GULAM MOHAMMAD AZIMUDDIN Vs. STATE

JUDGEMENT

(1.) THE two petitioners were arrested by the police at Ujjain on 25th November 1958 on a requisition under Section 54 (9) Criminal Procedure Code from the deputy Superintendent of Police, Madras. The requisition stated inter alia that the applicants were charged in a case before the Additional First Class Magistrate, trivellore, Madras State on 3rd November 1958, under Section 9 (a) (b) (c) of the indian Opium Act read with Sections 109 and 120 I. P. C. and non-bailable warrants for their arrest had been issued by the Court. After the arrest, the petitioners were produced before the City Magistrate, Ujjain on 26th November, 1958, for remand. The learned City Magistrate granted a remand until 11 A. M. of the 28th November, 1958. On this date they were again remanded till I P. M. of 1st December 1958. A further remand was granted on 1st december 1958 till 4 P. M. of 2nd December 1958. On 2-12-1953 the applicants were again produced before the City Magistrate who remanded them to police custody till 6 P. M. of 7-12-1958. An application for bail was presented by the applicants before the City Magistrate, Ujjain. This was rejected by him on the ground that as he had no jurisdiction to take cognizance of the offence, he had no power to grant bail. The petitioners then moved the learned Sessions Judge, Ujjain for bail. The learned Sessions Judge also took the view that he had no power to enlarge the applicants on bail and that the only permissible course was to direct the production of the applicants before the magistrate at Trivellore. The petitioners have now presented this application under section 498, Criminal Procedure Code for bail.

(2.) THE argument of Mr. Rege learned counsel appearing for the petitioners was that the City Magistrate could grant bail to the arrested persons under Sections 63 and 497, Criminal Procedure Code, even though he had no jurisdiction to try them; that in any case this Court as well as the Court of Sessions had the power under Section 498, Criminal Procedure Code to enlarge the applicants on bail even though they were to be tried according to the requisition by a Magistrate in Madras state. Relying on Madhukar Purshottam v. Talab Haji Hussain AIR 1958 Bom 406, which was affirmed by the Supreme Court by a judgment reported in Talab Haji Hussain v. Madhukar Purshottam AIR 1958 S. C. 370, learned counsel also said that the applicants could be enlarged on bail by this Court in the exercise of its power under Section 561-A of the Criminal Procedure Code.

(3.) IN my judgment the view taken by the City Magistrate and the learned Sessions judge that the City Magistrate, Ujjain had no jurisdiction to grant bail in this case is right. The procedure that has to be followed after the arrest of a person without warrant is indicated in Sections 60 and 61, Criminal Procedure Code, under section 60 a police-officer making an arrest without warrant is required, without unnecessary delay and subject to the provisions as to bail, to take or send the person arrested before a Magistrate having jurisdiction in the case or before the officer in charge of a police-station. The object of this section is that the accused person should be brought before a magistrate competent to try or commit with as little delay as possible. The expression "a Magistrate having jurisdiction in the case" clearly means the magistrate having jurisdiction to try the case. Learned counsel for the applicants said that there was a distinction between "a Magistrate having jurisdiction in the case" and "a Magistrate having jurisdiction to try the case. " but ho was unable to point out how "a Magistrate having jurisdiction in the case" is to be distinguished from "a Magistrate having jurisdiction to try the case". If a magistrate having jurisdiction to try the case is not a Magistrate having jurisdiction in the case, I am unable to see who can be regarded as a Magistrate having jurisdiction in the case. The provision in Section 60 that the arrested person shall be taken before a magistrate having jurisdiction subject to the provisions as to bail only refers to the power of the police to grant bail. If the police in its discretion do not think it fit to allow bail to the arrested person, then they have to take him or send the person arrested before a Magistrate having jurisdiction in the case. Section 61 is concerned solely with the question of the period of detention by the police of a person arrested without warrant. It says that the period of detention shall not, in the absence of a special order of a magistrate under Section 167 exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. This section does not deal with the question of the grant of bail. Considerable stress was laid on Section 63 which provides that no person who has been arrested by a police-officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate. This section as it is worded, does not itself confer any power on any Magistrate to release a person on bail. It only provides for the release of a person arrested without warrant on his bond or on bail or on has discharge under the special order of a Magistrate. The release is to be only when under other provisions of the Code, a person has been ordered to be released on his bond or on bail or on his discharge under the special order of a Magistrate. The special order of a Magistrate contemplated is "a special order of a Magistrate under Section 167. " Now here the petitioners could not be produced before the magistrate having jurisdiction to try the case against them within twenty-four hours of their arrest. The police could not detain them for a period exceeding twenty-four hours without a special order of a Magistrate under Section 167, criminal Procedure Code. They were, therefore, produced before the nearest Magistrate viz. , the City magistrate, Ujjain who had no jurisdiction to try the case against them. Now under section 167 (2), Criminal Procedure Code, if the Magistrate to whom the accused person is forwarded, has no jurisdiction to try the case or commit it for trial and considers further detention of the person arrested unnecessary then he can only order the accused to be forwarded to a Magistrate having jurisdiction to try the case. He has clearly no power under Section 167 to admit the arrested person to bail. If a Magistrate has no jurisdiction to try the case, he has no power even under section 497 to grant bail, to the person arrested. That section is limited to the jurisdiction of the Courts of trial in the matter of granting or refusing bail. This is obvious from Sub-sections (1) and (2) of Section 497. Whereas Sub-section (1) applied to the grant of bail at the stage of a case when an accused person is first brought before a Court of trial and there is little or no information before the Court upon which it can act, Sub-section (2) applied to a stage where the investigation or inquiry or trial is proceeding. The City Magistrate ujjain was, therefore, right in thinking that he had no jurisdiction to grant bail to the petitioners.