BHOLANATH DAS Vs. EMPEROR

JUDGEMENT

(1.) We have already directed that some of the petitioners are to be released on bail, but the questions of law raised by the learned Vakil of the petitioner remain to be decided.

(2.) The facts are as follows : - One Promotha Nath Das was arrested in June of this year, he was brought before the Additional Magistrate of Alipore on the 7 June when he made a confession which was recorded. As a result of Promotha's confession the petitioners were arrested on the 5 August, and on the 20 August they were brought before the Police Magistrate of Sealdah and a letter from the investigating Police Officer was received, their application for bail was refused and the case was adjourned to the 4 September. On the 4th September, the case was again adjourned until the 18 September when a Magistrate, who had been deputed to verify Promotha's confession, was examined and the case was adjourned to the 2nd October. One of the accused Nagendra was subsequently released on bail by this Court on the ground that there was at that time no Police report and that no cognizance of the case had been taken by the Police Magistrate. On the 2nd October, the case was again adjourned until the 13 October, bail was asked for and refused. An application for bail made to the Sessions Judge of Alipore was rejected by him on the 3 October. On the 5 October, a report from Inspector, M.M. Sinha, was filed before the Police Magistrate who, on the 6th October, took cognizance purporting to act on the report under the provisions of Section 190 (1)(6) of the Criminal P. C.. The acoused were remanded on the 13 October until November 3 when the Inspector was examined and they were remanded until November 15 on which day they were again remanded until November 30th. This Rule was granted on the 8 October, and when it came before us on the 7 and 10 December the accused were still in custody. Pour points were urged before us. First, it is said that the detention of the petitioners is illegal as the Magistrate has not taken cognizance. Secondly, it is said that if he has taken cognizance he was not justified in doing so upon the report which was before him as it is not a report under Section 173 of Criminal P. C. and it is said that the Magistrate could only take cognizance in respect of a cognizable offence upon a report in the form contemplated in Section 173. Thirdly, it is said that if the Magistrate was justified in taking cognizance upon a report not in the form contemplated by Section 173, the report before him did not contain sufficient materials to enable him to take cognizance. Fourthly, it is said that if he has rightly taken cognizance under this report he is not justified in granting adjournments to enable the Police to complete their investigations, and that since he has taken congnizance he must proceed with the case and only grant such adjournments as are necessary to obtain the attendance of the witnesses and as may be necessitated by the exigencies of his own work.

(3.) Section 61 of the Criminal P. C. provides that no Police Officer shall detain in custody a person arrested without warrant for longer than is reasonable under the circumstances of the case, and that such period shall not exceed 24 hours in the absence of a special order of a Magistrate under Section 167, exclusive of the time necessary to bring the accused before a Magistrate. The Rule was not directed to the point whether the provisions of Section 61 were complied with and we are unable to say what actually occurred.