1. One Shantilal Lajjashankar, the Secretary of a Limited Company carrying on business at Ahmedabad in the Bombay Presidency presented a petition of complaint in, I think, February or March last before the Deputy Inspector-General of Police of the Poona Criminal Investigation Department of the Bombay Presidency against Dwarkadas Haridas of Calcutta. Ambalal Ganpatram an Inspector of Police of the C.I.D., Poona, was directed by the Deputy Inspector-General of Police, C.I.D., Poona to get the case registered at Ahmedabad and to investigate into the matter, Ambalal Ganpatram had the complaint recorded in the Police Station of Kalupur in Ahmedabad city and took up the investigation. The complaint was filed by the complainant as representative of the limited company and on its behalf. The complaint alleged that Dwarkadas had been acting since 1920 as commission agent of the limited company, and that as such, he was entrusted with yarn and cloth bales belonging to the company for sale at Calcutta that he was responsible for the value of the goods sent and that it was his duty to remit the money representing the value of the goods sold and to retain the unsold balance of the goods. It further alleged that Dwarkadas in July, 1922 professed with the sanction of the mill's agent (who was one Lalbhai Tricurolal) to have made a contract for the sale of 601 bales at certain rates which he intimated to the company by a letter of the 24th July, 1922 and that in pursuance of the intimation the Company despatched 595 bales between the August, 1922 and the 23rd November, 1922 and that Dwarkadas submitted stock sheets from time to time acknowledging receipt of the 595 bales in pursuance of the contract.
2. It further alleges that the accused was responsible for Rs. 2,97,292-15-6 the value of the bales but that with the intention of causing wrongful loss to the company and wrongful gain, to himself, the accused represented to the company that the person who had contracted to purchase the bales was unwilling to take delivery and that thereupon it was agreed that the contract rates were to be charged for 300 bales and for the balance the revised rates, but that the accused refused to give the name of the contracting party, that the accused later represented that the contracting party refused to take delivery, and that he must sell by public-auction or private contract and that he subsequently reported having effected private sales of 313 bales and public-auction of 5 bales, that the accused according to his accounts had received Rs. 2,53.314-2-0 for the 595 bales and had remitted Rs. 1,86,296-4-9 only, that on the 13th February, 1923 the accused sent what purported to be a copy of the original contract signed by one Ramachandra Baijnath. The complaint further alleged that in July, 1922 there was no such firm in Calcutta, and that it was a fictitious name, and that the accused had put forward a bogus contracting party and thereby induced the company to revise and reduce its rates. The complaint then charges dishonest and fraudulent misappropriation by the accused of a sum of Rs. 67,017-13-3 admitted by the accused in his accounts to have been received, and charges him with an offence under Section 409 of the Indian Penal Code and with such other offences as might be disclosed in the evidence and asks for seizure of the books of account relating to the sales and of other books and documents bearing on the case, for the arrest of the accused in respect of an offence under Section 409, I.P.C., and that a police officer may be deputed to Calcutta for the purpose.
3. Ambalal Ganpatram states that in the course of the investigation he examined the complainant, Lalbhai Tricumlal and other witnesses at Ahmedabad and the correspondence and accounts. On the 1st March, he obtained a search warrant from a 1st Class Magistrate at Ahmedabad for the books, documents etc, and came to Calcutta and in execution thereof took charge of the books etc., from the house and office of Dwarakadas after making a search list and arrested Dwarkadas under the provisions of Section 54, Cr. P. Code, on the 5th March and produced him on the 6th before the Chief Presidency Magistrate asking that he might be forwarded under proper escort to the 1st Class Magistrate, Ahmedabad.
4. In making the application Ambalal Ganpatram produced a letter in the following terms:
Emperor v. Dwarka Das Haridas.
Charge Criminal Breach of Trust as an agent in respect of Rs. 73,013-13-3.
Section 409, I.P.C.
Case No. 30 of 1924 of P.S. Kalupur. Forwarded.
(Sd.) L.M. BIRD Dy. Com. D.D. 6-3-1924.
The Chief Presidency Magistrate, Calcutta.
I have the honour to report that the accused Dwarka Das Hari Das who is wanted in the marginally noted case of Kalupur P.S. Ahmedabad City was arrested by me at Nos. 167 and 168 Lower Chitpore Road last night at 9.36 p.m. I, therefore, produce the accused before your Honour and pray that he may be forwarded to the 1st Class magistrate of Ahmedabad under proper escort.
I have the honour to be,
Your most obedient servant,
(Sd.) AMBALAL GANPATRAM,
Inspector, C.I.D. Poona,
6th March 1924,
5. Dwarka Das applied for bail to the Chief Presidency Magistrate who made the following order on the 6th March.
6. Accused Dwarka Das Hari Das, petition for bail filed.
7. Grant bail Rs. 50,000 to appear before the 1st Class Magistrate, Ahmedabad on 16th March, 1924. Section 409, Cr.P.C.
8. I do not think that the Chief Presidency Magistrate was right in making this order. There is no doubt that under Section 54 of the Cr. P. Code a police officer may aires without warrant in the case of a cognizable offence but under Section 60 he is bound without unnecessary delay to take or send the person arrested before the Magistrate and under Section 61 this must be done within 24 hours. The precautions laid down in these sections seem to me designed to secure that within not more than 24 hours some Magistrate shall have seisin of what is going on and some knowledge of the nature of the charges against the accused however incomplete the information may be. The order of the Chief Presidency Magistrate has given the go-bye to any such safeguards. Ambalal Ganpatram the Investigating Police Officer is the only person so far (if we except the Dy. Inspector-General of Police C.I.D., Poona) who knows anything about the matter, and it does not seem to me right or in consonance with the provisions of the Criminal Procedure Code that on his mere ipse dixit Dwarkadas should be hauled from Calcutta to Ahmedabad to answer a charge under Section 409, I.P.C., which upon the facts before us in accordance with the decisions of this Court is triable only in Calcutta where the offence alleged under Section 409, I.P.C., was committed.
9. I think, as I have already said, that the order of the Chief Presidency Magistrate was wrong, and I think that he should have refused to act upon the mere statement of the Investigating Police Officer, but required him to produce a warrant from Ahmedabad, releasing Dwarkadas in the meantime on bail to appear when called on before himself. If this course had been adopted it is accompanied by various safeguards, for the Police Officer would have had to satisfy the Court issuing the warrant of the nature of the offence charged and that it could be enquired into and tried in Ahmedabad. The Court would have to so decide bearing in mind the provisions of Section 177, Cr. P. Code which provide that every offence shall, ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed.
10. Various other questions were raised before us, notably that the facts show that the whole matter was really a civil dispute and not of a criminal nature. I think there is considerable force in this contention having regard to the previous dealings between the company and Dwarkadas and s between Dwarkadas and Lalbhai and the e company. It is noticeable too that for the e purpose of these proceedings the complainant accepts Dwarkadas accounts as correct and it would appear from the letter of the 24th July, 1922, from Dwarkadas to the company which is exhibited to the complainant's affidavit, that the contracts a referred to in the complaint were made when Lalbhai, the Company's agent, was in Calcutta and presumably with his know-f ledge and assent. This appears to give the go-bye to a good deal of the complaint and to do away with any question of cheating. These matters certainly raise an apprehension that these proceedings are being used to put pressure on Dwarkadas, and that the Criminal Courts are being invoked in respect of matters which should have been litigated in a Civil Suit on the Original Side of this Court.
11. In the view we take it is not necessary for us to decide this question, and I feel, some doubt as to our jurisdiction to do so in these proceedings. One other matter I should refer to, namely, that it is said the facts disclose a case of cheating which under the circumstances would be triable at Ahmedabad. This we need not pursue as all along the offence charged in the complaint specifically and upon the facts has not been one of cheating but of criminal breach of trust. Moreover it looks, if the letter of the 24th July, 1922 is accurate that no question of cheating arises. For the reasons already stated I think the order of the Chief Presidency Magistrate is wrong and that it cannot stand and should be set aside and the bail bond cancelled.
12. I agree.