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The Suprintendent and Remembrancer of Legal Affairs Vs. Bidhindra Kumar Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in1949CriLJ231
AppellantThe Suprintendent and Remembrancer of Legal Affairs
RespondentBidhindra Kumar Roy and ors.
Cases ReferredBhola Nath Das v. Emperor
Excerpt:
- .....the ground that the petitioners before him had been in detention for more than 15 days without a charge sheet being submitted, and that this could not be done under section 167, criminal p. c. the learned judge has entirely overlooked the provisions of section 344, criminal p. c. section 167 which limits the period of detention to 15 days is applicable both to a magistrate having jurisdiction to try the case and also to other magistrate and limits the total period of detention to 15 days. in the case of & magistrate who has no jurisdiction to try the case he must within the period forward the accused to a magistrate having jurisdiction. the section then applicable for further detention is section 341 of the code and the explanation to that section indicates, in our opinion, that.....
Judgment:
ORDER

Roxburgh, J.

1. This is a rule obtained at the instance of the Province of West Bengal against an order of the Sessions Judge of 24-Parganas dated 31st May, directing that the opposite parties be released on bail on the ground that the petitioners before him had been in detention for more than 15 days without a charge sheet being submitted, and that this could not be done under Section 167, Criminal P. C. The learned Judge has entirely overlooked the provisions of Section 344, Criminal P. C. Section 167 which limits the period of detention to 15 days is applicable both to a Magistrate having jurisdiction to try the case and also to other Magistrate and limits the total period of detention to 15 days. In the case of & Magistrate who has no jurisdiction to try the case he must within the period forward the accused to a Magistrate having jurisdiction. The section then applicable for further detention is Section 341 of the Code and the explanation to that section indicates, in our opinion, that further remand may be granted before submission of the charge sheet. Under Section 178 of the Code, the charge sheet is to be submitted when the investigation is complete. The explanation to Section 344 of the Code clearly contemplates a stage prior to submission of the charge sheet and that time is wanted foe further investigation; under it the Court having jurisdiction may grant remands in custody 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 a remand. In connection with the phrase 'if sufficient evidence has been obtained' we may also refer to Sections 169 and 170 of the Code dealing with the earlier stage when the accused is in the custody of the police officer and the question is whether the police officer investigating the case will release the accused on bail or will forward him in custody to the Magistrate. He will forward the accused in custody if it appears to him 'that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate.'

2. This matter was considered in the case of Bhola Nath Das v. Emperor : AIR1924Cal614 . In that case another point was raised as to whether the powers under Section 844, could be exercised unless the Magistrate bad 'taken cognisance.' The Court there was satisfied that cognizances had been taken although the charge-sheet under Section 173 of the Code had not been submitted.

3. In the present case, it is not necessary to consider whether reliance must be placed on the submission of some such report as was considered in the case cited in order to justify the action under Section 844, Criminal P. C. It is sufficient to say that the Judge's order, as it stands, was certainly bad.

4. We may also refer to the case of Narendra Lai Khan v. Emperor 36 Cal. 166 : l 1.0. 788), in which Sections 167 and 844, Criminal P. C. were considered. It does not appear in that case that any question as to whether it was necessary that cognisance should have been taken before the provisions of Section 344 would be applicable was taken into consideration.

5. For my own pArticle I am not, with great respect, satisfied that the decision in the case of Bhola Nath Das v. Emperor : AIR1924Cal614 , is correct in so far as it appears to hold that action cannot be taken under Section 344, Criminal P. C, unless cognisance has been taken of the case in the technical meaning of that term. So far as the questions of granting bail are concerned, in view of the decision itself, the point is rather academic for any police paper presented stating the reasons for requiring a remand and further detention of the accused can be treated as a report on which cognisance can be taken.

6. I personally however feel considerable difficulty in accepting this view which to me seems to be somewhat anomalous. However, it is not necessary to pursue the matter further.

7. The rule is accordingly made absolute. The order of the learned Sessions Judge of Slat May granting bail to the opposite parties in this rule is set aside.

8. We however make it clear that we are only so doing because the learned Judge's order was passed on a wrong ground in law and shows that he had not considered the question on the merits.

9. The opposite parties will be at liberty to apply again either to the trial Court or to the learned Judge for bail on merits. Considerable time has elapsed since the present rule was granted and the situation may have changed. We are informed that the charge-sheet is to be submitted on Monday next. The Courts no doubt will take into consideration, is considering whether bail should be granted or not, the question of any further delay in the submission of the charge-sheet.


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