EMPEROR Vs. SOURINDRA MOHAN CHUCKERBUTTY

JUDGEMENT

(1.) A rule has been granted in this case on the District Magistrate of the 24-Parganas to show cause why bail should not be granted on the ground that no order has been made applying the Indian Criminal Law Amendment Act, 1908, to the case; and on the further ground that there does not appear to be any sufficient cause for further inquiry into the guilt of the accused.

(2.) The facts relating to this matter are as follows. A dacoity, commonly referred to as the Nettra dacoity, took place on the 24 April 1909. On the 20 January 1910, the Local Government made an order under Section 2 of the Criminal Law Amendment Act, 1908, purporting to apply the provisions of Part I of that Act to the offence. On the 24 January 1910 the petitioner was arrested on suspicion of being concerned in it, and so having committed offences under Secs.395 (dacoity) and 397 (dacoity with attempt to cause death or grievous hurt) of the Indian Penal Code. On the 28 January he applied to the District Magistrate to be released on bail, which was refused, and a similar application was afterwards made on the 5 February and likewise refused. On the 17 February he made a third application to the Sessions Judge, and this also was refused. On this rule two points have been taken: the first is that the Local Government had no power to make the order of the 20th January; and the second, that we ought to admit the petitioner to bail on the merits of the case.

(3.) The first point rests on the assertion that a Magistrate had not taken cognizance of the Nettra dacoity on the 20 January. The appellant's advocate has laboured under the disadvantage of not having seen the record in the case, as the magisterial inquiry was, according to Section 4 of the Act, ex parte, and we have not thought it right to allow him access to it. He had, therefore, a right to make any suppositions as to the facts appearing on the record, asking us to verify them afterwards. On looking at the record, we find that a police report was made to the Sub-divisional officer of Diamond Harbour on the 24 April, the day when the dacoity is alleged to have taken place, and that the case was afterwards transferred to head-quarters. Cognizance had, therefore, been taken of the offence on the 20 January 1910, as recited in the order of the Local Government of that date; for taking cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence.