In Re: Kutti Goundan and Another

Madhavan Nair, J.—This is an application to revise an order passed against the petitioners u/s 110, cls. (d), (e) and (f) of the Criminal

Procedure Code, binding them over to be of good behaviour for three years by executing a bond each in the sum of Rs. 3,000 with two sureties

each for Rs. 1,500 as being habitual extortioners and oppressors of their fellow-villagers. Proceedings were first taken against them u/s 107,

Criminal Procedure Code, but these were dropped on the 5th of January, 1923, and apparently on the same day the proceedings which form the

subject-matter of this revision were started against them on a fresh petition. A preliminary notice u/s 112, Criminal Procedure Code, was sent to

them on or about the 10th of January, 1923. A joint enquiry against both the petitioners was then held and the order complained against was

passed by the Sub-divisional First Class Magistrate of Coimbatore and this has been confirmed by the District Magistrate.

Dr. Swaminadhan, who argued the case at great length, has attacked this order on two grounds, namely, (1) that the proceedings are vitiated on

the ground that the notice served upon the petitioners u/s 112 does not comply with the provisions of the Criminal Procedure Code inasmuch as it

is very Meagre and does not contain sufficient details regarding the charges brought against them and, in consequence, the petitioners have been

handicapped in their defence, and (2) that the trial of the petitioners jointly has also in the circumstances of this case considerably prejudiced them.

I now proceed to consider these grounds separately. The notice served upon the petitioners runs thus :--""Whereas it has been made to appear

to me that you, within the last 18 months, at Malamachampatti and its neighbourhood, have been oppressing people with your illegal exactions, and

have been a menace to the security and safety of the villagers owing to your unlawful acts and have been consequently committing and abetting the

commission of offences involving a breach of the peace and are so desperate and dangerous as to render your being at large without security

hazardous to the community : You are hereby required to show cause why you should not be ordered to furnish security. "" When the case came on

for hearing, the petitioners took the objection "" that the notice served upon them in the above case is not in accordance with Section 112, Criminal

Procedure Code, in that it does not give the substance of the information against them and that the accused are, therefore, not in a position to meet

the charge against them in the way they are entitled to. "" On this being brought to the notice of the Court it appears from the records that the

Prosecuting Inspector of Police explained the case for the prosecution and the Magistrate made a note that "" Every facility will be given to enable

the counter-petitioners'' Vakil to know the detailed information deposed to by each witness before they are cross-examined. "" It is obvious that the

note of the Magistrate just mentioned has nothing to do with the objection raised by the petitioners as the latter refers to defects in the notice and

the note refers to facilities to be given to the petitioners for knowing the evidence of each witness. The learned District Magistrate himself has

stated in paragraph 5 of his judgment, "" It is true that the preliminary order u/s 112 is very brief and does not contain details of the case proposed

to be proved ""; but this defect did not seem to him to be of any importance in view of the fact that at the beginning of the trial the case was

explained to the petitioners by the Prosecuting Inspector of Police who appeared for the prosecution. In this Court the learned Public Prosecutor

has not stated that the notice gives full information, but his contention has been that the substance of the information which they were entitled to u/s

112, Criminal Procedure Code, was given in the notice and the defect, if any, was cured by the explanation given by the Prosecuting Inspector at

the commencement of the trial. The records make it clear that, at the time when the notice was sent, the Police had more or less complete

information against the petitioners at their disposal and the vague description given in the notice cannot in any sense be said to be a substance of the

available information. As pointed out in In re, Kripa-Sindhu Naiko and Harikrishna Naiko (1918) 8 LW 461, ""notices under S. no, Criminal

Procedure Code, must contain something more than a re-production of the clauses of the section. There should be sufficient indication of the time

and place of the acts charged and sufficient details which would enable the accused to know what facts he is to meet though it is not necessary to

give a list of the witnesses. "" The notice given to the petitioners in the case reported in In re, Kripasindhu Naiko and Harikrishna Naiko (1918) 8

LW 461 is very similar to the notice in the present case. In Nagi Konda Reddi v. King-Emperor ILR (1917) M 246 it was held by Abdur Rahim

and Napier, JJ. that a notice which did not at all state when the threats complained of were uttered, who are the persons who were threatened and

when the apprehension of a breach of the peace arose was vague and bad in law. In Ranga Reddi v. King-Emperor ILR (1919) M 450 : 38 MLJ

97 after stating that it is of the utmost importance in cases of this description that the first information should be clear and specific, the learned

Judges observe :--""The accused is to be put on his trial on information received behind his back. In the case of a complaint, the accused may be

entitled to a copy, if he applies for it, but in the case of an information of this kind, which ex necessite is a confidential one, the accused is entitled to

be told the nature and extent of the information on which the Magistrate intends to base the action against him. It is that communication that is

expected to enable the accused to summon witnesses on his side. Therefore, if the substance of the report made to the Magistrate is not clearly

disclosed, and the accused is not informed of the charges, of the nature of the evidence that he is to rebut, the proceedings cannot be regarded as

legal."" Having regard to this observation, it must be held that the notices to the petitioners issued in this case do not contain the necessary

information required u/s 112, Criminal Procedure Code. The question is whether the explanation of the case at the beginning of the trial by the

Prosecuting Inspector of Police is sufficient to make up for the disadvantages under which the petitioners laboured owing to the vagueness of the

notice. In view of the fact that the object of the notice is to enable the accused to prepare for his defence and to summon witnesses on his side

before the actual trial commences, I do not think an explanation of the prosecution case by the Prosecuting Inspector at the commencement of the

trial will be sufficient to make up for the extreme vagueness of the notice and will be a compliance with the strict provisions of law contained in

Section 112, Criminal Procedure Code. The issue of a notice is not a formal matter; it is a judicial act to be exercised after due consideration of the

materials placed before him by the Magistrate [see In re, Kripasindhu Naiko and Harikrishna Naiko (1918) 8 LW 461]; and, therefore, the

defects in the notice cannot in any way be remedied by explanations given by the Prosecuting Inspector at the time of the trial. I, therefore, hold

that the notice issued to the petitioners in this case was bad in law.

The second argument urged on behalf of the petitioners is that they have been considerably prejudiced by their joint trial. Evidence relating

exclusively to the nefarious acts of each of the petitioners has been let in in this case in addition to the evidence regarding the events in which it is

alleged that they were associated together, and the Magistrate has come to his final conclusion on a consideration of the entire evidence thus

introduced into the record against both the petitioners. The dangers resulting from such a procedure have been very well pointed out in the

following observations made by Walsh, J. in Emperor v. Angnu Singh ILR (1922) A 109;--""I have myself upset orders under this section where

the evidence against one person charged has been used in the judgment as evidence against another not mentioned by the particular witness. There

is always a danger of that, and a danger of its unconsciously operating on the mind of the tribunal even though such operation does not manifest

itself in the judgment; and if there were no other features in the case, I should have been disposed to set aside the proceedings on that ground

alone.... Without laying down any rule or consulting any section, common sense and common justice dictates that proceedings against a man for

badmashi should be confined to himself alone, unless the case is that he has a confederate or a partner to whom all the evidence is equally

applicable. "" In the light of these observations with which I agree I think it must be held that the procedure adopted by the Magistrate in this case

has considerably prejudiced the petitioners in their defence. It has also to be observed that in this case the proceedings were taken against the

petitioners not only for their conduct coming within cls. (d) and (e) but also under Clause (f) for the reason that they are so desperate and

dangerous as to render their being at large without security hazardous to the community. In Hari Telang v. Queen-Empress ILR (1900) C 781 the

petitioners were called upon to execute bonds for their good behaviour on the ground (1) that they habitually commit extortion, (2) that they

habitually commit or attempt to commit or abet the commission of offences involving a breach of the peace, and (3) that they are dangerous

persons so as to render their being at large without security hazardous to the community and were tried jointly by the Magistrate u/s 117, Criminal

Procedure Code, and each of them was ordered to execute a bond with sureties to be of good behaviour for three years. As regards the objection

that they should not have been tried jointly u/s 117, Clause (4), Criminal Procedure Code, the learned Judges held that, even supposing that the

Magistrate was right in considering that there was habitual association between the three persons in regard to the first and second grounds, there

certainly would be no such connection between them in regard to their characters so as to make them dangerous persons, and thus render their

being at large without security hazardous to the community, and that proceedings should have been separately taken against each of them The

evidence in this case as regards the association of the accused does not seem to be strong. I, therefore, think that the petitioners in this case should

not have been jointly tried.

Under these circumstances, I would set aside the order that has been passed against the petitioners and direct that they should be tried

separately after serving a proper notice to them in strict compliance with Section 112, Criminal Procedure Code.