Citation Codes

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citation codes

Case Number

Criminal Misc. Case No. 145 of 1958

Advocates

S.L.Dubey
M.B.Rege

Judges

P.V Dixit, J.

Acts

Clauses (a), (b) and (c) of Section 9 of the Opium Act read with Sections 109 and 120B of the Indian Penal Code.
Section 9(a)(b)(c) of the Indian Opium Act read with Sections 109 and 120 I. P. C.
Sections 60 and 61, Criminal Procedure Code, under Section 60
Sub-sections (1) and (2) of Section 497. Whereas Sub-section (1)
Section 561-A of the Criminal Procedure Code.
Sections 63 and 497, Criminal Procedure Code,
Sections 85 and 86, Criminal Procedure Code
Sections 85 and 89 Criminal Procedure Code
provisions of Sections 85 and 86 Cr. P. C.
Section 167(2), Criminal Procedure Code,
Section 54 (9) Criminal Procedure Code
SECTION 167 A CRIMINAL PROCEDURE CODE
Section 498, Criminal Procedure Code
Clause (9) in Section 54 Cr. P. C.
Section 167(3} Cr. P. C.
Section 54(1) Cr. P. C.
Section 54(9) Cr. P, C.
Section 498 Cr. P. C.
Section 497 Cr. P. C.,

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

Two petitioners were arrested at Ujjain on 25 November 1958 pursuant to a requisition under Section 54(9) of the Criminal Procedure Code issued by the Deputy Superintendent of Police, Madras. The requisition stated that the applicants were charged before the Additional First Class Magistrate, Trivellore, Madras State on 3 November 1958 under Clauses (a), (b) and (c) of Section 9 of the Indian Opium Act read with Sections 109 and 120 (B) of the Indian Penal Code, and that non-bailable warrants for their arrest had been issued.

Following arrest, the petitioners were produced before the City Magistrate at Ujjain on 26 November 1958 and remanded several times (the opinion records successive remands to dates in late November and early December 1958). An application for bail to the City Magistrate, Ujjain was refused on the ground that he had no jurisdiction to take cognizance of the offence and therefore no power to grant bail. The petitioners then applied to the Sessions Judge, Ujjain for bail; the Sessions Judge likewise considered that he had no power to enlarge them on bail and that the proper course was production before the Magistrate at Trivellore.

Thereafter the petitioners filed this application under Section 498, Criminal Procedure Code, seeking bail from the High Court.

Legal Issues Presented

Whether a City Magistrate (here, Ujjain) who has no jurisdiction to try the case can grant bail to persons arrested on a requisition under Section 54(9) Cr.P.C. issued by a police officer of another State.
Whether the High Court or the Court of Sessions can enlarge on bail persons who were arrested in one State on requisition from another State and who are to be tried by a Magistrate in the requisitioning State (i.e., the scope of power under Section 498 Cr.P.C., and the related question whether Section 561-A confers inherent power to grant bail).
What procedure and limits under Sections 60, 61, 63 and 167 Cr.P.C. apply to arrests without warrant and the subsequent detention, production before magistrates, and grant of bail.

Arguments of the Parties

Petitioners' Arguments (as presented by their counsel)

The City Magistrate at Ujjain could grant bail to the arrested persons under Sections 63 and 497 Cr.P.C., even though he had no jurisdiction to try them.
Both the High Court and the Court of Sessions had the power under Section 498 Cr.P.C. to enlarge the applicants on bail despite the fact that a Magistrate in Madras State was to try the case.
Relying on Madhukar Purshottam v. Talab Haji Hussain (AIR 1958 Bom 406), and its affirmation by the Supreme Court in Talab Haji Hussain v. Madhukar Purshottam (AIR 1958 S.C. 370), counsel argued the applicants could be enlarged on bail by the High Court exercising power under Section 561-A Cr.P.C.

The opinion does not set out specific, detailed arguments advanced by the opposing party (the State) in the text provided.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Madhukar Purshottam v. Talab Haji Hussain, AIR 1958 Bom 406	Relied on by petitioners' counsel to support the contention that the High Court could enlarge the applicants on bail; the decision was affirmed by the Supreme Court.	The Court records that counsel relied on this decision (and its affirmation by the Supreme Court) in support of an argument that Section 561-A could be used to grant bail. The Court did not rely on it to decide the present application, noting elsewhere that it was unnecessary to decide issues about Section 561-A.
Talab Haji Hussain v. Madhukar Purshottam, AIR 1958 S.C. 370	Supreme Court affirmation of the Bombay decision cited by petitioners in support of Section 561-A arguments.	Noted by the Court as a case relied upon by petitioners; the Court observed it was not necessary, for present purposes, to consider whether Section 561-A confers inherent power to grant bail.
In re Sagarmal Khemraj, AIR 1940 Bom 397	Considered on the question of the duties of a magistrate before forwarding arrested persons to the issuing Court and the limited scope of inquiries required under Sections 85 and 86 (and related discussion).	The Court considered the case but held it was not applicable to support the petitioners' position; it emphasized that the enquiry required in that case was limited and did not suggest that a magistrate without jurisdiction could grant bail in the present circumstances.
Charu Chandra Majumdar, In the matter, AIR 1917 Cal 253	Concerned the propriety of arrest under Section 54(1) Cr.P.C. prior to insertion of Clause (9) in Section 54.	The Court held this decision was not in point because it dealt with Section 54(1) and predated Clause (9) to Section 54; it did not assist the petitioners.
Dwarkadas v. Amhalal, AIR 1924 Cal 893	Suggested that a magistrate should have required production of the warrant and could release the arrested person on bail pending such production in circumstances similar to those in the present case.	The Court cited this case as pertinent to the proposition that a magistrate should not act on mere statement of an investigating officer and could have required production of the warrant and suggested interim release on bail. The decision was referenced in support of the Court's view that the arresting authority and the remanding magistrate ought to have required production of the warrant.
AIR 1958 S.C. 376	Referenced regarding the question whether the High Court has inherent power under Section 561-A to grant bail.	The Court stated it was unnecessary to consider in this matter whether the decision in AIR 1958 S.C. 376 is authority for the proposition that the High Court has inherent power under Section 561-A to grant bail.

Court's Reasoning and Analysis

The Court proceeded by analysing the statutory framework governing arrests without warrant and the powers of magistrates and higher courts to grant bail:

Sections 60 and 61 Cr.P.C.: The Court explained that Section 60 requires a police officer making an arrest without warrant to take the arrested person, without unnecessary delay and subject to provisions as to bail, before "a Magistrate having jurisdiction in the case or before the officer in charge of a police-station." The Court interpreted "a Magistrate having jurisdiction in the case" to mean a magistrate having jurisdiction to try the case; it rejected the suggested distinction between "a Magistrate having jurisdiction in the case" and "a Magistrate having jurisdiction to try the case" because no practical distinction could be drawn.
Section 61 Cr.P.C.: The Court noted that Section 61 deals solely with the period of detention by the police (not exceeding twenty-four hours absent a special order under Section 167) and does not address the grant of bail.
Section 63 Cr.P.C.: While Section 63 provides that a person arrested by police shall not be discharged except on his own bond, on bail, or under special order of a Magistrate, the Court emphasised that this provision does not itself confer power on any magistrate to release on bail; rather, it contemplates release when other provisions of the Code authorise such release. The "special order of a Magistrate" contemplated is, in the Court's reading, a special order under Section 167.
Section 167(2) Cr.P.C.: If the magistrate to whom an accused is forwarded has no jurisdiction to try the case and considers further detention unnecessary, he may only order the accused to be forwarded to a magistrate having jurisdiction; he has no power under Section 167 to admit the accused to bail.
Section 497 Cr.P.C.: The Court held that Section 497 is limited to the jurisdiction of courts of trial in granting or refusing bail; if a magistrate has no jurisdiction to try the case, he has no power under Section 497 to grant bail. The distinction between Sub-sections (1) and (2) of Section 497 was noted: subsection (1) applies at the initial stage when there is little material, and subsection (2) applies to later stages when investigation or trial is proceeding.
Application of authorities: The Court examined earlier cases relied upon by counsel (including In re Sagarmal Khemraj and Charu Chandra Majumdar) and concluded they did not support the proposition that a magistrate without jurisdiction could itself grant bail in the circumstances of this case. Observations in In re Sagarmal Khemraj about possible release on bail were read as referring to the High Court's power, not as establishing that a magistrate without jurisdiction may admit to bail.
Power of higher courts under Section 498 Cr.P.C.: The Court rejected the Sessions Judge's view that Section 498 is confined to cases where an application for bail under Section 497 could be made. It held that the powers of the High Court and the Sessions Court under Section 498 are not controlled by Section 497, and that both courts may admit a person to bail on good and sufficient cause in any case. The Court relied on this established position to justify granting bail in the present petition.
Procedural shortcomings in this case: The requisition lacked particulars of the acts alleged; the City Magistrate remanded the petitioners on four occasions without recording reasons as required by Section 167(3). The Magistrate should have required production of the warrants or otherwise inquired whether the person could lawfully be arrested without a warrant under Section 54(9). The Court emphasised the serious nature of arrests under Section 54(9) and that the power to direct arrest outside local jurisdiction must be exercised with caution.

Holding and Implications

Holding:

THE PETITIONERS ARE ORDERED TO BE RELEASED ON BAIL upon each petitioner executing a bail bond for Rs. 3,000 and furnishing a surety for Rs. 3,000, to secure their appearance before the City Magistrate, Ujjain when called upon.

Additional directions: The Court also directed the State (opponent) to produce before the City Magistrate, Ujjain the non-bailable warrants alleged to have been issued by the Court of the Additional First Class Magistrate, Trivellore, Madras, for the arrest of the petitioners; and, thereafter, the petitioners were to be taken to Madras in accordance with the provisions of Sections 85 and 86 Cr.P.C.

Implications:

The immediate practical effect is the conditional release of the petitioners on bail subject to the specified bond and surety amounts and the production of the Madras warrants.
The decision emphasizes statutory limits on the power of a magistrate who lacks jurisdiction to try a case (such a magistrate cannot grant bail under Sections 497 or Section 167) and underscores the distinct and broader bail-making power of the High Court and Court of Sessions under Section 498, which is not confined by Section 497.
The opinion highlights procedural safeguards (e.g., requirement to record reasons under Section 167(3) and to require production of warrants when arrest is effected under Section 54(9)) but does not purport to create a novel legal principle beyond the application of established statutory interpretation and precedent; the Court expressly stated it was unnecessary to decide the broader question whether Section 561-A confers an inherent power to grant bail.

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Gulam Mohammad Azimuddin And Others v. State Opponent.

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.

4. Learned counsel referred me to In re, Sagarmal Khemraj, AIR 1940 Bom 397. In that case two persons were arrested in Bombay in execution of a warrant issued by the Chief Presidency Magistrate, Calcutta. They were produced before the Presidency Magistrate, Bombay who made an order that the arrested persons be taken to Calcutta to stand their trial before the Chief Presidency Magistrate.

In making this order the Presidency Magistrate, Bombay did not make any enquiry under Sections 85 and 86, Criminal Procedure Code as to whether the persons arrested were the persons intended by the Calcutta Court which issued warrants for their arrest. He made an order directing that the accused be taken to Calcutta merely assuming that the Chief Presidency Magistrate, Calcutta had sufficient grounds before him for issuing warrants.

The Bombay High Court pointed out that the Presidency Magistrate. Bombay was bound to hold an enquiry as to satisfy himself that the persons arrested appeared to be the persons intended by the Calcutta Court which issued the warrants. This case has no applicability here. But learned counsel for the applicants pressed into service the observations of Beaumont C. J., at page 399, viz.,

"Had we thought that the warrants were properly issued, we should probably have released the accused on bail in order to communicate further with the Chief Presidency Magistrate of Calcutta"

He contended that if the Magistrate before whom a person arrested under warrant was produced is required to satisfy himself that further detention of the person arrested is necessary, then a fortiori it would be necessary for the Magistrate to hold an enquiry as to whether the detention of the person arrested without a warrant was necessary and if it was not necessary to release him on bail.

I do not think those observations lead to any such inference. In AIR 1940 Bom 397 it was expressly pointed out that the enquiry which the Magistrate was required to hold under Sections 85 and 89 Criminal Procedure Code was limited to the question whether the arrested persons were those intended by the Court which issued the warrants.

The observations also do not suggest that the Magistrate, even if he had no jurisdiction to try the arrested persons, had the power to release on bail any person arrested in execution of a non-bailable warrant issued by the Court having jurisdiction. What Beaumont C. J., said was -- "we should probably have released the accused on bail" meaning that the High Court could release the accused on bail in the contingency stated by the learned Chief Justice, The decision in AIR 1940 Bom 397 is, therefore of no assistance to the petitioners. Reliance was also placed on Charu Chandra Majumdar, In the matter AIR 1917 Cal 253. This decision is also not in point here as all that was considered in that case was the propriety of the arrest under Section 54(1) Cr. P. C. of a person in Calcutta on receipt of a letter written by an Inspector of Police of a district in Bombay Presidency. The Calcutta case was one decided prior to the addition of Clause (9) in Section 54 Cr. P. C.

5. But though the Magistrate had no power to grant bail to the petitioner, the Sessions Judge could and this Court can release the petitioners on bail to appear before the City Magistrate of Ujjain and in the meantime direct the Madras Police Officer to produce warrants of the Trivellore Court, Madras State, for the arrest of the petitioners.

The power of directing the arrest under Section 54(9) of some person at a place outside the local limits of the jurisdiction of a Court is wide and drastic and has to be exercised with caution and circumspection and on substantial reasons. In this case as the learned Sessions Judge himself found there was no material before him or before the City Magistrate from which it could be inferred whether further detention of the applicants was necessary.

The learned City Magistrate remanded the petitioners on four occasions but at no time he recorded the reasons for his so doing as required by Section 167(3} Cr. P. C. The requisition only contains a general statement that the petitioners have been charged under Clauses (a), (b) and (c) of Section 9 of the Opium Act read with Sections 109 and 120B of the Indian Penal Code. It does not give any details of the acts said to have been committed by them.

The learned City Magistrate acted merely on the general statements contained in the requisition. I think to arrest a person without warrant under Section 54(9) Cr. P, C. at a place outside the local limits of the jurisdiction of a Court competent to try him on a general requisition of a Police Officer of another State is a serious matter and the City Magistrate, Ujjain, should have made some effort to ascertain whether the petitioners could lawfully be arrested without a warrant by the officer who issued the requisition.

It is noteworthy that Section 54(9) itself makes it necessary that it should appear from the requisition that the person might be lawfully arrested without a warrant by the officer who issued the requisition. He should have called upon the Police to produce the warrants of the Court in Madras State for the arrest of the petitioners meanwhile remanding the petitioners.

But he made no such direction to the Police. Be that as it may, this Court can under Section 498 Cr. P. C. release the petitioners on bail to appear before the City Magistrate of Ujjain and direct the State to produce the warrants of the Madras Court for the arrest of the petitioners and then take them to Madras in accordance with the provisions of Sections 85 and 86 Cr. P. C.

The learned Sessions Judge thought that he could not release the petitioners under Section 498 as Section 498 referred only to those cases where an application for bail under Section 497 could be made. This view is not correct. It is now well settled that the powers of the High Court and the Sessions Court under Section 498 are in no way controlled by Section 497 Cr. P. C., and it is open both to the High Court or to the Court of Sessions to admit a person to bail on good and sufficient cause in any case.

It would be pertinent to refer to Dwarkadas v. Amhalal AIR 1.924 Cal 893, where in the circumstances somewhat similar to those in the present case the Calcutta High Court after observing that the Presidency Magistrate should have refused to act on the mere statement of the investigating Officer of Poona for arresting a person, in Calcutta, suggested that the Magistrate should have required him to produce a warrant releasing the person arrested in the meantime on bail to appear when called on before himself.

6. In the view I have taken of the matter, it is not necessary to consider whether under Section 561A Cr. P. C. the High Court has inherent power to grant bail and whether the decision of the Supreme Court in AIR 1958 S. C. 376, is an authority for the proposition that the High Court has such a power.

7. For these reasons, I direct that if each of the petitioners execute a bail bond for Rs. 3000/-and furnish a surety each for the like amount for their appearance before the City Magistrate, Ujjain, when called on by him, they be released on bail and further direct the opponent State to produce before the City Magistrate, Ujjain, non-bailable warrants said to have, been issued by the Court of the Additional First Class, Magistrate, Triveilore, Madras, for the arrest of the petitioners.

Gulam Mohammad Azimuddin And Others v. State Opponent.

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments (as presented by their counsel)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Gulam Mohammad Azimuddin And Others v. State Opponent.

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