Citation Codes

Equivalent Citations

citation codes

Case Number

Criminal Misc. Cases Nos. 1352, 1353 to 1357 and 1697 to 1720 of 1951

Judges

Raghubar Dayal, J.

Acts

Section 173 of the Cr PC, after the completion of investigation.27. Sections 169
sub-section (1) of Article 22 of the Constitution.
Sections 61, 167 and 344 of the Cr PC. Section 61
provisions of Section 170 of the Cr PC 7
provisions of section 170 or Section 344
release.28. Section 170 of the Code is:(1)
sub-s. (2) of Section 170 of the Cr PC.33.
sub-section (1) of Section 344
sections 420 and 471, I.P.C

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Smart Summary

Structured Summary of the Opinion concerning Kali Charan — Criminal Miscellaneous Applications

Factual and Procedural Background

This opinion concerns thirty miscellaneous applications filed by Kali Charan under Sections 491 and 498 of the Criminal Procedure Code (Cr PC). The material facts and procedural history, as set out in the opinion, are:

Kali Charan was arrested at Sikandrabad, Bulandshahr district on 9 January 1951 in connection with three warrants issued from the court of Shri R.K. Garg, City Magistrate, Farrukhabad, on a report by Shri Zahir Hussain, Inspector, C.I.D., I.B., Uttar Pradesh, Lucknow. The three cases related to offences under Ss. 420, 468, 471, 474 and 120B I.P.C., recorded as crimes Nos. 90, 91 and 92 at police station Kotwali, Fatehgarh.
The Sessions Judge, Bulandshahr released him on interim bail directing him to present himself at Fatehgarh within a week. He complied, and Shri R.K. Garg ordered his release on bail on 18 January 1951 in each case on executing personal bond for Rs. 10,000 with two sureties of like amount, despite police objections. The applicant furnished sureties totaling Rs. 60,000 and the security was accepted on 29 January 1951.
On 30 January 1951 applications for cancellation of bail and further remands were presented. Remands (or orders for further detention) were granted subsequently on multiple dates: 15 and 26 February; 14 and 28 March; 11 and 26 April; 10 and 18 May; and 5 and 18 June 1951. Some remands were granted on the report of a court-moharrir rather than the investigating officer.
The applicant alleges that, before he could be truly released, he was detained on the basis of other warrants (allegedly relating to Mathura and Madras districts and additional offences). The opinion records uncertainty and missing documents: many of the warrants and requests for their issue were not on the files produced to the Court, and some interim custody warrants were signed by Shri V.D. Chaturvedi rather than Shri R.K. Garg.
On 13 February an application was filed on behalf of Kali Charan asserting that jail authorities refused to release him on the ground of arrest in other case(s). The Additional District Magistrate called for a report from the prosecuting inspector; the report filed (dated before 14 February) made general allegations about many matters and did not give precise particulars of the three cases for which he was then detained.
Kali Charan later secured an order for release by the Sessions Judge dated 4 May 1951 on similar bail but could not furnish additional sureties and therefore remained in custody. Additional warrants (24 more) allegedly relating to several other districts were served on him on 7 May, and the Sessions Judge required substantially more security for each of these, which he could not furnish; this gave rise to the remaining miscellaneous applications (total thirty).
The Court summoned files from the Magistrate to clarify arrest/remand details; many records and warrants were either not produced or did not contain the necessary particulars, and the State did not file comprehensive counter-affidavits addressing these lacunae.

Legal Issues Presented

Whether Kali Charan's arrest and detention in connection with the 27 cases alleged to arise outside Farrukhabad (i.e., in other districts) was legal, in particular where the warrants or remand orders were apparently issued by the City Magistrate of Farrukhabad.
Whether remands granted by the City Magistrate, Farrukhabad for periods beyond fifteen days, or repeated remands, were legally permissible when the Magistrate had no jurisdiction over the offences allegedly committed in other districts.
Whether, alternatively, the bail amounts demanded (aggregate heavy security) were so excessive as to render the bail orders ineffective and require reduction.

Arguments of the Parties

Applicant's Arguments

The applicant asserted that his arrest and detention in relation to the 27 cases outside Farrukhabad were illegal — that warrants or remand orders were improperly issued by the City Magistrate of Farrukhabad who lacked jurisdiction to arrest or remand for offences committed in other districts.
The applicant also contended that, even if detention were lawful, the amounts of bail/security demanded in the series of cases were excessive (aggregate sureties running into very large sums) making it impossible for him to furnish and effectively preventing his release.
He further pointed to procedural irregularities: absence of particulars, missing warrants in the record, remands granted on inadequate or inaccurate reports (for example, remands granted on the court-moharrir's note), and the prosecuting inspector's report that mis-stated that he had been arrested in numerous other cases when such warrants had not been issued or produced.

State's (Prosecution's) Position

In the counter-affidavit filed in some initial cases the State characterized the accused as a member of a gang of inter-provincial cheats accused in multiple cases involving forged railway receipts and large amounts of money; it asserted that different offences were being investigated by different officers and could not be treated as a single case.
The State argued (during hearing) that the Farrukhabad court might have jurisdiction in view of Sections 179 and 182 of the Cr PC, and that some acts in Farrukhabad might connect the offences elsewhere (i.e., arguments about possible jurisdiction and the inter-provincial nature of alleged conspiracy).
The State did not, however, file a full counter-affidavit supplying precise particulars of the other arrests, the requisitions (if any), investigation steps, or the existence of sufficient evidence against the applicant; the Court noted that crucial facts remained unaddressed by the prosecution.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
King Emperor v. Sooba, AIR 1931 All 617	Addressed whether police investigation could involve detention beyond fifteen days and whether a Magistrate could take cognizance under S.190(1)(b) and remand under S.344 without a S.173 report.	The Court referred to the case to note that detention exceeding fifteen days during investigation is not always precluded and that a Magistrate may take cognizance and remand under S.344 even if a S.173 report is not yet produced; but the Court distinguished its own view by emphasizing that forwarding under S.170 is for taking cognizance, not merely to obtain remand.
Bholanath Das v. Emperor, AIR 1924 Cal 614	Support for the view that a Magistrate may take cognizance and that forwarding under S.170 may lead to judicial action including remand under S.344.	The Court cited this decision as supporting the proposition that a Magistrate can take cognizance and act under S.344 when appropriate evidence or reasonable grounds exist.
Superintendent & Remembrancer of Legal Affairs, Government of West Bengal v. Bidhindra Kumar Roy, AIR 1949 Cal 143	Expressed doubt about the correctness of the view that forwarding under S.170 necessarily justifies remand under S.344 before completion of investigation.	The Court acknowledged that this authority had expressed doubt about the alternate view, and it noted the existence of such contrary opinion while setting out its own reasoning.
Kashi Ram v. Emperor, AIR 1934 All 499	Authority relevant to the application of S.179 of the Cr PC and whether consequences at other places make an offence triable elsewhere.	The Court relied on this decision to conclude that S.179 could not be invoked to make Farrukhabad the proper forum where the offences were not of a nature to be committed in more than one place; this supported the view that S.182 likewise did not apply to make Farrukhabad competent for the other offences.

Court's Reasoning and Analysis

The Court's analysis proceeds through a sequence of statutory interpretation and application of facts to legal standards. The principal steps in the Court's reasoning, drawn directly from the opinion, are set out below.

Jurisdiction to issue warrants and arrest:
The Court accepted the applicant's uncontroverted allegation (in the absence of a contrary averment from the State) that warrants for arrest or interim custody in respect of offences alleged to have occurred in other districts were issued by the City Magistrate of Farrukhabad (or signed by another judicial officer in circumstances not explained). The Court observed that a City Magistrate of Farrukhabad had no jurisdiction to issue warrants for offences allegedly committed in other districts.
Arrest by local police without requisition or reasonable grounds:
For cognizable offences under Ss. 420 and 471 IPC the Farrukhabad police could have arrested on receiving a requisition from the police of other districts showing the cause for arrest, or if they themselves had reasonable complaint/credible information/suspicion. The record contained no requisitions and no material from which it could be inferred that Farrukhabad police had reasonable grounds. Thus any arrest by Farrukhabad police in connection with offences in other districts, absent a proper requisition or reasonable grounds, would be illegal.
Remand periods and the limitation of 15 days:
The Court examined Sections 61 and 167 Cr PC to note that, absent a Magistrate's special order under S.167, detention by police must not exceed 24 hours, and a Magistrate to whom the accused is forwarded can authorise detention for not more than 15 days "in the whole" under S.167. Therefore, where a Magistrate lacks jurisdiction to try the offence (as here for offences outside Farrukhabad), he could at best remand only for up to 15 days and had to forward the accused to the competent Magistrate.
Nature and limits of Section 344 Cr PC:
The Court carefully parsed S.344 and its proviso. It observed that S.344 grants power to a "Court" to postpone or adjourn inquiries or trials and to remand the accused if in custody, and that such power is to be exercised by a court after it has taken cognizance of the offence. The Court reasoned that this tends to show that remands under S.344 are properly exercised by the Magistrate having jurisdiction who has taken cognizance; it would be inconsistent for an out-of-jurisdiction Magistrate to repeatedly remand under S.344 when he had not taken cognizance and lacked jurisdiction.
Relationship among S.167, S.170 and S.344 and the role of cognizance:
S.170 requires the police to forward an accused to a Magistrate empowered to take cognizance if the police have sufficient evidence. The Court held that forwarding under S.170 is for the Magistrate to take cognizance and, after taking cognizance, to decide judicially whether further remand under S.344 is justified. The Court emphasized that remand under S.344 should be grounded on cognizance and sufficient evidence or reasonable grounds; otherwise the protective scheme of S.167 (the 15-day limit) would be nullified.
Requirement of sufficient evidence for S.170/S.344 action:
The existence of "sufficient evidence" is a condition precedent for police action under S.170 and for asking the Magistrate to take cognizance. The opinion found that none of the remand orders stated that the police had sufficient evidence; the prosecution did not show witnesses could identify the applicant and, in fact, the Court recorded that no witness could identify him (the State did not seriously contest that point). The prosecuting material on record (and the police reports supplied) were general, imprecise, and in part inaccurate (e.g., misstatements that the applicant had been arrested in many more cases than were supported by warrants).
Improper use of multiple separate cases:
The Court noted that if the matters were all incidents of a single conspiracy under S.120B, a single case could have been instituted; the existence of thirty separate cases was a strong indicator that the police conduct could be mala fide and directed at keeping the accused imprisoned despite orders for his release.
Conclusion on legality of detention:
Given (a) the apparent issuance of warrants/remands by a Magistrate lacking jurisdiction over offences committed elsewhere, (b) absence of requisite requisitions/reasonable grounds for arrest by local police, (c) lack of material showing "sufficient evidence" to justify forwarding and cognizance under S.170, and (d) repeated remands often granted on inadequate reports, the Court concluded that detention in relation to the 27 out-of-district cases was illegal.

Holding and Implications

Holding: The Court ordered that Kali Charan be released from custody insofar as his detention related to the 27 cases alleged to have occurred outside Farrukhabad.

Direct consequences and immediate implications (as stated in the opinion):

The applicant's detention in connection with the 27 crimes in places other than Farrukhabad was declared illegal and he was ordered released with respect to those matters.
The applicant's position in the three Farrukhabad cases was left intact; the Court made clear that his release in those three Farrukhabad cases would be pursuant to the bail already furnished by him.
The Court directed that a copy of the judgment be sent to the Chief Secretary to the Government for information and such action as may be considered necessary.

Broader legal implications discussed by the Court (interpretative points relied upon in reaching the decision):

An out-of-jurisdiction Magistrate cannot issue warrants or remand for offences committed in other districts; arrests by local police for such offences require proper requisition or reasonable grounds specifically shown on the record.
Section 167 imposes a general limit of 15 days (in the whole) for remand authorised by the Magistrate to whom the accused is forwarded; remands beyond this duration require the Magistrate having jurisdiction to take cognizance and act judicially.
Remands under Section 344 should be exercised by a court that has taken cognizance of the offence, and such remands must be supported by sufficient evidence or reasonable grounds; otherwise the protection of S.167 would be undermined.

The opinion does not expressly state that it creates any binding precedent beyond the interpretation and application to the present facts; its decision primarily affected the direct parties by ordering release in respect of the 27 out-of-district cases and confirming the existing bail arrangement for the three Farrukhabad cases.

D.H.Z

Order: The Court directed release in accordance with the reasoning above.

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Kali Charan v. State

1. These are 30 cases on the applications by Kali Charan under Sections 491 and 498 of the Cr PC. The facts appearing from the affidavits and the papers sent by the Additional District Magistrate, Farrukhabad are as follows. Kali Charan applicant was arrested at Sikandrabad district, Bulandshahr on the 9th of January 1951 in connection with 3 warrants issued from the court of Shri R.K Garg, Judicial Officer, Farrukhabad on the report of Shri Zahir Hussain, Inspector, C.I.D, I.B, Uttar Pradesh, Lucknow in three cases under Ss. 420, 468, 471, 474 and 120B, I.P.C relating to crimes Nos. 90, 91 and 92 of police station Kotwali, Fatehgarh. The Sessions Judge, Bulandshahr released nim on interim bail directing him to present himself at Fatehgarh within a week. The applicant complied with the order and Shri R.K Garg, City Magistrate, Fatehgarh then ordered his release on the 18th of January in each case on bail on his executing a personal bond for Rs. 10,000/- with two sureties each in the like amount in spite of objections of the police that two dozen cases were under investigation against him. The result was that the applicant had to furnish surety worth Rs. 60,000/- to get his release in the three cases. He furnished the required security which after due verification was accepted by Shri R.K Garg on the 29th of January 1951. On the 30th of January 1951 an application for cancellation of bail was presented to the same Magistrate. It was prayed that the accused be not released on bail. The Magistrate refused to cancel bail. This application is in file No. 5 against Behari Lal co-accused.

2. The same day, i.e, on the 30th of January another application by Shri Zahir Hussain, Inspector, C.I.D was presented to the same Magistrate. This application purported to be an application in case ‘State v. Behari Lal alias Mukat Lal’ and after praying for remand of Behari Lal up to the 12th of February 1951 stated in paragraph 2:

“Kalicharan, Hemchandra and Ram Narain are also in jail under remand and they have also to be put up for identification. Therefore it is further requested that a remand upto 12-2-1951 may also be kindly sanctioned for these three accused.” On this report Shri R.K Garg granted remand. This started the series of unjustified remands which were granted on the 15th and the 26th of February, 14th and 28th of March, 11th and 26th of April, 10th and 18th of May and 5th and 18th of June 1951. It is noticeable that the remand on the 26th of April was granted even in the absence of any report from the Inspector of the C.I.D who presumably was in charge of the investigation. The remand was granted on the report of the court-moharrir which was just submitted to the Magistrate by the Special Prosecuting Officer. The Court-moharrir's report simply stated that remand had not been received and it is hoped that 14 days' remand be given. It was very irregular of the Magistrate to grant remand on such a report.

3. How Kali Charan happened to be in jail as mentioned in this application is a mystery. No application by the police is on either of the two records, viz., Case No. 1 against Kali Charan and Case No. 5 against Behari Lal in which file the remand orders against Kali Charan had been passed. It is alleged in the affidavit by the applicant that before he could be really released on the furnishing of the required security in the three cases of Farrukhabad district he was ordered to be detained in custody in connection with three other cases for similar offences which were crimes Nos. 173 of 1949 of district Mathura, crime No. 25 of 1950 of Madras and crime No. 20 of 1950 of Madras. No information about this seems to have been given to Shri R.K Garg who granted bail, as the order-sheet dated the 2nd of February in file No. 1 against Kali Charan shows that he had been released on bail. These warrants have not been submitted to this Court. The three warrants for interim custody dated the 18th of January 1951 which are signed by V.D Chaturvedi, another Judicial Officer of Fatehgarh have been received. Two of them purport to be from the court of the Collector, Mathura and the third from the Collector, Fatehgarh. These give no date of appearance. The file against Kali Charan or Behari Lal contains no papers making a request for the issue of these warrants. It is not clear why Shri Chaturvedi signed these warrants and how they happened to be put up before him when Shri Garg was dealing with the cases.

4. On the 13th of February an application was filed in the court of the Additional Magistrate, Fatehgarh on behalf of Kali Charan saying that when the release warrant reached the jail the jail authorities refused to release him on the plea that he had been arrested in some other case or cases. This would be on the 27th of January 1951 as Shri R.K Garg accepted the sureties that day and he must have issued the release warrants that day. This means that Kali Charan did not know of his arrest and detention in connection with three other cases and that the proceedings in those three cases were not taken in a straightforward and fair manner, an inference which finds support from the fact already mentioned that these detention warrants were not signed by Shri R.K Garg but by Shri Chaturvedi who probably knew nothing about the case of Kali Charan and about his being ordered to be released on bail. It was further alleged in this application that Kali Charan's applications for bail in the other three cases were rejected by the Sessions Judge due to want of particulars. It was prayed that Kali Charan be supplied with full particulars of the case in which he was under arrest, then the Additional-District Magistrate called for a report from the Prosecuting Inspector. The prosecuting Inspector submitted his report which after perusal was ordered to be filed by the Additional District Magistrate on the 15th of February. This report is interesting and may be quoted here. It is:

“This Kali Charan with some others has committed offences under Ss. 420, 468, 474 and 120B, I.P.C in U.P, C.P, Bombay, Madras and other States. The complicity of this Kalicharan is believed in three cases of Farrukhabad, two of Mathura;. 3 of Jhansi and 2 of Agra, two of Jabbalpur, 16 of Madras.

5. Kali Charan has been arrested in connection with all these cases 24th February 1951 has been fixed for the identification of this accused, and three others who have been arrested in this connection. After the identification proceedings I will be in a position to say that in how many of these cases lie would be dealt with.

6. These are inter-provincial cheats and the cases against them are being investigated by the C.I.D of the different States.

7. The money involved in these cases is said to be about Rs. 40,00000/-. They are regular cheats, and they practise cheating even in obtaining the-release on bail. Behari Lal brother of this Kali Charan had gone underground in 1947 after obtaining his release on bail.”

8. The report evaded the crucial information which was sought in the application filed on behalf of Kali Charan. It gave no particulars of the cases in which he had been arrested. It should have been said that he was arrested in connection with such and such crimes and under the orders of such and such officer or court. Instead of giving the particulars of the three cases in connection with, which he was supposed to be in detention the report repeated all the general allegations which were urged before Shri R.K Garg in connection with the submission for refusing bail. The most unfortunate part of this report is misstatement of fact and that is that Kali Charan had been arrested in connection with all these cases. Upto the 14th of February, when this report was written, only six warrants had been issued against the accused. He was ordered to be released on bail in three of those cases. Therefore his detention was in connection with three cases whose precise details the Prosecuting Inspector should have given. It is wrong to say that Kali Charan had been arrested in connection with the 28 cases detailed in the first paragraph of the report. It is very unfortunate that the Additional District Magistrate and Shri R.K Garg, to whom this report with the order of the Additional District Magistrate seems to have been sent did not catch the inaccuracy of statements and that the latter was not reminded of his own order to release-Kali Charan in three of these cases and his not issuing any orders for arrest or detention in connection with the other cases.

9. Kali Charan, however, seems to have managed to secure particulars of the cases and to have successfully applied for bail. The Sessions Judge ordered his release on similar bail on the 4th of May 1951. He was, however, unable to file the necessary sureties for a further sum of Rs. 60,000/- and had to remain in jail.

10. The applicant therefore has filed six miscellaneous cases Nos. 1352 to 1357 of 1951.

11. On the 7th of May Kali Charan was again-served with warrants in connection with 24 other cases. These cases relate to crimes of Madras, Coimbatore, Cochin, Travancore, Calicut, Banglore, Jessore, Mathura and Jhansi. These warrants have-also been not received by this Court. Instead the Court has got 24 warrants for interim custody. They purport to emanate from the courts of the Collectors of the districts to which the cases relate. They are addressed to the jailors of the same districts and not to the jailor of Farrukhabad jail. They mention the court of the District Magistrate of the district in which the accused was to be produced and by mistake mention the District Magistrate of Mathura in 4 warrants which related to the cases of Madras. They are all signed by Shri V.D Chaturvedi, Judicial Officer. No date for appearance of the accused is fixed in any of these warrants. No application for the issue of the warrants of arrest or for the issue of interim warrants of custody is on the record. What I have said in connection with the issue of the other 3 warrants applies equally well to the issue of these warrants. This second attempt of the police in securing detention orders against the accused soon after he was ordered to be released by the Sessions Judge is a very strong corroboration of the suggestion for the accused which can be accepted without much difficulty that the conduct of the police was mala fide and was solely directed to keep the accused in jail in spite of orders of competent courts for his being released from custody. Such an inference is further strengthened from the fact that if all those cases were the result of a conspiracy for which a charge under section 120B was framed there would be only one case under section 120B and not 30 cases and that the other individual incidents could have been tried in the same case. There, therefore, did not exist any justification for the issue of 30 separate warrants concerning each incident.

12. In each of these cases the Sessions Judge required Kali Charan, by his order dated the 16th of July, to furnish security in personal bond of Rs. 10,000/- with sureties each for Rs. 5,000/-. Thus the had to furnish a further security of a total amount of Rs. 2,40,000/-. He was unable to furinish the required security and therefore filed the other 24 cases on the 18th of July 1951.

13. Of these thirty cases, three, viz., Criminal Misc. No. 1355 of 1951, Criminal Misc. No. 1356 and Criminal Misc. No. 1357 of 1951 did not relate to any illegal detention or to any excessive:bail. In fact, these applications related to the three cases of the Farrukhabad district itself in which the accused had already secured order for his release on the furnishing of the necessary security. These cases were instituted merely to get, if necessary, such order of bail which may avail the applicant in all these 30 cases without in any way making it impossible for him to furnish bail and thus to create a situation in which the order for his release on bail be not effective. In view of the opinion I have formed about the validity of the arrest and detention of the application with the other 27 cases I need say no more about these three cases as no action is necessary in these cases.

14. It is said in the affidavit filed in the first six cases that the case for the prosecution is that a bogus unregistered firm by the name Ramaswarup Govindram was brought into existence at Farrukhabad whose proprietors were alleged to be two fictitious persons Govind Ram and Gopal Das. The said firm sold many forged and bogus railway receipts with respect to pulses and other grains which were alleged to have been booked to the various firms in different parts of the country. The 27 cases mentioned above are alleged to be in connection with these 27 transactions. It is alleged that the applicant and other persons were responsible for these crimes. It was further alleged in the affidavit that on the prosecution allegations the case against the applicant would be a case of conspiracy and would be one case with regard to all the transactions. Therefore only one bail should have been demanded. A counter-affidavit was filed on behalf of the State in cases Nos. 1352 to 1354 of 1951. Therein it was mentioned as regards the case that the accused was a member of a gang of inter-provincial cheats who were accused in over two dozen cases of cheating, it is said, by forging railway receipts and cashing them through banks involving several lacs of rupees and that different cases were being investigated by different officers and could not be considered as one case.

15. Similar allegations were made in the affidavit filed with the later 24 cases. The State did not file any counter-affidavit in them.

16. Two points are urged for the applicant. One is that his arrest and detention in these 27 cases under the orders of the City Magistrate, Farrukhabad are illegal. The other is that if his detention is not illegal the bail required is of such an excessive amount that it is impossible for the applicant to furnish it and that therefore in order to make the bail order an effective one the amount of bail required should be appreciably reduced. I need not say anything on the second question as I agree with the first contention.

17. It may be mentioned here that during the hearing it became necessary to get a knowledge of the facts relating to the arrest and remands in greater detail and with greater precision. The necessary papers were summoned from the Magistrate. The files sent here do not contain any papers which can be of great help in this connection and do not include the warrants issued for the arrest of the applicant in the 27 cases relating to crimes in districts other than Farrukhabad. The arguments continued several days and though someone connected with the investigation came to help the State counsel, neither a counter-affidavit giving full facts was filed by the State nor the State counsel seems to have been posted up with those facts. The result is that the Court does not know anything precise about the cases against the applicant, about the places where reports against the applicant were lodged, the action taken by the police or the Magistrate in the various places and the communications which the respective police or the Magistrates of those places sent to the police or the Magistrate at Farrukhabad. The importance of such information would be apparent from what will follow. I cannot help remarking that this omission on the part of the State is not a matter for credit to the prosecution specially in a case concerning the deprivation of a person of personal liberty.

18. The first contention for the applicant is that the applicant was not furnished with the grounds of his arrest and that the non-furnishing of the grounds amounted to contravention of sub-s. (1) of Article 22 of the Constitution. On this point I am inclined to the view that the mention in the warrant about the accused being wanted in cases for certain offences is sufficient compliance with the requirements of sub-section (1) of Article 22 of the Constitution. The ground for arrest is simply an order of the court which is passed in a case relating to a certain accusation against the person arrested. I, therefore, do not see any force in this contention.

19. The other contention is that the warrants for arrest of the accused in connection with the crimes said to be committed in districts other than Farrukhabad should have been issued by the Magistrates of those districts and could not have been issued by the City Magistrate at Farrukhabad. The warrants actually issued against the applicant are not before the Court, but the allegation to this effect in the affidavit of the applicant has not been controverted in the counter-affidavits filed in the three cases or by any counter affidavit in the other 24 cases. This allegation should therefore be accepted that the warrants were issued by the City Magistrate, Farrukhabad. Obviously the City Magistrate, Farrukhabad had no jurisdiction to issue warrants for the arrest of a person wanted in cases pending before Magistrates in other districts and in connection with crimes committed in those districts.

20. Offences under sections 420 and 471, I.P.C being cognizable the police of Farrukhabad could arrest the applicant on receiving from the police of the various districts requisition for arresting him showing the offence or other cause for which the arrest was to be made, if it appeared therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition. There is nothing on the record to show that any such requisition was received by the police. There is also not on the record any such matter from which it can be inferred that the Farrukhabad police knew that the applicant had been concerned in any cognizable offence committed in other district or that there was a reasonable complaint or credible information or reasonable suspicion against him of having been so concerned. In the absence of any such information any arrest by the police of Farrukhabad without any warrant of the Magistrate concerned will also be illegal. It follows therefore that even if it be assumed that the arrest of the applicant was not under any warrant signed by the City Magistrate, Farrukhabad in connection with crimes committed in districts other than Farrukhabad but was by the police of Farrukhabad, the arrest and the consequent detention would not be legal.

21. Even if it be assumed that the arrest in connection with such cases was not illegal, it is argued, the detention of the applicant after the 15 days of his arrest, i.e, after the 2nd of February 1951 and again after the 22nd of May 1951, would be illegal as a remand for further detention had not been ordered by the Magistrate having jurisdiction in these cases but by the City Magistrate of Farrukhabad who certainly had no jurisdiction to try cases of districts other than Farrukhabad.

22. The various sections justifying the detention of a person arrested are Sections 61, 167 and 344 of the Cr PC. Section 61 simply provides for detention in the custody of a police officer for a period not longer than 24 hours and directs that the detention should not exceed this period in the absence of a special order of a Magistrate under Section 167 of the Cr PC. Under Section 167 of the Cr PC the Magistrate to whom the accused is forwarded can authorise the detention of the accused in such custody as he thinks fit for a term not exceeding 15 days in the whole irrespective of the fact whether that Magistrate has or has not jurisdiction to try the case. If such Magistrate has no jurisdiction and considers further detention unnecessary he is to forward the accused to the Magistrate having jurisdiction. It is only under this section that a Magistrate having no jurisdiction to try a case can authorise detention. The City Magistrate, Farrukhabad who had no jurisdiction to try the cases of Madras and places other than Farrukhabad had therefore no jurisdiction to remand the accused to custody for a period longer than 15 days in the whole, and that therefore the remand to custody of the accused by the City Magistrate, Farrukhabad for a period subsequent to the 2nd February and again subsequent to the 7th of May 2951 was illegal as the last batch of 24 warrants was executed on the 7th of May.

23. Section 344 of the Cr PC is the other section which authorises a Magistrate to remand the accused if in custody. This section is:

“(1) If, from the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of or adjourn any inquiry or trial, the Court may, if it thinks in by order in writing stating the reasons therefor, from time to time, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody.

Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time.

(2) Every order made under this section by a Court other than a High Court shall be in writing signed by the presiding Judge or Magistrate.

Explanation: 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.”

24. It is to be noted that this section gives the power of remand to the Court and not to any Magistrate as such. This means that the power under this section can be exercised by a court. This would be in the nature of things after the court had taken cognizance of the offence. The same should appear from the provision that primarily this section authorises a court to postpone commencement of or adjourn any inquiry or trial in certain circumstances and as a corollary when the court does any of these things, it was given the power to remand the accused by warrant if in custody. The stage of the inquiry or trial will also arrive after the court had taken cognizance of the offence. It should appear, therefore, that in view of what is said in sub-section (1) of Section 344 of the Cr PC the power of remanding the accused to custody under this section is to be exercised by a court after it had taken cognizance of the offence.

25. The explanation to Section 344 of the Cr PC, mentions that a remand, when there be already sufficient evidence against the accused and there would be chances of securing further evidence, would be on a reasonable cause. It is not said in the explanation that during the course of mere police investigation prior to its submitting a report for the purpose of the court taking cognizance against the accused remand can be ordered under the provisions of Section 344 of the Cr PC, of course the conduct of the police in trying to secure further evidence would be a part of the investigation. There is nothing in the Code to suggest that the police cannot investigate an offence after it has submitted a report for the Magistrate to take cognizance of an offence against the accused. It follows, therefore, that submission of such a report and the continuation of the investigation are not inconsistent and that both the steps can be taken provided the court does not pass any final order in the case till the investigation has been completed. If a Magistrate can grant remand under Section 344 of the Cr PC, during the course of police investigation and in the absence of a report by the police for taking cognizance of the offence, I am of opinion that the strict condition in Section 167 of the Cr PC, that the Magistrate to whom the accused is forwarded by the police can remand him to custody for a period not longer than 15 days in the whole, would be nullified. The whole scheme of these sections relating to remand seems to be that for the purpose of investigation the remand should ordinarily be for a period not longer than 15 days and that when remands for a longer period are found to be necessary by the police it should approach the Magistrate having jurisdiction over the case and that Magistrate on receipt of such report should decide judicially whether further remand be given or not. The moment he decides judicially, the Magistrate may be said to act as a court and may also be said to have taken cognizance of the offence. He can therefore act under Section 344 of the Cr PC. As cognizance of an offence can be taken by a Magistrate having jurisdiction, to inquire or try it, it is only such Magistrate who can act under Section 344 of the Cr PC. In this view of the matter also the City Magistrate, Farrukhabad could not have granted the remand for the custody of the accused under Section 344 of the Cr PC, as he had no jurisdiction over these cases.

26. It is not necessary that cognizance of an offence be taken on a police report contemplated by Section 173 of the Cr PC, after the completion of investigation.

27. Sections 169 and 170 of the Cr PC, provide for the steps to be taken by the police officer with respect to an accused in custody. The expressions used in these sections' are different from the expressions used in S. 173 of the Code which provides for what the investigating officer is to do after the completion of the investigation. It follows, therefore, that those two sections do not necessarily refer to the stage after the completion of the investigation though it may be that in some cases the contingencies referred to in this section may synchronize with completion of the investigation. These two sections will not come into play if the accused be not in police custody and had been either released on bail or had been confined in jail. S. 169 provides that if upon investigation it appears to the investigating officer that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate such officer shall if such person is in custody release him on his executing a bond with or without sureties, to appear if and when so required before a Magistrate empowered to take cognizance of the offence on police report and try or commit him for trial. This bond is taken, I suppose, for the contingency that the Magistrate may not accept such report and may like to proceed against the accused on the basis of the evidence collected by the police but considered insufficient by it. If the accused be not in police custody but be in jail, the police will have to request the Magistrate to order his release.

28. Section 170 of the Code is:

“(1) If, upon an investigation under this Chapter, it appears to the officer in charge of the police-station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police-report and to try the accused or commit him for trial or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed.

(2) When the officer in charge of a police-station forwards an accused person to a Magistrate or takes security for his appearance before such Magistrate under this section, ne shall send to such Magistrate any weapon or other article which it may be necessary to produce before him, and shall require the complainant (if any) and so many of the persons who appear to such officer to be acquainted with the circumstances of the case as he may think necessary, to execute a bond, to appear before the Magistrate as thereby directed and prosecute or give evidence (as the case may be) in the matter of the charge against the accused.

(3) If the Court of the District Magistrate or Sub-divisional Magistrate is mentioned in the bond such Court shall be held to include any Court to which such Magistrate may refer the case for inquiry or trial, provided reasonable notice of such reference is given to such complainant or persons.

(4) …………………………….

(5) The officer in whose presence the bond is executed shall deliver a copy thereof to one of the persons who executed it, and shall then send to the Magistrate the original with his report.”

29. The accused is to be forwarded to a Magistrate empowered to take cognizance of the offence upon a police report when there be sufficient evidence or reasonable ground about his having committed the offence. The police officer is also required under sub-s. (2) to send weapons or other articles to the Magistrate and to bind over the witnesses for their appearance before the Magistrate as they be directed in the bond and to give evidence against the accused. The relevance of such a provision is not apparent from the present section but becomes obvious when what used to be sub-s. (4) of this section till 1926 be considered. The repealed sub-section was:

“The day fixed under this section shall be the day whereon the accused person is to appear, if security for his appearance has been taken, or the day on which he may be expected to arrive at the Court of the Magistrate, if he is to be forwarded in custody.”

30. This should mean that the provision of S. 170 originally contemplated commencement of the proceedings against the accused when he appeared before the Magistrate either in custody or on bail. In view of the provisions of Section 170 of the Cr PC 7 the accused was to be before the Magistrate and the witnesses were to be there. The only object contemplated by the section could be that the Magistrate was to start the case against the accused on the police report. Though not expressly provided for in Section 170 of the Cr PC, it can be presumed in the natural course of things that the investigating agency which had already obtained sufficient evidence would ultimately submit a charge sheet against the accused. The possibility of subsequent release without charge sheet could not be contemplated in the presence of sufficient evidence with the police. It may also be noted that S. 190, sub-s. (1) Cl. (b) as existing upto 1928 authorised the Magistrate concerned to take cognizance of any offence upon police report of such facts and did not restrict his power to take cognizance to the police report in writing. That may be a reason why no mention of the submission of a report is made in S. 170. The Magistrate could take cognizance on receiving a report by the police to the effect that such and such accused is being forwarded as sufficient evidence has been obtained against him about his committing a certain offence and that witnesses have been bound over to appear before the Magistrate on such and such date. I am, therefore, of opinion that the forwarding of the accused to the Magistrate under S. 170 of the Code of Criminal Procedure was for the purpose of the Magistrate taking cognizance against the accused and that it was in such a contingency that the Magistrate was to grant further remand under Section 344 of the Cr PC, in order that further evidence might be secured against the accused. If the period of 15 days allowed to the police for investigation under Section 167 of the Cr PC, did not result in its obtaining sufficient evidence against the accused it would not justify the remand of the accused to custody on the basis of the provisions of section 170 or Section 344 of the Cr PC. The accused must be released from custody. At best he may be released on obtaining a bond from him for appearance whenever required, though a bond without any definite date for appearance would be valueless. I am, therefore, of opinion that remand under Section 344 of the Cr PC, can be given by a Magistrate having jurisdiction over the case and after the police had obtained sufficient evidence. I would also add that it is to be given after the submission of police report in writing that the court should take cognizance of the offence against the accused. Such report might not be a report contemplated under Section 173 of the Cr PC, which report is to be submitted after the completion of the investigation.

31. I have been referred to — ‘King Emperor v. Sooba’, AIR 1931 All 617 (A). In this case the contention that a police investigation could in no case involve the detention of the accused in custody for more than fifteen days, was not accepted. It was also not accepted that a Magistrate could not take cognizance of the offence under Cl. (b) of S. 190(1) in order to remand the accused to custody under Section 344 of the Cr PC, until a report prescribed under Section 173 of the Cr PC, had been forwarded. It was observed at page 618:

“This question of procedure has been argued at length before me, and it must be admitted that the law, as laid down in the Code of Criminal Procedure, is not altogether free from ambiguity.” It was further observed at page 619:

“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 S. 344, that the court may remand the accused to custody if it considers that there are reasonable grounds for doing so.”

32. What I have said above is not in conflict with what is laid down in this case, except that I am of opinion that the purpose of forwarding the accused to a Magistrate under Section 170 of the Cr PC, is not to obtain remand under Section 344 of the Cr PC, merely, but is for the Magistrate to take cognizance of the offence. He may or may not commence inquiry or trial till investigation be completed. There can be no unreasonableness in the Magistrate's taking cognizance of the offence after sufficient evidence has been obtained. Reasonableness of taking cognizance in the presence of reasonable grounds about the accused having committed the offence may be not so apparent. To my mind there can be such reasonable grounds for suspicion only when there is some good evidence against the accused. That evidence may not be considered sufficient by the police to bring home the guilt to the accused. But the police can never be the final judge of the sufficiency of the evidence obtained during the investigation. Sufficiency of evidence to bring home the guilt to the accused would be determined by the court. I, therefore, see no unreasonableness in the Magistrate's taking cognizance of the offence even in cases in which sufficient evidence had not been obtained by the police if such evidence had been obtained which furnished reasonable ground for considering that the accused had committed the offence or reasonable ground for prosecuting the accused for the commission of the offence. We are familiar with such provisions in the Code which justify a Magistrate framing a charge on the basis of prima facie evidence. Further, if the purpose of Section 170 of the Cr PC, was merely to send the accused for obtaining remand there could not have been any point in taking bonds from witnesses to appear before the Magistrate on a certain date as provided in sub-s. (2) of Section 170 of the Cr PC.

33. The view I have expressed above finds support from what is expressed in — ‘Bholanath Das v. Emperor’, AIR 1924 Cal 614 (B). It may be mentioned that doubt about the correctness of this view was expressed in the Superintendent and Remembrancer of Legal Affairs, Government of West Bengal v. Bidhindra Kumar Roy’, AIR 1949 Cal 143 (C).

34. It may further be mentioned here that in none of the cases for remand it had been mentioned that the police was in possession of sufficient evidence against the accused. The existence of sufficient evidence is a condition precedent for the police acting under Section 170 of the Cr PC, and for making a request to the Magistrate to take ??? of the offence. It is said in paragraph 10 of the affidavit in Miscellaneous Case No. 1698 of ??? that so far 76 witnesses have been produced for the purpose of identifying the applicant ??? connection with the various offences, that 30 of them were from the Farrukhabad district and that ??? a single witness could identify the applicant Similar assertion was made in para 10 of the ??? filed in Criminal Miscellaneous case No. 1352 of ??? with the difference that up to that time 64 ??? had been produced. The counter-affidavit filed in that case did not question this statement. In fact the learned counsel appearing for the State did not question the accuracy of the fact that no witness could identify the applicant. It appears from the statements of the learned counselor the State that the case against the applicant wood depend on the evidence that signatures on certain in documents were of Kali Charan. So far the prosecution is not in possession of the expert's ??? the point. It would appear therefore ??? there is no evidence against the applicant so ??? in possession of the investigating officer and ??? therefore the various remands given by Shri R.K v. Garg who could not have applied his mind to the facts of the case as the case diaries were ??? submitted to him and the accused was not ??? to state what objection he had to grant ??? further remands and the application requesting ??? remand just mentioned that further dates for ??? had been fixed without intimating ??? the result of the previous identification proceedings had been, were illegal. It follows, therefore, that even if it be held that Shri R.K Garg, Magistrate, Farrukhabad could have granted remands under Section 344 of the Cr PC, in ??? with these cases relating to places other than farrukhabad he had no material before him on which the remand orders can be said to have been ??? after due deliberation and that the remand ??? in the absence of any evidence against the accused were absolutely unjustified.

35. It is conceded by the learned counsel for ??? State that the various offences under investigation against Kali Charan could be tried only at the places where those offences were committed ??? that those offences could be tried at Farrukhabad in view of these offences being along with an evidence under S. 120-B, I.P.C, as some acts in ??? of the conspiracy were done at Farrukhabad. It may be so. But, as already indicated, ??? offence of conspiracy cannot give rise to the cases of conspiracy. In that view of the ??? there can be only one case against Kali Charan. Already three cases have been registered against him at Farrukhabad and he has been ordered to be released on bail in these three cases, to more cases could have been registered against in with respect to the same conspiracy and no more warrants of arrest or detention could have been legally issued against him.

36. It was further argued for the State that the court at Farrukhabad could have jurisdiction over these cases of other places in view of Sections 179 and 182 of the Cr PC. The various offences under investigation against the accused would be complete the moment they were committed at any place. Such consequences at other places which could be the result of such conduct cannot be an ingredient of those offences and therefore Section 179 of the Cr PC, cannot apply in view of — ‘Kashi Ram v. Emperor’, AIR 1934 All 499 (D). The offences under Ss. 420, 468, 471 and 474, I.P.C, are not such which can be committed in more than one place and therefore Section 182 of the Cr PC, would not apply.

37. I am, therefore, of opinion that the detention of the applicant in connection with the 27 crimes alleged to have been committed in places other than Farrukhabad is illegal. I, therefore, order that he be released from custody which is in connection with these cases. I make it clear that his release from custody in connection with the three cases of Farrukhabad district will be in pursuance of the bail already furnished by him. A copy of this judgment be sent to the Chief Secretary to the Government for information and such action as be considered necessary.

D.H.Z

38. Order accordingly.

Kali Charan v. State

Structured Summary of the Opinion concerning Kali Charan — Criminal Miscellaneous Applications

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Applicant's Arguments

State's (Prosecution's) Position

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Kali Charan v. State

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