Innes, Officiating C.J.
1. These are applications to the High Court to order the admission to bail of certain persons arrested and detained in the Central Jail of Salem on serious charges of offences connected with the late riots at Salem on the 15th and 16th August last, and also for transferring the inquiries. and trials to another district.
2. We have heard Mr. Grant on behalf of the accused persons and the Government Pleader (Mr. Shephard) who opposed the applications on behalf of the Government.
3. It was argued by Mr. Shephard that we had no authority to take cognizance of such an application, as it was not a judicial proceeding, but, we think, there can be no question that we have the power to do what is asked, should the Magistrate's proceedings prove to be illegal, and the power has been exercised in numerous cases by the High Courts in the several Presidencies. The proceeding in which it is or has to be determined whether bail should be taken falls within the definition of a judicial proceeding, and the authority to exercise the power is not now questioned in the other High Courts. The procedure of the Magistrate in refusing or delaying to furnish the information asked for by the accused persons, and the denial by the officers of the jail of certain privileges and conveniences in jail to which the accused persons considered themselves entitled, assuming these allegations to be true, may have been inconsiderate, irregular, and even illegal; but what we are concerned with now is whether the refusal to admit these persons to bail is legal or whether the-High Court should not direct that they be admitted to bail.
4. Eight were arrested on the 30th August, one on the 31st, and Chinna. Kailasa Gounden on the 3rd. September on information which the Magistrate in proceedings of the 30th August and. 1st September in his handwriting, states to have afforded strong reasons for suspecting that they had been concerned in a conspiracy which led to the riots of the 16th ultimo. The information, therefore, according to these proceedings on the record justified the warrants of arrest issued under Section 142 of the Criminal Procedure Code. The question then is whether the subsequent and present detention of the accused persons is legal.
5. As to this, we have to see what is the proper procedure enjoined by the code.
6. Section 190 requires that, when an accused person appears or is brought before the Magistrate, the Magistrate 'shall take the evidence of the complainant and of such persons as are stated to have any knowledge of the facts which form the subject-matter of the accusation, and the attendant circumstances,' and Mr. Grant insists that this proceeding not having been adopted, and there being no recorded evidence, the order for remand was illegal. We have before us orders for remand of the 30th and 31st August and 5th September. These are all in the same form to the effect that it appears necessary to defer the examination of witnesses in order that further evidence may be produced.
7. Section 194 prescribes that, if, from the absence of a witness or from any other reasonable cause, it becomes necessary or advisable to defer the examination or further examination of witnesses, the Magistrate may, by a written order from time to time, adjourn the inquiry and remand the accused person for such time as is deemed reasonable, not exceeding fifteen days. This section must be read as a proviso to the provisions of Section 190 before quoted. It qualifies this last-named section to this extent, that the commencement of the inquiry or the further inquiry, if it is commenced, may be deferred if, from the absence of a witness or from any reasonable cause, it becomes necessary or advisable to defer it, and in that case the Magistrate, in place of immediately examining the complainant and witnesses as required by Section 190, may remand the accused person. Various cases were cited to us and arguments were addressed to us on the construction of Sections 190,194, and 389 of the Criminal Procedure Code, to show that the legislature intended that some evidence at least must be taken before an order of remand may be properly issued. Section 389* does not warrant the proposition put forward by Mr. Grant that, unless there is evidence to raise a strong presumption of the guilt of the accused, he must be admitted to bail, and cannot be remanded. That section assumes that evidence has been taken and provides for the release of the accused on bail, if the evidence so taken is not such as to raise a strong presumption of the guilt of the accused person, but it does not import that the taking of the evidence may not be deferred.
8. Appended to Section 194 is an explanation, which gives an illustration of what is such a reasonable cause as is required in the first clause of Section 194 to justify the postponement of the inquiry after it has commenced, viz., that if sufficient evidence has been obtained to raise a suspicion that the person accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, that is a reasonable ground for a remand.
9. But this illustrates what is a reasonable ground for a remand after the inquiry has commenced and does not of course import that evidence must be taken to justify a remand, as the first clause of Section 194 clearly provides for a case in which it may be necessary to defer taking such evidence as may be forthcoming, and authorizes a remand made on the ground that such a course is necessary or advisable or on other reasonable ground.
10. The cases cited do not go beyond what is stated in Moonshee Syud Abdul Kadir Khan's case 11 B.L.R. 18. '' The prisoner should be brought promptly before, the Magistrate, and the Magistrate has then no authority to further detain him in custody, or to remand him to prison without some reason made manifest to him either in the shape of sworn testimony given before him, or in some other form which can be put upon the record.'
11. We concur in this view; and the next question is whether the record in this case, in which no sworn testimony appears, discloses a reasonable ground for detention.
12. The remand orders assign as the reasons for the remand, that it appears necessary to defer the examination of witnesses in order that further evidence may be produced.
13. It is apparent from this that there are witnesses ready for examination, but that it is advisable, in the opinion of the Magistrate, to wait for further evidence before commencing the inquiry. This is not on a par with the practice condemned in Mahesh Chandra Banerjee's case 4 B.L.R. 1 in which there was no evidence, but the Magistrate remanded the prisoners in the expectation that evidence might turn up.
14. It is obvious that, if evidence is forthcoming in addition to that which as is implied in the orders of remand, is already available, though not yet taken, it may be very desirable, for various reasons, to postpone the inquiry for a short period, and (among other reasons), in order that, when commenced, it may be continuous and conducted in such order in regard to the examination of witnesses as may best set out the facts to be given in evidence, and this appears, though not expressed, to be the ground for postponement in the present instance; and we think that, although it would have been better and more regular if the reasons for the postponement had been sworn to, we must accept the Magistrate's statement on record of his reasons for remand and hold that it is a justification for the remand order. And we are unable to accede to the application that the accused be admitted to bail.
15. The accused have, however, a right to have the evidence against them recorded at as early a period as possible, and the fact that there is or may be a great body of evidence forthcoming against them is not a ground for detention for an inordinate period, and, as it was stated before us by the Government Pleader that the Prosecution are quite ready to go on with the case, we trust there may be no further delay in commencing the proceedings.
16. It will be open to the accused persons to apply to be admitted to bail as the evidence proceeds, and we have no doubt, if the circumstances justify it, the application will be attended to.
17. In regard to the application for transfer, at present we are not disposed to interfere. Much of the importance of the evidence adduced may turn upon relations by witnesses of the exact position in which persons accused were seen in connection with the riot, and it seems desirable on this account that the inquiry should be made on the spot.
18. The transfer to another district would also involve the removal of other cases, for no distinction could be made on the score of respectability, and this would be attended with vast inconvenience to witnesses. A large portion of the Police also, whose evidence would probably be required in other cases, would have to attend at the station to which the inquiry or trial might be transferred, and great inconvenience would consequently result by the protraction of such other inquiries for an indefinite period. We think the probable inconvenience of transferring the inquiry far outweighs that of allowing it to proceed at Salem, and must decline to grant the prayer of the petitions. We have not the record of the case against the zamindar Kailasa Gounden, and must call for the record to enable us to dispose of the application as regards him.
19. I will only add that, as the Magistrate acted under Section 194, Criminal Procedure Code, by deferring the examination of witnesses and adjourning the enquiry and remanding the prisoners, he was bound to have expressed clearly on the record the 'reasonable cause' from which it became necessary or advisable to do so.
20. It is not (enough in my judgment and speaking entirely for myself) that a reasonable cause existed, but such cause should be stated. The prisoners are entitled to know what such cause is, and an Appellate Court cannot form an opinion whether the cause which influenced the Magistrate is reasonable unless it is stated on the record. I entirely agree in the principle of the cases cited by Mr. Grant. For some time I doubted whether such reasonable cause had been stated by the Magistrate.
21. The endorsement is: 'It appears necessary to defer the examination of witnesses in order that further evidence may be produced.' If any evidence had been produced, by which I understand evidence on the record, then the endorsement would be good enough. But in fact, no evidence had been produced nor had the inquiry been begun. However, as we are informed by the Magistrate that, before the first and second remand orders were made, evidence was forthcoming sufficient to create a reasonable suspicion of the -guilt of the prisoners, but that the Magistrate thought it advisable to produce all the evidence at once, and as this, if put on the record, would have been a reasonable cause for the adjournment of the inquiry and remand for a limited time, I am not prepared to say that the endorsement, informal as it is, does not disclose a reasonable cause. This being so, the custody of the prisoners is legal.
* Bail not to be taken for certain offences.
[Section 389 : When any person, accused of any non-bailable offence, appears or is brought before a Magistrate, such person shall not be admitted to bail, if there appear reasonable grounds for believing that he has been guilty of the offence of which he is accused.
When bail may be taken.
If the evidence, given in support of the accusation, is, in the opinion of the Magistrate, not such as to raise a strong presumption of the guilt of the accused person, or if such evidence is adduced on behalf of the accused person as, in the opinion of the Magistrate, weakens the presumption of his guilt, but there appears to the Magistrate in either of such cases to be sufficient ground for further inquiry into his guilt, the accused person shall be admitted to bail pending such inquiry.]