1. This Rule was obtained under Section 491 of the Code of Criminal Procedure.
2. The circumstances are as follows:
Subodh Chandra Ray Choudhuri, a servant of the Jodhpur State, was arrested by the Calcutta Police without a warrant on August 11th. He was produced before the Deputy Commissioner on August 13th when an application for bail was practically refused, for the sum demanded was prohibitive.
3. It appears that the Calcutta Police received two telegrams on or about August 11th, the first, in addition to personal description said 'wanted for embezzlement.' The second, in addition to suggestions about possible movements, said 'embezzlement of money to the value of a couple of lakhs of rupees.' This was all the information which the Calcutta Police had when they arrested the man, and the search of his house yielded nothing. Both these telegrams were sent by 'Police', without further specification.
4. Since the arrest, and in answer to a telegram from Calcutta, telegrams have been received from the Judicial and Political Member of the State Council, and from the Inspector-General of Police, and from the Resident. The two former give a considerable amount of information as to the nature of the charges preferred against the arrested man.
5. There is no doubt about the proper procedure in cases of this nature. Under Section 7 of the Extradition Act there should be a warrant issued by the Political Agent to the address of the Chief Presidency Magistrate. I can quite understand that that procedure may entail an amount of delay which would enable the fugitive to escape. That, however, is a danger against which there is a double safeguard. First, there is the one specially appropriate to eases, such as the present, namely, application to a local Magistrate as provided by Section 10 of the Extradition Act. Admittedly, recourse was not had to this procedure. Secondly, there is the wide power of arrest without warrant conferred upon the Police by Section 54 of the Criminal Procedure Code. Of the clauses in that section the seventh is the one which reliance is placed for justification of the arrest. It is urged that the conditions mentioned in that clause are fulfilled and that the arrest was therefore lawful.
6. The first question is whether the statements in the telegrams of the 11th August constituted credible information or created reasonable suspicion. Now there was in the telegram nothing but a bare assertion: no details as to how the embezzlement was effected or how it was detected were given. It appears to me that an assertion like that may suffice for a requisition, but is not enough when the conditions suggested by the words 'credible and reasonable' have to be satisfied. Those words must have reference to the mind of the person receiving the information, and such bare assertions cannot form the material for the exercise of an independent judgment. They are enough only if the receiver subordinates his judgment to that of another; consequently I think that the first half of the conditions mentioned in the seventh clause is wanting, and that the arrest without a warrant, was unlawful.
7. It is urged that since then much more information has been received. That is true: but the nature of the offence alleged to have been committed is still obscure. Charges of forgery and cheating have been added, and very likely they are applicable, but the statement of facts suggests that the forging and the cheating may have taken place in British India. Even now therefore I am not prepared to say that all the elements required by the seventh clause to Section 54, Criminal Procedure Code, are established. As I take this view, I need not go into the question whether later details may be used to supplement the information on which the arrest was made.
8. In my opinion the telegrams received on August 11th did not contain materials which would justify the arrest of the man Subodh Chander Ray Choudhuri without a warrant. His detention is therefore improper: and the order that we must pass is that he be set at liberty.
9. An objection has been raised to-day as to the jurisdiction of this Bench to entertain this application. It appears to me that the Amending Act of last year, Act XII of 1923, made a great change, that the Rules framed under the Code as it stood before the amendment and the practice that formerly obtained have now become out of date, and in my opinion the terms of Section 491, Criminal Procedure Code, as it now stands, give this Bench jurisdiction to entertain and dispose of the application.
10. I agree. The learned Standing Counsel has raised a preliminary objection that the Criminal Appellate Bench of this Court has no jurisdiction to deal with an application made under the provisions of Section 491, Criminal Procedure Code or that at any rate, having regard to the uniform practice which prevails as to the making of an application under that section before a Judge sitting on the Original Side of this Court, this Banish should not pass any order upon the present application. With regard to this matter, I should like to say only this: That by the amendment introduced by the Amending Act (XII of 1923) to Section 491, Criminal Procedure Code, the Rules framed by this Court far dealing with an application under Section 491 have now become altogether inapposite and judging from the context of Section 491, Criminal Procedure Code, the Criminal Appellate Bench of the High Court being the highest Court of Criminal Appeal or revision has got ample power to deal with the application. I propose, therefore, to deal with the merits. The facts of the case may shortly be stated as follows:
11. Subodh Chandra Ray Choudhuri was arrested by the Police of Calcutta on the 11th August, 1924, at about 5.30 P.M. He was placed before the Deputy Commissioner of Police on the 13th August, 1924, 12th having been a Sunday, when an application for bail was made on his behalf, and it was urged that the arrest and detention were wholly illegal. The Deputy Commissioner of Police made an order that Subodh Chandra Bay Choudhuri might be released on bail of rupees two lakhs to be furnished in ten sureties or less. Subodh Chandra Ray Choudhuri was unable to avail of the said order, and his brother Sushil Chandra Ray Choudhuri applied to this Court under Section 491 of the Code of Criminal Procedure and Section 107 of the Government of India Act, 1915, for an order for setting him at liberty, and, in the alternative, for reduction of the bail. In pursuance of our order Subodh Chandra Ray Choudhuri was produced before us. We ordered his release on his own bond of Rs. 5,000 and on his furnishing four sureties of Rs. 5,000 each or one surety for Rs- 20,000, whichever might be convenient to him, pending our orders on the application in so far as it purports to be one under Section 491, Criminal Procedure Code.
12. It appears that the arrest was made on the strength of two telegrams received by the Calcutta Police on or about the 11th August, 1924 which ran as follows:
O.T. Jodhpur, 9 Raj. Police Commissioner, Calcutta.Subodh Chandra Choudhuri, Bengalee of 46-A, Bosepara, Baghbazar, Calcutta, wearing eyeglasses, age about 35, bald head, stoutish, wheat complexion, of the State Audit Office wanted for embezzlement. Please arrest if found, goes in. European habits at times-Police.'
I.B. Jodhpur. 11 Raj. 66.Police Commissioner, Calcutta.My wire of 9th instant regarding Subodh Chandra Ray Chouduri to your address enquiries show that he may go to Chandernagar, his wife and childcen at Calcutta at address given by me in my telegram embezzlement of money to the value of a couple of lakhs of rupees please search his and his father's house and attach all valuables including money....Police.
13. After the arrest the Calcutta Police sent the following telegram to the Inspector-General of Police, Jodhpur:
Jodhpur Raj Police-Jodhpur.Your telegrams 9th 11th. Subodh Chandra Ray Choudhuri arrested, nothing found on house-search, application going to be made in Calcutta High Court for release on bail, wire full details of charges preferred and when extradition proceedings expected. Police Commissioner, Calcutta.
14. To this two telegrams were received by the Calcutta Police by way of reply, one from the Political and Judicial Member, State Council, Jodhpur, and the other from the Inspector-General of Police, Jodhpur. They ran as follows:
Jodhpur, 14-99.Police Commissioner, Calcutta.Thanks for your telegram of the 13th to our Inspector-General of Police. Subbodh Chandra Ray Choudhuri was Assistant Treasury Officer at Jodhpur when he fraudulently obtained from Railway Auditor two cheques Nos. B 291780 and 48762 for one lakh each and cashed them fraudulently at Ajmeer and Bombay respectively and misappropriated the amount. Wanted here under Sections 420, 409 and 467, I.P.C. He should not therefore he released on bail. His co-accused under arrest here. Extradition proceedings will be sent shortly. Political and Judicial Member,. State Council, Jodhpur.'
Jodhpur, 14 Raj. 72.Police Commissioner, Calcutta.Please refer wire of last night from Political and Judicial Member, State Council, Jodhpur to your address. Offence under Section 409, I.P.C. non-bailable and in view of the grave importance of the offences the bail application of Subbodh may kindly be opposed. Moreover it is possible -he may commit suicide or escape beyond reach if left to himself. Inspector-General of Police.
15. It appears also that a further telegram was thereafter received by the Calcutta Police from the Resident of Jodhpur which ran thus:
Jodhpur Residency,Police Commissioner, Calcutta.2021 Reference. Arrest Subodh Chandra Ray Choudhuri by Jodhpur Durbar for offences under Sections 420, 409 and 467, Indian Penal Code. Warrant will be sent as soon as possible, meanwhile kindly do not grant bail. Resident.
16. The arrest as I have said was made on the first two telegrams set forth above and it is sought to be justified by reference to clause seventhly of Section 54 of the Code of Criminal Procedure. That clause runs thus:
Any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in, any act committed at any place out of British India, which if committed In British India, would have been punishable as an offence, and for which he is under any law relating to extradition or under the Fugitive -Offender's Act, 1881, or otherwise, liable to be apprehended or, detained in custody in British India.
17. In dealing with the question as to the legality or otherwise of the arrest under this clause it would be convenient first of all to dispose of an argument based on the decision in the case of In re Mukund Babu Vethe (1894) 19 Bom. 72 which has been put forward before us. That decision can no longer be treated as good law since the addition of clause seventhly to Section 54, Criminal Procedure Code by Section 3 of Act III of 1891, [see Emperor v. Huseinally Niazally (1905) 7 Bom. L.R. 463.]
18. To satisfy the requirements of this clause two conditions must be present: First, that the person to be arrested has been concerned in any act committed at any place out of British India, which if committed in British India would have been punishable as an offence against the person or a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in such an act; and second, that the person is liable for such act to be apprehended or detained in custody in British India under any law relating to extradition or under the Fugitive Offenders' Act, 1881, or otherwise.
19. The first of these requisites contemplates either the proof of a fact, namely, the fact of the person having been concerned in the act or a reasonable complaint, or credible information or a reasonable suspicion of his having been concerned therein. The wording of this part of the clause is very similar to that of clause firstly of the section. Under that clause it has been held by this Court. In the matter of Charu Chandra Majumdar (3) that the section gives a Police Officer personal authority and involves personal responsibility and the reasonable suspicion and credible information must be based upon definite facts which the Police Officer must consider for himself before he acts under this section, and that be cannot delegate his discretion or take shelter under the belief or judgment of another Police Officer. To provide for cases where one Police Officer has to act on a requisition issued by another Police Officer clause ninthly has been added by Section 10 of Act XVIII of 1923 which restricts the responsibility of the arresting Police Officer to the conditions mentioned in that clause. In cases, however, where clause firstly applies the responsibility is that of the arresting officer himself and the principle laid down in the case of Charu Chandra Majumdar (1916) 44 Cal. 76 still holds good. This new clause does not affect the provisions of clause seventhly and in fact it has not been suggested before us that it does. The wording of clause seventhly clearly indicates that the arresting Police Officer has to exercise his own judgment and form his own opinion as to whether he should or should not act and to enable him to do so he must have the necessary facts before him. What is a reasonable complaint or suspicion must depend on the circumstances of each particular case, but it must be at least founded on some definite fact tending to throw suspicion on the person arrested and not on mere vague surmise or information. A general definition of what constitutes reasonableness in a complaint or suspicion or credibility of an information cannot be given; both must depend upon the existence of some tangible proof within the cognisance of the arresting Police Officer and he must judge whether it is sufficient to establish the reasonableness or credibility of the charge, information or suspicion. The first two telegrams give no facts whatsoever and merely state that Subodh Chandara Ray Choudhuri was wanted for having embezzled a couple of lakhs of rupees. They do not set out even so much in the shape of facts as were set out in the communication upon which the Police acted in the case of Charu Chandra Majumdar (3) referred to above. The first of the two conditions therefore in my opinion was not satisfied in the present case. In my opinion the arrest was not one authorized by law and Subodh Chandra Ray Choudhuri is entitled to his immediate release.
20. In view of the materials which the Calcutta Police obtained subsequent to the arrest it is necessary to consider the matter further as to whether those materials would not justify his re arrest, for there would be no object in releasing him if on these) materials he may be rearrested and again put in custody, the consequence of which will probably be a further application to this Court when the matter will have to be considered again.
21. The later telegrams judging from the sources from which they came must be taken as absolute guarantee of the truth of the information conveyed thereby, but they hardly supply the facts which the arresting Police Officer must have before him in order to form his own opinion as to the complicity of the person to be arrest-ad in the act which he has got to consider under the first part of clause seventhly of the Section. Of these three telegrams the first one discloses that the charge against Subodh Chandra Ray Choudhuri was that ho had fraudulently obtained the cheques and fraudulently cashed them and misappropriated the amounts of the cheques. It mentions Sections 420. 409 and 467, I.P.C., but sets out no allegations as to Section 467, I.P.C., and gives no particulars upon which one can make out whether the acts alleged to have been committed amount to offences under Sections 420 and 409, I. P C. The next telegram speaks only of the offence under Section 409, I.P.C. The last one merely says that Subodh Chandra Ray Choudhuri is wanted for offences under Sections 420, 409 and 467, I.P.C. If one has to form an opinion as to whether these offences have been committed or not, the telegrams, I venture to think, will not enable him to do so and yet the arresting Police Officer is called upon to do so by the first part of the clause in order to make the arrest. The position would have been wholly different if there was any credible information that a warrant had been issued, for that would have been very substantial material justifying the arrest.
22. Then as to the second condition. The question is what is the meaning of the expression.
For which he is, under any law relating to extradition or under the Fugitive Offenders' Act, 1881, or otherwise liable to be apprehended or detained in custody in British India.
23. Does this expression only qualify the offence and denote its character for which there may be such a liability, or does it. indicate a present liability for apprehension or detention? In my opinion it means the latter and that the act must be one for which there is a present liability to apprehension or detention in custody in British India under the laws of Extradition or the Fugitive Offenders' Act or any other law. The word suggests this interpretation. To adopt the other view will lead to absurdities. I propose to give only two illustrations. Suppose a Police Officer in British India receives credible information, that is to say, from one who gives him positive proof as to the commission of an offence by a person outside-British India and the offence is an extradition offence. If the Police Officer believes in the information he would be competent to arrest the offender and keep him in custody and in fact it would be his duty to do so. The arrested person will thus be arrested and detained though it may never be in the contemplation of the informant to take further proceedings against him and though the authorities within whose jurisdiction this offence was committed may never think of sending out an extradition warrant or a requisition. In my opinion it could never have been the intention of the legislature to arm the Police with such powers and I am confirmed in my opinion by the provisions in the Extradition Act which the legislature has made for the arrest and detention of offenders in anticipation of the issue of warrant or requisition in such cases-provisions which lay down ample safeguards in the shape of magisterial intervention. Nextly it will be seen that clause firstly speaks of cognizable offences only, while clause seventhly includes all acts which amount to offences, provided only that they are offences for which there is a liability for apprehension, a detention under the law. A Police Officer 'in British India cannot arrest without warrant a person who has committed non-cognizable offence, say forgery in British India. Forgery, however, is an extradition offence. If the other view be adopted he would be competent to arrest the offender without warrant when the offence has been committed outside British India. This would ha an anomaly and the anomaly would be greater if the Code of Criminal Procedure applies to the state wherein the offence has been committed. The local Police will not be competent to arrest the offender without a warrant and yet the British Indian Police will have power to do so at the request of the local Police. The legislature could never have been so unreasonable as to have intended this. In my opinion the expression contemplates cases in which there is a present liability and not cases in which there may be liability in future for apprehension or detention. The issue of some sort of process under the law would create such a liability though the process may not have arrived and is not available for execution.
24. The legislature has made ample provisions for the arrest and detention of persons under similar circumstances. Under the Indian Extradition Act (XIV of 1913) ample provision has been made by Chapter III for the surrender of fugitive criminals in cases of States other than. Foreign States. Under Section 7 of the Act warrants for extradition offences may be issued by Political Agents and under Section 9 requisition may be made to the Government of India or to any local Government by or on behalf of any State, not being a Foreign State, for the surrender of a fugitive criminal in respect of any offence. Under Section 10 of the Act certain Magistrates in British India are empowered to issue warrants for the arrest of fugitive offenders who may have committed offences in any State not being a Foreign State and for whose arrest no warrant or requisition has yet been issued, and sufficient safeguards have been laid down for the exercise of the powers so conferred on the Magistrates by providing for the exercise of a sound judicial discretion as to the sufficiency of the materials and for the submission of a report forthwith and prescribing the period of detention and making provision for bail. Similar provisions are to be found in the Fugitive Offenders' Act of 1881 (44 and 45 Vict., Chapter 69) for the issuing of endorsed warrants and provincial warrants-the provisions for issuing provincial warrants corresponding in some respect to those contained in Section 10 of the Indian Extradition Act.
25. To allow a person to be arrested by the Police when no extradition warrant has been issued nor any requisition made and no assistance is sought for from the Magistrate within the local limits of whose jurisdiction the offender is at the time, would be to subvert the whole law as to arrest of fugitive offenders as contained in the Indian Extradition Act which undoubtedly is the law regulating the procedure to be adopted in the case.
26. There is a further matter to which I think it necessary to refer. Even if all the conditions necessary to satisfy the requirements of clause seventhly of Section 54 of the Code of Criminal Procedure are made out and an arrest is validly and lawfully made the Police must forthwith produce the person arrested before a Magistrate. There can be no doubt in this respect, whatever may be the view as to the powers of the Police in Calcutta as to detention of persons arrested by them in the discharge of their normal duties under the Calcutta Police Act. Under that Act power of detention for an unlimited period is claimed in the Deputy Commissioners by virtue of their being Justices of the Peace. That has been doubted by this Court on more occasions than one. Whether there is such power or not, it is clear to my mind that when an arrest is made under Section 54, clause seventhly, on the supposition that the person arrested is liable to apprehension under the provisions of the Indian Extradition Act, he must forthwith be produced before a Magistrate in order that the detention may conform to the provisions of Section 23 of the Act. This does not appear to have been done in this ease. In my judgment, therefore, the arrest was improper and the detention unwarranted by law and Subodh Chandra Ray Choudhri must at once be released and discharged from his bail.