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In Re: Sagarmal Khemraj - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 266 of 1940
Judge
Reported inAIR1940Bom397; (1940)42BOMLR904
AppellantIn Re: Sagarmal Khemraj
Excerpt:
criminal procedure code (act v of 1898), secs. 186, 83, 77--warrant for arrest of persons outside limits of jurisdiction of court issuing it-description of officer to whom warrant is addressed-description, address or occupation of person, to be arrested -invalidity of warrant.; under the provisions of the criminal procedure code, 1898, relating to the execution of a warrant of arrest of a person outside the local limits of the jurisdiction of the court issuing the same, the person arrested should be taken before a magistrate or commissioner of police or district superintendent of police, and such magistrate, commissioner or district superintendent should satisfy himself that the person arrested appears to be the person intended by the court which issued the warrant, and when so satisfied..........notes, the numbers of which had been taken, was subsequently traced to the two applicants, and the bombay police communicated this fact to the calcutta police. thereupon non-bailable warrants were issued by the learned chief presidency magistrate of calcutta on june 25, 1940, stating that the two applicants stand charged with the offence under section 392 of the indian penal code, that is to say, of robbery. the warrants are addressed to the ' o/c concerned ' and refer to the two applicants merely by their names, the first ' sagarmal khemraj ' and the other ' kaluram hirachand,' and in the margin of the warrants is a note initialled by the learned chief presidency magistrate, calcutta, to this effect: ' forwarded to the 3rd presidency magistrate, bombay, for favour of execution and.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an application in revision against an order made by the learned Presidency Magistrate, Third Court, Bombay, directing that the two applicants be forwarded to Calcutta through the Commissioner of Police, Bombay, to stand their trial before the Chief Presidency Magistrate, Calcutta, upon the charges set out in the warrant.

2. It appears that on June 12 last a robbery was committed in Calcutta of forty-four currency notes of the denomination of Rs. 1,000 each. One of those currency notes, the numbers of which had been taken, was subsequently traced to the two applicants, and the Bombay Police communicated this fact to the Calcutta police. Thereupon non-bailable warrants were issued by the learned Chief Presidency Magistrate of Calcutta on June 25, 1940, stating that the two applicants stand charged with the offence under Section 392 of the Indian Penal Code, that is to say, of robbery. The warrants are addressed to the ' O/C concerned ' and refer to the two applicants merely by their names, the first ' Sagarmal Khemraj ' and the other ' Kaluram Hirachand,' and in the margin of the warrants is a note initialled by the learned Chief Presidency Magistrate, Calcutta, to this effect: ' Forwarded to the 3rd Presidency Magistrate, Bombay, for favour of execution and return.' I will return presently to the question of the validity of those warrants.

3. Apparently a police-officer from Calcutta was sent over to Bombay, but he failed to identify the two accused as having had anything to do with the robbery. However, they were arrested because the notes had been traced to them, and they were taken before the learned Presidency Magistrate in the Third Court, and he held an inquiry, purporting to do so under Section 186 of the Criminal Procedure Code. The police-officer concerned with the matter in Bombay gave evidence, the effect of which was that he had satisfied himself that the two accused were in Bombay on June 12, and could, therefore, have taken no part in the robbery, and the learned Presidency Magistrate was impressed with that evidence. It is to be noticed that the warrants do not refer to any charge under Section 411 or Section 412 of the Indian Penal Code, but the learned Magistrate in his; order said: 'I am bound to presume that the Chief Presidency Magistrate, Calcutta, had sufficient grounds before him for issuing this process and that those grounds are not before me,' and accordingly he made the order complained of.

4. The Sections dealing with the issue of warrants to be executed outside the local limits of the jurisdiction of Courts issuing the same are contained in Section 75 and the following Sections of the Criminal Procedure Code. Section 77 provides that a warrant of arrest shall ordinarily be directed to one or more police-officers, and, when issued by a Presidency Magistrate, shall always be so directed. Then Section 82 provides that a warrant of arrest may be executed at any place in British India. Section 83 provides that when a warrant is to be executed outside the local limits of the jurisdiction of the Court issuing the same, such Court may, instead of directing such warrant to a police-officer, forward the same by post or otherwise to any Magistrate or District Superintendent of Police, or the Commissioner of Police in a presidency-town within the local limits of whose jurisdiction it is to be executed. I think that that provision, in the case of a warrant to be executed outside the local limits of jurisdiction, would override the express direction of Section 77, that a Presidency Magistrate must direct the warrant to a police-officer. Then Section 84 provides that when a warrant directed to a police-officer is to be executed beyond the local limits of the jurisdiction of the Court issuing the same, he shall ordinarily take it for endorsement either to a Magistrate or to a police-officer not below the rank of an officer in charge of a station, within the local limits of whose jurisdiction the warrant is to be executed, and such Magistrate or police-officer shall endorse his name thereon and such endorsement shall be sufficient authority to the police-officer to whom the warrant is directed to execute the same within such limits. Section 85 provides that when a warrant of arrest is executed outside the district in which it was issued, the person arrested shall be taken before a Magistrate or Commissioner of Police or District Superintendent. Section 86 provides that such Magistrate or District Superintendent or Commissioner shall, if the per son arrested appears to be the person intended by the Court which issued the warrant, direct his removal in custody to such Court. As a matter of fact Sections 85 and 86 do not apply within the City of Bombay, but the provisions of Section 97 to 99 of the Bombay City Police Act are substantially in the sams terms. It seems to me that the effect of those provisions is that the person arrested outside the local limits of the jurisdiction of the Court issuing the warrant has to be taken before a Magistrate or Commissioner or District Superintendent of Police, and such Magistrate or Commissioner or Districi Superintendent has to satisfy himself that the person arrested appears to be the person intended by the Court which issued the warrant, and when sc satisfied he is bound to direct the removal of the arrested person in custody to the Court which issued the warrant. In my opinion, the learned Magistrate was not entitled to institute an inquiry under Section 186 of the Criminal Procedure Code. That Section deals with the case of a Magistrate seeing reason to believe that any person within the local limits of his jurisdiction has committed an offence without such limits, and in that case he can send the person to the Magistrate having jurisdiction to inquire into the offence. But that Section is dealing with a case in which the Court, which has jurisdiction, has not taken cognizance of the matter, and the offence is brought to the notice of a Magistrate who is not competent to try it, in which case he may send it to a Magistrate who is competent. In my opinion, that Section does not override the provisions of Sections 75 to 86 to which I have referred, which deal with the execution of warrants of arrest, and the only point, which the Magistrate was entitled to inquire into, was the question whether the arrested persons were those whose arrests were intended by the Chief Presidency Magistrate of Calcutta.

5. I need hardly point out that the power of directing the arrest of some person at a place outside the local limits of the jurisdiction of a Court, particularly when that place is far removed from the local limits, is one which should be exercised with the utmost circumspection. To arrest two merchants of Bombay and take them in custody all the way to Calcutta could only be justified if the Calcutta Court had substantial reason to believe that the Bombay people had committed the offence. The learned Chief Presidency Magistrate of Calcutta is, of course, a very responsible officer, and I am quite sure that he would not act with any lack of a sense of responsibility. We do not know what materials he had before him, but on the materials elicited by the learned Presidency Magistrate, Third Court, Bombay, it does seem difficult to suppose that these arrested persons committed robbery in Calcutta on June 12. Had we thought that the warrants were properly issued, we should probably have released the accused on bail in order to communicate further with the Chief Presidency Magistrate of Calcutta; but I think that if the learned Chief Presidency Magistrate had come to the conclusion that it was necessary that the applicants should be sent under arrest from Bombay to Calcutta, the Court in Bombay would have been bound so to order.

6. However, when the matter was brought before us yesterday, we sent for the original warrants in this case, and, in my opinion, the warrants are clearly bad. As I have said, they are addressed to the ' O/C concerned,' which might mean anything, 'O/C' might stand for 'officer commanding' or ' officer in charge,' but as no indication is given as to what command or what charge is referred to, the words really mean nothing. It may be that the learned Chief Presidency Magistrate intended to act under Section 83 of the Criminal Procedure Code, and to direct the warrant to a Presidency Magistrate. I doubt whether that intention could be legitimately gathered merely from the endorsement in the margin, because the proper place to show to whom the warrant is directed is the space provided for that purpose at the top, and that, as I have said, is filled up with the words ' O/C concerned.' But in any case warrants must be dealt with strictly, and the marginal note forwarding the warrants to the Third Presidency Magistrate, Bombay, can have no effect given to it, because there is no such officer as the ' Third Presidency Magistrate.' There is a Magistrate who presides over the Third Court, and a Magistrate, a different person, who is the third senior Magistrate, but there is no Third Presidency Magistrate. On those formal grounds I think that the warrants are invalid, and I think they are further invalid because they do not sufficiently specify the persons to be arrested. As I have already said, the warrants only contain the surname and preceding name of the two accused, without any reference to address, description, or occupation. There are probably a good many people in Bombay having the names referred to in these warrants, and all those persons could be arrested under the warrants, if valid. In my opinion, the warrants issued in this case are not sufficiently definite either in the name of the person to whom the warrant is addressed or in the description of the person to be arrested.

7. That being so, the accused must be released. The property seized in search by the police belonging to the accused to be returned to the accused.

Wassoodew J.

8. I agree. I have nothing to add on my own account to what has been stated by my Lord the Chief Justice in regard to the form of the warrants. I should however like to state in short the foundation for the conclusion reached in regard to the procedure followed by the Magistrate in holding an inquiry, which purports to be under the provisions of Section 186 of the Criminal Procedure Code. It is said that such an inquiry is in conformity with the prevailing practice followed in the Presidency Magistrates' Courts in Bombay in the course of execution of warrants issued by Courts outside the local limits of the Presidency Magistrates. Such practice, if it at all prevails, is in my opinion illegal and unauthorised by the provisions of the Criminal Procedure Code. The ordinary rule in regard to inquiry into offences is contained in Section 177 of the Criminal Procedure Code, That Section says that ' every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed.' This offence with which the accused were charged was admittedly committed outside the local limits of the Magistrate's jurisdiction. Section 186 confers more extended powers and larger jurisdiction on Courts than the ordinary rule. The provisions of Section 186 are obviously meant to confer jurisdiction on Magistrates to enquire into offences committed outside their local limits, and in my opinion that was intended by the Legislature for a special purpose, namely, to meet any technical plea raised by an accused person suspected of having committed an offence outside the Magistrate's jurisdiction, in regard to which there is no judicial enquiry pending and the Magistrate considers it necessary to hold an inquiry with a view to send the accused to the proper Court for further enquiry or trial. It could not have been the intention of the Legislature that there should be two parallel Courts with different local jurisdictions holding enquiries into the same offence at the same time. Where a Court has taken cognizance of an offence under the ordinary rule and accordingly issued a warrant of arrest directed to a Magistrate or a police-officer outside its jurisdiction, the powers of the Magistrate are limited to the execution of the warrant, under the provisions of Sections 83 to 86 of the Criminal Procedure Code. All that the Magistrate is then concerned with is to ascertain whether the person arrested is the identical person named in the warrant. Only when no cognisance has been taken by the Court empowered to try an offender under the ordinary rule referred to, the question of holding an inquiry under Section 186 of the Criminal Procedure Code arises. The learned Magistrate has not applied his mind to the real question that he had to consider in the execution of the warrant and has held an enquiry purporting to be under Section 186 of the Criminal Procedure Code without jurisdiction.


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