Sharfuddin and Coxe, JJ.
1. The petitioners in these cases are accused of offences under the new Explosives Act, 1908. The offences which they are alleged to have committed are non-bailable. They were arrested on warrants and after arrest were produced before the Magistrate, who committed them to jail pending trial. Applications for bail have been made to the Magistrate and the Sessions Judge and refused. They now apply to this Court for bail.
2. It has been strongly pressed upon us on their behalf that these persons are not likely to abscond, and certain English authorities have been cited which lay down the principles on which bail is granted in that country.
3. We are not prepared, however, to agree that the decisions of English Courts are necessarily a safe guide to us in interpreting sections of our own Code; and we observe that the cases cited refer to offences of much less gravity than those of which the present petitioners are accused. We doubt very much if English Judges would lend a ready ear to applications for bail on behalf of persons accused of offences of the gravity indicated in the papers before us. Nor are we prepared to admit that, in exercising our discretion under Section 498 of the Criminal Procedure Code, we should confine our attention to the question whether the prisoner is or is not likely to abscond, as other circumstances may also affect the question of granting bail to persons accused of having committed crimes of a grave and serious nature. If a person is accused before a Magistrate of a non-bailable offence then, unless he considers that there are no reasonable grounds for believing him to be guilty, the Magistrate must refuse bail, no matter how certain he may be that the accused will appear to stand his trial. The Magistrate is probably in a better position than the Sessions Judge, and almost certainly in a better position than the High Court, to estimate the probability of the prisoners absconding. It is illogical to suppose that the Legislature intended that the Sessions Judge and the High Court, in dealing with questions of bail, should be guided exclusively by a consideration, which the officer best qualified to estimate its value is debarred from referring to at all.
4. It is the right of an accused person to demand that the charge against him should be tried without any unreasonable delay, and such delay will certainly dispose this Court to grant bail. With respect to the bulk of the petitioners we are not prepared to say that the delay in proceeding against them has been unreasonable. They were arrested at the end of August, and it is now but little past the middle of September. We believe it is not at all unusual that a period of this extent should elapse between the arrest of persons accused of grave and serious crime and the commencement of the trial. In the case of offences under Section 400 of the Indian Penal Code, which, so far as the difficulty of investigation goes, bear some analogy to the present case, which appears to be based to some extent on evidence of association, the period is usually far greater. Under Section 167 of the Criminal Procedure Code a Magistrate, on the mere perusal of the entries in the police diaries relating to the case, to which of course the accused have no right of access, may from time to time authorise the detention of the accused in custody for a term not exceeding 15 days on the whole. Thereafter he can, under Section 344 of the Criminal Procedure Code, by a warrant remand an accused for any term not exceeding 15 days at a time, if sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence and it appears likely that further evidence may be obtained by such remand. The evidence in this case is, in our opinion, sufficient to raise such a suspicion. A Police officer of superior rank has been examined and swears that he has evidence which, as he believes, implicates the accused. He swears also to the truth of the first information which sets out that the accused in the present case associate together in certain specified places, and that there is in the possession of the police incriminating correspondence connecting them with a secret society in Calcutta. We think that there are good reasons for believing that such evidence exists against all the accused persons. This evidence may be good or bad, but we do not think that its production can be said, as against the majority of the accused, to have been unreasonably delayed. We are assured by learned Counsel for the Crown that the case will be taken up in earnest on the 23rd instant without fail, and if it is not taken up, which we do not at all anticipate, it will be open to the accused to renew their applications. In these circumstances we decline to grant bail to the majority of the petitioners.
5. But as regards the accused Maddhu Sudhan Dutt, Sham Lall Shaha, Saroda Prosad Dutt, Baroda Prosad, Nikunja Behari Maiti, we think the evidence of their complicity has been unreasonably delayed. They were arrested at the end of July and have been six weeks in custody, and evidence against them might, in our opinion, have been produced in addition to what has been before us. We grant their applications and direct that they be released on bail to the satisfaction of the District Magistrate. Another man who has been confined for a long time is Santosh, but in his case, bail is out of the question.
6. As regards Raja Narendra Lal Khan it is stated in the affidavit on his behalf that he has been delicately nurtured, and the deprivation of his customary food is prejudicial to his health. He states that he is willing to submit to conditions. It is perhaps a greater hardship on a man of position, brought up in luxury and holding a high position in society, to be subjected to jail rules than it is to men who have to make their way in the world. In the absence, as yet, of convincing direct evidence, we are willing to yield to this petitioner's request. He may be released on bail to the satisfaction of the District Magistrate on condition of his being guarded at his own house and debarred from all communications with persons said, rightly or wrongly, to be his associates in crime.
7. Of course it must be understood that these orders do not affect the right of the Magistrate hereafter on sworn testimony given before him, which in his opinion establishes a prima facie case against any or all the persons now released, to commit him or them again to custody. The applications of all but the above mentioned six persons are refused.