T.N.R. Tirumalpad, J.C.
1. This is a revision petition directed against the order of the Sessions Judge, dated 25-5-1963, by which he cancelled the bail granted to the petitioner by the S. D. M. Imphal West on 8-5-1963 and directed the bail petition to be heard afresh and to be disposed of by the Additional District Magistrate, instead of by the S. D. M., I. W.
2. The facts which relate to this revision petition are as follows:
On 6-5-1963, at about 10-30 a.m. a F.I.R. was lodged in the Imphal Police Station, by one Manglem Singh, a student in the D. M. College stating that at about 10-00 a.m. when be was going to College, he saw one P. Sarojini, a student of the B. A. Class in the said College being forcibly taken near the new Radio Station and carried away in a Jeep towards the south by some unknown persons and that he suspected that the girl might have been kidnapped against her will. This girl happens to be the daughter of one P. Mani Singh. Inspector of Police, C. I. D., Imphal. On 7-5- 1963, a S.I. of Police, applied to the S. D. M. I. W. for the issue of a search warrant under Section 100 Cr.P.C. for the recovery of the girl from the house of one R. K. Mangisana Singh of Sagolband. The Magistrate issued a search warrant immediately to the O/C., Imphal, Police Station and the O/C directed S. I. Nandakishore Singh to execute it. A Police force then proceeded to the house of R. K. Mangisana Singh, to effect the recovery of the girl.
When the police force were at the said house, the petitioner herein, as well as the girl sent up a joint petition to the Additional District Magistrate stating that hearing that a case has been lodged against them, they were ready to surrender before the A. D. M., but that they could not surrender as some Police officials with a great force had surrounded them and that they therefore prayed that proper facility may be given to them to surrender before the Court. They also added that they had eloped together on 6-5-1963 with mutual consent and agreement. On this petition, the A. D. M. issued an order to the O/C Imphal Police Station to produce the girl before the Magistrate concerned direct. But it would appear that in the meantime, the girl was taken into custody and the petitioner was arrested for an offence under Section 366 I.P.C. and both of them were taken to the Imphal Police Station, which was just across the road from the Court of the S. D. M. I. W. From there, the girl was produced before the S. D. M. I. W. who sent the girl before the S. D. M. Bishenpur, for recording her statement under Section 164 Cr.P.C. at the request of the Police. In the statement so recorded the girl who is admittedly 20 years of age stated that she was going to College on 6-3- 1963 and that at about 10-15 a.m. she was carried away by force in a Jeep without her consent. She also said that for about 2 or 3 years, the had been in love with the petitioner and that about a month ago he had asked her to elope, but that she refused requesting him to wait for some time. After the statement was recorded, the S. D. M. I. W. entrusted the girl to the custody of her father.
3. The petitioner, who was arrested at 3.00 P. M. on 7-5-1963, was not produced before the Magistrate on that date, but was kept in Police custody. One Joychandra Singh, on behalf of the petitioner, moved a bail petition through counsel before the S. D. M. stating that it was a case of pure elopement, that the petitioner was quite innocent of kidnapping and that investigation of the case will not be hampered by his being enlarged on bail. The Magistrate forwarded this petition to the O/C Imphal Police Station, immediately for report through the person, who moved for the bail. This action of the Magistrate in sending through the person who moved for the bail has been severely criticised by the Sessions Judge. It was received by the O/C on 7-5-1963 itself and he sent it to the I/O for a report, but no report was submitted to the Court on 7-5- 1963 and the petitioner continued in Police custody.
It would appear that another bail application was thereupon prepared for the petitioner on the same day in which it was stated that the O/C has not submitted any report on the previous bail application, that in the meantime the statement of the girl, which was recorded under Section 164 Cr.P.C. supported the petitioner's case, though the statement was made under the influence of the guardian of the girl during her stay in Police custody before she was produced in Court and that- the petitioner may be released on bail, his petition was moved in Court on 8-5-1963 at 11-00 A.M. and the Magistrate immediately issued an order to the O/C Imphal Police Station to submit a report along with the accused during Court hours and also directed that the statement of the girl under Section 164 Cr.P.C. and of her relevant documents should also be produced. This order seemed to have been issued at n A. M. on 8-5-1963 through the normal official channel to the O/C whose Office was just across the road and it contains an endorsement by the O/C that it was received by him only on 9-5-1963 at 11-00 a.m.
4. The petitioner was produced before the S. D. M., I. W. at 2-30 p.m. on 8-5-1963 with a report from the I/O stating that he was arrested at 3-00 p.m. on 7-5-1963,in connection with F.I.R. 386 (5) 63 dated 6-5-1963 under Section 366 I.P.C., that the investigation was going on and that he may be remanded to Jail custody for a period of 15 days to enable the completion of the investigation. It would appear that the statement of the girl recorded under Section 164 Cr.P.C., which was called for by the Magistrate in his order in the second bail petition moved on that day was also produced before the Magistrate. But the copy of the entries in the Police Diary relating to the case were not produced even though the Magistrate had personally asked the Prosecutor to produce them. The Magistrate waited till 5-30 p.m. but as the copy of the entries with diary were not produced till then, he passed an order granting bail to the petitioner. In the said order, he stated that the statement of the girl under Section 164 showed that she had prior relation with the petitioner and that she had asked the petitioner to wait till she finished her education. The Magistrate criticised the Police for not producing the relevant papers under Section 167. Cri.P.C. and he further said that there was no report from the Police even opposing the bail, that the prosecution could not give any satisfactory reason why the petitioner should not be granted bail and that it was not the case of the prosecution that the petitioner would abscond or of her wise tamper with the investigation and hence he did not see any reason why he should be remanded to Jail and why bail should be refused.
5. It would now appear that on 8-5-1963 itself the I/O had submitted a report to the Court through the O/C Imphal Police Station stating that the co-accused were absconding and If the petitioner was enlarged on bail at this initial stage of the investigation, it will be impossible to arrest the remaining accused as it would hamper further investigation and that therefore bail should be refused. This report contains an endorsement by the O/C on 8-5-1963 itself stating that the bail should be rejected as it would, hamper the investigation if bail is granted. But this report was not submitted when the petitioner was produced in Court on 8-5-1963, but was sent to the Court only on 9-5-1963, the day after the bail was granted. With regard to the second bail petition, it was returned to the Court by the O/C Imphal Police Station on 13-5-1963, simply stating that as bail had already been granted, there was no necessity to submit the documents.
6. On the same day, namely, 13-5-1963, an application was moved before the Sessions Judge under Section 497(5), Cri.P.C. for canceling the bail granted to the petitioner by the S. D. M. In this, it was mentioned that the petitioner was a desperate character already involved in a cheating case by false impersonation, that his conduct showed that there was strong apprehension that the crime would be repeated with the help of his associates, that his associates were still concealing themselves with the help of the petitioner and further that the petitioner was found to have contacted some of the important witnesses since his enlargement on bail in order to tamper with the prosecution evidence and that his remaining on bail would hamper investigation. It was further stated that the Magistrate did not give the prosecution a reasonable opportunity to place all the materials to oppose the bail petition. It was next stated that though all the relevant and necessary materials were submitted to the Magistrate on 8-5-1963, with a prayer for remanding the petitioner to Jail custody, a copy of the entries in the Police Diary was not transmitted as that was the practice followed in that Court while forwarding an accused person to the said Court and that the order granting the bail was arbitrary and not warranted by law.
7. The learned Sessions Judge did not consider the question whether the Magistrate was justified on the material placed before him in granting the bail. Nor did he consider the reasons mentioned in the petition, for canceling the bail. Instead, in his long order of 29 paragraphs, he went on to give a certificate to the Police that their action in this matter was quite correct. He said that the Police had obeyed the direction of the Additional District Magistrate by producing the girl before the Magistrate concerned at 3-30 P.M. after her recovery at 3-00 P.M. and that there was no unnecessary delay in the production of the girl. He further said that the petitioner was arrested at 3-00 P.M. on 7-5-1963 and produced before the Magistrate on 8-5-1963 at about 2-00 P.M., that is, within 24 hours and that there was no illegality in his detention at the Police Station for less than 24 hours. He further said that it cannot be said that the Police had acted negligently in submitting their report on the first bail petition on 8-5-1963, which appeared to have reached the Magistrate only on 9-5-1963.
8. After giving the certificate to the Police of correct conduct on their part, the Sessions Judge proceeded to criticise the Magistrate. He said that the Magistrate acted improperly in sending the first bail application in original through a private party to the O/C Imphal Police Station. He next criticised the Magistrate for not fixing any time either in the first bail application or in the second bail application for a report by the Police and he therefore said that the Police cannot be called negligent in having sent the first report on 8-5-1963 and the second report on 13-5- 1963, as according to him, it was expected to take some time for the O/C Imphal Police Station to contact the I/O and get the necessary report and papers from him and to forward the same to the Court concerned. He then criticised the Magistrate for having dealt with the bail application, when both the original bail petitions were with the Police for reports as according to him, this deprived the prosecution of the necessary opportunity to oppose the bail applications. So, be said that the proper procedure for the Magistrate would have been to remand the petitioner to Jail custody and afterwards dispose of the bail petition after fixing a date for its disposal and giving necessary opportunity to the prosecution to oppose the bail.
9. He next found fault with the Magistrate for entertaining a second bail petition when the first bail petition was pending before him. He said that the Magistrate should not have disposed of the bail petition on 8-5-1963, even without waiting for the return of the bail petitions and the relevant reports and papers. When it was pointed out to the Sessions Judge that it was the duty of the Police to have filed the necessary papers as required under Section 167(I), Cri.P.C. when requesting for the remand of the accused and that when the Police did not do so the Magistrate was justified in granting bail, the Sessions Judge said that there was no practice in Manipur to file the copy of the entries in the Police Diary when the accused was produced for remand, but only to submit a report praying for remand. He further said that the provision in Section 167(I), Cri.P.C. for submission of a copy in the Diary was mandatory and the sooner the bad practice of not sending it along with the accused is done away with the better it would be. But he said that the report praying for remand was before the Magistrate and that it was only for judicial custody and not for Police custody and hence the Magistrate should have given due consideration to the request for remand, even though, it was not supported by a copy of the Police Diary.
10. He then proceeded to set aside the order of the Magistrate dated 8-5-1963, granting bail to the petitioner as, in his opinion, the Magistrate should not have entertained the second bail petition when the first bail petition was before him and as the Magistrate granted the bail when neither of the bail petitions nor the reports of the Police on the said petitions were before him. Then, he remanded the matter to the Additional District Magistrate for disposing of the bail application afresh and stated that he was refraining from making any comment which might reflect as to whether it was a fit case for granting or refusing bail.
11. This order was passed on a Saturday. It would appear that the petitioner was present in the Sessions Court at the time and immediately on the pronouncement of the order of the Sessions Judge, the Police wanted to arrest him in the Court premises itself and there was a tussle going on between him and the Police, as he wanted to surrender to the Court instead of being arrested by the Police. It would look as if the Police were displaying such excessive zeal in this matter, because the girl involved in this case happened to be the daughter of a Police Inspector attached to the C. I. D. and the Police therefore wanted to see that the petitioner was in their custody. Thereupon, the petitioner filed an application before the Sessions Judge surrendering himself to the custody of the Sessions Court and praying for remanding him to Judicial Custody till the bail application was disposed of by the Additional District Magistrate. On that petition, the Sessions Judge ordered that the petitioner was allowed to surrender to the Sessions Court, that he be taken into custody and remanded to Jail custody direct from the Court and that a Process Server should accompany the Police party taking the petitioner to Jail custody, along with the remand order.
12. Thus, the petitioner was lodged in Jail on that Saturday evening and he had to remain there on Sunday also and he could come to this Court only on Monday the 27th May in revision. this Court immediately directed the release of the petitioner on bail while admitting the revision petition.
13. I am afraid that the Sessions Judge's order will not stand a moment's scrutiny. It has to be remembered that the petition before him was under Section 497(5), Cri.P.C. and what he had to consider was whether the petitioner, who had been released under the Section had to be arrested and committed to custody. He was not sitting in appeal or revision against the S.D.M.'s order for bail. What he had the jurisdiction to decide under Section 497(5) was whether at the time when he was moved after the grant of the bail by the S.D.M., the circumstances were such that the person concerned cannot be allowed to continue on bail and should betaken into custody.
14. A perusal of the Sessions Judge's order will, however, show that he did not consider this question. On the of her hand, his order shows that he felt that he was sitting in revision over the Magistrate under Section 435(1), Cri.P.C. and his entire criticism of the Magistrate was made on that basis. Under Section 435, the Magistrate will be deemed to be inferior to the Sessions Judge for the purpose of Section 435(1). Unless, therefore, he was dealing with a revision against the order of the Magistrate under Section 435(1), he cannot criticise the procedure adopted by the Magistrate. Nor can he go into the various of her matters which he has dealt with in dealing with the question of cancellation of bail under Section 497(5). He cannot also remand the matter of bail to the Additional District Magistrate when acting under Section 497(5). In fact, he had no authority to transfer the case from the S.D.M. to the Additional District Magistrate as if he was acting under Section 528(1-C), Cri.P.C. He cannot transfer a case submit under Section 528(1C), but only on an application made to him in that behalf. There was no such application before him.
15. We have to remember that on 8-5-1963, what the Magistrate had to consider was whether he should authorise the detention of the petitioner under Section 167(2), Cri.P.C. in custody as prayed by the prosecution or whether the petitioner should be released -on bail under Section 497(1) or (2), Cri.P.C. as prayed by the petitioner. What the Magistrate did in fact, decide was that his detention in Jail custody was not necessary under Section 167(2) and secondly that he should be released on bail under Section 497(2) as the Magistrate was not satisfied that there was reasonable ground for believing that the petitioner had committed a non-bail able offence, but that there were sufficient grounds for further enquiry into the guilt. If the learned Sessions Judge thought that the said orders of the Magistrate should be set aside and that the matter should be remanded for fresh disposal regarding the bail, it is clear that he cannot do so acting under Section 497(5), Cri.P.C. So he must be deemed to have acted under Section 435, Cri.P.C. If he was acting under Section 435, he had no jurisdiction to set aside the order of the Magistrate granting bail or to remand the case or to transfer it to the Additional District Magistrate. What he can do at best was to report the matter under Section 438, Cri.P.C. for the orders of this Court recommending that the order should be set aside. Thus, in setting aside the order of the Magistrate and in remanding the case and in directing the transfer of the case, the Sessions Judge has acted illegally by assuming a jurisdiction, which ho did not possess under Section 497(5), Cri. P. C.
16. Under that Section what the Sessions Judge had to decide was whether the person to whom bail was granted by the Magistrate under Section 497 should be arrested and committed to custody. It is exactly this which the Sessions Judge failed to do. The request to him by the prosecution was to cancel the bail on various grounds mentioned in. the petition. The learned Judge had to consider whether any or all of those grounds were made out which should cause him to cancel the bail. But he did not consider any of those grounds and stated specifically that he was not considering them or even expressing his opinion, as he was sending the case to the Additional District Magistrate to consider the said question. This he cannot do acting under Section 497(5). His order has therefore to be set aside as one passed without any jurisdiction.
17. In a matter coming up before him under Section 497(5), Cri. P. C., the Sessions judge is not sitting in revision over the Magistrate's order and so he should not indulge in any criticism of the Magistrate. Further, the remarks against the Magistrate were really not justified. His first remark was that the Magistrate should not have sent the first bail application made by the petitioner on 7-5-1963 through the applicant to the Police. We have to remember the circumstances under which the Magistrate had to send it through the applicant. The petitioner was arrested at 300 P.M. on 7-5-1963 and he was immediately brought to the Police Station which was just across the road from the Court where he had to be produced. When the petitioner was arrested the Police Officer knew that he cannot complete his investigation within 24 hours. In such a case, Section 167(1), Cri.P.C. provides for the transmission forthwith of a copy of the entries in the Police Diary relating to the case and for the production of the accused before such Magistrate. Special emphasis has to be laid on the words 'forthwith' in Section 167(1). The learned Sessions Judge seems to think that this would authorise the detention by the Police up to a period of 24 hours after the arrest. This is totally incorrect.
18. The Criminal Procedure Code does not authorise detention by the police for 24 hours after the arrest. Sections 60 and 61, Cri.P.C. make this quite clear. Section 60 provides that a Police Officer making an arrest without warrant shall, without unnecessary delay take or send the person arrested before a Magistrate. Section 61 repeats this by saying that no Police Officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. Thus, the twenty-four hours prescribed under Section 61 is the outermost limit beyond which a person cannot be detained in Police custody. It is certainly not an authorization for the Police to detain him for twenty-four hours in their custody. It is only in a case where a Police Officer considers that the investigation can be completed within the period of twenty-four hours fixed by Section 61 that such detention for twenty-four hours is permitted. This is clear from Section 167(1), Cri.P.C. Thus, when the Police Officer knew in this case that he cannot complete the investigation within twenty-four hours, the detention of the petitioner in custody in the Imphal Police Station which is just opposite the Court where the Magistrate sits was totally illegal.
19. The decision State v. Ram Autar Chaudhry AIR 1955 All 138, in dealing with Section 61, Cri.P.C. states that Section 61 does not empower a Police Officer to keep an arrested person in custody a minute longer than is necessary for the purpose of investigation and it does not give him an absolute right to keep a person in custody till 24 hours. I would go even further and say on a construction of Sections 60, 61 and 167(1), Cri.P.C. that unless a Police Officer considers that he can complete the investigation within a period of 24 hours, it is his duty to produce the accused forthwith before the Magistrate. As in this case the Police Officer knew that he cannot complete the investigation within 24 hours and as he was detaining the accused in the Police Station, which is just opposite the Court house, it was his duty to have produced the petitioner before the Magistrate on 7-5-1963 itself instead of keeping him in Police custody.
It was not explained why his detention was necessary for 24 hours, It is particularly abhorrent in this case in view of the fact that the girl involved in the case was the daughter of a Police Officer and the Police appeared to be anxious to retain the custody of the petitioner as long as possible. It was for this reason that when bail was immediately moved on 7-5-1963 itself, the Magistrate sent the original application itself with his order through the applicant for immediate service on the O/C in charge of the Police Station, which was just across the road. No doubt, it would have been more proper if it had been sent through the usual official channel. But we know that service is bound to be delayed if sent through official channel. In this very case, the second bail petition moved at 11-00 A.M. on 8-5-1963 which was sent by the Magistrate through the official channel to the Police Station just across the road was shown as received in the Police Station only on 9-5-1963 at 11.00 a. m. Thus where expedition is required and such expedition can be achieved by the Magistrate only in this manner by sending it through the party concerned to the Police Station across the road, I am not prepared to blame the Magistrate. After all the purpose to be achieved was quick service and quick service was admittedly achieved and the bail petition was in the hands of the O/C on 7-5-1963,itself.
20. Much was made by the Sessions Judge of the fact that the Magistrate did not fix any time for Police report regarding the bail. One does not know why any time should have been fixed at all as the Police had to produce the accused in Court for the purpose of remand and they knew full well that the report had to be submitted when they produced the accused in Court, as the question of bail will have to be considered then. It was for the Police to explain why no report was submitted on the first bail petition, at least when the accused was produced in Court at 2.00 p. m. on 8.5.1963.
21. It is meaningless to say that because the Magistrate did not fix any time for the Police report, the Police thought that they could take their own time to make the report. This is a matter relating to the liberty of the citizen and if no time is fixed by the Magistrate for the report, it means that the report must be submitted immediately. There seems to be a notion among the Police that it is their duty to prolong the detention of accused persons either in Police custody or in Jail custody and that in this matter the duty of the Police should always clash with the duty of the Court. It is better that they disabuse themselves of this notion. It is time that the Police understood that citizens in independent India have a fundamental right of liberty and that it is as much the duty of the Police as that of the Courts to safeguard such right and that under no circumstances should the Police pray for detention of a person unless it is absolutely necessary for the purpose of the investigation of a case. If they understand this aspect of their duty, I think unnecessary opposition to bail applications and unnecessary applications for remand would cease.
22. It was because, the Police failed to produce the petitioner in Court on 7-5-1963 or to send any report on the first bail application that a second bail application was moved on 8-5-19I3 at 11-00 a.m. The learned Sessions Judge seems to think that a second bail application should not have been entertained by the Magistrate when the first bail application had not been disposed of and was awaiting Police report. Here, he had blundered. Section 497, Cri.P.C. does not contemplate any written application for bail at all. When a person accused of any non-billable offence is arrested or detained without warrant, by an Officer in charge of a Police Station, or appears or is brought before a Court, he can either himself or through a lawyer apply even orally for bail. Such being the case, any written application for bail is only intended to place on record that the accused has moved for bail. The Sessions Judge is wrong in thinking that there should be any such formality of a first application for bail being disposed of and then alone a second application for bail being entertained. It was because the first application could not be disposed of on account of the delay by the Police in submitting a report that the second application had to be filed. It was as the application itself would show only a reminder to the Magistrate of the desire for bail and there is nothing wrong in making such an application. There is nothing wrong of illegal in making successive applications for bail, when the accused person remains in custody Such application should be disposed of by the Court without any delay and it is the duty of the Police to co-operate with the. Court in doing so.
23. I am unable to understand the Sessions Judge's observations that when a person, who had been arrested applied for bail and the petition was sent to the Police for report, the Magistrate should remand the person to Jail custody until the report of the Police was received and until the prosecution was given a proper opportunity, to oppose the bail. This observation seems to indicate that the Sessions Judge has not understood the guarantee of liberty to a citizen under the Constitution and also under the Criminal Procedure Code. When an arrested person is brought before a Magistrate, he has to decide whether he should remand the person to Jail custody under Section 167(2) Cr.P.C. as requested by the Police and at the same time he has to decide whether the request of the person for bail should be granted. In order to decide the question of remand, he must be satisfied on a perusal of the entries in the Police Diary that there were grounds for believing that the accusation or information against the accused was well founded and that the Police have exercised their right of arresting without warrant legally and further that it was necessary for the purpose of investigation that the accused should be remanded to custody. Unless, the Magistrate is satisfied on all these points, he can- not remand the accused to Jail custody. It. is for this purpose that Section 167(1) enjoins that a copy of the entries in the Police Diary should be transmitted to Court. But admittedly this was not transmitted is the present case when the petitioner was produced in Court. Instead, what is called a remand report requesting that the accused may be remanded to Jail Custody was sent.
24. What was stated in the petition to the Sessions Judge was that this was the practice followed in the said Court in forwarding the accused. Thus, the Police were not even accepting that they were at fault in not transmitting a copy of the Police Diary to Court, but were trying to throw the blame on the Magistrate for indulging in a wrong practice of accepting a remand report instead of a copy of the entries in the Police Diary. We know that in this case the Magistrate insisted on the copy of the Police Diary being produced in order to decide whether there should be a remand, and his order shows that he asked the prosecution to produce all the relevant documents under Section 167 Cr.P.C. and that he waited till 5-30 p.m. on 8-5-1963 to enable the Police to produce the same. It was only when the Police failed to produce the said documents that he ordered the release of the petitioner on bail. Thus, it is clear that in order to cover up their failure to produce the necessary documents into Court, the Police were trying to throw the blame on the Magistrate. Such an argument cannot be countenanced even for a moment.
25. this Court has given instructions in many judgments to the Police and to the Magistrates that the provisions of Section 167 Cr.P.C. should be scrupulously observed, that the copy of the Police Diary should be produced when the accused is brought to Court, and that the Magistrate cannot remand the accused without satisfying himself that a remand was necessary on a perusal of the said diary. The learned Advocate, who appeared for the petitioner stated that the decision of this Court, Gaibidingpao Kabul v. Union Territory of Manipur AIR 1963 Manipur 12 was brought to the notice of the Magistrate in the course of the arguments in this case, in which in paragraph 13, this Court had pointed out that if the Police do not transmit to the Court a copy of the entries in the diary relating to the case, to satisfy the Magistrate that there are grounds for believing that the accusation or information is well founded, and that a remand is absolutely necessary for the purpose of investigation, the Magistrate has no jurisdiction to direct the detention of the arrested person. This decision is dated 15-2-1962 and it has been communicated to all the Magistrates. Hence, there is no doubt that no Magistrate would remand an accused person in violation of Section 167 Cr.P.C. In this particular case, the Magistrate had directed the prosecution on 8-5-1963 to produce the documents referred to in Section, 167 (1) Cr.P.C. and waited for them till 5-30 P. M. and the Police had deliberately failed to produce the documents. Thus, the talk of the illegal practice of this Magistrate is totally unfounded.
26. Thus, when the copy of the entries in the diary were not transmitted to the Court as required under Section 167(1) Cr.P.C., inspire of the Court, waiting till 5-30 P. M., the Magistrate had no of her option but to release the petitioner. It was not even necessary that a bail bond should have been taken. Section 63 Cr.P.C. provides that no person who has been arrested by a Police Officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate. Thus, on failure to produce the copy of the Police Diary as ordered, the Magistrate could have straightway released the arrested person even without taking any bond from him or even without bail. There is an impression among the Police in this Union Territory that the remand of an arrested person should be done by the Magistrate is a matter of course. The sooner this impression is got rid of, the better it will be. 1 wish to impress on all the Magistrates as well as on the Police that it is the duty of the police to comply with the provisions of Section 167 (1) Cr.P.C. and that the Magistrate should insist on such strict compliance and if the Police do not satisfy the Magistrate with the documents that a remand was necessary, for the purpose of investigation, the Magistrate may release the accused.
27. Thus, the position was that even without taking bail from the petitioner, the Magistrate would have been right in releasing him. It would have been wrong on the part of the Magistrate to have sent him to Jail custody until the Police chose to submit their reports on the bail applications, as the Sessions Judge would have it. When therefore instead of releasing the accused as the Magistrate could have done, the Magistrate only granted him bail, and that too when the prosecution did not show any grounds why bail should be refused, it is difficult to understand the observation of the Sessions Judge.
28. As I stated at the beginning what the Sessions Judge had to consider in the application before him was to see whether at the time when the application was made there was sufficient reason for cancellation of the bail and for remanding the petitioner to custody. I have said that in view of the failure of the Police to act in accordance with the provisions of Section 167(1) Cr.P.C., there was no cause to remand the petitioner. Hence, the question of cancellation of his bail does not arise. Even on the merits of the petition, I do not find any reason for cancellation of the bail. In the so-called remand report, sent to the Court on 8-5-1963, no reason was mentioned why the petitioner should be remanded to custody. All that was stated was that he may be remanded to Jail custody for 15 days so as to enable the Police to complete the investigation. It was not stated how or why it was necessary that he should be remanded in order to complete the investigation. The learned Sessions Judge seems to think that remand to Jail custody of an arrested person is the normal thing for the Magistrate to do and that it was for the accused to give reasons for his release on bail. This is a mistaken impression. The liberty of the citizen is sacred and if that liberty is to be interfered with, it is for the Police to show that unless that liberty is curtailed, there cannot be proper investigation of the case. Thus, when this was not shown in this case, the Magistrate was right in not remanding the petitioner to custody.
29. When we come to the next document, namely, the report of the Police dated 8-5-1963 on the first bail application, which was received by the Court only on 9-5-1953 after granting the bail, we find it stated that the co-accused were absconding and that the Police were trying to arrest them and if the petitioner was enlarged on bail at that stage of the investigation, it would not be possible for the Police to arrest the remaining accused. Thus, this was an additional plea made for the first time in this report which was not mentioned in the original remand report and which evidently was not urged before the Magistrate when he granted bail. I find from the records, that 3 of her accused were arrested by the Police on 9-5-1963, even though the petitioner was released on 8-5-1963. Thus, this vague allegation that it will not be possible for the Police to arrest the of her accused if the petitioner was released on bail, cannot be taken seriously by any Court and it is not sufficient to deprive a person of his liberty.
30. When next we come to the petition filed before the Sessions Judge, we find that further reasons are mentioned for canceling the bail. They are that the petitioner was involved in a cheating case previously, that he is a man of desperate character, that he was likely to kidnap the girl with the help of her associates of similar desperate character and further that the accused was found to have contacted some of the important witnesses since he was enlarged on bail. No details are mentioned as to the important witnesses, the petitioner was said to have contacted, Such vague allegations are not sufficient to cancel the bail. The fact that the petitioner was involved in a cheating case previously is again no reason why bail should be refused in the present case. As I pointed out, the Police have been going on adding more and more reasons in their desperate attempt to see that the petitioner was deprived of his liberty.
We have to remember that this is a case of alleged abduction brought by the Police against the petitioner of a girl who is the daughter of a Police Officer. We cannot also forget the fact that admittedly the petitioner and the girl aged 20 have been in love for 2 or 3 years. We must further remember that it is a common feature it Manipur for a boy and girl who like each of her to elope with a view to later marriage. In this state of affairs, to call the petitioner a desperate character shows only that the Police are taking an extra interest in this case, perhaps, on account of the fact that the girl's father happened to be a Police Officer. The learned Sessions Judge was fully aware of this, but still he has not referred to it at all in his order. There is no doubt in my mind that this is not a case where the bail should have been cancelled and the order of the Magistrate refusing to remand the petitioner to fair custody and granting him bail should have been set aside.
31. For the reasons mentioned above, the order of the Sessions Judge is set aside and the order of the Magistrate dated 8-5-1963 is restored and it is confirmed.