R.N. Misra, J.
1. This is an application under Section 437 of the Code of Criminal Procedure, 1973, for admitting the petitioner to bail. The petitioner was taken into custody by the police between 10,30 P.M. and 11.00 P.M. on 29-6-1974 in connection with Salepur P. S. Case No. 67 of 1974 under Section 395/412 of the Indian Penal Code, lie was pocluced before the Sub-divisional Judicial Magistrate in the afternoon of 1st of July, 1974. His application for bail was rejected and the learned Magistrate directed him to be remanded to custody. He moved the learned Sessions Judge for grant of bail and the said application came to be disposed of by the Chief Judicial Magistrate of Cultack, who rejected the same. This Court has, therefore, been moved for admitting the petitioner to bail.
2. During the pendency of this application, a detailed affidavit was filed wherein it was pleaded that the petitioner had not been produced before the Magistrate as required under Section 57 of the Code of Criminal Procedure within 24 hours from the time of his being taken into custody and in the said affidavit several allegations were made making imputations against the local police. When this application was listed for hearing on 1.5th of July, 1974, counsel for both sides wanted certain records to be brought up. On the 16th July, 1974, the affidavit referred to above was filed on behalf of the petitioner. In view of the allegations contained therein, the learned Sub-Divisional Judicial Magistrate was required to make a report and the case was adjourned to 22-7-1974. The report from the learned Sub-Divisional Judicial Magistrate has been received and his report supports some of the allegations made on behalf of the petitioner in the affidavit. As there was prima facie material to show that the accused had not been produced before a Magistrate as required under Section 57 of the Code of Criminal Procedure and this Court was satisfied that the matter required to be probed info further, the local police were examined in regard to the matter of production of the accused before the learned Sub-Divisional Judicial Magistrate, In that connection, two police officers-one belonging to the Lalbag Police Station within the Town of Cuttack wherein the accused had been lodged alter having been taken into custody and another a Court Sub-Inspector - were examined. On 25-7-1974, the enquiry initiated suo moth regarding non-compliance with the requirements of Section 57 of the Code was directed to be separately looked into and the bail matter was finally heard on 29-7-1974 and orders were reserved. At the time of hearing, the consequences of non-compliance with the requirements of Section 57 of the Code of Criminal Procedure were also examined since Mr. Patnaik for the petitioner wanted to support the application for bail on that ground also.
3. Two questions arise for consideration:
(i) Has the petitioner been produced before a Magistrate in terms of Section 57 of the Code, and if not, what is the effect of such non-production?
(ii) Is the petitioner to be admitted to bail?
4. I shall first deal with the question of the alleged violation of Section 57 of the Code of Criminal Procedure. Section 57 which corresponds to Section 61 of the old Code is to the following effect:
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, evceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court.
In Article 22(2) of the Constitution this requirement of the Code of Criminal Procedure has been enshrined as a fundamental right. Personal liberty of citizens in a free country has to be jealously guarded and protected. With that view the provision in the existing Code of Criminal Procedure was taken into the Constitution and included in Part-III thereof.
* There is no dispute that the accused was taken into custody before 11-30 p.m. on 29-6-74 and was taken to the police lock-up at Lalbag. The day following was a Sunday. The requirement in Section 57, of the Code of Criminal Procedure makes no exception in its compliance on the ground of holidays intervening and the practice is well settled that even on holidays accused persons in detention are produced before Magistrates. According to the learned Government Advocate, the accused was taken out from the police station at about 7.30 p.m. on 30th June, 1974 and the accused returned along with the escort party to the police station after 11.00 P.M. with an endorsement on the command certificate that no Magistrate was available and, therefore, the accused should be produced on the following day.
* The learned Sub-Divisional Judicial Magistrate had been moved on behalf of the accused for bail sometime during the day on 30th of June, 1974 and the Officer-inchaige of the Lalbag Police Station was required to take steps to produce the accused. The accused was, however, not produced that day before the Sub-Divisional Judicial Magistrate. The learned Magistrate in paragraph 7 of his report has stated:
At about 8 to 9 P.M., while I was relaxing in my drawing room-cum-office room (....) waiting for my dinner to be served, one or two Police Officers came into the room and enquired of the Sub-Divisional Judicial Magistrate. On my giving my identification, the Police Officers saluted me and went out telling something in inaudible lone....
There is no controversy that the accused was taken out from the Lalbag Police Station in custody under escort at about 7.30 P.M. The version in the affidavit on behalf of the petitioner and the statements made on behalf of the petitioner and his counsel support the fact that at about the time indicated by the learned Magistrate, the police party had gone along with the accused to the residence of the learned Magistrate. A different version has now, however, been placed on behalf of the Police. It is stated that the accused was first taken to the office of the Court Sub-Inspector within the Court premises from the police station. As nobody was found there information was sent, but none was available. Ultimately, the 2nd Officer was found out, who came to the Court premises at about 10.00 P.M. Having been informed about the facts, he looked for the Assistant Public Prosecutor and having not got him looked for the Court Sub-Inspector at their respective residences. As he was not able to trace either of them, he went along with the accused and the escort party to the residence of the learned Magistrate after 11.00 P.M. When they knocked at the door of the learned Magistrate, there was no response. Therefore, the endorsement was made on the command certificate in the manner indicated above and the accused returned to police lock up. Which version is true is yet to be found out and this certainly is not the appropriate forum and proceeding where such a matter has to be factually determined.
5. Two features, however, are very telling. The learned Magistrate has indicated that between 8.00 and 9.00 P.M. some police officers went to him. The report of the learned Magistrate further states that within three to five minutes of the Police Officers' seeing the learned Magistrate, Advocates for the petitioner reached the place and they and the learned Magistrate waited for the production of the accused for several hours. The conduct of the Police whoever they be in leaving the learned Magistrate in a dilemma and uncertainty deserves to be condemned in the strongest possible terms. This is not the way in which the learned Sub-Divisional Judicial Magistrate should have been treated. Since administrative inquiries arc being directed into that matter, I do not deal with it further here.
* That the learned Magistrate was available till about 10.45 P.M. as stated in his report on the 30th of June, 1974, goes without dispute in view of his own report. Judicial notice must be taken of the position that the police lock-up, the Court premises and the residence of the learned Magistrate are all situated within a distance of two or three miles and within the municipal limits of Cuttack. The local Police must have known that the accused had been taken into custody in a case investigation whereof would not be complete within 24 hours. They must have also known that 30th of Jane, 1974, was a Sunday. I must assume that they were aware of the mandate in the Code of Criminal Procedure regarding the requirement of conversion of the police custody into judicial custody within 24 hours from the date of detention of an accused. In these circumstances, the police officer was duty bound to take adequate steps to see that the accused was produced before Magistrate in terms of the Statute. The police officer should have taken adequate steps in advance. If necessary, the Court Sub-Inspector should have been given advance intimation, There is nothing placed before me to justify as to why production was thought of only after night-fall. The entire day was available and in view of the fact that the distance was not far, timely precaution for compliance with the stautory mandate should have been taken. This certainly does not speak well of the police.
6. On behalf of the petitioner, reliance has been placed on the observations of the learned Judicial Commissioner in the case of Nabachandra v, Manipur Administration AIR 1964 Manipur 39 : ((1964) 2 Cri LJ 307). Therein it has been stated:
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 authorisation for the Police to detain Win 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 lie 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.' Sections 56 and 57 of the new Code of Criminal Procedure have similar provisions as referred to by the learned Judicial Commissioner, The view expressed above is also supported by the decision of the Allahabad High Court in the case of State v. Ram Autar : AIR1955All138 . Section 167(1) of the Code which requires that when it appears that the investigation cannot be completed within 24 hours fixed by Section 57 and there is ground for believing that the accusation or information is well founded, the Officer-in-charge of the police station shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary and shall at the same time forwaid the accused to such Magistrate, has also to be given due consideration in regard to this matter. In my view the decisions referred to above indicate the true spirit of the law on the subject.
I find that the learned Sub-Divisional Judicial Magistrate required the Officer-in-charge of the Police Station to explain as to why the accused was not produced before him within 24 hours of his arrest. The Officer-in-charge of the Police Station informed the learned Magistrate in writing to the following effect;-. I beg to state that the accused Rajani Kanta Meheta was arrested on 29-6-74 at 11,30 P.M. at his shop....
The accused Rajani Kanta Meheta was forwarded through the escort party at 7.30 P.M. on 30-6-74 along with the other accused persons and the escort party returned with an endorsement from the C. S. I. 'Produce on 1-7-74 as no Magistrate is available' on back of the C.C. Accordingly the accused persons were brought back and were kept inside the Hajat and were handed over to the Escort Party again at 10.00 A.M. on 1-7-74. As such the accused persons were duly forwarded for production before the Magistrate before the completion of 24 hours.
This certainly is no explanation for the position.
* I must assume on these facts that there has been default on the part of the police officer to produce the petitioner before a Magistrate as required under Section 57 of the Code of Criminal Procedure. I must also hold that there was no justification for detaining the accused in the facts of this case till night-fall on Sunday and steps should have been taken to have him produced before a Magistrate in terms of Section 56 of the Code of Criminal Procedure long before the accused was sent out at 7,30 P.M. under the escort.
7. What is the consequence of the failure to comply with the requirements of Section 57 of Code? Mr. Patnaik for the petitioner has relied upon a number of cases to show that the detention becomes illegal. I have the least doubt in my mind about the correctness of such a proposition. If the petitioner had come before the Court challenging his detention without compliance of Section 57 of the Code, he should have certainly been set at liberty; but as it transpires he has been already produced before a Magistrate and police custody has come to terminate and judicial custody has replaced it. What was illegal detention beyond 24 hours of arrest has now become legalised and the present detention cannot be attacked on the looting of the detention at an earlier point of time being illegal.
8. The next question is whether the petitioner should be enlarged on bail. Mr. Patnaik has claimed bail for the petitioner on two counts, Firstly, that when the several orders of remand were passed from time to time by the learned Magistrate he did not apply his judicial mind as required under the Code of Criminal Procedure and has mechanically directed remand; and Secondly, taking a broad picture of the matter, in the facts and circumstances of the case, the petitioner should be admitted to bail.
9. The petitioner was produced before the learned Magistrate on 1st of July, 1974. An application for bail was moved on his behalf. The Police wanted a remand. The learned Magistrate passed a detailed order and directed remand till 13th July, 1971. On the 13th July, 74, the petitioner along with other accused persons was produced. The remand was objected to. The learned Magistrate again remanded the accused till 27-7-74 pending investigation. On the 27th of July, 1974, the petitioner was not produced before the Court on the ground that he was sick. An application challenging further remand was made on behalf of the petitioner on the ground that the prosecution had not placed any fresh material and, therefore, there was no adequate reason for further remand. On behalf of the Investigating Officer, it was contended that the investigation was not complete and T. I. parade was to be held. The learned Magistrate has directed remand till 10th of August, 1974.
* The Proviso to Section 167 Cr.P.C. requires that remand can be permitted when the Magistrate is satisfied that adequate grounds exist for doing so. The petitioner's case is that the case diary was not being produced before the learned Magistrate from day to any when the case was posted and as such the learned Magistrate was not in a position to reach his judicial satisfaction that adequate grounds exist for remand. This allegation of the petitioner has not at all been controverted. In the objections filed before the learned Magistrate this used to be a ground. But the order sheet does not show what exactly was the position. There can be no doubt that remand to custody pending investigation is not a mechanical act and cannot be granted merely because the Investigating Officer or the Police Officer-in-charge desires that the accused be remanded. The Statute casts a heavy duty on the Magistrate and requires judicial discretion to be exercised and an order of remand is conditioned upon satisfaction of the learned Magistrate. In such circumstances, absence of the case diary and a day to day report of the investigation showing existence of prima facie material against the accused which is the foundation and where that is withheld from the learned Magistrate certainly a very peculiar situation arises. That apart, the requirement of law beinc that the details of investigation have to Be reported to the Magistrate from time to time, there is no justification for withholding the case diary from the Court. Again, requirement for identification by witnesses in course of investigation is not a ground to refuse bail as indicated in Section 437 of the force in Mr. Patnaik Police had not actedment of the Code of the Police Manual in view is not sufficient tomatic admission of the second Proviso to Code, While there is 's contention that the in terms of the require-Criminal Procedure and this regard that in my to bring about an au the petitioner to bail.
10. Now I proceed to deal with the question of grant of bail. The materials against the petitioner are, as collated by the learned Government Advocate, these:
(i) the statement of co-accused Har Das under Section 161 Cr, P. C; (ii) tin confessional statement of Hari Das recordec under Section 164, Cr. P. C; and (iii) the fact that Hari Das led while in custody the police to the shop premises of the petitione and some booty of the dacoities has beer detected which is admissible under Section 21 of the Evidence Act.
* Mr. Patnaik for the petitioner contends that Hari Das is a bad character and has several convictions to his credit. He has taken into custody more than three days before he was actually produced before the learned Magistrate. The Police tutored him during this long custody and have extracted a confession from him implicating the petitioner. These are aspects for which at present a final view cannot be taken. They are matters for the learned Trial Judge to take note of. The confessional statement certainly implicates the petitioner. From this statement it transpires that the petitioner is not only a receiver of stolen property, but he assists the gang in committing theft and if such a story is ultimately established in accordance with law, the petitioner must be found implicated in abetting the offence punishable under Section 395 of the Indian Penal Code, I have the least intention to indicate any view which would prejudice the trial of the accused, but one thing appears to be certain that there is some material on record which, if believed, implicates the petitioner in offences like 395 and 412 of the Indian Penal Code. These offences are certainly of very serious nature and are punishable with imprisonment for life.
11. Keeping these aspects in view, I do not think it is a fit case where the petitioner should be admitted to bail at present. I accordingly dismiss his application. The records be returned.