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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE MISHRA & THE HONOURABLE MRS. JUSTICE PADMINI JESUDDURAI
Ramdoss And Others - Appellant
Versus
State Of Tamil Nadu And Another - Respondents
Habeas Corpus Petn. No. 239 of 1992
Decided On : 29 September 1992
CRIMINAL PROCEDURE - Investigation - Role of Magistrate - Magistrate's jurisdiction begins when investigation ends, in the enquiry before the regular trial or in the trial and the stage after the final report or charge-sheet under S. 173 of the Code of Criminal Procedure alone is the stage of enquiry after the cognizance of the offence is taken by the Court and continues when the trial starts. - While the remand order under S. 167 is made in course of the investigation any remand is ordered in course of the enquiry or trial only under S. 309 of the Code of Criminal Procedure.
Fact of the Case:
The petitioners were taken in custody in connection with a case registered under sections 120-B, 124-A, 153A(1)(a)(b), 505(1)(b) of the Indian Penal Code and Ss. 13(1) and 13(2) of the Unlawful Activities (Prevention) Act, 1967. The petitioners were remanded to custody by the Magistrate, Mr. T. V. Subramaniyan, who, after perusing the first information report, found that an offence under S. 124(A) of the Indian Penal Code was made out. The petitioners were subsequently released on bail by the same Magistrate. However, the State filed a petition for cancellation of bail, which was allowed by another Magistrate, Mr. A. K. Kandasamy Pandian. The petitioners challenged the cancellation of bail.
Finding of the Court:
The Court held that the Magistrate, Mr. T. V. Subramaniyan, exceeded his jurisdiction by entering into the merits of the allegations in the first information report and granting bail to the petitioners, as he should have avoided his reliance on the commentaries in same law book and postponed his opinion on the merits of the case for the right moment, that is to say, when the report for cognizance and/or action in Court was placed before him. The Court also held that the Magistrate, Mr. A. K. Kandasamy Pandian, failed to exercise his judicial discretion in accordance with law by cancelling the bail granted to the petitioners without giving them an opportunity to be heard.
Issues: 1. Whether the Magistrate, Mr. T. V. Subramaniyan, exceeded his jurisdiction by entering into the merits of the allegations in the first information report and granting bail to the petitioners? 2. Whether the Magistrate, Mr. A. K. Kandasamy Pandian, failed to exercise his judicial discretion in accordance with law by cancelling the bail granted to the petitioners without giving them an opportunity to be heard?
Ratio Decidendi: 1. The Magistrate's jurisdiction begins when investigation ends, in the enquiry before the regular trial or in the trial and the stage after the final report or charge-sheet under S. 173 of the Code of Criminal Procedure alone is the stage of enquiry after the cognizance of the offence is taken by the Court and continues when the trial starts. 2. While the remand order under S. 167 is made in course of the investigation any remand is ordered in course of the enquiry or trial only under S. 309 of the Code of Criminal Procedure. 3. The Magistrate should have avoided his reliance on the commentaries in same law book and postponed his opinion on the merits of the case for the right moment, that is to say, when the report for cognizance and/or action in Court was placed before him. 4. The Magistrate failed to exercise his judicial discretion in accordance with law by granting bail to the petitioners without there being any material for invoking the exceptions to the rule that a person shall not be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. 5. The Magistrate failed to exercise his judicial discretion in accordance with law by cancelling the bail granted to the petitioners without giving them an opportunity to be heard.
Final Decision: The Court disposed of the petition, observing that the petitioners had already been released on bail by another Judge. The Court also made certain observations in the hope that in future there shall be no occasions of this kind provided by our Magistrates and that they shall abide by the rules and procedures prescribed by law whenever occasions of this kind arise.
MISHRA, J.
On a report by the Assistant Commissioner of Police, Crime (General), Egmore, Madras-8, X Crime No. 1899/92 under sections 120-B, 124-A, 153A(1)(a)(b), 505(1)(b) of the Indian Penal Code and Ss. 13(1) and 13(2) of the Unlawful Activities (Prevention) Act, 1967 has been registered. Petitioners herein were taken in custody in connection with the said case, and produced before the Additional Chief Metropolitan Magistrate, Egmore, Madras.
2. Mr. T. V. Subramaniyan, who is in charge of regular Court No. X, since the Court of the regular Additional Chief Metropolitan Magistrate was vacant, held the charge of the Court of Additional Chief Metropolitan Magistrate and ordered for remand of the petitioners on 18-9-1992. This order passed under sub-section (2) of S. 167 of the Code of Criminal Procedure was evidently on the report of the officer-in-charge of the police station concerned who, after arresting the petitioners herein and obtaining them into custody, was duty bound to produce them before a Magistrate as required under Art. 22(2) of the Constitution of India and under S. 167(1) of the Code of Criminal Procedure if it appeared to him that the investigation could not be completed within the period of twenty-four hours fixed by S. 57, Cr.P.C. (Art. 22(2) of the Constitution) and there were grounds for believing that the accusation or information was well-founded and that a further detention of the accused was necessary. Mr. T. V. Subramaniyan, the Magistrate, however, entertained at this stage a contention raised by the counsel for the accused that they were implicated on political grounds and that the Court should peruse the first information report as to whether the ingredients of the alleged offences were made out and they should be heard accordingly. He accordingly perused the first information report along with Sections 120-B, 124(A), 153(A)(1)(a) and (b) and 505(1)(b), I.P.C. and Sections 13(1) and 13(2) of Unlawful Activities (Prevention) Act, 1967 and heard learned counsel for the parties. His order upon that is extracted after making as many corrections as possible :
"Section 120A, I.P.C. on perusal of commentary of 01 Edition Criminal Law of India by Dr. Sir Hari Singh Gour 120(A), I.P.C. read as follows : Page 1120 - the points requiring proof are : (1) the accused agreed with another, (2) to do an act or cause it to be done, (3) that such act was illegal or was done by illegal means, (4) An overt act if the agreement was not an agreement to commit an offence."
"F.I.R. does not disclose any agreement between two or more to do an act or cause to be done. Hence S. 120(B) is not made out in the F.I.R."
"I.P.C. 153(A) page 1378 - proof points requiring proof are : (1) that the accused wrote or spoke words or used signs or visible representation or employed means to promote or attempt thereby to promote, feeling of enmity or hatred between different classes of citizens of India, (2) that he did so maliciously."
"In this scope of explanation it is stated that the explanation of S. 153(A), I.P.C. protects honest criticism or any act of the person criticising a political party without a malicious intention."
"On perusal of the F.I.R. S. 153(A), I.P.C. is not made out since promoting enmity between different groups on the ground of religion, place of birth, residence and language is not made out. Section 505(1)(b), I.P.C. page 4262 - statement conducting to public mischief - whoever makes publishes or circulates any statement, remour or report with intent to cause or which is likely to cause fear or alarm to the public or any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquillity. On perusal of the F.I.R. offence under S. 505(a) and (b), I.P.C. is not made out."
"S. 124(A), I.P.C. page 1174 - In Kedarnath Singh v. State of Bihar the Supreme Court was directly concerned to the question of how far the offence as defined in S. 124(A),
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