Khan Chand Tarachand Samtani v. State

1. This rule is for setting aside two orders viz., the order dated the 7-12-1968 passed by Shri P.C. Chakraborty, Presidenoy Magistrate, acting on that date as the Chief Presidenoy Magistrate. Calcutta and the order dated the 17-12-1968 passed by Shri K. J. Sen Gupta, 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, Hani Rashmani Road, Calcutta and owning a stall, being Stall No. 83 in the Sir Stuart Hogg Market, Calcutta. In execution of a non-bailable warrant issued by the Special Judicial Magistrate, 1st Glass, Kalyan Railway Court, Maharashtra, the petitioner was arrested from his residence on 7-12-1968 at about 1015 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 looal police under a non.bailable warrant issued by the Special Judicial Magistrate, 1st Class, Kalyan Railway Court, Maharashtra on 7.12.63 and praying that the said aooueed may be handed over to him for being produced before the Special Judicial Magistrate, 1st Class, Kalyan Railway Court. Maharashtra on 17-12.1969. Shri P.C. Chakraborty, a Presidency Magistrate who was taking up the file of the Chief Presidency Magistrate, Cal-cutta on that day, was pleased thereupon to grant a bail of Rs. 10,000/- to the acoused-petitioner, on oondition that he would appear in the Court of the Special Judicial Magistrate, 1st Class, Kalyan Railway Court, Maharashtra 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 7-12.6S 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 10-12.1968 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 12.12-1963 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 13 12-1968 praying inter alia that the warrant executed was not a warrant of arrest in accordance with the provisions of the Codo of Criminal Procedure and that the time for appearanoe 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 17-12-68 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, Maharashtra, as well as the two orders dated the 7-12.19G8 and the 17-12.1P68 a9 based thereupon has been impugned and forms the subject-matter of the present Rule.

3. Mr. Nalin Chandra. Banerjee, Advocate fwith Mr. M. A. Rezack, Advocate) appearing on behalf of the acmised-petitioner has supported the Rule on two grounds. The first contention of Mr. Banerjee involves a ques-tion 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 of execution thereof viz., 11.12.68 and 7-12.68 are apparently incongruous and incompatible, rendering the warrant thereby to be unexe. outable. Mr. Banerjee submitted that the knowledge of the accused-petitioner in this behalf, is based on an inspection of the original warrant while it was in Calcutta and he contended accordingly that the original war. rant being ex facie defective and not in accordance with the Code of Criminal Procedure, is not legally executable 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 Binerjee is however, one of law and relates to the interpretation of Section 86(1) of the Criminal P. O. Mr. Banerjee contended in this context that the interpretation by the Chief Presidency Magistrate, Calcutta of Section 86 of the Code, unnecessarily circumscribes its meaning and 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 Criminal P.C., would be a mere rubber-stamp 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 86 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 to 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, Maharashtra, being patently defective, and not in accordance with the Criminal P.C., 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 Criminal P.C. Mr. Priti. bhusan Burman, Advocate appearing on behalf of the State has joined issue and contended 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 Banerjee and that the date on issue of the said warrant is clearly the 11th November, 1968 and not the 11th 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 Criminal P.C. is only ciroum3cribed by the terms thereof and some meaning and effect must be given thereto for fulfilling the intention of the legislature as incorporated therein. Mr. Burman pinpointed the expression "If the person arrested appeara 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 satis, fled, 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.

4. The king-pin of both the contentions of Mr. Banerjee is the original warrant issued by the Special Judicial Magistrate, 1st Class, Kalyan Railway Court, Maharashtra and the terms thereof and therefore when the Rule was issued, upon his specific prayer, the original warrant was alao called for. The Rule was heard in part and was adjourned to await the arrival of the original warrant which did not as yet reach this Court. The executed original warrant, however, was sent thereafter to this Court and the case was taken up for hearing.

5. I have beard the arguments advanced by the learned Advocates appearing on behalf of the respective parties and I have also gone through the original warrant sent from Kalyan and I will now proceed to determine the point raised in this Rule. The first contention of Mr. Banerjee is unwarranted and untenable because a reference to the original warrant, which is now on the record, clearly shows that the same was issued on the 11th November, 1938 and not on the 11th December, 1968 and was duly executed on the 7th Deoera. ber, 1968 in Calcutta and therefore the wind is taken out of the sails of Mr. Banerjee'8 argument. The ancillary point raised by Mr. Banerjee in this connection as to the purported defeat in the warrant for non-mention of the parentage, the occupation and the address of the accused-petitioner thereby raising a cloud over his identity, is not also sustainable because the description given in the original warrant is sufficient to establish tha identity of the accused and in any event, it is sufficient enough for the executing court to give effect thereto and forward the accused in custody to the court issuing the original " warrant. Mr. Burman; in this connection, has referred to the application filed by the sub-inspector attached to the Riilway Police Kalyan Eailway Police Station, Maharashtra and has submitted that thereunder it has been clearly and unequivocally mentioned that the date of issue of the warrant is 11.11,68 and not 11.18-68. The first contention, therefore, of Mr. Banerjee fails and I bold that the original warrant as issued by the 8pecial Judicial Magistrate, 1st Class, Kalyan Riilway Court, Maharashtra, is in accordance with law and therefore executable in due coarse thereof.

6. The next contention of Mr. Banerjee relating to the interpretation of Section 86 (l) of the Criminal P.C. is one of law and has been quite fairly and ably advanced. Mr. Banerjee's broad submission is that the two orders passed by the court of the Chief Presidency Magistrate, Calcutta on 742.68 and 17.12-63, making over the aooused-petitioner to the custody of the sub.inspector, Railway Police, Kalyan are unwarranted and untenable as those purport to be in execution of a warrant, which is ex facie bad and de hors the provisions of the Criminal P.C The steps of Mr. Banerjee's reasoning, in this context, are that the word "shall" aa used in S 86 (1) of the Criminal P.C. is merely directiry and not mandatory; that the magistrate exercising his powers Under section 86 of the said code is not a mere automation or a conduit pipe; that the provisions laid down in 8 86 do not fetter the discretion of the court to te9t the legality of the warrant coming from outside the local limits of its jurisdiction and determine whether the same would be executable; and that the warrant in the instant case being patently defective and therefore. nnexecutable, the impugned orders passed on the basis thereof by the court of the Chief Presidency Magistrate Calcutta are unwarranted and untenable. In support of his contention Mr, Banerjee has referred to the case of In re; Sagarmal Khemraj A.I.R. 1940 Bom 397, He relied on the observations of Chief Justice Beaumont made in the said Division Bench decision that I need hardly point out that the power of directing the arrest of some person at a place outside the local limits of the jurisdiction of a court, particularly when that place is far removed from the local limits, is one which should be exercised with the utmost circumspection. To arrest two merchants of Bombay and take them in custody all the way to Calcutta could only be justified if the Calcutta Court had substantial reason to believe that the Bombay people had committed the offence .........We do not know what materials he had before him, but on the materials elicit. ed by the learned Presidency Magistrate, Third Court, Bombay, it does seem difficult to suppose that these arrested persons committed robbery in Calcutta on June 12.

Mr. Banerjee also underlined the ultimate finding of the court that In my opinion, the warrants issued in this cage are not sufficiently definite either in the name of the person to whom the warrant is addressed or in the description of the person to be arrested. That being so, the accused must be released.

Mr. Banerjee accordingly argued that in the instant case the position being almost the same, the Chief Presidency Magistrate, Calcutta, should not have executed the warrant coming from outside the local limits of his jurisdiction but should have instead released the accused-petitioner.

7. It is difficult to agree with the ratio underlying the submissions of Mr. Banerjee and I do not agree with the same. It would be pertinent, in this connection, to refer to the provisions of Section 86 of the Criminal P.C. in-corpora ting the intention of the legislature in this behalf. Section 86 (1) of the Code lays down that such Magistrate or District Superintendent or Commissioner shall, if the person arrested appears to be the person intended by the Court which issued the warrant, direct his romoval in custody to such Court.

Therefore the sine qua non of the ultimate order to be passed by the Magistrate in such circumstances is "if the person arrested appears to be the person intended by the Court which issued the warrant" or in other words he must be satisfied as to the identity of the person sought to be arrested. If that condition be fulfilled, the executing Magistrate has no further discretion in the matter but to execute a warrant which is otherwise in accordance with law. Chief Justice Beaumont also himself observed in the abovementioned case of A.I.R. 1940 Bom 397 at p. 308 that Such Magistrate....has to satisfy himself that the person arrested appears to be the person intended by the Court which issued the warrant, and when so satisfied he is bound to direct the removal of the arrested person in custody to the Court whioh issued the warrant. In my opinion, the learned Magistrate was not entitled to institute an enquiry Under Section 186, Criminal P.C.

I respectfully agree with the said observations of Chief Justice Beaumont, disapproving of the holding of an enquiry Under Section 186 Criminal P.C., to determine the legality of such a warrant. I would further like to pinpoint the observations of Mr. Justice Wassoo-dew in the said Division Bench decision that It could not have been the intention of the legislature that there should be two parallel Courts with different local jurisdictions holding enquiries into the same offence at the same time. Where a Court has taken cognizance of an offence under the ordinary rule and accordingly issued a warrant of arrest directed to Magistrate or a Police Officer outside its jurisdiction, the powers of the Magistrate are limited to the execution of the warrant, under the provisions of Sections 83 to 86, Criminal P. 0, All that the Magistrate is then concerned with is' to ascertain whether the person arrested is the identical person named in the warrant.

8. In this context a reference may be made to the case of Debendra Nath Roy v. State . Although the said case relates to a search-warrant, the principle laid down therein applies to -the instant case also. Mr. Justice T. P. Mukherji observed in the said case at p. 98 of Cal W N : (at p. 841 of AIB) that The Court receiving a search-warrant in accordance with the provisions of Criminal Procedure Code has no materials before it for the purpose of adjudicating as to whether the warrant is legal or not and it is not required to enter into the question on the responsibility for the warrant is that of the issuing Court. In my view, the Court receiving the warrant for the purpose of execution is not required to enter into this question of legality of the warrant that is received.

The view taken by the Calcutta High Court in the above mentioned oase, though restricted enough and made in a different context, lays undoubted emphasis on the most 'essential ingredient of such provisions viz., identity. Mr- Justice Mukherjee has however significantly enough used the expression "a search warrant in accordance with the provisions of Criminal Procedure Code". "The Division Bench decision of the Bombay High has not ultimately travelled beyond the principles laid down in the Calcutta case and the question that was raised therein amongst others was whether the warrant in question was in accordance) with the provisions of the Code. I will further observe in this context that the facts of the Bombay case are also distinguishable from those of the present case. In the Bombay case, any enquiry purported to be one Under Section 186 of the Criminal P.C., was held and the Police Officer concerned with the matter in Bombay did give evidence to the effect that he was satisfied that the two accused sought to be taken away to Calcutta on the execution of the warrant issued by the Chief Presidency Magistrate of Calcutta, were in Bombay on the date of the occurrence and as such could not have committed the offence. Chief Justice Beaumont while condemning such an enquiry Under section 186 of the code, could not ex debito justitae overlook the fact that in view of the materials elicited, it was not possible to hold that the accused persona are the persons who committed the robbery in Calcutta on June, .12 or in other words they were not perhaps the identical persons as enjoined Under section 83 of the code. I respectfully agree with the view taken by the Division Bench of the Bombay High Court as referred to above and I hold that the said decision has me rely given effect to the intention of the legislature as contained in Section 86 (1) of the Criminal P.C. I further hold that the provisions of Section 86 (l) are only subject to the condition aa imposed therein and any further restriction other than the game cannot be read into the language of the statute because, the same would frustrate and defeat the intention of the Legislature as incorporated in the said provisions. While the executing Magistrate is not certainly a rubber, stamp, bound to execute any and every war-rant coming from outside the local limits of his jurisdiction, he is nontheless bound by the condition as imposed in the said section.

9. Some meaning and effect has to be given to the words "appears to be" in Section 86 (1) of the Code and the same only predicates that the executing Magistrate is to be satisfied prima facie that the person arrested is the person referred to in the warrant. A reference in this connection may be made to the case of Kunhunny Nair v. State of Kerala 1962 (1) Cri L J 645 (Ker) wherein Mrs. Justice Anna Chandy has observed at p. 646 that;

The use of the words 'appears to be is significant. An elaborate equiry as to the identity of the person does not seem to have been oontemplated.

I accordingly hold that the impugned orders aa passed by the Court of the Chief Presidency Magistrate, Calcutta are in conformance to the mandatory provisions of the Code.

10. The other facet of Mr. Banerjee's contention made in this context as to the word "shall" as contained in Section 86 of the Code being merely directory and not mandatory, is again one which cannot be upheld. It has been observed in Maxwell "On the Interpretation of Statutes" that "the phrases and sentences are to be construed according to the rules of grammar". This is known as the Rule of Liteial Construction. Viscount Haldane L. 0. held in the case of Attorney General v. Milne (1914-16) All ER 1061 at p. 1063 that if the language used in the statute:

has a natural meaning, we cannot depart from that meaning unless, reading the statute as a whole, the context directs us to do so.

The principles of interpretation of statutes again rule out redundancy. As waa observed by Lord Sumner in the case of Qubeo Railway, Light, Heat and Power Co. Ltd. v. Vandry A.I.R. 1920 PC 181 at p. 186:

Effect must be given if possible to all the words used, for the Legislature is deemed not to State its words or to say anything in vain.

It is against this background that the question has to be approached and in this context the observations of the Supreme Court would help to lift the cloud. With regard to the meaning of the word "shall" Mr. Justice Subba Rao (as His Lordship then was) observed in the case of State of Uttar Pradesh v. Babu Ram Upadhyay that:

When a statute uses the word 'shall' prima faoie, it is mandatory, but the Court may ascertain the real intention of the Legis-lature by carefully attending to the whole scope of the statute.

I respectfully agree with the said observational and I hold that in view of the nature of the provisions as contained in Section 86 (1) of the Criminal P.C. as also in view of the whole scope of the said statute, the word "shall" as used in Section 86 (l) is mandatory and not directory. Therefore, the second and last contention of Mr. Banerjee also fails.

11. In the result I discharge the Rule; uphold the order dated 7.12.1968, passed by Shri P.C. Chakraborty, taking up on the relevant date the file of the Chief Presidency Magistrate, Calcutta and the order dated 17.12.1968 passed by Shri K. J. Sen Gupta, Chief Presidency Magistrate, Calcutta in case No. Petn. 62A-12/68; and I further direct that the do original warrant called for from the Special Judicial Magistrate, 1st Class, Kalyan Railway Court, Maharashtra, be sent back immediately.

12. The records are to go down as early as possible.