Full Judgment
Coyajee, J.
1. The petitioners in this case ask this Court to revise an order made by the Chief Presidency Magistrate on February 20,1925, authorising their detention in the custody of the police till March 6, and pray that it may ' be ordered that the accused should not be kept in Police custody any longer but should be ordered to be kept in jail custody.'
2. The material facts are these :-
On or about January 22, the petitioners were arrested in Indore for being concerned in offences punishable under as. 302, 307, 365, 120B, 109 and 511 of the Indian Penal Code, The offences, it is alleged, were committed in the city of Bombay; and the petitioners were arrested in Indore by the Indore State Police at the instance of Inspector Smith of the Criminal Investigation Department, Bombay. On February 4, the Chief Presidency Magistrate, on the application of Inspector Smith, addressed a letter to the Agent to the Governor General in Central India asking him to make a demand to the Darbar for surrender of the petitioners. The requisition was complied with. They were brought to Bombay on February 7 and were immediately taken before the Chief Presidency Magistrate by the said officer. 'Then,' says the Magistrate, 'an application was made to me by Mr. Smith under Section 70 of the City of Bombay Police Act for remand of the arrested persons. On the materials placed before me I was satisfied that there was a substantial ground for suspecting that the prisoners had committed an offence and their detention in the Police custody was really necessary for further investigation of the offences alleged Further, when questioned, the accused had no objection to being remanded into police custody, Accordingly, I remanded them into Police custody till the 20th,' Later, counsel on behalf of the petitioners applied to the Magistrate to re-consider that order on the ground that it was not competent to him to remand them into police custody. After hearing arguments, the Magistrate rejected the application; and on February 20 he made a further order which is now under consideration.
3. On the facts placed before us no question arises as to the legality of the arrests. No such contention was raised before the learned Magistrate, nor is it shown that the petitioners were arrested in I adore by the Bombay Police. But what is contended is this, via., the powers of the Bombay City Police as regards arrests of accused persons and investigation into criminal cases are regulated by the City of Bombay Police Act, 1902; that Act does not empower a police officer to pursue a fugitive offender into any place outside British India; the petitioners were handed over to Inspector Smith at Indore in compliance with the requisition made by the Chief Presidency Magistrate; the petitioners when they were produced before that Magistrate were, therefore, in his custody and not in police custody; consequently, the Magistrate's order authorizing their detention in police custody was illegal.
4. We are unable to accept this contention. The proceedings are governed by the aforesaid Act. The pertinent Chapter is the 5th, and the material sections are Nos. 70, 72 and 74. Section 70 lays down that: ' (1) Whenever (a) it appears that any investigation under this Act cannot be completed within the period of twenty-four hours...and (&) there are grounds for believing that the accusation is well founded, the officer in charge of a section shall...forthwith forward the person accused to a Presidency Magistrate, together with a report setting forth the substance of the information received and of the evidence adducible in the case. (2) The Presidency Magistrate to whom an accused person is forwarded under sub-section (1) may, after considering any information reduced into writing as hereinbefore provided, and examining any witnesses that he may consider necessary, from time to time authorise the detention, in such custody as he thinks fit, of the person accused, for a period not exceeding fifteen days at a time, and shall, if he does so, record his reasons for so doing.' Section 72 requires that every investigation under the Act should be completed without unnecessary delay, and as soon as it is completed the officer in charge of the section should prepare a report in the form prescribed therein. Then Section 74 provides that: 'If the Officer in charge as aforesaid considers that there is sufficient evidence or reasonable ground of suspicion to justify him in so doing he shall-(a) forward the accused person to the Presidency Magistrate having jurisdiction and (c) shall also send to such Magistrate the report prepared under Section 72.'
5. In this case the investigation is not yet complete; no report was prepared (s. 72); and none was sent to the Magistrate (s. 74). It is true that on February 4, the police applied to the Magistrate to make a requisition for the surrender of the petitioners by the Indore State, in accordance with Government Order No. 219, Political, April 12, 1875, and for that purpose certain information was supplied to him. But that fact does not lead to the necessary inference that the police investigation was then complete or that it .should be deemed to be complete. For, even when a duly qualified police officer considers it necessary to take action under Section 70 of the Act, he has to submit 'a report setting forth the substance of the information received and of the evidence adducible in the case'; and thereupon the Magistrate may 'from time to time' authorize the detention of the accused person in police custody 'after considering any information reduced into writing...and examining any witnesses that he may consider necessary.' The mere fact, therefore, that in this case the Chief Presidency Magistrate was furnished with certain information to enable him to make the requisition aforesaid, does riot mark the completion of police investigation and the commencement of an inquiry or trial before him.
6. I, therefore, agree with the learned Magistrate in holding that at the material time the police investigation was not complete; that the petitioners were in police custody; that he had not taken cognizance of the said offences (s. 190, Code of Criminal Procedure, 1898); and that it was competent to him to make the order now sought to be revised,
7. In my opinion his order was right.
Macleod, C.J.
8. I agree. The whole fabric of the argument of counsel for petitioners was based on the suggestion that the petitioners were brought down from Indore to be banded over to the personal custody of the Magistrate. There is no extradition treaty between the Government of India and the Indore State; but by a recognition of the principles of international comity, effect was given to the request of the Agent to the Governor General for Central India that the petitioners should be handed over to the Bombay Police Officers. The fact that the Agent to the Governor General moved in the matter at. the request of the Chief Presidency Magistrate does not in any way alter the fact that the petitioners were under the arrest of the Bombay Police and arrived in Bombay in Police custody, so that the provisions of the City of Bombay Police Act were applicable.