1. All these applications arise out of orders passed by the learned Sessions Judge, Madurai in Cri. Nos. 10 and 11 of 1965 of the Gudalur police station. The petitioners in all these petitions were arrested, detained and confined in jail custody from 13.2.1965 till today on the ground that they were suspected to have abetted, participated and committed grave offences, such as, rioting armed with deadly weapons, attempt to murder, causing hurt to deter public servant from doing his duty and causing the murder of two policemen, in connection with the mass upsurge in Gudalur, a big village in the extreme southwest of Madurai Dt. in South India, on account of Hindi being imposed on the citizens of South India as official language.
2. All the petitioners in the above applications were in a crowd of about 500 at the lime of the alleged incident that took place on 12.2.1965. The petitioners, along with other persons, on the date of the incident, proceeded towards the post office, shouting slogans 'Down with Hindi, we will sacrifice our life for the sake of Tamil, attack the post office, and down with the police'. The crowd was led, according to the evidence of the police, by one Rajangam, member of the Madras Legislative Assembly, the petitioner in Cri. M.P. 1147 of 1965. On the way to the post office, all the petitioners, who are now in custody, along with the crowd set fire to the lorries found on the road side, and pelted stones at the police, who were then stationed there to maintain law and order. The police had to open fire. Two persons in the crowd succumbed to the injuries. Subsequently four persons sustained bullet injuries. Immediately the crowd got out of control, rushed towards the police station and began to pelt stones, in spite of the warnings given by the police. Accused 2 to 13 (including some of the petitioners) are alleged to have rushed to the police station at the instigation of Rajangam and killed Ramachandra Singh, a head constable and another constable. A number of persons were arrested by the police for the said offences and they are now in jail custody from 13.2.1965.
3. The definite allegations against the petitioner in Cri. M.P. 1147 of 1965 is that he belongs to D.M.K. party, but he is a Member of the Madras Legislative Assembly and that he led the mob and tried to attack the post office and the subsequent incident followed resulting in the death of the two policemen at the hands of the violent mob. In effect, the gravamen of the charge is that the said petitioner Rajangam, is a man of influence and importance and, taking advantage of the fact that he is a Member of the Madras Legislative Assembly, he led the mob and incited them to attack Government Offices, and subsequently when the police intervened to maintain law and order, he incited the mob to kill the policeman. His name and the names of some of the other petitioners are found in the first information report. They were arrested on 13.2.1965 and till now no charge sheet has been filed against them, and they are being remanded from time to time.
4. The petitioners in all these petitions allege that they are innocent. The petitioner Rajangam denies that he ever led the mob, but contends, on the other hand, that on the date of the incident he himself went to the police station, interviewed the Superintendent of Police, Madurai, who was then camping at Uthamapalayam in connection with the Anti-Hindi agitation and that while he was in the police station he was arrested, ill-treated and remanded to custody from the date of his arrest, from time to time, without giving any reasons for his arrest and without acquainting him with the offences he was charged with. He still ?continues to be in custody.
5. The petitioner in Crl. M.P. 1134 of 1965 alleges that he is an innocent person. He belongs to a respectable family. He is a reputed businessman and till now there has been no allegation against his character or integrity either in his business or personal capacity. He was also arrested on 13.2.1965. His name was also mentioned in the first information report as having taken part in the agitation.
6. The petitioners in Crl. M.P. 1246 of 1965 were arrested on 13.2.1965, but their names are not found in the first information report. The petitioners in Crl. M.P. 1268 of 1965 were also arrested in connection with the agitation, but against them there was a definite allegation of overt act in respect of the offences under Sections 302 and 307 I.P.C.
7. Thus, these petitioners continue to be in custody from 13.2.1965. Learned Counsel appearing for all these petitioners uniformly contended that the detention of these persons after the expiry of the 15 days of remand was illegal, irregular and void. Though they have been arrested on 13.2.1965, no charge-sheet has been filed against them. But the Sub-Magistrate is passing orders from time to time, 'Investigation not completed, remanded to custody'. Such an order is illegal and void, and contrary to the spirit of the Criminal Procedure Code. They further contend that having regard to the provisions of the Sections 61 and 167 Crl. P.C., and the requirements of justice, the intention of the legislature is that an accused person should be brought before the Magistrate, competent to try to commit, with as little delay as possible. The law does not authorise a police officer to keep the accused person in custody for an indefinite period. Section 61 makes it clear that such a person shall not be detained for more than 24 hours, in the absence of a special order of a Magistrate, under Section 167, which empowers Magistrate to direct the detention of an accused for not more than 15 days on the whole. Now, in all these eases the petitioners continue to be kept in custody even after the expiry of the 15 days, the period specified in Section 167 of the Code. Learned Counsel further contends that they are unnecessarily confined in custody for more than 15 days and that they are entitled to ask the court for their release subject to any condition that may he imposed on them by this Court. The District Judge in his orders merely states that the petitioners cannot be released as the charge against them is under Section 302 read with Section 34 I.P.C. As regards the petitioner in Crl. M.P. 1147 of 1965, the District Judge stated that the petitioner being a Member of the Madras Legislative Assembly and being a man of influence and importance he could not be released on bail. When the petitioner in Crl. M.P. 1147 of 1965 filed a petition previously in Crl. M.P. 457 of 1965 filed against the order passed by the District Judge refusing to grant bail, Ramakrishnan J. passed an order to the effect that as the learned Sessions Judge has found that the petitioner is an influential man of the locality and therefore there is an apprehension that he might tamper with the witnesses and that his release might hamper the investigation, his application for bail was refused. But, at the same time, he directed that the investigation should be expedited. This order was passed on 9.3.1965. More than two months have passed. Still the learned Public Prosecutor says that the investigation is not completed and that the charge-sheet will be filed as soon as possible. When this application came up for hearing on the 11th May 1965, the learned Public Prosecutor requested me to adjourn the case for a week to enable him to Inform me definitely what steps the police have taken. On 18.5.1965 he represented to me that he had written a letter to the Government for sanction in respect of the charges of conspiracy and some other charges. The result is that the police are still investigating the offences and no charge-sheet has been filed. They are not definite whether the investigation has been completed or not. One thing, however, seems to be clear, that the petitioners still continue to be in custody from 13.2.1965.
8. All the learned Counsel for all these petitioners uniformly contend that the detention of the petitioners is illegal, irregular and void and that they should be released forthwith.
9. Now, the question for my consideration is how long they can be kept in custody. Learned Counsel for the petitioners contended that when the petitioners were produced before the Sub-Magistrate, Gudalur, under Section 167 Crl. P.C. they could be detained only for 15 days on the whole and that when that period of 15 days expired, the Sub-Magistrate should either release them or the Sub-Magistrate who had jurisdiction to take cognizance of the case could remand them from time to time till the charge-sheet was filed. Now, in this case, though the Magistrate has jurisdiction to try the case there is nothing to show that the Magistrate has taken cognizance of the case under Section 344. On 27.2.1965, soon after the expiry of the 15 days of remand, the Sub-Magistrate of Uthamapalayam passed an order to the effect. 'Perused investigation record. Investigation is progressing. Further remand under Section 344 is granted for 15 days'.
10. Learned Counsel for the petitioners contend that in spite of this order it cannot be said that the Magistrate has taken cognizance of the case under Section 344 and that the further detention of the petitioners under Section 341 is illegal and void.
11. But the learned Public Prosecutor contends before me that when once the period prescribed for the detention of the accused under Section 167 expires, the Magistrate who has got jurisdiction can automatically be deemed to take cognizance of the case and he can remand the petitioners to custody from time to lime till the charge-sheet is filed.
12. What is meant by taking cognizance of the case is neither explained nor defined in the Code. What are the materials that arc necessary for the cognizance of the case? How can we evaluate or assume that the Magistrate who has got jurisdiction has taken cognisance of the case under Section 344 Crl. P.C. soon after the expiry of the 15 days prescribed under Section 167? I called for the remand orders in Crl. Nos. 10 and 11 of 1965 passed by the Sub-Magistrate. They do not indicate or reveal that the Sub-Magistrate has taken cognizance of the case or that he is dealing with the case under Section 344. The orders passed by him merely say 'Perused investigation records. Investigation is progressing. Hence further remand under Section 344 granted'. Some of the orders passed by the Sub-Magistrate indicate that some of the petitioners reported to him that they were being ill-treated by the police, once they were admitted in the Madurai Erskine hospital. On 28.2.1965, the Sub-Magistrate passed an order in respect of some of the accused to the effect, 'Went to Madurai Erskine hospital today. Accused were seen in the wards as inpatients. Perused records of investigation. Extend remand under Section 344 Crl. P.C. for 15 days'. Some of the orders passed by the Sub-Magistrate are to the effect, 'In the circumstances stated in the petition remand extended for 15 days' and the petition filed by the police merely says 'A large number of accused and witnesses are vet to he traced and identification parade is also to be conducted for the accused. Investigation of the case is not yet over and it is in progress'. But the majority of the orders passed by the Sub Magistrate is to the effect, 'in the circumstances remand extended'. Another order passed by the Sub-Magistrate says-
Accused produced. Accused No. 2 says that he was beaten by police in the morning. Accused No. 1 says that he was beaten ten days ago. Accused 3 to 5 say also they were beaten up 3 or 4 days ago. They have injuries. They say they have not been treated in hospital....
And then the Magistrate passed an order 'Send them for medical examination Lo-doctor, and remand for 15 days'.
13. The commentaries on the Criminal Procedure Code and the voluminous case law indicate that 'taking cognizance of the case' will indicate and include the intention of initiating judicial proceedings against the offender in respect of the offence, or taking steps lo see whether there is any basis for initiating judicial proceedings or for other purposes. Before it can be said that any Magistrate has taken cognizance of the case under this section, be must have applied his mind lo the offence for the purpose of proceeding in a particular way as indicated in the subsequent provisions of the Chapter. Taking cognizance of an offence is a judicial act. It does not involve any formal action or indeed action of any kind and it occurs as soon as he applies his mind to the suspected commission of an offence. In this connection, reference may be made to the observations of Das Gupta J. in Superintendent and Legal Remembrancer v. Abani Kumar : AIR1950Cal437 :
What is 'taking cognizance of' has not been defined in the Criminal Procedure Code, and I have no desire now to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken recognizance of any offence under Section 190(1)(a) Cri.P.C., he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter proceeding1 under Section 200, and thereafter sending it for enquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, i.g., ordering investigation1 under Section 156(3), or issuing a search warrant for the purpose of the investigation, be cannot be said to have taken cognizance of the offence.
The above ruling was extracted and approved by the learned Judges of the Supreme Court in R.P. Chari v. State of U.P. : 1951CriLJ775 :
In our opinion, that is the correct approach to the question before the court.
Once again the learned Judges of the Supreme Court, in another case, reported in Gopaldas v. State of Assam AIR 1961 SC 986 extracted the observations of Das Gupta J. in : AIR1950Cal437 and observed:
It would be clear from the observations of Mr. Justice Das Gupta that when a Magistrate applies his mind not for the purpose of proceeding under the various sections of Ch. XVI, but for taking action of some other kind, e.g. ordering investigation under Section 156(3) or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence.
But, the term 'cognizance' is a judicial action, and the word 'cognizance' as explained in Wharlon's Law Lexicon is 'the hearing of a thing judicially'. I do not think, in the instant case, the Magistrate has taken cognizance of the case after the expiry of the 15 days, and the action of the Sub Magistrate does not satisfy the principles laid down by Das Gupta J. which have been subsequently approved by the Supreme Court in two cases. I do not think that the Sub-Magistrate did apply his mind to it with a view to take cognizance of an offence. On the contrary, in his opinion, it was a matter to be investigated by the police under Section 156(3) of the Code. The Sub-Magistrate may have jurisdiction to try the case, but taking cognizance of an offence is something quite different from jurisdiction to deal with a case. The two things are quite different. As observed by Braund J. in Basdeo v. Emperor : AIR1945All340 at :
Jurisdiction is given to courts by the statutes which create them. Jurisdiction is the definition of their legal powers in contradistinction to the machinery and procedure in accordance with which those legal powers are to be exercised. Moreover 'cognizance' of an offence or a case is, I think, something quite different from jurisdiction to deal with that case. A Court may very well be a court of competent jurisdiction in regard to any particular offence or any particular case without being in a position to take 'cognizance' of it, and, to my mind, it is a confusion of ideas to treat competence to take 'cognizance' of an offence as the same thing as competence in respect of jurisdiction in relation lo that offence. The two things are, as I see it, quite different.
14. The main principle in considering the question of bail is whether the accused will stand his trial, or, abscond. The petitioners in all these petitions, including the petitioner in Crl. M.P. 1147 of 1965 are ready and willing to subject themselves to any condition that may be imposed on them by this Court. The Sub-Magistrate has no| stated in any one of his orders that there are reasonable grounds for believing them to be guilty. He was probably in a better position than the District Judge, and certainly better than the High Court, to estimate the probabilities of the petitioners absconding. It is the right of an accused person to demand that the charge against him should be brought to his notice and should be tried without a reasonable (unreasonable ?) delay, and such delay will certainly cause uneasiness and embarrassment in the minds of the Judges when the petitioners come and demand bail. Till now, no one of the investigating police officers has stepped into the witness box before the Magistrate and deposed before him that he has evidence which, as he believes, implicates the petitioners, nor has the Magistrate given reason for believing that such evidence exists against the petitioners. The endorsement of the Magistrate shows that the detention was asked for and granted under Section 167. The orders of remand were passed by the Magistrate in a light hearted fashion as if the police were entitled to them as a matter of course. Certainly it shows a lack of appreciation of responsibilities imposed on him. As observed by Mukerji J. in Bir Bhadra Pratap Singh v. D.M. Azamgarh : AIR1959All384 .
We cannot contemplate that the intention of the legislature in making this provision was merely to provide for orders which, in the words of Lord Goddard, made them 'rubber stamp orders'. If that were so, then there could be absolutely no reason for providing in Section 167(1) of the Code the necessity of producing a copy of the entries in the diary before the Magistrate along with the accused.
15. At every stage, when they obtain remand, the police must satisfy the Magistrate that there is sufficient evidence against the accused and that further evidence must be obtained, and then if the Magistrate is satisfied 1 think he could direct remand. Thus in Ponnusami v. Queen I.L.R.(1883) Mad 69 . Turner C.J. observed:
It would not, we think, be necessary on the first occasion accused persons are produced to go fully into the charge. It is, ordinarily sufficient to show by the evidence of an officer of the police that the police are in possession of information they believe to be reliable that an offence has been committed and that the accused persons were concerned in its commission. When the accused are brought up after a remand, some direct evidence of the connection of the accused with the crime should be required to justify the Magistrate in refusing bail, and with each remand the necessity for the production of implicating proof becomes more strong.
Again in Queen Empress v. Engadu I.L.R.(1888)Mad 98 it is observed:
There may be cases in which no evidence may be available within 16 days from the dale of an accused person's arrest, but such cases should be and probably are rare, and such evidence as may then be available should be placed before a Magistrate competent lo hold! an enquiry or try. The Magistrate has then-power under Section 344 Crl.P.C. to postpone without limit (provided that the accused be-not remanded for more than fifteen days at a time), the commencement of the inquiry or trial for the purpose of obtaining further evidence which it appears likely may be obtained if time is given, or for other reasonable cause, and if no such evidence is forthcoming and if it is not shown that any is likely to he obtained, it appears only reasonable that the accused person should no longer be delaine in custody; there is nothing to prevent his being re-arrested, if evidence be subsequently secured.
But the learned Public Prosecutor contends that even if investigation has not been completed, and even if he has not taken cognizance of the case, the Magistrate who has got jurisdiction to try the case can grant further remand from time to time under Section 344 Crl.P.C. In support of his contention he relies on the decision in Ponnu Kudumban v. State : AIR1966Mad392 where Somasundaram J. observed (at p. 239) of Mad WN Cr : at pp. 394-395 of AIR.
A combined reading, therefore, of Sections 157, 159, 167 and 344 of the Crl.P.C. shows that after sending a report to the Magistrate who has got jurisdiction, the investigation can still go on till they file the report under Section 173 Crl.P.C., which, as already stated, is called a charge-sheet.... Till the filing of the report under Section 173 Crl.P.C. the court may adjourn the case from time to time and remand the accused by warrant, if sufficient evidence has been obtained to raise a suspicion and it appears likely that further evidence may be obtained....
In Shrilal Nandram v. R.R. Agarwal : AIR1960MP135 to which he next referred to, it is observed:
The second stage arises when investigation is not completed within 15 days and snare time is needed for collecting further evidence. It is at the second stage that remand is granted, and the word remand is actually used in Section 344 Crl.P.C. The only limit on the exercise of the power of remand under Section 344 is that the court cannot give a remand for a term exceeding 15 days at a time. This limit for 15 days is for the purpose of enabling the court to see as to what progress has been made in obtaining further evidence. Each order of remand must be intelligently made and the Magistrate must give reasons for a further postponement of the inquiry or trial.
Again in Dukhi v. State (S) : AIR1955All521 it was observed:
A Magistrate, having jurisdiction to take cognizance of the offence, can avail himself of the provisions of Section 344 without taking cognizance of the offence, or while the matter is still under investigation by the police.
To the same effect is the decision in Rab Noaz v. State 1965 1 Cri 340 : AIR 1965 Tri 6.
16. But, equally, there is another line of cases. In Bholanath Das v. Emperor : AIR1924Cal614 it was held that unless a Magistrate had taken cognizance of the case, he could not exercise his powers of remand from lime to time till the charge-sheet was filed.
17. In re Krishnaji Panduranga Joglekar ILR 23 Bom 32, Parsons J. observed:
The Magistrate in his proceedings in the present case says 'remands were given from time to time to complete police investigation - Section 344 Crl.P.C.' This section, however, relates to proceedings in inquiries or trials, and has nothing to do with police investigation, and it contemplates a remand to jail and not to police custody. In the present case, the reports of the police and the endorsement of the Magistrate show that the detention was asked for and granted under Section 167, so that the reference of the Magistrate to Section 344 is not quite accurate.
In Kalicharan v. State : AIR1955All462 , Raghubar Dayal J. (now in the Supreme Court) held that even though a Magistrate has got jurisdiction to try a case, still Section 344 gave power of remand only when the court had taken cognizance of the offence.
18. In Artalran v. State of Orissa : AIR1956Ori129 the learned Judges disagreed with the view taken in (S) : AIR1955All521 . They reviewed the entire case law on the subject, and in a considered judgment held:
From the scheme of the Act it is clear that Section 344 applies only to cases of which the Magistrate has taken cognizance and issued processes or warrant for the attendance of the accused if he is not produced before him. Consequently, the explanation to Section 344 contemplates a stage where after the Magistrate takes cognizance of the offence and issues processes for the production of the accused, the accused may be remanded to custody, if it appears likely that further evidence may be obtained. This obtaining of further evidence cannot in the very nature of things, be at the stage of investigation'.... The term 'taking cognizance' has been defined as a judicial action permitted by the Code taken with a view eventually to prosecution and preliminary to the commencement of the enquiry or trial. I have gone through the order-sheets of the Magistrate in these cases. There is nothing in those order sheets to show that the accused were forwarded under Section 170 with a preliminary report, or that the Magistrate applied his mind and passed any judicial order with a view to take cognizance.
The various orders passed are only to the effect that the accused were produced, that they were involved in serious offences, that investigation is still proceeding, that they should be remanded for a further period and that final form should be filed. The mere order for a remand is not, in my opinion, sufficient to constitute taking of cognizance. In my opinion, the investigation police ought to have followed this procedure in this case, especially when the accused were arrested on suspicion of offences of arson and dacoity.
Instead of doing so, they are going on with the investigation and obtaining remands from the Magistrate for more than 16 days in all without filing the report contemplated under Section 173, and without even forwarding a preliminary report. The orders of remand passed in these cases by the Magistrate for more than 15 days in all before he took cognizance of the offences against the accused are illegal and the detention in consequence of those orders cannot but be an illegal detention.
Thus, there is a difference of opinion among the Judges in various courts. The facts in the Crime Nos. 10 and 11 reveal that there was a mob fury on the date of the alleged incident, 12.2.1965, in connection with the language agitation. The mob attacked the post office and subsequently when the police intervened to maintain law and order by shooting, two persons succumbed to the injuries sustained by them and some persons in the mob were injured, and the fury of the mob took a violent turn, which resulted in the death of two policemen. Subsequently they were burnt by the unruly crowd. The petitioner in Cri. M.P. 1147 of 1965 is a member of the Madras Legislative Assembly, and he is alleged to have led the mob to attack the police station and that he was mainly responsible for the alleged incident that took place on 12.2.1965. The petitioners allege that the names of most of them were not mentioned in the first information report and that they were only sight-seers. The petitioner in Cri M.P. 1134 of 1965 says that he belongs to a respectable family, that he is a reputed businessman and that he was never concerned in any criminal case. In these circumstances, is it justifiable for the court to remand them to custody from time to time from 13.2.1965.? The police have not yet filed the charge-sheet. The accused were not at all aware of the charges levelled against them. Some of the petitioners are businessmen. The petitioner in Cri. M.P. 1147 of 1965 is a member of the Madras Legislative Assembly, therefore, he is holding a responsible position. If there is really any substantial and specific evidence against these people, certainly nothing prevents the Sub-Magistrate to take cognizance of the case and equally nothing prevents the police to file a preliminary charge-sheet at the earliest moment, and then they can collect evidence and gather materials, trace the escaped accused or persons who are alleged to have witnessed the incident; and in the meantime the Magistrate can certainly give remand from time to time till the charge-sheet is filed. When the Magistrate merely mentioned Section 344, Cri.P.C. in his order of the 27th February 1965, I do not think that he really took cognizance of the case as observed by the learned Judges of the Supreme Court referred to earlier. I really feel that the orders passed by the Magistrate are, in the words of Goddard, J. 'parrot-like orders'. After all, no prejudice will be caused to the police or the investigating officers by the release of these persons on bail, and if there is any substantial or specific case found against them, they can be re-arrested and remanded to jail, and the police can pursue the investigation till the final charge-sheet is filed. Therefore, I am of opinion that the orders of remand passed from time to time from 27.2.1965 and the consequent detention of these petitioners were illegal. I have, therefore, no hesitation in holding that the detention of the petitioners is an illegal detention, not sanctioned either by the Constitution or by law as enacted in the Cri.P.C. But as the case is still pending against the petitioners, they should be released only subject to some conditions.
19. Cri. M.P. 1100 of 1965 - The names of twelve people petitioners Nos. 6, 7, 8, 14, 16 and 18 are not found in the first information report. Therefore, they are released. But so far as, petitioners 6, 7, 8, 14, 16 and 18 are concerned, they are released on bail subject to the condition that they should give a bond for a sum of Rs. 2,000 with two sureties for a like sum to the satisfaction of the Sub-Magistrate of Uthamapalayam.
20. Cri M.P. 1134 of 1965 - The petitioner is released subject to the condition that he should give a bond for Rs. 6,000 with two sureties for a like sum to the satisfaction of the Sub-Magistrate of Uthamapalayam. He is also further directed not to come or stay in Gudalur.
Cri. M.P. 1147 of 1965 - The petitioner is released subject to the condition that he should not reside in Gudalur. He should come and stay in Madras. He should not participate in or deliver lectures in any political meeting and he should report himself to the Chief Presidency Magistrate ones a week. He should execute a bond for Rs. 5,000 with two sureties for a like sum to the satisfaction of the Sub-Magistrate of Uthamapalayam.
21. Cri. M.P. 1246 of 1965 - Originally there were six petitioners of which petitioners 3 and 4 were released already on bail. But in regard to petitioners 2 and 5 their names were found in the first information report under Section 302. Since I found that the order of remand is illegal, I release them but subject to the condition that they should not enter Gudalur and reside there till the investigation of the case is completed and charge-sheet is laid and they should each execute a bond for Rs. 1,000 with two sureties for a like sum to the satisfaction of the Sub-Magistrate of Uthamapalayam. As regards petitioners 1 and 6 since their names are not found in the first information report they are released.
22. Cri M.P. 1268 of 1965 - In regard to petitioners 2 and 3 they are released. But as regards the first petitioner his name is found in the first information report. He is released subject to the condition that he should give a surety bond for Rs. 2,000 with two sureties for a like sum to the satisfaction of the Sub-Magistrate of Uthamapalayam. He should not reside in Gudalur till the investigation is completed.