Ranawat, J. - (1.) THE accused Kishen, Shivdayal, Shanti and Lehru were arrested by the Police on the 28th of September, 1949, under section 302, Penal Code, upon a complaint of Naimad Ram which was lodged at the Police Station Bayana at 6 a. m. the same day. It was alleged that Todar-mal, a refugee, was stabbed at 1 a. m. on the 28th of September, 1949 in his own house. THE Police investigated the case and submitted an incomplete challan to the Sub divisional Magistrate, Bayana, on the 14th of October, 1949. THE Magistrate ordered the Police to produce the accused before him and the accused were accordingly produced on the 17th of October, 1949, in his court. THE accused demanded bail but it was refused and under section 344 Cr. P. C. the accused were remanded to the judicial lock up and the Police was directed to complete the investigation in the case. On the 31st of October, 1949, the Police again applied for time to complete the investigation. THE Magistrate thereupon granted bail to the accused on the ground that the Police had failed to make any progress in the investigation of the case. THE District Magistrate has now made this reference on the ground that the order of the Sub divisional Magistrate, Bayana, granting bail to the accused under section 497 Cr. P. C. in a murder case was illegal and should be set aside.
(2.) THE Government Advocate has supported the reference and Mr. Agrawal who appeared on behalf of the accused has argued that as the Police failed to produce any evidence before the Sub divisional Magistrate there was no alternative left to him except to admit the accused to bail. He has cited a case reported in A. I. R. 1915 Nag. 28 (2) in which it is laid down "where after one remand the accused is again brought up some direct evidence of the guilt of the accused should be required to justify the refusal of bail and with each remand the necessity for producing such evidence increases. " THE decision in this case is based on the authority of the decision in Ponnusami Cheiti V. Queen, 6 Mad. 69. It may be pointed out that after the Sub-Divisional Magistrate took cognizance of the case upon a Police report under section 190 Cr. P. C. it was open to the Magistrate to postpone the commencement of the inquiry for some reasonable cause or to proceed with the inquiry straightaway. In the present case the investigation was not complete and the Magistrate, therefore, acting under section 344 Cr. P. C. ordered a remand of the accused and the case was taken upon the 31st of October, 1949, but the Police could not make any headway in the investigation of the case and consequently the prosecution moved the court for allowing further remand under section 344 Cr. P. C. The 'magistrate declined to make an order of the remand and released the accused on bail. The accused were arrested by the Police under section 302, Penal Code. It was therefore obligatory on the Magistrate to examine such witnesses as were available in the case who could give any evidence relating to the occurrence and, if, after recording such evidence, it appeared to the court that there were no reasonable grounds for believing that the accused had committed a non-bailable offence it could make an order admitting the accused to bail under section 497. It is argued on behalf of the accused that it was the duty of the prosecution to produce evidence under section 208 Cr. P. C. and when the prosecution failed to produce any evidence the only course open to the Magistrate was to let off the accused on bail. It may be remarked in this connection that it is the duty of the Court holding an inquiry under Chapter 18 of the Cr. P. C. to make a full and careful inquiry and to record the whole evidence in the case. In the present case the Magistrate did not embark upon holding the inquiry and it can not be said that the prosecution failed to produce evidence in his court. Had the Magistrate cared to record evidence the prosecution would certainly have examined its witnesses. That stage never arrived in this case. Under the circumstances it was the duty of the Magistrate to first record some evidence when it was obviously clear to him that it was available, to find out that if there were any good grounds for believing that the accused persons had committed a non-bailable offence. Unless any evidence was recorded by the Magistrate it was not possible for him to form any opinion whether there were reasonable grounds for believing that the accused were involved in a non-bailable offence. It is true that the challan was incomplete, even then, before the Magistrate could make any order relating to the question of bail it was necessary for him to form an opinion relating to the question whether there were reasonable grounds for believing that the accused committed a non-bailable offence. The case referred to by the advocate of the accused itself makes it clear that it is the duty of a Magistrate before making an order of remand under section 344 Cr. P. C. ordinarily to record some evidence where it is available to show that good grounds exist for believing that the accused persons have committed a non-bailable offence. The Magistrate in the present case failed to perform his duty in proceeding to deal with the case without recording evidence when obviously it was available. In his previous order he had specified that there was one eye-witness who had seen the accused committing murder. The Magistrate should have summoned that witness and recorded his statement to make sure if the accused were concerned in an offence under sec. 302. Section 497 Cr. P. C. lays down "when any person accused of any non-bailable offence is arrested or detained without warrant by an officer in charge of a Police Station, or appears or is brought before a Court he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. " In the present case the accused were arrested by the Police without a warrant on a complaint against them of an offence under section 302 which is punishable with death or transportation for life. Under section 497 Cr. P. C. it was not competent for the Magistrate to release the accused on bail if there appeared reasonable grounds for believing that they were guilty of an offence under section 302, Penal Code unless the case of the accused was covered by the proviso to section 497. In order to form any opinion on this point the Magistrate had to hold an inquiry and to record evidence but, as has been observed above, the Magistrate did not do so. The only ground referred to by the Magistrate in his order is that the Police failed to make any progress in the investigation of the case. This is no good ground for allowing bail. It only meant that there was some delay in the investigation of the case. Mere delay would not justify granting of bail in a murder case under section 497 Cr. P. C. unless it was covered by its proviso, which is not the case here. This reference is, therefore, accepted and the order of the Sub-divisional Magistrate Bayana is set aside and it is ordered that the accused be arrested and committed to custody and the Sub-divisional Magistrate at Bayana be directed to hold an inquiry without any delay to find out if there are reasonable grounds for believing that the accused had committed a non-bailable offence in order to see if it is necessary for him to make an order under section 497 Cr. P. C. .;