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Manikam Mudali And Ors. v. The Queen

Madras High Court

Sep 8, 1882

Judgment

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Structured Summary of the Opinion — Applications for Bail and Transfer (Salem Riots)

Factual and Procedural Background

These applications were brought to the High Court seeking (1) orders for admission to bail of certain persons arrested and detained in the Central Jail of Salem on serious charges connected with the riots at Salem on 15 and 16 August, and (2) transfer of the inquiries and trials to another district.

The Court heard Mr. Grant on behalf of the accused and the Government Pleader, Mr. Shephard, for the Government. Eight persons were arrested on 30 August, one on 31 August, and Chinna Kailasa Gounden on 3 September. The Magistrate's diary/handwritten proceedings of 30 August and 1 September stated that there were "strong reasons for suspecting" these persons of involvement in a conspiracy that led to the riots; warrants of arrest issued under Section 142, Criminal Procedure Code, were therefore justified according to those proceedings.

The applications therefore raised the specific procedural question whether the continued detention of the accused (by means of remand orders of 30 and 31 August and 5 September) was legal in light of the procedural requirements of the Criminal Procedure Code (particularly Sections 190, 194, and 389).

Legal Issues Presented

Whether the High Court has authority to entertain an application seeking admission to bail and transfer of trials where the Magistrate has remanded accused but the inquiry record shows no recorded sworn testimony.
Whether the remand orders (which deferred examination of witnesses with the endorsement "it appears necessary to defer the examination of witnesses in order that further evidence may be produced") comply with the procedural requirements of Sections 190 and 194 of the Criminal Procedure Code.
Whether Section 389 of the Criminal Procedure Code obliges admission to bail unless evidence raising a strong presumption of guilt is already recorded.
Whether the inquiries/trials should be transferred to another district in the interests of justice and convenience.

Arguments of the Parties

Appellant's (Accused) Arguments — Mr. Grant

Mr. Grant argued that the Magistrate had not followed the procedure required by Section 190 (i.e., that the Magistrate should "take the evidence of the complainant and of such persons as are stated to have any knowledge of the facts"), and that because such a proceeding had not been adopted and there was no recorded evidence, the remand orders were illegal.
It was also argued—through submissions and cited authorities—that the legislature intended that at least some evidence should be taken before an order of remand may properly be issued (this point was addressed to the construction of Sections 190, 194 and 389).
Implicit in the submissions was a contention based on the text of Section 389 that unless there is evidence to raise a strong presumption of guilt, the accused must be admitted to bail and cannot be remanded.

Respondent's (Government) Arguments — Government Pleader Mr. Shephard

Mr. Shephard contended that the High Court had no authority to take cognizance of such an application on the ground that it was not a judicial proceeding.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Moonshee Syud Abdul Kadir Khan (11 B.L.R., app. 18)	Principle that the prisoner should be brought promptly before the Magistrate and the Magistrate has no authority to further detain or remand the prisoner without some reason manifest on the record—either in sworn testimony or some other form capable of being put on the record.	The Court concurred in this view and applied it as the governing principle: it examined whether the remand endorsement on the record disclosed a reasonable ground for detention, thereby requiring some reason manifest on the record (though not necessarily formal sworn testimony in every instance).
Mahesh Chandra Banerjee (4 B.L.R., app. 1)	Condemnation of the practice where a Magistrate remanded prisoners without evidence, "in the expectation that evidence might turn up."	The Court distinguished the present case from that practice: here the remand orders implied that some evidence was already forthcoming and that further evidence was expected, whereas the condemned practice involved remand in the absence of any evidence.

Court's Reasoning and Analysis

The Court's analysis proceeded in a sequence tied closely to statutory text and the record:

Authority to entertain application: The Court rejected the Government Pleader's contention that it lacked authority. It held that bail proceedings fall within the definition of a "judicial proceeding" and that High Courts have power to grant the relief sought if the Magistrate's proceedings prove illegal (noting that this power had been exercised by High Courts in various Presidencies).
Statutory framework — Sections 190 and 194: Section 190 requires that when an accused is brought before a Magistrate, "the Magistrate shall take the evidence of the complainant and of such persons as are stated to have any knowledge of the facts." Mr. Grant relied upon this to argue that the absence of recorded evidence rendered the remand illegal. The Court then examined Section 194, which permits the Magistrate, by a written order from time to time, to adjourn the inquiry and remand the accused for such time as is reasonable (not exceeding fifteen days) when, from the absence of a witness or from any other reasonable cause, it becomes necessary or advisable to defer the examination or further examination of witnesses. The Court read Section 194 as a proviso to Section 190, allowing deferral of examination in appropriate circumstances.
Construction of statutory interaction: The Court rejected the proposition (attributed to Mr. Grant in argument) that Section 389 prevents remand unless evidence raising a strong presumption of guilt has already been taken. Instead, Section 389 presumes that evidence has been taken and governs whether bail should be granted based on that evidence; it does not preclude the statutory power to defer taking evidence under Section 194.
Role of illustrative explanation to Section 194: The Court relied on the explanation appended to Section 194 showing that when sufficient evidence has been obtained to raise suspicion and further evidence is likely to be obtained by remand, that is a reasonable ground for remand. The Court emphasized that this illustration applies to remand after an inquiry has commenced but that the first clause of Section 194 also contemplates deferrals on other reasonable grounds (e.g., absence of witnesses).
Precedent application: Adopting the principle from Moonshee Syud Abdul Kadir Khan's case, the Court required that some reason be manifest on the record (either sworn testimony or some other form put on the record) to justify remand. The Court then examined the present remand orders, which consistently stated that "it appears necessary to defer the examination of witnesses in order that further evidence may be produced."
Assessment of the remand endorsement: The Court read the endorsement as implying that witnesses were ready for examination and that it was advisable to await further evidence so that the inquiry, when commenced, could proceed in a continuous and orderly way. The Court distinguished the present fact pattern from Mahesh Chandra Banerjee, where there had been no evidence and the remand was made merely in hope that evidence might arise.
Formality and record concerns: The Court noted it would have been better and more regular if the reasons for postponement had been sworn to, but accepted the Magistrate's recorded statement as a justification for remand. In a concurring opinion (Kernan, J.), the point was pressed further: a "reasonable cause" should be clearly expressed on the record. Kernan, J. observed that although no evidence was actually on the record, he was informed by the Magistrate that before the remands evidence sufficient to create reasonable suspicion had been forthcoming and that the Magistrate chose to produce all evidence at once. On that basis Kernan, J. concluded the informal endorsement was sufficient to disclose a reasonable cause and that custody was legal.
Transfer application analysis: The Court declined to order transfer of the inquiries. It reasoned that the precise positions in which accused were seen may be pivotal and that inquiry on the spot would be desirable; transfer would require removal of many other cases, impose vast inconvenience on witnesses and police, and likely protract other proceedings. The Court concluded the inconvenience of transfer outweighed any advantage.
Directions and safeguards: Although the remands were upheld, the Court emphasized the accused's right to have the evidence recorded "at as early a period as possible" and observed that the prosecution stated readiness to proceed. It also left open the possibility for the accused to apply again for bail as the evidence is recorded and the circumstances might justify admission to bail later.

Holding and Implications

Holding (core ruling): THE APPLICATIONS FOR BAIL ARE REFUSED AND THE REMAND ORDERS ARE HELD TO BE LEGAL.

Additional holdings and orders:

The Court declined to order transfer of the inquiries to another district and denied the petitions' prayer for transfer, on grounds of on‑the‑spot necessity and inconvenience to witnesses and police.
The Court directed that the evidence against the accused should be recorded as early as possible and noted the prosecution's statement that it was ready to proceed.
The Court expressly left open the right of the accused to apply again for bail as evidence is produced; such future applications will be entertained if circumstances justify them.
As regards Kailasa Gounden, the Court observed that it did not have the record of the case against him and directed that the record be called for to enable disposal of his application.

Implications: The decision upholds the Magistrate's power to remand under Section 194 when the record discloses a reasonable ground (even if the reasons are not sworn) and emphasizes the need for reasons to be manifest on the record. The opinion does not announce a broader novel precedent beyond applying existing statutory interpretation and the cited authorities; its practical effect is the refusal of bail and the refusal to transfer in the circumstances of this case, subject to the accused’s continued right to renew bail applications as evidence is taken.

Concluding Observations

The Court balanced strict procedural safeguards (the need for reasons on the record and prompt recording of evidence) against prosecutorial interests and practical considerations related to locality of witnesses and convenience. While expressing a preference for clearer, preferably sworn, statements of the "reasonable cause" for remand, the Court accepted the Magistrate's recorded endorsement in the circumstances and thereby sustained the legality of the remands.

Show all summary ...

1. These are applications to the High Court to order the admission to bail of certain persons arrested and detained in the Central Jail of Salem on serious charges of offences connected with the late riots at Salem on the 15th and 16th August last, and also for transferring the inquiries. and trials to another district.

2. We have heard Mr. Grant on behalf of the accused persons and the Government Pleader (Mr. Shephard) who opposed the applications on behalf of the Government.

3. It was argued by Mr. Shephard that we had no authority to take cognizance of such an application, as it was not a judicial proceeding, but, we think, there can be no question that we have the power to do what is asked, should the Magistrate's proceedings prove to be illegal, and the power has been exercised in numerous cases by the High Courts in the several Presidencies. The proceeding in which it is or has to be determined whether bail should be taken falls within the definition of a judicial proceeding, and the authority to exercise the power is not now questioned in the other High Courts. The procedure of the Magistrate in refusing or delaying to furnish the information asked for by the accused persons, and the denial by the officers of the jail of certain privileges and conveniences in jail to which the accused persons considered themselves entitled, assuming these allegations to be true, may have been inconsiderate, irregular, and even illegal; but what we are concerned with now is whether the refusal to admit these persons to bail is legal or whether the-High Court should not direct that they be admitted to bail.

4. Eight were arrested on the 30th August, one on the 31st, and Chinna. Kailasa Gounden on the 3rd. September on information which the Magistrate in proceedings of the 30th August and. 1st September in his handwriting, states to have afforded strong reasons for suspecting that they had been concerned in a conspiracy which led to the riots of the 16th ultimo. The information, therefore, according to these proceedings on the record justified the warrants of arrest issued under Section 142 of the Criminal Procedure Code. The question then is whether the subsequent and present detention of the accused persons is legal.

5. As to this, we have to see what is the proper procedure enjoined by the code.

6. Section 190 requires that, when an accused person appears or is brought before the Magistrate, the Magistrate

"shall take the evidence of the complainant and of such persons as are stated to have any knowledge of the facts which form the subject-matter of the accusation, and the attendant circumstances,"

and Mr. Grant insists that this proceeding not having been adopted, and there being no recorded evidence, the order for remand was illegal. We have before us orders for remand of the 30th and 31st August and 5th September. These are all in the same form to the effect that it appears necessary to defer the examination of witnesses in order that further evidence may be produced.

7. Section 194 prescribes that, if, from the absence of a witness or from any other reasonable cause, it becomes necessary or advisable to defer the examination or further examination of witnesses, the Magistrate may, by a written order from time to time, adjourn the inquiry and remand the accused person for such time as is deemed reasonable, not exceeding fifteen days. This section must be read as a proviso to the provisions of section 190 before quoted. It qualifies this last-named section to this extent, that the commencement of the inquiry or the further inquiry, if it is commenced, may be deferred if, from the absence of a witness or from any reasonable cause, it becomes necessary or advisable to defer it, and in that case the Magistrate, in place of immediately examining the complainant and witnesses as required by Section 190, may remand the accused person. Various cases were cited to us and arguments were addressed to us on the construction of Sections 190,194, and 389 of the Criminal Procedure Code, to show that the legislature intended that some evidence at least must be taken before an order of remand may be properly issued. Section 389* does not warrant the proposition put forward by Mr. Grant that, unless there is evidence to raise a strong presumption of the guilt of the accused, he must be admitted to bail, and cannot be remanded. That section assumes that evidence has been taken and provides for the release of the accused on bail, if the evidence so taken is not such as to raise a strong presumption of the guilt of the accused person, but it does not import that the taking of the evidence may not be deferred.

8. Appended to Section 194 is an explanation, which gives an illustration of what is such a reasonable cause as is required in the first clause of Section 194 to justify the postponement of the inquiry after it has commenced, viz., that if sufficient evidence has been obtained to raise a suspicion that the person accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, that is a reasonable ground for a remand.

9. But this illustrates what is a reasonable ground for a remand after the inquiry has commenced and does not of course import that evidence must be taken to justify a remand, as the first clause of Section 194 clearly provides for a case in which it may be necessary to defer taking such evidence as may be forthcoming, and authorizes a remand made on the ground that such a course is necessary or advisable or on other reasonable ground.

10. The cases cited do not go beyond what is stated in Moonshee Syud Abdul Kadir Khan's case (11 B.L.R., app. 18).

"' The prisoner should be brought promptly before, the Magistrate, and the Magistrate has then no authority to further detain him in custody, or to remand him to prison without some reason made manifest to him either in the shape of sworn testimony given before him, or in some other form which can be put upon the record."

11. We concur in this view; and the next question is whether the record in this case, in which no sworn testimony appears, discloses a reasonable ground for detention.

12. The remand orders assign as the reasons for the remand, that it appears necessary to defer the examination of witnesses in order that further evidence may be produced.

13. It is apparent from this that there are witnesses ready for examination, but that it is advisable, in the opinion of the Magistrate, to wait for further evidence before commencing the inquiry. This is not on a par with the practice condemned in Mahesh Chandra Banerjee's case (4 B.L.R. app. 1), in which there was no evidence, but the Magistrate remanded the prisoners in the expectation that evidence might turn up.

14. It is obvious that, if evidence is forthcoming in addition to that which as is implied in the orders of remand, is already available, though not yet taken, it may be very desirable, for various reasons, to postpone the inquiry for a short period, and (among other reasons), in order that, when commenced, it may be continuous and conducted in such order in regard to the examination of witnesses as may best set out the facts to be given in evidence, and this appears, though not expressed, to be the ground for postponement in the present instance; and we think that, although it would have been better and more regular if the reasons for the postponement had been sworn to, we must accept the Magistrate's statement on record of his reasons for remand and hold that it is a justification for the remand order. And we are unable to accede to the application that the accused be admitted to bail.

15. The accused have, however, a right to have the evidence against them recorded at as early a period as possible, and the fact that there is or may be a great body of evidence forthcoming against them is not a ground for detention for an inordinate period, and, as it was stated before us by the Government Pleader that the Prosecution are quite ready to go on with the case, we trust there may be no further delay in commencing the proceedings.

16. It will be open to the accused persons to apply to be admitted to bail as the evidence proceeds, and we have no doubt, if the circumstances justify it, the application will be attended to.

17. In regard to the application for transfer, at present we are not disposed to interfere. Much of the importance of the evidence adduced may turn upon relations by witnesses of the exact position in which persons accused were seen in connection with the riot, and it seems desirable on this account that the inquiry should be made on the spot.

18. The transfer to another district would also involve the removal of other cases, for no distinction could be made on the score of respectability, and this would be attended with vast inconvenience to witnesses. A large portion of the Police also, whose evidence would probably be required in other cases, would have to attend at the station to which the inquiry or trial might be transferred, and great inconvenience would consequently result by the protraction of such other inquiries for an indefinite period. We think the probable inconvenience of transferring the inquiry far outweighs that of allowing it to proceed at Salem, and must decline to grant the prayer of the petitions. We have not the record of the case against the zamindar Kailasa Gounden, and must call for the record to enable us to dispose of the application as regards him.

Kernan, J.

19. I will only add that, as the Magistrate acted under Section 194, Criminal Procedure Code, by deferring the examination of witnesses and adjourning the enquiry and remanding the prisoners, he was bound to have expressed clearly on the record the "reasonable cause" from which it became necessary or advisable to do so.

20. It is not (enough in my judgment and speaking entirely for myself) that a reasonable cause existed, but such cause should be stated. The prisoners are entitled to know what such cause is, and an Appellate Court cannot form an opinion whether the cause which influenced the Magistrate is reasonable unless it is stated on the record. I entirely agree in the principle of the cases cited by Mr. Grant. For some time I doubted whether such reasonable cause had been stated by the Magistrate.

21. The endorsement is:

"It appears necessary to defer the examination of witnesses in order that further evidence may be produced."

If any evidence had been produced, by which I understand evidence on the record, then the endorsement would be good enough. But in fact, no evidence had been produced nor had the inquiry been begun. However, as we are informed by the Magistrate that, before the first and second remand orders were made, evidence was forthcoming sufficient to create a reasonable suspicion of the -guilt of the prisoners, but that the Magistrate thought it advisable to produce all the evidence at once, and as this, if put on the record, would have been a reasonable cause for the adjournment of the inquiry and remand for a limited time, I am not prepared to say that the endorsement, informal as it is, does not disclose a reasonable cause. This being so, the custody of the prisoners is legal.

* Bail not to be taken for certain offences.

[Section 389 : When any person, accused of any non-bailable offence, appears or is brought before a Magistrate, such person shall not be admitted to bail, if there appear reasonable grounds for believing that he has been guilty of the offence of which he is accused.

When bail may be taken.

If the evidence, given in support of the accusation, is, in the opinion of the Magistrate, not such as to raise a strong presumption of the guilt of the accused person, or if such evidence is adduced on behalf of the accused person as, in the opinion of the Magistrate, weakens the presumption of his guilt, but there appears to the Magistrate in either of such cases to be sufficient ground for further inquiry into his guilt, the accused person shall be admitted to bail pending such inquiry.]