KHAN CHAND TARACHAND SAMTANI Vs. STATE

JUDGEMENT

(1.) THIS Rule is for setting aside two orders viz. , the order dated the 7th December, 1968 passed by Shri P. C. Chakraborty, Presidency Magistrate, calcutta and the order dated the 17th december, 1968 passed by Shri K. J. Sengupta, Chief Presidency Magistrate, calcutta in Case No Ptn. 62a 12/68.

(2.) THE facts leading on to the present Rule can be put in a short compass. The accused petitioner Khan chand Tarachand Samtani is a business man residing at 34, Rani Rashmani road, Calcutta and owning a stall, being Stall No. 83 in the Sir Stuart Hogg market, Calcutta. In execution of a lion-bailable warrant issued by the Special Judicial magistrate, 1st Class, Kalyan Railway Court, Maharashtra, the petitioner was arrested from his residence on the 7th December, 1968, at about 10-15 a. m. by a sub-inspector attached to the Railway Police, Kalyan railway Police Station along with some officers attached to the Taltola police Station, Calcutta. Thereafter the accused-petitioner was produced on the same date in the court of the chief Presidency Magistrate, Calcutta along with a remand petition filed by the Sub-Inspector attached to the Railway Police, Kalyan Railway Police station, stating inter alia that the accused was arrested by the local police under a non-bailable warrant issued by the Special Judicial Magistrate, 1st class, Kalyan Railway Court, Maharastra on 7. 12. 68 and praying that the said accused may be handed over to him for being produced before the special Judicial Magistrate, 1st Class, kalyan Railway Court, Maharastra on the 17th December, 1968. Shri P. C. Chakraborty, a Presidency Magistrate who was taking up the file of the Crief presidency Magistrate, Calcutta on that day, was pleased thereupon to grant a bail of Rs. 10,000|- to the accused petitioner, on condition that he would appear in the court of the Special Judicial Magistrate, First Class, kalyan Railway Court, Maharastra, by 17. 12. 68 and there was direction for arrangement for escort. The petitioner being enlarged on bail applied for certified copies of the order passed by the court on 7. 12. 68 as also of the application filed by the Sub-Inspector of the Railway Police at Kalyan together with the warrant that was executed and during the pendency of the said application for certified copies, he looked into the said warrant which is in Marathi with the assistance of one of his Marathi-knowing friends and came to know that the original warrant, that was sent to Calcutta for execution, contained serious infirmities relating to the parentage, occupation and the address of the accused petitioner and also the date of issue of the said warrant. On the 10th December, 1968 the petitioner obtained the certified copies of the order of the court as also of the remand application dated 7. 12. 68 but on the following date the copying department returned the slip with the remarks "warrant written in marathi language cannot be supplied". On a further enquiry on the 12th December, 1968 it was learnt that the warrant had been despatched to the issuing court at Kalyan. The petitioner became ill thereafter and accordingly his wife filed an application in court, on the 13th December, 1968 praying inter alia that the warrant executed was not a warrant of arrest in accordance with the provisions of the Code of criminal Procedure and that the time for appearance before the Special Judicial magistrate, Kalyan may be extended. The chief Presidency Magistrate, Calcutta was pleased thereupon to direct the application to be put up on 17. 12. 68 for hearing. On 17. 12. 63, another application accompanied with a medical certificate was filed before the Chief Presidency Magistrate, Calcutta by the wife of the accused-petitioner praying for a further extension of the time and the Chief Presidency magistrate, Calcutta by his order of the same date, was pleased to extend the date till 26. 12. 68, when the accused petitioner must appear before the said magistrate at Kalyan. The legality of the original warrant issued by the special Judicial Magistrate, 1st Class, kalyan Railway Court, Maharastra as well as the two orders dated the 7th. December, 1968 and the 17th December, 1988 as based thereupon has been impugned and forms the subject-matter of the present Rule.

(3.) MR. Nalin Chandra Banerjee, advocate (with Mr. M. A. Rezack,, advocate) appearing on behalf of the accused-petitioner has supported the rule on two grounds. , The first contention of mr. Banerjee involves a question of fact viz. , that the original: warrant as issued by the Special Judicial magistrate at Kalyan is not patently in accordance with law as it does not mention the parentage, the address and the occupation of the accused petitioner and as the dates of issue and the execution thereof viz. , 11. 12,68 and 7. 12168 are apparently incongruous and incompatible, rendering the warrant thereby to be unexecutable. Mr. Banerjee submitted that the knowledge of the accused petitioner in this behalf is teased on an inspection of the original warrant while it was in Calcutta and he contended accordingly that the original warrant being ex-facie defective and not in accordance with the Code of criminal Procedure, is not legally exscutable, rendering thereby the two impugned orders passed by the court of the Chief Presidency Magistrate, calcutta, on. the basis of the said. warrant, to be bad and improper. The second contention of Mr. Banerjee is however, one of law and relates to the interpretation of section 86 (1) of the code of Criminal: Procedure. Mr. Banarjee contended in this context that the interpretation by the Chief presidency magistrate, Calcutta of secticon 86 of the Code, unnecessarily circumscribes its meaning land effect and that it was never intended by the legislature that the magistrate executing the warrant coming from outside the local limits of his jurisdiction under section 86 (1) of the Code of Criminal procedure, would be a mere rubberstamp and shall have to execute whatever warrant that may be sent for execution, without any power to look into the legality thereof, and also that the word 'shall' as used in section 356 of the Code is indeed directory and not mandatory and the executing court has unfettered powers to consider the legality and propriety of the warrant sent for execution, before directing the removal of the accused in custody t,o the court issuing the warrant. Mr. Banerjee accordingly submitted that the original warrant as issued by the special Judicial Magistrate, 1st Class, kalyan Railway Court, Maharastra, being patently defective, and not in accordance with the Code of Criminal procedure, the Chief Presidency Magistrate calcutta has erred in not refusing to execute the same on an apparent misinterpretation of the provisions of section 86 of the Code of Criminal procedure. Mr. Priti,bhusan Burman, advocate, appearing on behalf of the State has joined issue and contemded that the first submission of Mr. Banerjee is unwarranted and untenable because the Original warrant from Kalyan that was called for and is on the record, would show that it is not defective as urged by Mr. Banerjee and that the date of issue of the said warrant is clearly the 11th November, 1968 and not the llth December, 1968 as contended. As regards the second contention of Mr. Banerjee, Mr. Burman has submitted that the exercise of the discretion enjoined under section 86 of the Code of 'criminal Procedure, is only circumscribed by the terms thereof and some meaning and effect must be given thereto for fulfilling the intention of the legislature as rated therein. Mr. Burman pinpointed the expression "if the person arrested appears to be the person intended by the court which issued the warrant as contained in section 86 (1) of the Code and urged that if and when the said test was satisfied, the court executing the warrant outside jurisdiction "shall direct his removal in custody" to the court issuing the warrant. The expression "shall" according to Mr. Burman, is mandatory and the executing court cannot go behind the original warrant and sit in judgment over its propriety.