1. We have already directed that some of the petitioners are to be released on bail, but the questions of law raised by the learned Vakil of the petitioner remain to be decided.
2. The facts are as follows : - One Promotha Nath Das was arrested in June of this year, he was brought before the Additional Magistrate of Alipore on the 7th June when he made a confession which was recorded. As a result of Promotha's confession the petitioners were arrested on the 5th August, and on the 20th August they were brought before the Police Magistrate of Sealdah and a letter from the investigating Police Officer was received, their application for bail was refused and the case was adjourned to the 4th September. On the 4th September, the case was again adjourned until the 18th September when a Magistrate, who had been deputed to verify Promotha's confession, was examined and the case was adjourned to the 2nd October. One of the accused Nagendra was subsequently released on bail by this Court on the ground that there was at that time no Police report and that no cognizance of the case had been taken by the Police Magistrate. On the 2nd October, the case was again adjourned until the 13th October, bail was asked for and refused. An application for bail made to the Sessions Judge of Alipore was rejected by him on the 3rd October. On the 5th October, a report from Inspector, M.M. Sinha, was filed before the Police Magistrate who, on the 6th October, took cognizance purporting to act on the report under the provisions of Section 190(1)(6) of the Code of Criminal Procedure. The acoused were remanded on the 13th October until November 3rd when the Inspector was examined and they were remanded until November 15th on which day they were again remanded until November 30th. This Rule was granted on the 8th October, and when it came before us on the 7th and 10th December the accused were still in custody. Pour points were urged before us. First, it is said that the detention of the petitioners is illegal as the Magistrate has not taken cognizance. Secondly, it is said that if he has taken cognizance he was not justified in doing so upon the report which was before him as it is not a report under Section 173 of Code of Criminal Procedure and it is said that the Magistrate could only take cognizance in respect of a cognizable offence upon a report in the form contemplated in Section 173. Thirdly, it is said that if the Magistrate was justified in taking cognizance upon a report not in the form contemplated by Section 173, the report before him did not contain sufficient materials to enable him to take cognizance. Fourthly, it is said that if he has rightly taken cognizance under this report he is not justified in granting adjournments to enable the Police to complete their investigations, and that since he has taken congnizance he must proceed with the case and only grant such adjournments as are necessary to obtain the attendance of the witnesses and as may be necessitated by the exigencies of his own work.
3. Section 61 of the Code of Criminal Procedure provides that no Police Officer shall detain in custody a person arrested without warrant for longer than is reasonable under the circumstances of the case, and that such period shall not exceed 24 hours in the absence of a special order of a Magistrate under Section 167, exclusive of the time necessary to bring the accused before a Magistrate. The Rule was not directed to the point whether the provisions of Section 61 were complied with and we are unable to say what actually occurred.
4. Section 167 empowers Magistrates when a person is arrested and detained in custody and it appears that the investigation cannot be completed within the 24 hours fixed by Section 61 and when there are grounds for believing that the accusation or information is well founded to authorize his detention for a term not exceeding 15 days in all.
5. The Magistrate, in the present case, apparently considered that he took cognizance on the 20th August, but, as has been pointed out by Mr. Justice Mookerjee and Mr. Justice Chatterjee, there was nothing before him upon which he could take cognizance of the case on that day. The 24 hours detention and the additional time necessary to bring an accused before a Magistrate allowed by Section 61 and the fifteen days additional detention allowed by Section 167 having expired, an accused must either be released by the Police under the provisions of Section 169, security being taken for his appearance before a Magistrate, if and when required, or the accused must, under the provisions of Section 170, be forwarded under custody to a Magistrate who is empowered to take cognizance of the offence upon a Police report. The law as laid down in the sections of the Criminal Procedure Code to which I have referred saerns to me to be this that at the expiration of the maximum period of 15 days detention of an accused person and the additional time necessary to bring him before a Magistrate allowed under Sections 61 and 167, an accused must either be released by the Police under Section 169, security for his appearance if and when required being taken, or the Magistrate, empowered in that behalf, must either take cognizance if he has before him a Police report (which ordinarily would be i report in the form laid down in Section 173) which he thinks makes out a prima facie case or he must release him.
6. In the present case, the Magistrate has purported to take cognizance upon a roport, which the Crown admits, is not a Police report as contemplated by Section 173. The Crown say that he was justified in so doing by reason of the provisions of Section 190(1)(b) which provides that a Magistrate empowered in that bahalf may take cognizance of any offence upon a report in writing made by any Police Officer. It in said on behalf of the petitioners that having regard to the words in Section 170 'empowered to take cognizance of the offence upon a Police report' the words of Section 190(1)(b) must refer not to a cognizable offence but to a non-cogaizable offence, and it is said that in the case of a cognizable offence having regard to the clear words of Section 170 to which I have referred, a Magistrate can only take cognizance upon a Police report as contemplated by Section 173 and upon no other report. There is, I think, considerable force in this argument, but after all the provisions of Section 190 oxtend to any offence and I think, notwithstanding the use of the words 'Police report' in Section 173, that Section 190(1)(b) cannot be restricted merely to non-cognizable offences and that a Magistrate is empowered by Section 190(1)(b) to take cognizance both of cognizable and non-cognizable offences upon a report such as is mentioned in Section 190(1)(b).
7. This disposes of points 1 and 2. As to point 3 we have read the report and we are not prepared to say that the Magistrate was not justified in taking cognizance thereon. As to the 4th point, since the Magistrate has taken cognizance, I think his powers of postponement and adjournment are regulated by Section 344. To the extent indicated in our order of the 10th December we make the Rule absolute.