TMI Blog1923 (10) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... the 18th August an application for bail was then made on his behalf to the Chief Presidency Magistrate, but he was informed that his proper remedy was by Habeas Corpus. On the 20th August, the petitioner was produced for the first time before the Police Magistrate at Sealdah, to whom he applied for bail. The Magistrate thereupon recorded the following order: Thirty-two accused sent up, charged under Sections 400 and 401, Indian Penal Code. They are remanded to hajat till 4-9-23. Confession and search lists and diary should be produced to show that; there is justification for detaining them in custody, if no chalan is submitted on that date. 3. This order was made on the basis of a letter which was addressed by the Inspector of Police, Detective Department, to the Police Magistrate, Sealdah, and was forwarded by the Deputy Commissioner of Police, C.I.D. The letter was in the following terms: I beg to produce before Your Honour the following accused who are concerned in several cases of dacoities, murders for gain, drugging, robberies, house-breaking with thefts and thefts, committed in the suburbs and town of Calcutta, as also the surrounding districts and other plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before. 8. On the 18th September, the petitioner was produced for the third time before the Police Magistrate of Sealdah who recorded the following order: Examined one witness Mr. Morshed, Deputy Magistrate, Alipur, who is verifying the confession of the prisoner Pramatha Nath Das. He says he will take another fortnight to complete the verification. He also held a test identification in the Alipur Jail. On 4-9-23 the confessing prisoner identified 29 prisoners in this case. He found the confessing prisoner Pramatha confounded and nervous and held a second test identification on 13-9-23. On this day 6 more prisoners including Hari Das Kanshari whose bail application was fixed for hearing to-day, were identified. Mr. Morshed believes that the second day's identification was quite as good and honest as that of the first day. One prisoner Bhusan Chandra Sarkar was not identified on either date. The Police report that there is no other sufficient evidence against him. So he is released from custody. In view of the evidence of Mr. Morshed, the bail applications of all the accused including that of Hari Kanshari are rejected. Considering the evidence obtained and the eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction. (3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing. 11. The next important provision is contained in Section 344 which authorises a remand after a Magistrate has taken cognisance and is in the following terms: (1) If, from the absence of a witness, or any reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefor, from time to time postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time. (2) Every order made under this section by a Court other than a High Court shall be in writing signed by the presiding Judge or Magistrate. Explanation : If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aint of facts which constitute such offence; (b) upon a police report of such facts ; (c) upon information received from any person, other than a police officer, or upon his own knowledge or suspicion that such offence has been committed. 13. The Magistrate states that he took cognizance under Clause {b), that is, upon a police report, of facts which constitute such offence. There was, however, no police report on that date. The expression police report has been interpreted in this Court to mean a police report within the meaning of Section 170: see Abdullah v. Emperor [1913] 40 Cal. 854; Lee v. Adhikenj [1909] 37 Cal. 49; Harihar v. King-Emperor [1918] 23. C.W.N. 479; Sukumar V. Mofizuddin A.I.R. [1921] Cal. 561. Reference may also be made, to the decision of the Full Bench of the Bombay High Court, in King-Emperor v. Sada [1901] 26 Bom. 150 which followed Reg. v. Jafar [1871] 8 V.H.C.R. 113 (Cr.); Sarfaraz Khan v. King-Emperor [1913] 11 AL.J. 331; Ramlal v. Emperor [1919] 1 P.L.T. 73. The Deputy Legal Eemembrancer realised this difficulty and contended that the Police Magistrate may be deemed to have taken cognizance, if not on the 20th August as he states, then on a l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e withheld merely as a punishment. The requirements as to bail are to secure the attendance of the accused at the trial : R v. Rose [1898] 18 Cox. C.C. 717. The proper test to be applied in the solution of the question, whether bail should be granted or refused, is whether it is probable that the party will appear to take his trial: Re Robinson [1859] 23 L.J.Q.B. 286, R. v. Scaifa [1841] 9 D.P.C. 553. The test is applied by reference to the following considerations: (a) The nature of the accusation : R. v. Barronet [1853] 1 El. Bl. 1; R. v. Butler [1881] 14 Cox. C.C. 530. (b) The nature of the evidence in support of the accusation: Re Robinson (1859) 23 L.J.Q.B. 286; R. v. Butler [1881] 14 Cox. C.C. 530; R. v. McCormic [1864] 17 Ir. C.L.R. 411. (c) The severity of the punishment which conviction will entail: Re Robinson [1859] 23 L.J.Q.B. 286; and this explains the reluctance of Courts to grant bail on charges of murder : Re Barthelemy [1852] 1 El. Bl. 8; R. v. Andrews [1844] 2 D. L. 10. In this connection we may recall that in England, bail in treason or felony is discretionary in the High Court or Courts having jurisdiction to try the offence: R. v. Mc Cartie [1859 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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