JUDGMENT
K.A. SWAMI, Actg. C.J.
1. In this petition under Article 226 of the Constitution the petitioner has sought for issue of a writ in the nature of Habeas Corpus directing the respondents to set at liberty the following persons who are in the Judicial Custody under the direction of the Chief Judicial Magistrate, Mysore as per his order dated 9-10-1992.
1. K. Abubekar, S/o. Ramalaberi.
2. T. P. Pokar, S/o. Mammu.
3. M. P. Basheer, S/o. Khader.
4. Hussain Madan, S/o. Ahmad.
5. Ismail, S/o. Ibrahim.
6. Abbas, S/o. Ismail.
7. Supi. S/o. Ermu.
8. Shamusuddin, S/o. Umar.
2. Of course, it may appear very incongruous to seek a writ of Habeas Corpus when the accused are in Judicial Custody because the writ of Habeas Corpus lies only if the custody or detention is illegal and unauthorised. However, it is necessary to state the facts and circumstances which are no more in dispute in order to determine whether the relief sought for by the petitioner should or should not be granted.
3. The petitioner is the son of K. Abubekar, who is one of the accused. On 11-9-1992, a Criminal Case No. 194/1992 was registered in Somwarpet Police Station, Kodagu District, against the aforesaid eight persons for the offences punishable under sections 153A and 153B of the I.P.C. on the allegations that they had hoisted Pakistan Flag on the top of Jalaliya Mosque in Somwarpet. They could not be produced before the Judicial Magistrate, first Class, Somwarpet, on 11-9-1992 because he was on leave. Therefore, they were produced before the Judicial Magistrate, First Class, Madikere on 11-9-1992, who remanded them to Judicial Custody till 14-9-1992. On 14-9-1992, the accused were not produced before the J.M.F.C. Somwarpet. However, an order was obtained from the J.M.F.C. Somwarpet extending the Judicial custody remand till 28-9-1992. In the meanwhile, on 16-9-1992, Somwarpet Police, as a result of the investigation, issued additional F.I.R. adding Sections 121A and 124A of the I.P.C.
4. There was a Writ Petition No. 262/1991 filed before this Court, seeking a writ in the nature of Habeas Corpus to release the accused in question. However, that writ petition was disposed of on 25-9-1992 by transferring the case from the Court of Judicial Magistrate First Class, Somwarpet to that of the Chief Judicial Magistrate, Mysore. On 28-9-1992 the accused were not produced before the Chief Judicial Magistrate, Mysore. However, on the request of the investigating agency, the Chief Judicial Magistrate, Mysore without the production of the accused continued the judicial custody till 9-10-1992. On 9-10-1992 also the accused were not produced before the Chief Judicial Magistrate, Mysore. However, the investigating agency submitted that the accused were not required any more; therefore, they need not be detained in the judicial custody and they may be released on bail. A memo to that effect was filed by the investigating agency before the Court of Chief Judicial Magistrate, Mysore. However, the Senior Assistant Prosecutor, opposed the release of the accused on bail. He had also filed the objections on 8-10-1992 itself. The Court on considering the objections refused to grant bail by the order dated 9-10-1992 and continued the judicial custody remand till 17-10-1992. The relevant records of investigation pertaining to seeking extension of the judicial custody remand are also placed before us.
5. It is contended by Sri. Subbaiah, learned Counsel appearing for the petitioner, that the Judicial Magistrate First Class, Somwarpet and also the Chief Judicial Magistrate, Mysore extended the judicial custody remand on 14-9-1992, 28-9-1992 and 9-10-1992 without the production of the accused and that therefore, the orders were null and void having regard to the provisions contained in clause (b) of sub-section (2) of Section 167 of the Cr.P.C. There could not have been extension of the production of the accused, therefore, the accused are entitled to be released forthwith, on bail.
6. On the contrary, it is contended by Sri N. K. Gupta, learned Government Advocate, that no doubt, clause (b) of sub-section (2) of Section 167 of the Cr.P.C. states that no Magistrate shall authorise detention in any custody 6under Section 167 Cr.P.C. unless the accused is produced before him, but the said provision cannot be all be literally interpreted ignoring the fact that there will be several circumstances in which it would not be possible to produce the accused before the Court and some times it would not be in the interest of the accused to produce before the Court, as production may entail danger to their life. Therefore, clause (b) of sub-section (2) of Section 167 Cr.P.C., should not be interpreted laterally and as mandatory.
7. Therefore the question for consideration is as to whether there can be extension of the judicial custody remand without the production of the accused before the Magistrate. The question came up for consideration before a Division Bench of this Court in Noor Jahan v. state of Karnataka, . In that cast also the accused was not produced before the Court. However, the judicial custody remand order was obtained. While considering the question this Court has held as follow :
“A Full Bench Decision of the High Court of Patna (Ramesh v. State of Bihar) relied upon by the learned Advocate general was a case in which an order remanding the accused in judicial custody was passed. The points raised for consideration by the Full Bench also would go to show that there was an order of remand passed remanding the accused to judicial custody. The validity of those orders was challenged. Therefore, it is not possible to hold that the aforesaid decision of a Full Bench governs the case on hand because in the instant case, from January 19, 1991 onwards there was no order passed by the Magistrate, Davangers remanding accused No. 3 to judicial custody. Having regard to the Decisions of the supreme Court reported in (1) Ramnarayan v. State of Delhi, , (2) Sapmawia v. Deputy Commissioner, (1970 (2) SCWR 329) : (1971 Cri LJ (N) 42) and (3) Raj Narain v. Superintendent Central Jail, even though the offence alleged against accused No. 3 is the one punishable under section 302 I.P.C. in the absence of an order passed by the Magistrate, Davangere, continuing accused No. 3 in judicial custody, from 18-1-1991 onwards, we are constrained to hold that accused No. 3 is entitled to a Writ in the nature of Habeas Corpus, because there is no authority for the respondents to continue him in custody in the absence of an order of remand passed under Section 167 of the Code. It is true that as per clause (b) of sub-section (2) of Section 167 of the Code, normally for seeking an order of remand to continue the accused in judicial custody. The accused should be produced before the Magistrate, but in a case where it is not possible to bodily produce the accused as in the instant case where the accused is undergoing treatment in the hospital as an in-patient and according to the doctor’s advice, he cannot be taken out of the hospital and produced before the Court. It is not necessary that the accused should be produced bodily. If the Magistrate is not satisfied. It is open to him to call for the report from the Doctor or he can personally visit the hospital and satisfy about the condition and safety of the accused but he cannot refuse to pass an order continuing the accused in judicial custody on the ground that he has not been produced. The law is not unreasonable and it does not expect an impossible thing to be performed. Therefore, the Magistrate ought to have been circumspective and ought to have been circumspective and ought to have passed an order continuing accused No. 3 in judicial custody. There is no doubt that the Magistrate only on literal interpretation of the provisions contained in clause (b) of sub-section (2) of Section 167 of the Code, has failed to pass an order continuing accused No. 3 in judicial custody on the ground that accused No. 3 is not produced before the Court. The decision in Raj Narain’s case has settled the issue beyond doubt and that decision holds good even under new Code of 1973 that wherever it is not possible to produce the accused before the Court bodily, the Court cannot insist upon the production of the accused bodily and cannot refuse to pass an order of remand. As already pointed out, in such a case if the Court is not satisfied with the report made by the Investigating Officer for continuing the accused in judicial custody, it is open to the Court to call for a fresh report from the concerned pern to the Court to call for a fresh reporrson or authority, if the accused is undergoing treatment in the hospital as an in-patient the Court can also call for a report from the Doctor who is treating him or if the Court is situated in the place where the hospital is situated, the Magistrate can visit the hospital and satisfy himself. What is required in this situation is the practical and the common sense approach to the case. The Court has to see whether it is possible to produce the accused or not. If it is not possible, then the Court should not insist upon production of the accused bodily.”
However, it is contended by Sri. Subbaiah, learned Counsel for the petitioner that in the said decision, madatory nature of the provision has not been taken into consideration inasmuch as clause (b) of sub-section (2) of Section 167 Cr.P.C. prohibits the Magistrate from authorising detention in any custody unless the accused is produced before him. It is submitted that the language used in Clause (b) of sub-section (2) of Section 167 Cr.P.C. is of prohibitive character and prohibits the Magistrate from authorising detention in any custody unless the accused is produced; therefore, the production of the accused is necessary : that unless the accused is produced no authorisation of detention in any custody can be ordered by the Magistrate.
8. It is not possible to agree with this contention. In Noor Jahan’s case, a Division Bench of this Court, has considered the effect of clause (b) of sub-section (2) of Section 167 Cr.P.C. and has held that it cannot be interpreted literally and has also further pointed out that law is not unreasonable and it does not expect performance of an act which is not possible or the performance of it is not in the very interest of an accused. It is not difficult to see several circumstances or occasions during which it may not be even in the interest of the accused to produce before the Court and it may not be possible for the investigating officer or the Jailor to produce the accused before the Court. For example, if rioting takes place in front of the jail, the life of the accused will not be safe if he is to be taken out of the jail for the purpose of production before the court. Similarly, a dangerous situation may exist in a place where the Court is situated and it may not be safe for the Jailor and the investigating agency to move the accused from the jail for the purpose of producing him before the Court. Again there may be a case where the accused may be undergoing treatment in a Hospital from where he cannot at all be removed. It is not possible to foresee all the circumstances. Therefore, a Division Bench of this Court has taken a view that the provisions contained in clause (b) of sub-section (2) of Section 167 of the Cr.P.C. cannot be literally interpreted meaning thereby that it cannot at all be held to be mandatory. It is also necessary to bear in mind that the procedural law is intended to further the ends of justice and not to defeat it. An interpretation which does not advance the cause of justice should be avoided and the one which furthers the ends of justice should be accepted. Of course, it has been pointed out in Noor Jahan’s case and we would also like to point out that in the normal circumstances, production of an accused before the Magistrate is a must, unless there are circumstances which justify non-production. The investigating agency ordinarily cannot be permitted to obtain the order authorising extension of custody without producing the accused nor it is open to the Magistrate to authorise continuation of the accused in any custody without the production of the accused. In a case where it is not possible to produce the accused, it is incumbent upon the Magistrate to satisfy himself that the circumstances existing are such that it is not at all safe or not possible, to have the accused produced before him. He must record his satisfaction in the order, before authorising detention as to why the accused could not be produced before him. We have come across in some cases and in the present case also that the orders are passed by the Magistrates without being satisfied that the production of the accused was neither safe nor possible. It is noticed that the Magistrates, and even the Chief Judicial Magistrate are treating the matter very casually. They completely ignore the purpose behind the insistance of production of the accused at the time of seeking extension of custody.
9. In the instant case, an application was filed stating that there was a bund and that, therefore, the accused could not be produced. The Magistrate ought to have satisfied himself as to whether the bund was of such a nature so as to make it impossible for the police to produce the accused before the Court. The application did not even state that there was a tense situation prevailing in the City making it impossible for the police to bring the accused out of the Jail and produce them before the Court. This only shows the casual approach made to the case by the Magistrate. Similar is the case with the Chief Judicial Magistrate, Mysore. His order dated 28-9-1992 does not say that he was satisfied that the production of the accused was neither possible nor safe. He has not realised the importance of production of the accused. He has also made a very casual approach to the case and has extended the judicial custody, without applying his mind to the facts of the case and without bearing in mind the safety and security; the right of the accused and the necessity of continuing them in the judicial custody. This type of casual approach has been deprecated on many occasions. Even then, the J.M.F.Cs. and C.J.Ms. do not appear to treat these cases with all seriousness and they go on extending the custody in a casual and routine manner. They fail to realise that the object of this provision is to ensure that the accused is safe and he is not subjected to ill-treatment when he is in custody, and it is necessary for the purpose of the case to extend the custody. The statutory obligation is placed upon the Magistrate to satisfy himself about these aspects. It is, for this purpose, the law insists upon the production of the accused before the Magistrate, before authorising detention in any custody. Our Magistrates and the Chief Judicial Magistrates should bear this aspect in mind as and when they are approached by the investigating agency for directing authorisation of detention in any custody. The Supreme Court, in Raj Narain v. Sperintendent, Central Jail, New Delhi, has held that extension of authorisation in any custody without the production of the accused does not make the order a nullity. It introduces irregularity in the proceedings and such a procedure is not approved. We have also pointed out that normally, authorisation of detention in any custody should not be granted by a Judicial Magistrate, First Class, or a Chief or Additional Chief Judicial Magistrate, unless the accused is produced before him. In the special circumstances, of course, if the Court is satisfied, on recording the satisfaction for non-production, it is open to the Court to extend custody.
10. The next question for consideration is as to whether the learned Chief Judicial Magistrate was justified in refusing to grant the bail on 9-10-1922 even though the investigating agency filed a memo stating that the accused were not required to be detained in the custody and they be released on bail. No doubt, the learned Chief Judicial Magistrate has passed a considered order for refusing to grant bail. But, we fail to appreciate when the investigating agency itself stated that the accused were no more required to be detained and they had no objection for granting the bail, there was no reason whatsoever for the learned Chief Judicial Magistrate to detain them in custody.
11. At this juncture, a question would arise as to whether in a proceeding for issue of a writ of Habeas Corpus, a bail could be granted by the Court. This question has been answered in State of Bihar v. Rambalak Singh ‘Balak’, that the High Court has jurisdiction to grant bail, but the exercise of the said jurisdiction is inevitably circumscribed by the considerations which are special to such proceeding and which have relevance to the object which is intended to be served by orders of detention properly and validly passed under the said Rules. Further in Mantoo Majumdar v. State of Bihar, the Supreme Court has directed the release of the detenus forthwith on their own bond without sureties. We may also point out here that Article 226 of the Constitution specifically provides that the jurisdiction can be exercised not only for the enforcement of any of the rights conferred by Part III but, for any other purpose. Therefore, in a petition for Habeas Corpus if the facts and circumstances of the case warrant it is open to this Court either to grant a bail or to direct the authority competent to consider the bail application, and to grant the bail on such terms and conditions as the court deems fit under the facts and circumstances of the case. In the instant case the State has filed a memo before this Court which reads thus :
“the Investigating Officer has already submitted before the learned C.J.M. Mysore that he has no objection for enlarging the accused on bail. The respondents now submit that they have no objection for enlarging the detenus on bail on such terms and conditions that the Trial Court may deem fit in the circumstances of the case. The State of Karnataka has also no objection.” From the aforesaid memo it is clear that the State has no objection for granting the bail. Therefore, we are of the view that this is a case in which the accused, as per the State are no more required to be detained in the custody. The investigating agency or the State want the accused to be released on bail. In the light of this memo we are of the view that the accused need not be detained in custody. If they do not want their custody to be continued it is not proper for the Court to direct that they should be detained in the custody. In the facts and circumstances of this case continuation of the custody of the accused is not proper. We are told that the case is now posted to 17-10-1992. We according, dispose of this petition in the following terms :
The Chief Judicial Magistrate, Mysore shall grant the bail to the accused viz., (1) K. Abubekar, S/o Ramalaberi, (2) T. P. Pokar, S/o Mammu, (3) M. P. Basheer, S/o Khader, (4) Hussain Madan, S/o Ahmed, (5) Ismail, S/o Ibrahim, (6) Abbas, S/o Ismail, (7) Supi, S/o Ermu and (8) Shamsuddin, S/o Umar, on such terms and conditions as he deems fit in the facts and circumstances of the case on 17-10-1992.
12. The operative portion of this order be communicated to the Chief Judicial Magistrate, Mysore today itself and a copy of the same shall also ber furnished to the parties.
13. Sri. Gupta, learned Government Advocate is permitted to file his memo of appearance on behalf of respondents in six weeks.
OPERATION PORTION OF THE ORDER
We accordingly dispose of this petition in the following terms :
The Chief Judicial Magistrate, Mysore shall grant the bail to the accused viz., (1) K. Abubekar, s/o. Ramalaberi, (2) T. P. Pokar, s/o. Mammu, (3) M. P. Basheer, s/o Khader, (4) Hussain Madan s/o. Ahmad, (5) Ismail s/o. Ibrahim, (6) Abbas s/o. Ismail, (7) Supi, s/o. Ermu, and (8) Shamusuddin s/o, Umar, on such terms and conditions as he deems fit in the facts and circumstances of the case on 17-10-1992.
The operative portion of this order be communicated to the Chief Judicial Magistrate, Mysore today itself and a copy of the same shall also be furnished to the parties.
14. Order accordingly.