ORDER
Debiprasad Sengupta, J.
1. The present revisional application is directed against an order dated 31-1-2001 passed by the learned Chief Metropolitan Magistrate, Calcutta in connection with Dispur P.S. Case No. 1106 dated 27-12-2000 under Section 420 of the Indian Penal Code directing thereby the Superintendent of Presidency Jail to produce the petitioner before the Court of the learned Chief Judicial Magistrate, Kamrup, Guwahati, Assam in connection with Dispur P.S. (Guwahati, Assam) Case No. 1106 dated 27-12-2000.
2. Dispur Police Station (Guwahati, Assam) Case No. 1106 dated 27-12-2000 was registered on the basis of a complaint lodged by one M. Bez Baroowa alleging commission of an offence under Section 420 of the Indian Penal Code. On a prayer made by the Investigating Officer of the said Dispur P.S. Case No. 1106, the learned Sub-Divisional Judicial Magistrate(s), Guwahati, Assam by his order dated 25-1-2001 issued production warrant against the present petitioner along with one Rajesh Agarwalla. A copy of the said order was forwarded to the learned Chief Metropolitan Magistrate, Calcutta and the next date was fixed on 7-2-2001.
3. The Investigating Officer of said Dispur P.S. case filed an application on 31-1-2001 in the Court of learned Chief Metropolitan Magistrate, Calcutta with a prayer for production of the present petitioner before the learned Chief Judicial Magistrate, Kamrup, Guwahati, Assam in connection with said Dispur P.S. case. On such application the learned Chief Metropolitan Magistrate, Calcutta by his order dated 31 -1 -2001 directed the Jail Superintendent of Presidency Jail to produce the present petitioner before the learned Chief Judicial Magistrate, Kamrup, Assam at an early date and to report compliance before the learned Magistrate.
4. It may be mentioned here that the present petitioner was arrested and now is in judicial custody in Presidency Jail in connection with a case registered with Park Street Police Station being Section ‘K’ (Park Street) P.S. Case No. 21 dated 17-1-2001 under Section 467/468/471/420/120B/ 411 of the Indian Penal Code.
5. Challenging the order dated 31 -1 -2001 passed by the learned Chief Metropolitan Magistrate, Calcutta the present revisional application has been preferred in this Court.
6. Mr. Sekhar Bose, learned Advocate appearing for the petitioner submits that the only provision in the Code of Criminal Procedure, under which the attendance of a prisoner can be required in such a case, is Section 267. Under this provision a prisoner’s attendance can be required only in course of inquiry, trial or other proceeding. Mr. Bose submits that the word “proceedings” in Section 267, Cr. P.C. does not include investigation by the Police. In the present case no inquiry, trial or proceeding is pending before the Chief Judicial Magistrate, Kamrup and hence he cannot be directed to be produced before the learned Magistrate, Kamrup, Guwahati. According to Mr. Bose, learned Advocate of the petitioner, the impugned order dated 31-3-2001 passed by the learned Chief Metropolitan Magistrate, Calcutta is absolutely without Jurisdiction and the same is liable to be set aside.
7. In support of his contention Mr. Bose relies on a judgment of the Bombay High Court reported in 1991 Cri LJ 820 (B.S. Rawat v. Mohmed Asan Khan). In the said judgment it was held by the learned single Judge of Bombay High Court as follows (at Page 822) :-
Section 267(1) of the Code of Criminal Procedure, 1973 provides that whenever in the course of an inquiry, trial or other proceedings under this Code, it appears to the Criminal Court 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 that it is necessary for the ends of justice to examine such person as a witness, the Court may make an order requring the officer in-charge of the prison to produce such person before the Court for answering the charge or for the purpose of such proceeding, or, as the case may be for giving evidence. It is apparent that in order that Sub-section (1) of Section 267 should apply, it is necessary that the requirement should be that he has to be brought before the Court for one or ther other purposes mentioned in Cls. (a) and (b) and it would not apply to a situation where it is necessary to produce the person for the purposes of investigation, before the agency which is engaged in the investigation. The learned Additional Sessions Judge was, therefore, right in pointing out that this provision would not apply to the stage at which the request was made by the investigating authorities to him.
8. Relying upon the aforesaid judgment Mr. Bose submits that a Police investigation does not come within the purview of Section 267 of the Code of Criminal Procedure. In the present case the petitioner was arrested in Calcutta in connection with a case registered with Park Steet P.S. and he cannot be directed to be produced before the learned C.J.M., Kamrup, Assam in connection with a case which has been registered in Assam, for the purpose of investigation/ interrogation in the said case.
9. Mr. Surdipto Moitra learned Additional Public Prosecutor appearing for the State submits that the provision of Section 267, Cr. P.C. does not have any manner of application in the present case and the only provision in the Code which is applicable in the present case is that of Section 105(1)(b) of the Code. Mr. Moitra draws the attention of the Court to the provision Section 266(a) in Chapter XXII of the Code of Criminal Procedure which reads as follows :-
10. Section 266 – In this chapter
(a) “detained’ includes detained under any law providing for preventive detention:
(b) …
11. Referring to the aforesaid provision Mr. Moitra submits that the provision of Section 267, Cr. P.C. is applicable only in those cases where the person concerned is “detained” under any preventive detention and not in other cases.
12. In reply to the aforesaid argument it is submitted by Mr. Bose, learned Advocate of the petitioner that the definition of the word “detained” is an inclusive definition. It is a comprehensive definition, The word “detaind” in Section 266(a), Cr. P.C. includes any detention including detention under any law providing for preventive detention. So, the provision of Section 267 of the Code is the only provision applicable in the present case.
13. I have heard the learned Advocates of the respective parties. I find sufficient merit in the submissions made by Mr. Bose the learned Advocate of the petitioner. In deciding the present case I also find support from the Division Bench judgment of the Rajasthan High Court reported in 1996 Cri LJ 2102 (Smt. Bharati Sachdeva v. State). In the said judgment it was held by the Hon’ble Division Bench of Rajasthan High Court as follows (at Page 2104) :-
We may now refer to the provisions of Section 267 of the Code. On a plain reading, this provision is applicable to all cases where the accused is detained in prison and his attendance is required before the Court. The attendance may be required in the course of any inquiry trial or other proceedings, for purposes of answering the charge of an offence or for purposes of any proceedings against him or for the ends of justice to examine such a prisoner as witness. It is under this provision that the accused is directed to be produced before the Court on all dates of hearing. If the accused is facing inquiry or trial in more than one case then he may be directed to be produced before the Court by both the Courts before which inquiry, trial or proceeding is pending. Section 267 of the Code allows to produce a prisoner from prison by any Court in the course of inquiry or trial or other proceedings under the Code or for answering a charge or for examining as a witness. Hence the purpose for which person confined or detained in jail could be ordered to be produced before the Court is limited. Investigation of the offence by the Police and interrogation cannot fall under the purposes which are included in Section 267 of the Code. We are in agreement with the Delhi High Court view that investigation by Police cannot be included in any other proceedings as they are not proceedings before the Court.
14. In deciding the aforesaid case of Smt. Bharti Sachdeva (supra), the Division Bench of Rajasthan High Court relied upon a judgment of Delhi High Court in Harshad S. Mehta v. C.B.I., (1992) 3 CCR 2793. In the said judgment it was held by the Delhi High Court that the Court can exercise powers under Section 267, Cr. P.C. only for the purpose of asking an accused obtained in a case in another jail to answer to the charge in inquiry or trial or in the proceedings pending before him, or for giving evidence as witness in Court, but cannot require his attendance to answer the charge in investigation. It was held that the term “other proceedings” does not include investigation by the Police.
15. From the impugned order dated 31-1-2001 passed by the learned Chief Metropolitan Magisrate it is clear that he passed the said order directing the Superintendent, Presidency Jail to produce the present petitioner before the learned Chief Judicial Magistrate, Kamrup, Guwahati, Assam in connection with a case which is at the stage of investigation. Such an order cannot be sustained in view of the provision of Section 267 of the Code of Criminal Procedure as discussed above. So, relying upon the judgments referred to above, I am of the view that the impugned order dated 31-1-2001 passed by the learned Chief Metropolitan Magistrate, Calcutta suffers from serious illegality. The present revisional application accordingly succeeds and the same is allowed. The impugned order is hereby set aside.
Let this order be communicated to the Court below by a special messenger at the cost of the petitioner.
16. The present revisional application has been preferred by another accused person namely Rajesh Agarwal against the order dated 31-1-2001 passed by the learned Chief Metropolitan Magistrate, Calcutta. Both the revisional applications (CRR 216 of 2000 and CRR 228 of 2001) are directed against the same order as aforesaid. Since similar point is involved in the present application {CRR 228 of 2001), the judgment delivered by this Court in CRR 216 of 2001 shall also govern the other revisional application (CRR 228 of 2001), which is accordingly allowed. The impugned order is set aside.
Let this order be communicated to the Court below by a special messenger at the cost of petitioner.