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Emperor v. Sooba And Others
Factual and Procedural Background
The Government filed an application seeking revision of two orders of the learned Sessions Judge of Allahabad dated 23 December 1930 and 19 January 1931. Those orders had released on bail seventeen opposite parties who had been arrested in connection with alleged offences under Sections 240, 241, 232, 235 and 120-B, I.P.C. The arrests related to an organization alleged (in a Crown affidavit sworn by the Deputy Superintendent of Police, G.I.D.) to extend over several provinces and to be engaged in counterfeiting coin; the accused were charged with membership of the organization or conspiracy.
Procedurally, some accused were initially released on bail by the Magistrate to whom they were first sent; when others applied to the District Magistrate he refused bail on the ground that the offences were non-bailable, and applications were subsequently made to the Sessions Judge who granted bail. The first order releasing two accused (Sooba and Mohardin) was made after they had been in custody for about three and two-and-a-half months respectively. The second application concerned fifteen other accused; the latest arrest date mentioned in the Sessions Judge's order is 16 November 1930.
Legal Issues Presented
- Whether the custodial detention of the accused beyond fifteen days is legally permissible during a continuing police investigation — i.e., whether Section 167, Criminal P.C., or Section 344, Criminal P.C., governs remand in such circumstances.
- Whether a Magistrate may order remand under Section 344 without a police report under Section 173 having been forwarded to the Magistrate.
- Whether the Sessions Judge erred in exercising his discretion by releasing the accused on the general ground of prolonged detention (and on a belief that Section 167 alone applied), rather than applying the principles governing remand under Section 344.
Arguments of the Parties
Accused (represented by Mr. Mohammad Husain and others)
- Primary contention: police detention for investigation cannot, in any case, lawfully exceed fifteen days — relying on Section 167, Criminal P.C.
- Argument that if police wish to detain beyond fifteen days they must forward the accused under Section 170 to a Magistrate empowered to take cognizance, and must forward the police report as prescribed by Section 173; until such report is forwarded, the Magistrate cannot properly take cognizance under Clause (b) of Section 190(1) nor remand under Section 344.
- Practical point: frequency of remands and the Magistrate's earlier granting of bail suggested the police had been acting under Section 167 rather than Section 344.
- Submission that the Sessions Judge's exercise of discretion in releasing on bail should not be disturbed except in exceptional circumstances.
Government (Crown) — represented by the learned Government Advocate
- Reliance on Section 344, Criminal P.C., which allows a Court to postpone or adjourn an inquiry or trial for any reasonable cause and to remand the accused to custody; the section's explanation allows remand where sufficient evidence raises suspicion and further evidence may be obtained by remand.
- Submission that Section 344 permits successive remands (subject to each single remand not exceeding fifteen days) and so the police may lawfully seek repeated remands while an investigation continues.
- Argument that the Sessions Judge's orders should be revised because the scope and difficulty of the investigation (a multi-province conspiracy involving many accused and numerous distant witnesses) justify continued custody pending further inquiry.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Queen-Empress v. Engadu [1888] 11 Mad. 98 | Authorities concerning remand/detention during investigation. | The Court examined the decision but found it (with others) to contain little assistance to the accused beyond some obiter dicta. |
| In re Krishnaji Pandurany Joglekar [1899] 23 Bom. 32 | Authorities concerning procedure for forwarding/remand during investigation. | The Court considered the authority but held it did not materially help the accused's argument. |
| Nagendra Nath v. Emperor, A.I.R. 1924 Cal. 476 | Authorities on procedure for detention/remand in the context of investigation. | The decision was examined but, apart from obiter comments, it did not support the accused's contention that remand under Section 344 was impermissible without a Section 173 report. |
| Narendra Lal Khan v. Emperor [1909] 36 Cal. 166 | Delay in investigation and reasonableness of detention pending investigation; comparison of durations regarded as reasonable in like cases. | The Court cited this case for the proposition that unreasonable delay can require release (it held delay was unreasonable for prisoners in custody about six weeks in that case) but noted that the present case involved different and potentially more burdensome investigative difficulties. |
Court's Reasoning and Analysis
The Court proceeded by a close textual and purposive reading of the Criminal Procedure Code provisions and the facts placed before it. The principal steps in the Court's analysis were:
- Identification of the competing statutory schemes: Section 167 (which authorizes Magistrates to detain an accused forwarded by police "not exceeding fifteen days in the whole") and Section 344 (which allows a Court to postpone or adjourn an inquiry or trial for any reasonable cause and to remand the accused, with an explanation that remand is reasonable if sufficient evidence raises suspicion and further evidence may be obtained by remand).
- Recognition that if Section 167 were the only applicable provision then, as a matter of law, the accused should have been released after fifteen days and the Crown acknowledged that the revision would fail on that basis.
- Analysis of statutory definitions (Section 4, Criminal P.C.) distinguishing "inquiry" (magisterial proceedings other than trial) from "investigation" (police proceedings to collect evidence). This distinction informed the Court's understanding of why Section 170 (forwarding an accused on reasonable ground of suspicion) and Section 173 (police report on completion of investigation) operate at different stages.
- Rejection of the accused's argument that a magistrate cannot remand under Section 344 unless a police report under Section 173 has first been forwarded. The Court explained that Section 170 contemplates forwarding where investigation is incomplete but reasonable suspicion exists; in such cases Section 344 permits the Court to remand so that further evidence may be obtained. The Court held that the two sections (170 and 173) read together do not require that a Section 173 report must precede every remand under Section 344.
- Observation that Section 344 contains an express single-remand time-limit (no remand under that section shall exceed fifteen days) but contains no limit on the number of remands; hence successive remands are permissible in law provided each remand does not exceed fifteen days and the statutory conditions (sufficient evidence to raise suspicion and likelihood of obtaining further evidence) are met.
- Consideration of asserted precedents: the Court reviewed authorities cited for the accused but found most unhelpful except for general guidance (noting in particular Narendra Lal Khan which addressed reasonableness of delay in different circumstances).
- Evaluation of the Sessions Judge's approach: the Sessions Judge had apparently released the accused on the general ground of prolonged custody and on the view that Section 167 applied. The Court concluded those reasons were not judicially sound because the correct statutory framework to be applied to continued remand during an ongoing investigation was Section 344 and the exercise of discretion under that section must be guided by the statutory considerations.
- Emphasis on individualized consideration: the Court stressed that the Magistrate and the Judge should consider the circumstances of each accused individually (including the nature and extent of the conspiracy, risk of tampering, risk of absconding and other public interest concerns sworn to in the Crown's affidavit) when determining whether remand is justified and for what period.
- Two specific criteria were articulated (drawn from Section 344 and applied to the facts): (a) whether sufficient evidence has been obtained to raise a suspicion that the accused may have committed the offence and whether further evidence is likely to be obtained by a remand; and (b) whether the duration of the remand sought is reasonable in the circumstances.
Holding and Implications
HOLDING: The Court accepted the Government's application and cancelled the orders of the learned Sessions Judge of Allahabad dated 23 December 1930 and 19 January 1931 which had released the seventeen accused on bail.
Implications and direct consequences:
- The Sessions Judge's orders releasing the accused on bail are set aside; the matter is remitted for further consideration.
- The Magistrate (and, on any further application, the Sessions Judge) must consider the cases of the accused individually and apply the proper statutory test under Section 344: (1) whether sufficient evidence exists to raise a suspicion that the accused may have committed the offence and whether further evidence is likely to be obtained by remand; and (2) whether the time sought for remand is reasonable in the circumstances.
- The decision permits successive remands under Section 344 (subject to each remand not exceeding fifteen days) where the statutory conditions are satisfied and where, on the facts (including the extent of the conspiracy and difficulties of investigation), continued custody is justified in the public interest.
The opinion instructs that individualized, judicially sound consideration must guide remand decisions; it does not simply endorse a categorical rule that detention for many months is always permissible or impermissible but sets out the controlling statutory considerations the Magistrate and Judge must apply.
1. This is an application made on behalf of the Government for the revision of two orders of the learned Sessions Judge of Allahabad dated 23rd December 1930 and 19th January 1931, releasing the opposite parties, who are in all 17 in number, on hail. Those persons have been arrested by the police in connexion with alleged offences under Sections 240, 241, 232, 235 and 120-B, I, P.C., and in the affidavit filed on behalf of the Grown by the Deputy Superintendent of Police, G. I. D., it is stated that an organization extending over several provinces exists for the purpose of counterfeiting coin, and that the accused in the present case are charged with being members of this organization or conspiracy. The offences are not bailable, but I am informed that the Magistrate to whom the accused were sent at first released some of them on bail, but when others made an application to the District Magistrate, he refused bail on the ground that the offences were nonbailable, and in consequence applications were made to the Sessions Judge, on which he passed the orders which I am now asked to cancel. The first order was passed on the applications of Sooba and Mohardin (opposite parties 1 and 2) who had then been in custody for three and two and a half months respectively, and the second application was made by fifteen others, the dates of whose arrests are given in the order of the Sessions Judge. The latest of these dates is 16th November 1930.
2. The Sessions Judge allowed the applications for bail on the general ground that the applicants had been in jail for a long time, and that by the time the investigation was completed they might easily have been in jail for seven months without being put on their trial, but in dealing with the earlier application he remarked that the only section which appeared to him to be applicable was Section 167, Criminal P. G., as the case had not reached the stage of an ''inquiry" as no evidence of any kind had been recorded by the Magistrate.
3. This question of procedure has been argued at considerable length before me, and it must be admitted that the law, as laid down in the Criminal Procedure Code, is not altogether free from ambiguity. Under Section 61 no police officer may detain in custody a person arrested without warrant for more than 21 hours in the absence of a special order of a Magistrate under section 167, and under section 167 a Magistrate to whom an accused person is forwarded by the police on the grounds that it is believed that the accusation or information against him is well founded, may authorize the detention of the accused for a period "not exceeding fifteen days in the whole." This is the section that the learned Sessions Judge considered to be applicable at any rate, in the case of the first application, but it is clear that if it does apply the accused should have been released after fifteen days from their arrest. It is in fact admitted on behalf of the Crown that if this section applies the present application for the revision of the Sessions Judge's order must fail.
4. In arguing the case for fifteen of the accused persons Mr. Mohammad Husain was at times, I think, inclined to suggest that a police investigation could in no case involve the detention of the accused in custody for more than fifteen days. The learned Government Advocate however relies on Section 344, under which the Court may postpone the commencement of or adjourn, any inquiry for trial for any reasonable cause, and remand the accused to custody, and special attention has been directed to the explanation to this section which is:
if sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.
5. There is in the section itself a provision that the Magistrate shall not remand an accused person to custody under this section for a term exceeding fifteen days, but no limit is set to the number of such remand that may be ordered by the Magistrate.
6. Under Section 4, Criminal P.C., an "inquiry" is defined as including every inquiry other than a trial conducted under the Code, by a Magistrate or Court, and an "investigation" as including all the proceedings under thin Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.
7. Mr. Mohammad Husain's chief argument on the legal question was that if the police wished to detain the accused in custody after the fifteen days prescribed by Section 1G7 they could only proceed by forwarding the accused under Section 170 to a Magistrate empowered to take cognizance of the offence in cases where there was sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate; and that in this case they must at the same time, forward a report as proscribed by Section 173. Until this report has been forwarded to the Magistrate empowered to take cognizance of the offence, it is argued, the Magistrate cannot take cognizance of the offence under Clause (b), Section 190(1), nor can he remand the accused to custody under Section 344.
8. This argument at any rate as regards the Magistrate's power to order a remand under Section 344 without receiving a report under Section 173, appears to me to be fallacious. The report under Section 173 is to be forwarded as soon as the "investigation" is completed. If however it has not been completed, what is the position? According to Mr. Mohammad Husain's argument the accused must be released, if the investigation has not been completed, and the report forwarded within 15 days from the date of arrest. What room is there then for the operation of Section 344, under which a Court may postpone the commencement of the Magisterial inquiry in order that further evidence may be obtained by a remand. Section 170, to which reference has already been made, enables an officer in charge of a police station, if there is at least reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, to forward him under custody to a Magistrate empowered to take cognizance of the offence upon a police report. The section does not direct that the report prescribed by Section 173, shall be forwarded at the same time, though it is argued that this implication must be read into Section 170. The meaning of the two sections road together seems to me to be definitely different from this interpretation. Section 170 implies a case where the investigation is not complete, but where there is reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate. If the investigation has been completed and the report or chalan, as it is commonly called, has been prepared, the accused is forwarded because the case is ready for the magisterial enquiry or trial, and not because there is merely reasonable ground of suspicion to justify the forwarding of the accused to the Magistrate empowered to take cognizance of the offence. If the investigation is not complete and the report is not ready, but the accused may be forwarded on reasonable ground of suspicion, for what purpose is he forwarded? Clearly I think for the purpose set forth in Section 344 that the Court may remand the accused to custody if it considers that there are reasonable grounds for doing so.
9. A number of decisions wore quoted by Mr. Mohammad Husain in support of his argument, and I have examined them, but apart from one or two obiter dicta they contain little or nothing to help him. The most important of these are the oases of Queen-Empress v. Enqadu [1888] 11 Mad. 98 In re Krishnaji Pandurany Joglekar [1899] 23 Bom. 32 and Nagendra Nath v. Emperor A.I.R. 1924 Cal. 476.
10. It has however been argued that even if the above reasoning is correct and Section 344 might apply yet in the present case the accused were actually forwarded under Section 167. That there is some doubt on this point appears from the earlier order of the Sessions Judge, who held that Section 167 was the only section that was applicable. Mr. Mohammad Husain points out that the Magistrate did originally released the accused on bail, and that the number of remands shows that the police must have been acting under Section 167 and not Section 344.
11. Whether this be so or not however and whether or no Section 167 has been quoted in some of the papers, 1 agree with the learned Government Advocate that the matter must be settled on broader grounds than this. If Section 344 is really applicable to the case, then it seems to me that it is the duty of the Magistrate and of the Judge to apply that section, and to be guided by the considerations, laid down therein and by no others.
12. In his second order, at any rate, the learned Sessions Judge has made it clear that ho would have ordered the release of the accused on bail for reasons which would have had force under Section 344, Criminal P. C, namely, that the accused had been detained in custody for some weeks or even months and that the investigation might continue for two months more. Now under Section 344 the Court may postpone or adjourn the inquiry or trial....for such time as it considers reasonable and no limit is set to the total period of a series of orders of remand, provided that no single order shall be for a period exceeding 15 days. The Magistrate has a wide discretion, and provided that he is satisfied that sufficient evidence has been obtained to raise a suspicion that the accused may have committed the offence, and it appears likely that further evidence may be obtained by a remand, he undoubtedly has the power to order one. In the present instance the Magistrate may have considered the individual cases of different accused, but, if so, this has not been shown to me; and the Sessions Judge has dealt with the accused in a body, and released them merely on the general ground that the investigation has continued for a long period and may still go on for some months longer. The Sessions Judge's order carries with it the implication that in no case are accused persons to be detained in custody during a police investigation for as long as seven months. It has however been stated in the affidavit on behalf of the Crown that there is a conspiracy in which 66 people are involved of whom 56 have already been arrested, that the conspiracy extends over four provinces, that witnesses have to be summoned from all of them, many of them from long distances etc., and that there appear therefore to be adequate reasons for a prolonged investigation. In these circumstances it is very difficult for the Court to set down a definite time limit. Mr. Mohammad Husain has referred to the case of Narendra Lal Khan v. Emperor [1909] 36 Cal. 166, where the High Court held that there had been unreasonable delay as regards the prisoners who had been in custody for about six weeks, though not in the case of those who had been in jail for three weeks. That appears to have been a case in which the accused were said to belong to a secret society in Calcutta, and the various circumstances that make for the delay in the present case may not have been present. After remarking that an investigation lasting for three weeks or so was not unusual their Lordships remarked in the case of offences under Section 400, I.P.C., which so far as the difficulty of investigation goes, bear soma analogy to the present case, which appears to be based to some extent on evidence of association, the period is usually far greater.
13. It has not boon suggested in the present case that the police are purposely delaying proceedings nor has the Sessions Judge come to a finding that the period occupied by the police under investigation is unreasonably long in the circumstances of the case.
14. On the other hand reasons are given in the affidavit for the Grown to show that it would be against the public interest to release the accused on bail. It is said that: they will tamper with the prosecution evidence which consists mostly of their employees associates, landlords and friends of the accused; that the accused are professional criminals and very desperate; that one of the absconders has recently stabbed four persons to death; that some who are wanted in the case are absconding, and that others will abscond if they are released. Some of these allegations are of a general nature, The case however is one of conspiracy. It has been proved by an affidavit which must be hold to be sufficient for the purpose of the present proceeding, that such a conspiracy exists. If it is also proved by sufficient evidence that there is a suspicion that the accused are members of that conspiracy, then, in my opinion,'' the Magistrate is justified in keeping them in custody for a period that appears to him to be reasonable.
15. There may be distinctions and differences between individual accused, for instance, Mr. Sanyal, who appeared on behalf of two of them, has pointed out that they are Hindus and residents of Allahabad, whereas the majority of the accused are Mahomedans from the Punjab. But in considering whether the period is reasonable, it is necessary to give due weight to the sworn allegations as to the extent and nature of the conspiracy and the difficulty of assembling the evidence.
16. The last argument that has been adduced on behalf of the accused is that the Sessions Judge had discretion to release the accused on bail, and that this Court should only interfere with that discretion in exceptional circumstances. If the Sessions Judge had, on a consideration of the circumstances of individual accused, found that they ought to be released, this argument would I think have prevailed. What he has done however is to release two of the accused because he believed that Section 167 applied to the proceedings, and others because they had been in jail for a period of several weeks or months. In my opinion those reasons are not judicially sound. The section that ought to be applied to the case is 'S. 311 and the two considerations that should influence the Court in deciding whether a remand should be granted are:
(1) Whether sufficient evidence has been obtained to raise a suspicion that the accused may have committed the offence and it appears likely that further evidence may be obtained by a remand, and (2) whether the time asked by the police for the remand is, in the circumstances of the case, reasonable or not. The reasons given for releasing the accused on bail are (1) that Section 167, Criminal P. C, applies to the case and (2) that the accused may be in jail for seven months before they are put on their trial. The first of those reasons appears to be wrong; the second is not really sufficient.
17. I therefore accept the application made on behalf of the Crown and cancel the order of the learned Sessions Judge. The Magistrate will have to consider, in the light of the above remarks, the cases of the accused individually when and if a further application is made for a further remand.
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