filed by the detenue was not disposed of by the Government within a reasonable period and he was detained in prison without passing orders on the representation in spite of the recommendations obtained from the advisory board and also from the district magistrate. The relative of the detenue filed an application before High Court to issue writ of heabeas corpus and that was dismissed by the High Court which was challenged before the Supreme Court and in that case the Hon'ble Supreme Court has held that the High Court was not justified in dismissing the application on flimsy grounds and set aside the order and sent back for proper consdieration. It was also a case where a detenue was detained in prison under preventive detention laws without considering his representation to release him and not a case of convicted prisoner. So the dictum laid down in the above decision is not applicable to the facts of this case.
34. Similarly, the dictum laid down in the decision reported in Mohammed Daud @ Mohd. Saleem v. Superintendent of District Jail, Moradabad and others 1993 Crl. L. J. 1358, is also relating to remand of the undertrial prisoner whose presence was requried in another court on the basis of a protection warrant. In the same decision it has been held that when a prisoner is detained in one case produced before another court, subsequent to production warrant and bail was granted to the prisoner in the case pending before the transferee court then he is not entitled to be released despite grant of bail by that court as his custody in the original case will remain unless he was released on bail in that case as well.
35. In the decision reported in Dorai and another v. State of Karnataka (1994 Crl. L. J. 2987), it has been held that once the chargesheet is filed within the statutory period of 90 days, then merely because the court has not taken cognizance within that period is not a ground for the accused to seek for bail under Section 167(2) of Criminal Procedure Code. So the dictum laid down in the above decision is also not applicable to the facts of this case.
36. Similarly, the dictum laid down in the decision reported in Afroz v. State of Chhattisgarh and Others (2011 Crl. L. J. 3442) and 2013 Crl. L. J. 258 (Madras High Court) Ramesh v. State and Another are also not applicable to the facts of the case as all these cases were related to undertrial prisoners who involved in several cases and granted bail in the case in which he was remanded and not in relation to a convicted prisoner who has become an undertrial prisoner in another case and granted bail in the case in which he was treated as undertrial prisoner by another court as in this case.
37. In the case of undertrial prisoners, who had involved in several crimes wanted in several Courts was released on bail in the case in which he was remanded, then the jail authorities are not expected to keep him in prison more than the period for which he was remanded by that court and once the court which remanded the prisoner has granted bail, then he cannot be detained in prison on the ground that, he has involved in any other crime, unless he was remanded by the courts in which the other cases were also pending. If there is no remand made by the other courts, then merely because pendency of other case is not sufficient to detain him in prison, unless the court in which other case is pending also remanded him in connection with the case pending before that court or production warrant issued from that court is pending. If a person is produced on production warrant before court in another case pending before that court, if the undertrial prisoner has been released on bail in the case in which he was remanded, then the jail authorities have to produce him before the court which issued the production warrant immediately on receipt of the release order, stating these facts and seeking further direction from that court, as to whether his remand is required or not in connection with the case pending before that court.
38. As regards the convicted prisoner is concerned, if he is released on bail in another case or he is acquitted in another case will not ipso facto entitle him to get release from the jail unless the period of sentence imposed on him in the case in which he was convicted expires. So the submissions made by the counsel for the petitioner that, since he has been released on bail in Crime No.188/2013 of Pazhayangadi Police Station by itself is not sufficient to release him on bail especially when it was brought to the notice of the jail authorities and also the court which remanded him in the remand report that he was an escaped prisoner in connection with S.C.No.34/2006 of the Additional Sessions Court (Fast Track-I), Alwar, of Rajastan State.
39. Further it is seen from the report submitted by the Sub Inspector of Police along with Annexure-AI that, he was the convicted prisoner and while he was in parole while serving sentence in that case, he over stayed and did not surrender before the jail authorities in Jaipur. Further since he had, while on over stay, committed another crime in State of Kerala within the jurisdiction of Pazhayangadi Police Station, they have registered Annexure-AI crime as Crime No.188/2013 of Pazhayangadi Police Station against the petitioner. So the fact that, he is an escaped prisoner or the prisoner who over stayed parole has been brought to the notice of the Judicial First Class Magistrate Court, Payyannur, when he was produced before that court, seeking remand in connection with the investigation of Crime No.188/2013 of Pazhayangadi Police Station. Since his custody was required in connection with the investigation, the learned magistrate remanded him in connection with that crime, instead of passing orders of transfer of the prisoner to the jail from where he was escaped as provided under Section 60 read with Section 73 of the Code of Criminal Procedure. Further it is seen from the statement filed by the 3rd respondent that, on 23.05.2013 at 4.00 p.m., he was sent under police escort to be produced before the Additional Chief Judicial Magistrate Court-II, Jaipur Metro, Rajastan, in case No.1626/2009 ( FIR No.11/2007 Lalkothi Police Station under Section 224 of the Indian Penal Code). On 27.05.2013 he was produced before that magistrate and he was remanded to central prison, Jaipur. Thereafter, he was detained in central prison, Jaipur, till 07.10.2013, on which date he was again re-admitted in Special Sub Jail, Kannur, in connection with Crime No.188/2013 of Pazhayangadi Police Station again. It is also seen from the statement that he was produced before Judicial First Class Magistrate Court, Payyannur, from Central Prison, Jaipur, on the basis of the production warrant issued by that court. So after the escape, in fact he was re-admitted in central prison, Jaipur, on 27.05.2013. So, even assuming that, he was granted statutory bail under Section 167(2) of the Code of Criminal Procedure in Crime No.188/2013 of Pazhayangadi Police Station, he is not entitled to get release as of right because he is a convicted prisoner in S.C.No.34/2006 on the file of the Additional Sessions Court, (Adhoc-I), Alwar of Rajastan State and he will have to be re-produced before the Central Prison, Jaipur, to serve his remaining sentence in that case. It is also seen from the statement of the 3rd respondent that the Judicial First Class Magistrate, Payyannur, also received communication from the central prison, Jaipur, that he is an escaped prisoner and he should not be released from prison and when the release order was passed by the learned magistrate, he had sent the communications received from the jail authorities from Jaipur, also to the 3rd respondent for necessary action to be taken in this regard, as regards the petitioner, on the basis of the request of the jail authorities, Jaipur.
40. There is no provision mentioned either in the Prisons Act or Transfer of Prisoners Act or the present Kerala Prisons and Correctional Services (Management) Act, 2010, regarding the procedure to be adopted in cases where a convicted prisoner who escaped from prison from another state has involved in a crime in another State in which he was remanded as an undertrial prisoner and granted bail in the case in which he was remanded in the State in which the subsequent crime was committed, regarding his transfer to the prison from where he escaped.
But at the same time, court should not shut its eyes in such circumstances and the convicted prisoner cannot be allowed to escape for want of provisions in the respective Acts. It is true that, if an escaped prisoner is seen in another place, then the police officer of that place can arrest him without warrant and jail authorities cannot be said to be police officers for the purpose of arrest. But that does not mean that, they cannot inform the court that he cannot be released in view of the fact that he is a convicted prisoner and seeks directions from that court for this purpose. Since, it was brought to the notice of the court along with the remand report produced by the arresting officer in Crime No.188/2013 of Pazhayangadi Police Station that, he is an escaped prisoner from Rajastan, and committed another crime by impersonation and creating false documents, then further arrest of the petitioner for prison escape is not required, as his escape and arrest on the ground that he is an escaped prisoner has already been informed to the court along with remand report in connection with Annexure-I crime registered by the Pazhayangadi Police. Further, since, there are conditions imposed by the Judicial First Class Magistrate, Payyannur, that he shall not leave the jurisdiction of the court without permission of that court, it is not proper on the part of the jail authorities to transfer him suo-moto to the central prison, Jaipur without the permission of the court which granted bail with conditions especially when the investigation of the crime in which he was granted default bail is in progress as well. So third respondent will have to seek the permission of the Judicial First Class Magistrate, Payyannur, for this purpose, till then, they are entitled to retain him in prison. So under the circumstances, the prayer of the petitioner that, since he has been granted statutory bail in Crime No.188/2013, he has to be released forthwith cannot be allowed, as he is a convicted prisoner in S.C.No.34/2006 of Additional Sessions Court (Fast Track-I), Alwar of Rajastan State and while he was in prison, he was granted parole and he escaped and did not surrender before that jail after the parole period was over. So he cannot be kept at par with other undertrial prisoners, who were being remanded for a shorter period and getting bail on non-filing of final report within the particular period provided under Section 167(2) of the Code of Criminal Procedure. Being a convicted prisoner, his movements can be restricted, till the execution of the sentence is completed. So under the circumstances, the petitioner is not entitled to get the relief claimed in the petition, that he will have to be released forthwith. So the petition is disposed of as follows:
1. The petitioner is not entitled to get the relief of direction to the 3rd respondent to release him from custody, in view of the statutory bail granted in Crime No.188/2013 of Pazhayangadi Police Station, as he is a convicted and escaped prisoner in S.C.No.34/2006 of the Additional Sessions Court (Fast Track-I), Alwar, Jaipur, from Central Prison, Jaipur and he has to undergo the remaining period of sentence in that case in central prison, Jaipur.
2. The 3rd respondent is directed to file a petition before the Judicial First Class Magistrate Court, Payyannur, seeking permission to transfer the petitioner to central prison, Jaipur, for allowing the petitioner to serve the remaining period of sentence in S.C.No.34/2006 of Additional Sessions Court, (Fast Track-I), Alwar, of Rajastan and the learned magistrate is directed to pass appropriate orders and grant sanction on conditions, which he may think fit to impose for transferring the petitioner to central prison, Jaipur.
3. The 3rd respondent is directed to file the application within one week from the date of receipt of this order for the above purpose. Learned magistrate is directed to pass appropriate orders as directed by this court within one week from the date of receipt of such application from the 3rd respondent and on getting necessary orders from the magistrate, the 3rd respondent is directed to take steps to transfer the petitioner to the central prison, Jaipur, as per the conditions to be imposed by the Judicial First Class Magistrate, Payyannur, in this regard. Till then, the 3rd respondent is directed to keep the petitioner in prison.
With the above direction and observation, the petition is disposed of. I place my appreciation on record for the valuable assistance given by the learned senior counsel Sri. B. Raman Pillai, who has been appointed as Amicus Curie in this case by this Court to decide the case. Office is directed to communicate this order immediately to the 3rd respondent and also to Judicial First Class Magistrate, Payyannur, for necessary action to be taken on the basis of the directions given in this judgment.
Sd/-
K. Ramakrishnan, Judge // True Copy// P.A. to Judge ss