N.R. Chatterjea, Acting C.J.
1. The questions referred to the Fall Bench are:
I. Whether upon a true construction of the Calcutta Police Act (_Ben. Act IV of 1866) a Deputy Commissioner of Police, by virtue of his powers as a Justice of the Peace or otherwise, can lawfully order the detention in Police custody of a person arrested without warrant, for any longer time than is necessary to enable such person to be brought before a Presidency Magistrate?
II. Whether a Deputy Commissioner of Police can lawfully order that the detention of any such person as aforesaid at a Police Station or in Police custody shall continue until the Police investigation shall have been (a) further advanced, or (b) completed, notwithstanding that the time within which such person might have been brought before a Presidency Magistrate has elapsed?
2. The powers of the Commissioner or Deputy Commissioner of Police as a Justice of the Peace are defined in Section 7 of the Act, which runs as follows:
The Commissioner of Police shall be appointed a Justice of the Peace, but unless he is vested with the jurisdiction of a Magistrate of Police, he shall act as a Justice only so far as may be necessary for the preservation of the peace, the prevention of crimes, and the detection, apprehension and detention of offenders in order to their being brought before a Magistrate of Police, and so far as may be necessary for the performance of the duties assigned^ to the Commissioner by this Act.
The Deputies to the Commissioner of Police may be appointed Justices of the Peace, and, if so appointed, shall act in that capacity subject to the above restriction.
3. The power of detention of offenders is only 'in order to their being brought before a Magistrate of Police,' and the learned Advocate-General stated that he did not contend that the Deputy Commissioner as a Justice of the Peace has any power of detention except for that limited purpose. So the only question we have to consider is whether a Deputy Commissioner of Police as such has the power of detention for the purposes mentioned in the Reference to the Full Bench.
4. The provisions of the Cr.P.C. do not apply to the Commissioner of Police or the Police in the town of Calcutta (see Section 1). That being so, the questions referred to must be determined with reference to the provisions of the Calcutta Police Act (Bengal Act IV of 1866). Section 76 of that Act provides that ' Every person taken into custody without a warrant by a Police Officer shall be taken to the Police Station in order that such person may be detained until he can be brought before a Magistrate, or until he shall enter into recognizances with or without sureties, for his appearance before a Magistrate.' There is no precise time fixed within which the person arrested is to be brought before the Magistrate. But he is to be detained until he can be brought before a Magistrate. The question is, whether these words mean, until he can be conveniently produced before the Magistrate, or until there is a case which can be laid before a Magistrate, m other words, whether the period of detention is co-extensive with the period of Police investigation. It is contended by the learned Advocate-General that under Section 7 of the Act, the detention by the Justice of the Peace is to be 'in order to the offenders being brought before a Magistrate, whereas under Section 76 the detention m the (Police) station house is to be until they can be brought before a Magistrate, which means that they can be detained for Police investigation. I do not think however, that there is any such difference as is contended for. The provision that every person taken into custody without a warrant by a Police Officer shall be taken to the station house in order that such person may be detained until he can be brought before a Magistrate, or until he shall enter into recognizances, means that the person arrested is not to be detained at any place other than the station house but that he can be detained only so Ions as he cannot be produced before a Magistrate. The person arresting an offender may be, ands often is, an ordinary constable He must under the sections take the offender to the station house to be detained there until the proper Police Officer can bring him before a Magistrate.
5. Section 69 of the Metropolis Act (2 & 6 Vict., c. 47, upon which Section 90 of the Calcutta Police Act XIII of 1856 and Section 76 of Act IV of 1866 appear to have been modeled) enacted that a person arrested without warrant shall be 'forthwith delivered into the custody of the constable in charge of the nearest station house in order that such person may be secured until he can be brought before a Magistrate to be dealt with according to law' It seems that 'detained' in the Calcutta Act is the same as 'secured' in the English Act--in either case until he-can be brought before a Magistrate.
6. The person arrested has a right to be produced before a Magistrate without any unnecessary delay, that is, a8 S00n as it can reasonably be done.
7. In Section 74 which deals with apprehension of offenders by private individuals' in certain cases provides that such offender may be detained until he gives his name and address and satisfies such person that the name and address so given are correct (where Ins name and address are unknown) or until he can be delivered into the custody of a Police Officer. Section 76 says, 'Until he can be brought before a Magistrate.' The detention, therefore, is to be only until he can be made over to a Police Officer in the one case, or until he can be brought before a Magistrate in the other. In either case the detention is to be only for such period as may reasonably be necessary. This may be illustrated by reference to two English cases--Morris v. Wise (1860) 2 F. & F. 51 : 121 R.R. 763 and Wright v. Court (1825) 4 B. & C. 596 : 6 D & R. 623 : 4 L.J. (sic) K.B. 17 : 28 R.R. 418 : 2 Car. & P. 232 : 107 (sic) 1182. In the first--it was held that a person (a private individual) justified under the Statute 7 and 8 Geo. IV c. 30 in causing the arrest of another, must send him by the direct road to the lock up; for if he sent extra viam he would be a trespasser against the person so arrested. In the second [Wright v. Court (1825) 4 B. & C. 596 : 6 D & R. 623 : 4 L.J. (sic) K.B. 17 : 28 R.R. 418 : 2 Car. & P. 232 : 107 (sic) 1182], a case of a Police Officer, it was held that a constable arresting a man on suspicion of felony must take him before a Justice to be examined as soon as he reasonably can, and that a plea justifying a detention for three days, in order that the party whose goods had been stolen might have an opportunity of collecting his witnesses and bringing them to prove the felony, was bad on demurrer. That is a statement of the Common Law, and Section 76 of Act IV of 1866 cannot be used as an implied repeal of a general right affecting the liberty of the subject.
8. Under Section 77 the officer in charge of a Police Station may enlarge any person in the custody of any Police Officer without a warrant, on his own recognizance, and under Section 78 every recognizance 'shall be conditioned for the appearance of the person thereby bound before the Presidency Magistrate at his next sitting ' If the accused enlarged on bail is to be brought before the Magistrate at his next sitting, whether or not the investigation is completed, it is difficult to see why the man who' is not allowed bail or cannot find bail should not have that right. As pointed out in the Order of Reference, the right to be taken out of Police custody by being brought before a Magistrate is a right given in the interest of, the accused. 'It prevents arrest and detention with a view to extract confession or as a means of compelling people to give information. It prevents Police Stations being used as though they were prisons--a purpose for which they are unsuitable. It affords an early recourse to a judicial officer independent of the Police on all questions of bail or discharge.'
9. The question before us is, no doubt to be decided upon a construction of Section 76 of the Calcutta Police Act. But we may refer to similar provisions in cognate Acts to show that the right of the person arrested to be produced as soon as it can reasonably be done before a Magistrate is recognised in such Acts. Section 61 of the Cr.P.C. provides that 'no Police Officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence' of a special order of a Magistrate under Section 167, exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court.' Section 45 of Act II of 1866 (Suburban Police Act) also contains a similar provision. It seems to me that the period of detention indicated by the words 'until he can be brought before a Magistrate' in Section 76 of the Calcutta Police Act is the same as expressed by the provision, 'under all the circumstances of the case is reasonable' in Section 61 of the Cr.P.C. and does not justify detention, beyond such period, for Police investigation.
10. It may be said that if that was the intention, why was the time-limit of 24 hours provided for in Section 61 of the Cr.P.C. or in Section 45 of the Suburban Police Act (II of 1866) omitted from Section 76 of the Calcutta Police Act? The answer would be more or less a matter of speculation. It may, however, be suggested that the conditions in Culcutta in 1866, or at the present day, were, and are, not the same as in the Mufassil. Having regard to the means of communication, there may be case3 in which the Police in Calcutta may be able to produce the accused within an hour of his arrest; on the other hand, there may be cases in which hundreds of persons are arrested and in which they cannot be conveniently produced before a Magistrate within 24 hours. So that the time-limit of 24 hours may be too long or too short in Calcutta.
11. Then, again, in 1866 at any rate, officers in charge of Police Station in Calcutta presumably belonged to a superior class of officers than Darogas (Sub-Inspectors) in charge of Police thanas in the Mufassil, and in the case of the former who were expected not to detain for any longer time than was required for bringing the accused before a Magistrate the time-limit of 24 hours might not have been thought necessary or advisable. So far as the time required for producing the accused before a Magistrate is concerned, the Calcutta Act leaves it to the discretion of the Police. But the whole question is--Does Section 78 of the Act contemplate detention for the purpose of completing the Police investigation beyond the time reasonably required for producing the accused before a Magistrate? Having regard to the Common Law right of the person arrested to be brought before the Magistrate as soon as is reasonably possible--a right recognized in the law relating to the whole of India outside Calcutta--it is impossible to hold that such right was impliedly repealed by the mere omission to state the hours of detention in Section 76. There is nothing in that section to force us to that conclusion.
12. There is no indication in the Indian Acts (Section 90 of Act XIII of 1856, Section 45 of Act II of 1866, Section 61 of the Cr.P.C.) or in the English Acts (Section 69 of the Metropolis Act, 2 & 3 Vict., c. 47: Clause 15 of the Police Clauses Act, 10&1L Vict., 1847; c. 89 or Section 38 of the Summary Jurisdiction Act, 42 & 43 Vict, 1879) that the Tolicecan detain an accused, arrested without warrant, for a longer period than is necessary for bringing him before a Magistrate. I do not think that Section 76 of the Calcutta Act alone was based on a different principle.
13. It appears that the practice in Calcutta for about 60 years is that the accused is detained for such period as may be necessary for completing the Police investigation. The accused persons are 'brought before the Deputy Commissioner every morning who discharges them, or sends them for trial or sends them back to the lock-up, according to the state of the investigation reports.' It is said that the detention is under some rules framed by the Commissioner of Police under the powers conferred on him by Section 9 of Act IV of 1856. But that section empowers the Commissioner to make, such orders and regulations relative to the. said Police force as the said Commissioner shall, from time to time, deem expedient for preventing neglect or abuse, and for rendering such force efficient in the discharge of all its duties.'
14. They seem to refer to 'orders and regulations' for the guidance of Police Officers, and for internal management of the Police force, and the words 'for rendering such force efficient in the discharge of all its duties,' cannot, I think, include the power of making rules for detaining a person arrested without warrant for a longer period than is necessary for producing him before a Magistrate. If the practice originated from these rules, it cannot be said to be based upon a solid foundation.
15. The power of detention by the Deputy Commissioner of Police has been considered, so far as I am aware, in three cases. In the case of Emperor v. Panchkari Dutt : AIR1925Cal587 , a question was raised as to the legality of the detention of the accused in the Lal Bazar lock-up, and Mukerji, J , presiding at the Sessions observed: 'On a consideration of the relevant provisions of the Calcutta Police Act (Bengal Act IV of 1866), I am disposed to take the view that there is no power of detention for an unlimited period, such as is claimed on behalf of the prosecution, in the Deputy Commissioner, by virtue of his being a Justice of the Peace. It is said that it is understood generally that there is such a power, there being, in fact, no limitation prescribed anywhere, and Section 61 of the Cr.P.C. not being applicable to the Calcutta Police. That no doubt is so, but I am aware that in the matter of Mahommed Ramjan v. King-Emperor application under Section 491, Cr.P.C., decided on the 18th September 1922, Walmsley, J., held a detention under similar circumstances as improper, presumably on the ground that no such unlimited power exists.' The question was not actually decided in either of the two cases, but they indicate the views taken by the learned Judges. In the case of Sri Lal Agarwalla v. Emperor 97 Ind. Cas. 945 : 44 C.L.J. 134 Siihrawardy and Duval, JJ., held that an order of detention pending Police investigation is not illegal. The decision rested on two grounds--(i) that there is no period mentioned in the Calcutta Police Act within which the accused must be brought before a Magistrate, and (ii) that 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. As for the first ground, it is true, that no period is fixed in the sense that the days or hours are not mentioned, but it cannot be said hat there is no time-limit, the limit being until he can be brought before a Magistrate' which as I have already said, means within such time, as 'under all the circumstances of the case is reasonable.' With regard to the second ground Section 7 of the Act shows that the Deputy Commissioner as a Justice of the Peace has the power of detention only 'in order to bring the offender before a Magistrate,' and the learned Advocate-General expressly stated that he did not claim any power of detention for the purpose of investigation in a Deputy Commissioner as a Justice of the Peace.
16. If, as we hold, Section 76 of the Act does not empower the Police to detain an accused for the purposes of investigation, a question arises whether there is any provision in the Act for remand by the Magistrate to Police custody'for such purposes. Section 167 'of the Cr.P.C. which lays down the procedure in cases where the investigation cannot be completed in 24 hours, and empowers the Magistrate to authorise detention of the accused in Police custody, for such purposes for a term not exceeding 15 days, does not apply to the Calcutta Police.
17. There is Section 344 under which a Magistrate may order a remand before commencing an enquiry or trial. It has been held, however, that the remand- contemplated by this section is not a remand to Police custody, but a remand to Magisterial custody. See 'In re Krishnaji Pandurang Joglekar 23 B. 32 : 12 Ind. Dec. (N.S.) 21, and Queen-Empress v. Engadu 11 M. 98 : 2 Weir 142 : 4 Ind. Dec. (N.S.) 69. In these circumstances, it is for the Legislature to consider whether provisions should be made authorising and regulating remands to Police custody.
18. For the reasons stated above, I. am of opinion that both the questions referred to the Full Bench should be answered in the negative.
William Ewart Greaves, J.
19. I agree.
George Claus Rankin, J.
20. I agree.
21. I agree.
22. At no time did I have any real doubt in my mind as to what the answers to the two questions now before us should be, and what I have heard in this reference from the learned Advocate-General has not altered my view in any way. On several occasions these questions came up before this Court for decision, but every time before a stag was reached when, the matter could be finally considered events happened which, rendered such consideration unnecessary. If, therefore, to day I say few words after the judgment just now delivered and even at the risk of repeating only a part of what has already been said therein, my justification is a desire, not altogether unnatural, not to be understood as silently assenting to propositions which, while they are so vital on the question of the liberty of His Majesty's subjects in presidency towns, condemn a procedure which has obtained in the town of Calcutta for a long series of years. This liberty, in my opinion, has been amply safeguarded by the Legislature and yet, curiously enough, have, for years past, been frittered away by a process of misinterpretation of the Statute.
23. The right to detain a person in custody, being one in curtailment of the liberty of the subject, must necessarily have its Origin in some Statute or some provision having the force of a Statute. This is elementary and for this, I presume, no authority is needed. The Statute that has to be looked to in this connection is the Calcutta Police 4ct (Bengal Act IV of 1866) which purported to amend and consolidate the provisions of Act III of 1856 (for regulating the Police of the towns of Calcutta, Madras and Bombay) and of Act XLVIII of 1860 (to amend Act XIII of 1856). Section 76 of Act IV of 1866 gives the Police the right to detain a person taken into custody without a warrant and this right was also given by Section 90 of Act XIII of 1856. The enactments prior to 1856 need not be examined, as it is not suggested that any right of detention which the Police may have had under any of the Police laws which then existed was reserved to them by Act XIII of that year. The words of Section 76 of that Act are very plain: 'Every person taken into custody without a warrant by a Police Officer shall be taken to the Police Station, in order that such person may be detained until he can be brought before a Magistrate, or until he shall enter into recognizances, with or without sureties, for his appearance before a Magistrate.' The words of Section 90 of Act XIII of 1859 are exactly the same, except that instead of the expression 'Police Station,' we have there the expression 'station house'--a variation which need not detain us. There is no power of detention conferred by the Statute apart from this provision. The exact extent of this power has to be construed, and I propose to do so immediately, but not until I have referred to two other sources which have either been relied upon or have at least been understood to be relied upon as being sources from which this power also emanates.
24. One of these sources is Section 9 of Act IV of 1866, and certain rules or circular orders framed thereunder. These rules and circular orders were made and promulgated about the year 1880 by the then Commissioner of Police, and it is said that they were published in the Police Gazette-evidently for the guidance of the Police Officers whom they concerned. Section 9 runs in these words: 'The Police force shall be under the exclusive direction and control of the Commissioner of Police, who may from time to time, subject to the approbation of the said Lieutenant-Governor frame such orders and regulations as he shall deem expedient relative to the general government of the force, the places of residence, the classification, rank, distribution and particular service of the several members thereof, their inspection, the description of arms,' accoutrements and other necessaries to be furnished to them, and all such other orders and regulations relative to the said Police force as the said Commissioner shall from time to time deem expedient for preventing neglect or abuse, and for rendering such force efficient in the discharge of all its duties.' These rules and circular orders relate mostly to Police investigation and, in so far as they purport to lay down methods for carrying them on, were issued for the purpose, of 'rendering the Police force efficient in the discharge of all its duties ' within the meaning of Section 9. If they affect the question of the powers of the Police to detain a person arrested without warrant and mean to enlarge or curtail those powers, they are clearly ultra vires the section.
25. The other source is Section 7 of Act IV of 1866, which provides for the appointment of the Deputies to the Commissioner of Police as Justices of the Peace and enables them to act in that capacity as Justices only so far as may be necessary for the preservation of the peace, the prevention of crimes, and detection, apprehension and detention of offenders in order to their being brought before a Magistrate of Police. This source, however, need not be examined, as the learned Advocate-General has expressly disowned it. His complaint, on the other hand, is that the arguments of the Grown on previous occasions were misunderstood, and he has said that the Grown does not seek to justify the power of unlimited detention on the part of the Deputy Commissioners as being founded on their capacity as Justices of the Peace. If this complaint is directed against my observations in the case of Emperor v. Panchkari Dutt : AIR1925Cal587 I hasten to apologise. I should like to point out, however, that in this respect I am not alone but in company with the learned Judges who decided Srilal Agarwalla's case 97 Ind. Cas. 945 : 44 C.L.J. 134 and also the learned Judges who have made this Reference.
26. The whole controversy then centres round the expression 'until he can be brought before a Magistrate, or until he shall enter into recognizances with or without sureties for his appearance before a Magistrate' which is to be found in Section 76 of the Calcutta Police Act. The expression connotes a period of time, the duration of which is prescribed by the words themselves. The argument on behalf of the Crown is that the expression means that the arrested person may be detained for the purpose of Police investigation. This contention assumes that an arrested person cannot be brought before a Magistrate until the Police investigation is complete, or, in other words, that it is not possible to do so; but is there any foundation for this assumption? In the Mofussil to which the Cr.P.C. applies and the suburbs of Calcutta to which the Calcutta Suburban Police Act (II of 1866) applies, the arrested person has to be produced before a Magistrate within 24 hours; so that there such production is not only possible but also obligatory, irrespective of the completion or otherwise of the Police investigation. This assumption, therefore, has no foundation. The meaning of the word 'can' used in Section 76 of the Calcutta Police Act may also be gathered from Section 74 of that Act where the same word is used in connection with detention of offenders by private individuals. In that section the following expression occurs: 'May be detained until he given his name and address and satisfies such person that the name and address so given are correct or until he can be delivered into the custody of a Police Officer.' Can it be argued that where it is possible for a private individual to deliver a person apprehended into the custody of a Police Officer he may detain the latter on the plea that he is not yet satisfied that the name and address given by the latter are correct? The analogy between the two sections, it is true, is not a complete one, but there is hardly any reason to suppose that the same word 'can' has been used in the two sections in two different senses. The main argument on behalf of the Crown is that because the provision as to production within 24 hours which is to be found in the Cr.P.C., ever since 1861, and in the Calcutta Suburban Police Act of 1866, which is same year in which the Calcutta Police Act was enacted, is not in the Act last mentioned, and, therefore, it should be held that the detention may be for an unlimited period. In my 'opinion, this omission was deliberate and was made to secure higher rights, if at all, to the citizens of presidency towns, the conditions of the Mofussil and the suburbs, where it may not be possible to get at a Magistrate so quickly as in presidency towns, rendering it necessary to introduce a provision fixing a hard-and-fast limit of the detention. I am accordingly of opinion that the question whether a Police investigation is complete or not, does not come in at all in this matter, and under the plain provisions of Section 76 of the Act the person arrested may be detained by the Police--in cases where he is not enlarged by the Police on his recognizance--only until it is possible for them to produce him before a Magistrate, subject, of course, to all just allowances.
27. It is then said that the system which obtains at present, namely, that of producing the arrested person before a Deputy Commissioner every morning, who hears a report as to the state of the investigation and considers whether bail should or should not be granted or discharges him or sends him up before a Magistrate, is a procedure which has worked very well. It may have, but with this we are not concerned on a question of construction of Section 76 of the Calcutta Police Act.
28. It is next said that as Section 167, Cr.P.C., does not apply to presidency towns, there is no provision which would enable the Magistrate to remand the arrested person to the custody of the Police which may be necessary for the purposes of an investigation. Section 344 is the only other provision of this law under which an order for remand may be made by a Magistrate. It has been held by this Court in the case of Narendra Lal Khan v. Emperor 1 Ind. Cs 738 : 6 C 166 : 3 C.W.N. 43 : 9 Cr.L.J. 375, that this is the provision under which a remand may be made after the period of 15 days prescribed by Section 167, Cr.P.C., is over. There are authorities for the proposition that a remand contemplated by that section is a remand to magisterial and not Police custody vide In re Krishnaji Pandurang Joglekar 23 B. 32 : 12 Ind. Dec. (N.S.) 21 and Queen Empress v. Engadu 11 M. 98 : 2 Weir 142 : 4 Ind. Dec. (N.S.) 69. If, therefore, a remand to Police custody cannot be made under that section, and such custody is necessary for the legitimate purposes of a Police investigation, that must be a matter for the Legislature.
29. For the above reasons I agree in the answers which my Lord, the Acting Chief Justice, has given to the questions set out in this Reference.
30. The result is that the Rule is made absolute. The accused will be discharged from their recognizances. It' will be open to the Police to re-arrest them and proceed according to law.