1. This Rule was issued on the Commissioner of Police, Calcutta, to show cause why the petitioners should not be produced before a Magistrate or, in the alternative, why they should not be released on bail. With regard to the second ground I do not think we should interfere at this stage. There is no order by any Court which will give us power to direct the petitioners to be released on bail under Section 498 or even under Section 497, Cr.P.C.
2. With regard to the other question, namely, that the petitioners should be forthwith produced before a Magistrate, it is argued oh behalf of the petitioners that under the law it is the duty of the Police Officer who has kept the petitioners in custody to produce them before a Magistrate with as little delay as possible, and that the power of such officer to keep the petitioners in custody is limited to such acts as are necessary for the purpose of placing the petitioners before a Magistrate. It is conceded that Section .61, Cr.P.C., which makes it incumbent upon Police Officers to produce the accused within 24 hours before a Magistrate, is not applicable in Calcutta; and it is also conceded that under the Calcutta Police Act (IV of 1866) there is no provision corresponding to Section 61, Cr.P.C. It is, therefore, apparent, so far as the present question is concerned, that no limit of time is provided in law curtailing the power of a Police Officer to keep in custody a person accused of an offence, or compelling him to produce such an accused before a Magistrate within any definite time. Under Section 76 of the Calcutta Police Act every person taken in custody without a warrant by a Police Officer shall be taken to the Police-station in order that such person may be detained uatil he can be brought before a Magistrate. Mr. James, for the petitioners, argues that the words 'may be detained until he can be brought before a Magistrate' signify that the power of detention exists only up to the time when the accused can physically be brought before a Magistrate. But under Section 7 of the Calcutta Police Act, the Deputy Commissioner of Police under whose order the petitioners are kept in custody is a Justice of the Peace and, as such, he acts as a Justice of the Peace so far as it may be necessary for the preservation of peace and detention of offenders in order to their being brought before a Magistrate. It is accordingly argued on behalf of the Crown that the power of the Deputy Commissioner as a Justice of the Peace to keep an offender in detention exists for the period necessary to make inquiries so as to send up the case complete to the Presidency Magistrate. I am not prepared to hold that under the law it is the duty of the Deputy Commissioner, a Justice of the Peace, to place an offender forthwith before a Magistrate, for in the first instance there is no period mentioned in the Calcutta Police Act within which this must be done, and in the second place, as a Justice of the Peace, the Deputy Commissioner is entitled to take such steps as may be necessary to complete an investigation before placing the matter before a Magistrate. The view that there is no period fixed under the Act within which the Deputy Commissioner- must place an accused before a Magistrate has been accepted by this Court. In Emperor v. Panchkari Dutt : AIR1925Cal587 , Mukerji, J., sitting in the Court of Session, observed, relying upon a decision of Walmsley, J., that the detention for an unlimited period of an offender by the Deputy Commissioner of Police, though not illegal because Section 61, Cr.P.C., does not apply to the Calcutta Police is improper, presumably on the ground that no such unlimited power exists. It is not necessary for the purposes of the present case to go to the length of supporting in full the proposition laid down there; but that case supports the view that Section 61, Cr.P.C, does not apply to the Calcutta ' Police, though the improper exercise of .'such power may be corrected by this Court under suitable provisions of the law, such as Section 491, Cr.P.C. It should also be noted that the learned Judge in Panchhari's Case : AIR1925Cal587 was considering the value of a confession made while the prisoner was in custody for about a fortnight, whereas in the present case the petitioner was arrested three days ago.
3. To come to the facts of the present cas e: The accused were carrying on business in a large scale. It is alleged that in February they had nothing in their hands and went on taking goods on credit with the intention of cheating their creditors. They were arrested under a warrant from the Howrah Police Court and released on bail. They were arrested again under a warrant from the Calcutta Police Court and also released on bail. They were all along charged with offences under Sections 417, 420 and 120B, Indian Penal Code. It is said on behalf of the petitioners that at 3 P. M. on the 29th March, as they were coming out from the Howrah Court after being released on bail, they were arrested by the Calcutta Police and taken to the Deputy Commissioner who has since then kept them in hdjat and refused them bail, though repeated applications were made for it. An affidavit has been filed on behalf of the Crown sworn to by Manilal Basu, Inspector in charge of Barabazar Thana. He swears that he has been investigating the case and has not yet been able to complete the investigation, one of the reasons being that the recent hooks of the accused are not forthcoming, and he suspects that they have, been dishonestly kept back. It should be. noted here that the accused have been adjudicated insolvents on the petition of a creditor; the firm of which the petitioners are members was composed of six persons, of whom the other three are said to be absconding. The charge which was laid before the Deputy Commissioner and under which presumably the petitioners were arrested is by one Ramnibash in which the petitioners are said to have committed criminal breach of trust as agent of the complainant under Sections 409, 420 and 120B, Indian Penal Code. All these offences, excepting the offence under s.'409, Indian Penal Code, are under the law bailable. Had there been no charge of an offence under Section 409, Indian Penal Code, it would have been incumbent on the officer who has kept the petitioners in custody to release them on bail. The charge under Section 409 is based on the allegation that the accused purchased some goods from the complainant Ramnibash and paid for them on the 22nd February, 1926, and that on the 25th February, 1926, when the petitioners again asked for further goods the complainant refused to deal with them any more, as they had been so late in making payment for the previous transaction. The petitioners thereupon offered to act as agents of the complainant in order to sell their goods and, on that understanding goods were delivered to the petitioners the price of which they have misappropriated. This allegation .on the face of it does not require a long and protracted investigation by the Police Officer in charge of the investigation. Though, in my opinion, the Rule does not succeed upon the grounds on which it was issued, there is no apparent reason for much delay in the matter. It is also proper that if the officer does not see his way to release the petitioners on bail, he should produce them before a Magistrate with as little delay as possible so that the Magistrate may determine whether in the circumstances of the case the petitioners are entitled to be enlarged on bail. With this expression of my view I would discharge this Rule.
4. In this case, as I understand it the petitioners were arrested by the Police., Inspector of Barabazar Thana, on charges under Sections 409, 420 and 120B, Indian Penal Code, on a complaint made to the Deputy Commissioner of Police. The Police Officer of the Barabazar Thana under Section 76 of the Calcutta Police Act brought them before Mr. Purna Chandra Lahiri, a Justice of the Peace, also a Deputy Commissioner. Mr. Purna Chandra Lahiri's powers as a Justice of the Peace extend under Section 7 to giving orders as to the detention of an offender, and he apparently has given orders directing the petitioners to be detained in the Police hajat and passed no order for producing them before a Magistrate. The offence charged being non-bailable, Section 61, Cr.P.C., not applying to the town of Calcutta and the investigation not being complete in his opinion, I cannot hold that his- order detaining the accused in custody pending the completion of the investigation is illegal, and on that ground I would discharge this Rule. But at the same time I wish to say that I agree with my learned brother that everything should be done to expedite the investigation. I also hold that the Deputy Commissioner as a Justice of the Peace would be exercising a very wrong discretion unless he finds that the offence charged under Section 409 which is only a noil-bailable offence alleged against the petitioners has been fully substantiated in not permitting the petitioners to be released on bail as has been done on other complaints against the petitioner of a somewhat similar nature by the Presidency Magistrate and the Magistrate of Howrah.
5. With these remarks I agree to the Rule being discharged.