Authored By : Mookerjee, Chatterjea

Mookerjee and Chatterjea, JJ.

1. This Rule, which was granted by Suhrawardy and ChotznerJJ. on the 29th August, 1923, calls upon the District Magistrate of Alipore toshow cause why the petitioner Nagendra Nath Chakravarti should not be let outon bail. As the rule has been opposed on behalf of the Crown, the factsmaterial for the determination of the question must be narrated in detail.

2. The petitioner, who was arrested on the 5th August, 1923,by Inspector Hem Chandra Lahiri of the Calcutta Police, asserts that he is amotor mechanic and driver and holds certificates of good character from variousgentlemen, Indian and European, who have employed him during the last tenyears. He further alleges that at the time of his arrest his house wasthoroughly searched, but nothing suspicious or incriminating was found. Thepetitioner after his arrest on the 5th August, is said to have been produced onthe 16th August, before a Deputy Commissioner of Police to whom he applied forbail; but the application was refused. On the 18th August, an application forbail was then made on his behalf to the Chief Presidency Magistrate, but he wasinformed that his proper remedy was by Habeas Corpus. On the 20th August, thepetitioner was produced for the first time before the Police Magistrate atSealdah, to whom he applied for bail. The Magistrate thereupon recorded the followingorder:

Thirty-two accused sent up, charged under Sections 400 and401 of the Penal Code. They are remanded to hajat till 4th September, 1923.Confession and search lists and diary should be produced to show that there isjustification for detaining them in custody, if no chalan is submitted on thatdate.

3. This order was made on the basis of a letter which wasaddressed by the Inspector of Police, Detective Department, to the PoliceMagistrate, Sealdah, and was forwarded by the Deputy Commissioner of Police, CI.D. The letter was in the following terms:

4. I beg to produce before Your Honour the following accusedwho are concerned in several cases of dacoities, murders for gain, drugging,robberies, house-breaking with thefts, and thefts, committed in the suburbs andtown of Calcutta, as also the surrounding districts and other places.

5. I beg further to mention that one of the gang members hasmade a confessing statement before Magistrate implicating these men as well asothers and that the Local Government have been pleased to appoint a SpecialMagistrate to verify the confession.

6. In the circumstances I pray that the accused be remandedpending judicial verification and investigation with a view to theirprosecution under Sections 400 and 401 of the Penal Code.

7. Then follow the names of the persons produced; the listincludes the name of the petitioner who is described as Nagendra NathChakravarti alias Nagen Driver, son of Rasik Lal Chakravarti.

8. On the 25th August, an application for bail was made onbehalf of the petitioner to the District and Sessions Judge of 24-Parganas. Theapplication was dismissed by the following order:

This is an application for bail. It appears that the accusedwas arrested by the Calcutta Police and produced after several days before theMagistrate at Sealdah who has remanded the accused to custody for a fortnight.It is argued that only Section 344, Cr. P.C. is applicable; that refers to thestage of the trial. The case is still under investigation. The Magistrate doesnot seem to be without jurisdiction in ordering detention of the accused fromthe date on which he was produced before him. I do not think that I shouldinterfere at this stage. It has transpired during the argument that a caseunder Section 400 or 401, I.P.C., is contemplated against the accused and manyothers. The Magistrate has taken time to look round and has called for theconfessions and diaries to be put up before him on the next date fixed.Apparently a gang case of some kind is contemplated. The accused was placedbefore the Magistrate only five days ago. There has not been sufficient timegiven to the Magistrate to consider the case against the accused. Theapplication is therefore premature. The application is dismissed.

9. An application was thereupon made to this Court and thepresent Rule was granted.

10. On the 4th September, the petitioner was produced forthe second time before the Police Magistrate of Sealdah, who recorded thefollowing order:

Confession of one Pramathanath Das implicating these accusedshown and some search lists also shown. They disclose materials for remandingthe accused to custody for another fortnight. For 18th September, 1923. Accusedas before.

11. On the 18th September, the petitioner was produced forthe third time before the Police Magistrate of Sealdah who recorded thefollowing order:

Examined one witness, Mr. Morshed, Deputy Magistrate,Alipore, who is verifying the confession of the prisoner Pramathanath Das. Hesays he will take another fortnight to complete the verification. He also helda test identification in the Alipore Jail. On 4th September, 1923, theconfessing prisoner identified 29 prisoners in this case. He found theconfessing prisoner Pramatha confounded and nervous and held a second testidentification on 13th September, 1923. On this day 6 more prisoners includingHari Das Kanshari, whose bail application was fixed for hearing today, wereidentified. Mr. Morshed believes that the second days identification was quiteas good and honest as that of the first day. One prisoner, Bhusan ChandraSarkar, was not identified on either date. The police reports that there is noother sufficient evidence against him. So he is released from custody. In viewof the evidence of Mr. Morshed, the bail applications of all the accusedincluding that of Hari Kanshari are rejected. Considering the evidence obtainedand the evidence of Mr. Morshed that he will require another fortnight tofinish the verification and the fact that further evidence is likely to beobtained by a remand, all the accused (except Bhusan Chandra Sarkar ordered tobe released from custody) are remanded to custody till 2nd October, 1923.

12. Besides these materials, the confession of PramathanathDas has been placed before us. This is a lengthy document covering seventy-fiveclosely written pages, written on several days between the 8th June and 16thJane, that is, some weeks before the petitioner was arrested on the 5th August.Mr. Mookerjee has contended before us that, on the materials thus accessible,an order for release of the petitioner on bail should be made. Before we dealwith the question, we may refer to the relevant provisions of the CriminalProcedure Code.

13. Section 61 provides that "no police officer shall detainin custody a person arrested without warrant for a longer period than under allthe circumstances of the case is reasonable, and such period shall not, in theabsence of a special order of a Magistrate under Section 167, exceedtwenty-four hours, exclusive of the time necessary for the journey from theplace of arrest to the Magistrates Court." The period for which aMagistrate can authorise the detention of the accused person in police custodyis fifteen days on the whole, as prescribed by Section 167 which is in thefollowing terms:

(1) Whenever it appears that any investigation under thisChapter cannot be completed within the period of twenty-four hours fixed bySection 61, and there are grounds for believing that the accusation orinformation is well-founded, the officer in charge of the police-station shallforthwith transmit to the nearest Magistrate a copy of the entries in the diaryhereinafter prescribed relating to the case, and shall at the same time forwardthe accused (if any) to such Magistrate.

(2) The Magistrate to whom an accused person is forwardedunder this section may, whether he has or has not jurisdiction to try the case,from time to time authorise the detention of the accused in such custody assuch Magistrate thinks fit, for a term not exceeding fifteen days in the whole.If he has not jurisdiction to try the case or commit it for trial and considersfurther detention unnecessary, he may order the accused to be forwarded to aMagistrate having such jurisdiction.

(3) A Magistrate authorising under this section detention inthe custody of the police shall record his reasons for so doing.

14. The next important provision is contained in Section 344which authorises a remand after a Magistrate has taken cognizance and is in thefollowing terms:

(1) If, from the absence of a witness, or any otherreasonable cause, it becomes necessary or advisable to postpone thecommencement of or adjourn any inquiry or trial, the Court may, if it thinksfit, by order in writing, stating the reasons therefor, from time to time,postpone or adjourn the same on such terms as it thinks fit, for such time asit considers reasonable, and may by a warrant remand the accused if in custody:

15. Provided that no Magistrate shall remand an accusedperson to custody under this section for a term exceeding fifteen days at atime.

(2) Every order made under this section by a Court otherthan a High Court shall be in writing signed by the presiding Judge orMagistrate.

16. Explanation.--If sufficient evidence has been obtainedto raise a suspicion that the accused may have committed an offence, and itappears likely that further evidence may be obtained by a remand this is areasonable cause for a remand.

17. We have not been informed as to what happened to thepetitioner between the 5th August and the 16th August and whether there was orwas not strict compliance with the provisions of Section 61. It is also notclear that the scheme of the Code with regard to remands was kept in view. Thepower of remand under Section 167 is given to detain prisoners in custody whilethe police make the investigation, and in a proper case, to commence theinquiry. But the custody mentioned in Section 344 is quite different and isintended for prisoners. Section 167 gives the Magistrate discretion (recordinghis reasons) to remand, from time to time, but limits the period for theexercise of the discretion to fifteen days in all. Section 170, CriminalProcedure Code, authorises the police officer, if there is evidence or reasonableground for suspicion, to forward the accused to a Magistrate empowered to takecognizance of an offence on police report. Then, under Section 344, anapplication might be made for cause shown as specified there to the properMagistrate to postpone the commencement of the enquiry and remand the prisoner.The intention of the Legislature, having regard to Sections 61 and 167 and tothe requirements of justice generally, is that an accused person should bebrought before a Magistrate competent to try, or commit with as little delay aspossible: Ponnusami v. Queen I.L.R.(1882) Mad. 69, Queen-Empress v. EngaduI.L.R. (1887) Mad. 98. Narendra Lal Khan v. Emperor I.L.R.(1908) Calc. 166,Ahmad Ali v. Emperor (1914) Cri. L.J. 705. It is, however, fairly clear thatthe proceedings have not been regular in a vital respect. Mr. Mookerjee raisedthe question whether the Police Magistrate at Sealdah had taken cognizance ofthe case in accordance with law, and, if so, on what date. The Magistrate hasstated that he took cognizance of the case against the accused under Section190(b), Criminal Procedure Code, on the 20th August, on the police reportsubmitted on that date which, in his opinion, contained sufficient materials toenable him to take cognizance. This view is clearly untenable. On the 20thAugust, Act XVIII of 1923 had not yet come into operation. Consequently Section190 as it stood on that date authorised the Magistrate to take cognizance of anoffence

(a) upon receiving a complaint of facts which constitutesuch offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than apolice officer, or upon his own knowledge or suspicion, that such offence hasbeen committed.

18. The Magistrate states that he took cognizance underClause (b), that is, upon a police report of facts which constitute suchoffence. There was, however, no police report on that date. The expression"police report" has been interpreted in this Court to mean a policereport within the meaning of Section 170 see Abdullah v. Emperor I.L.R. (1913)Calc. 854, Lee v. Adhikary 14 C.W.N. 304 Harihar v. King-Emperor: 23 C.W.N. 479, Sukumar v. Mofizuddin : 25C.W.N. 357. Reference may also be made to the decision of the Full Bench of theBombay High Court in King-Emperor v. Sada I.L.R. (1901) 26 Bom. 150, whichfollowed Queen v. Jafar (1871) 8 Bom. H.C.R. 113, Sarfaraz Khan v. Emperor(1913) 11 All. L.J. 331: 14 Cri. L.J. 218, Ramlal V. Emperor (1919) 21 Cri.L.J. 269. The Deputy Legal Remembrancer realised this difficulty and contendedthat the Police Magistrate may be deemed to have taken cognizance, if not onthe 20th August, as he states, then on a later date, namely the 4th or 18thSeptember. This contention is manifestly untenable. When a Magistrate takescognizance of an offence under Section 190, he performs a judicial act;Sourindra v. Emperor I.L.R.(1910) Calc. 412, and it would be contrary to soundprinciple to hold by a fiction that he exercised this judicial function on anoccasion when the question was not even present in his mind. But, it isimportant to point out that even if such an imaginary assumption could, bemade, it would be of no avail. Section 45 of the Code of Criminal ProcedureAmendment Act, 1923 (Act XVIII of 1923), no doubt came into operation on the1st September, 1923. Section 45 of the amending Statute modified Clause (b) ofSection 190 so as to authorise a Magistrate to take cognizance of an offence"upon a report in writing of such facts (that is, of facts whichconstitute the offence) made by any police officer." It would be observedthat the expression "police report" which had been interpreted in atechnical sense has been replaced by the nontechnical expression "reportmade by any police officer." But this is of no assistance to the Crown.The report must state facts which constitute the offence. This is a requisiteof fundamental importance: Pulinbehary Das v. King-Emperor (1912) 15 C.L.J. 517:16C.W.N. 1105. In this case, it is plain that there was no compliance with thisrequirement of Section 190(b) either on the 4th September or on the 18thSeptember. No facts were stated which if proved would constitute offences underSections 400 and 401, Indian Penal Code; and assertions that offences underthose sections had been committed could not be regarded as compliance with theletter or the spirit of the law. The substance of the matter, consequently, isthat the petitioner was arrested on the 5th August, and has been in custody fornearly two months. The provisions of the law have not been strictly followed,and though assertions have been made, the concrete facts which constitute thealleged offences have not yet been specifically stated before a Magistrate inconformity with law. We have the additional circumstance that the confession ofPramathanath Das was recorded some weeks before the accused was arrested. Thesefacts must be borne in mind in the application of the principles which regulatethe consideration of for bail.

19. It is indisputable that bail is not to be withheldmerely as a punishment. The requirements as to bail are to secure theattendance of the accused at the trial: R. v. Rose (1898) 18 Cox. 717. Theproper test to be applied in the solution of the question, whether bail shouldbe granted or refused, is whether it is probable that the party will appear totake his trial: Re Robinson (1854) 23 L.J.Q.B. 286: 2 W.R. 424, R. v. Scaife(1841) 9 Dowling P.C. 553; 5 Jurist 700. The test is applied by reference tothe following considerations:

(a) The nature of the accusation: R. v. Barronet (1852) 1 E.& B. 1; Dearsley 51, R. v. Butler (1881) 14 Cox. 530: 8 L.R. (Ir.) 39;

(b) The nature of the evidence in support of the accusation:Re Robinson (1854) 23 L.J.Q.B. 286: 2 W.R. 424, R. v. Butler (1881) 14 Cox.530; 8 L.R. (Ir.) 39, R. v. (1864) 17 Ir. C.L.R. 411 McCormick;

(c) The severity of the punishment which conviction willentail: Re Robinson (1854) 23 L.J.Q.B. 286: 2 W.R. 424, and this explains thereluctance of Courts to grant bail on charges of murder: Re Barthelemy (1852) 1E. & B. 8; Dearsley 60, R.v. Andrews (1844) 2 D. & L. 10: 13 L.J.M.C.113. In this connection we may recall that in England, bail in treason or felonyis discretionary in the High Court or Courts having jurisdiction to try theoffence: R. v. McCartie (1859) 11 Ir. C.L.R. 188, 192, R. v. Platt (1777) 1Leaeh 157; on the other hand, bail in misdemeanour is said to be of right atCommon Law: R. v. Spilsbury [1898] 2 Q.B. 615; R. v. Badger (1843) 4 Q.B. 468:D. & M. 375:4 St. T.N.S. 1387: Re Frost (1888) 4 T.L.R. 757; see also R. v.Crowe (1829) 4 C. & P. 251; R. v. Beardmore (1836) 7 C. & P. 497; R. v.Osborn (1837) 7 C. & P. 799; King v. Fortier (1902) 13 Quebec K.B. 251:9Canada Cr. Cas. 191: 1 Aun. Cas. 10. This distinction is reflected in Sections496 and 497 of the Criminal Procedure Code which treat respectively of thegrant of bail in cases of what are described in the phraseology of the IndianLegislature as bailable and non-bailable offences.

20. The substance of the matter is that the discretionarypower of the Court to admit to bail is not arbitrary, but is judicial; Manikamv. Queen I.L.R.(1882) Mad. 63, and is governed by established principles. The objectof the detention of the accused being to secure his appearance to abide thesentence of law, the principal enquiry is, whether a recognizance would effectthat end. In seeking an answer to this enquiry, Courts have considered theseriousness of the charge, the nature of the evidence, the severity of thepunishment prescribed for the offence, and in some instances, the character,means and standing of the accused: see R. v. Bennett (1870) 49 L.T. Jo. 387, R.v. Atkins (1870) L.T.Jo. 421, R. v. Manning (1888) 5 T.L.R. 139, R. v. Woods(1845) 9 Ir. L.R. 71, R. v. Gallagher (1855) 7 Ir. C.L. 19, R. v. Stewart(1900) 4 Canada Cr. Cas. 131.

21. Section 497 of the Criminal Procedure Code leaves ampleroom for exercise of discretion on these lines, and we are in agreement withthe view expressed by Mitra J. in Re Johur Mull : 10 C.W.N.1093 and Jamini Mullick v. King Emperor I.L.R. (1908) Calc. 174. We may alsorecall that Section 497 has been materially altered by Section 136 of Act XVIIIof 1923 which substitutes the words "an offence punishable with death ortransportation for life" for the words "the offence of which he isaccused." This cannot but be regarded as the result of a liberalisinginfluence on the policy of the Legislature, and the discretion of the Courtswill henceforth be less fettered than before. In the case before us, theoffences attributed to the petitioner are those mentioned in Sections 400 and401, Indian Penal Code. The maximum sentence under the former section is transportationfor life, under the latter section, rigorous imprisonment for seven years. ThisCourt has not been placed in possession of facts which might enable it toentertain reasonable grounds for believing that the petitioner has been guiltyof the offences of which he is accused.

22. Upon a consideration of all the circumstances of thecase, we are of opinion that the Rule should be made absolute. We direct thatthe petitioner be released on bail to the satisfaction of the DistrictMagistrate. We fix the amount at Rs. 6,000 with three sureties for Rs. 2,000each.

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In Re: the matter of Nagendra Nath Chakravarti (01.10.1923 - CALHC)