In Re: Thirunavukkarasu and Others

Ramaswami, J.—This revision is sought to be filed against the order made by the ex officio First Class Magistrate, Chidambaram, in M.C.

No. 2 of 1958, u/s 117(3) of the Code of Criminal Procedure.

In this case security proceedings u/s 109 of the Code of Criminal Procedure have been taken against 22 persons on a report of the Criminal

Inspector of Police, Kurinjipadi. The order in writing made u/s 112 sets out the substance of the information received, the amount of the bond to

be executed, the term for which it is to be in force and the sureties required. The learned Magistrate has then proceeded u/s 117(3) and has taken

interim bonds. The present revision is preferred against that order directing the execution of interim bonds. The grounds on which this revision is

preferred are twofold viz., that there was no necessity to take interim bonds ; and secondly, part of the information itemised against the counter-

petitioners as constituting the basis for asking them to show cause consists of criminal cases in which they were acquitted.

Chapter VIII of the Code of Criminal Procedure dealing with prevention of offences and of security for keeping the peace and for good

behaviour, is not intended to punish persons for every repetition but to guard society from them by placing them under such substantial but not

excessive security as to prevent them from resorting to evil course. This Chapter is preventive and not punitive. Mahabir Gope and Others Vs.

Samrathi Singh, , R.B. Sett Sukhlal Karnani Vs. Emperor, , Baburam v. Emperor AIR 1932 Lah. 101 , Shadilal v. Emperor AIR 1931 Lah. 191 ,

In Re: Maruthapali Goundar, , Deoballam Singh and Another Vs. Gorakhnath Singh, , Inder Singh Anup Singh Vs. Harbans Singh Anup Singh, .

In other words, Section 107 is not intended for the punishment of past offences but for the prevention of acts that may amount or may lead to a

breach of the peace hereafter. In Re: Rangaswami Nayudu and Others, , Shivaram Parashram, In re (1904) Cri. L.J. 755, Banarsi Raut v.

Emperor (1937) Cri. L.J. 952.

The institution of proceedings u/s 107 is not an accusation of an offence the itemised particulars given in Section 112 notice is not a catalogue of

charges but information which according to the prosecution leads to the inference that the counter-petitioner is a person likely to commit a breach

of the peace or disturb public tranquillity or do a wrongful act, etc., and against which the counter-petitioner is asked to show cause and therefore

if for instance the information proves to be false, the Court has no power to act u/s 250, Criminal Procedure Code. Nor does the principle of autre

fois acquit or autre fois convict (Section 403, Criminal Procedure Code) apply to such proceedings. Hence, where the person proceeded against

is imprisoned for failure to give security, his subsequent trial for the acts on which the security proceedings were based is not barred u/s 403 of the

Code or Article 20 of the Constitution of India. Mathai Manjuram v. The State AIR 1952 T.C. 556. The person proceeded against is the person

and not an accused and even before the amendment u/s 342, Criminal Procedure Code, was competent to give evidence on his behalf; information

under the section is not a complaint. The order binding over the person under the security proceedings is not a conviction. Several provisions of the

Criminal Procedure Code are inapplicable to a person proceeded against u/s 107 as distinct from an accused under the Criminal Procedure Code,

Kartick Chandra Ghosh and Others Vs. Panna Lal Chatterjee, .

Section 107 is applicable notwithstanding that the acts alleged as giving rise to an apprehension of breach of the peace on the part of a person,

constitute themselves specific offences for which he may be punished. It is also not illegal for a Magistrate in a proceeding u/s 107 to admit

evidence on a specific charge or offence which is the subject of a separate current trial, as the scope of the proceedings is entirely different, one

being concerned with offences committed in the past and the other being concerned with the likelihood of the breach of the peace in the future :

Khetrabasi Sahu and Others Vs. Emperor, ; In Re: Rangaswami Nayudu and Others, .

Any evidence which would be relevant to the information under enquiry would be admissible. The existence of a number of previous convictions

or acquittals in a number of previous cases will not be substantive evidence in proceedings u/s 107 as in the case of proceedings u/s No. The

existence of previous convictions for offences such as theft is a matter which may and should be taken into consideration as indicating the character

and disposition of the counter-petitioner in proceedings u/s 110(Section 54, Explanation 2, of the Evidence Act), though the existence of such a

conviction is not by itself sufficient for an order for security. Weight and due regard must be given to the period that has elapsed subsequent to the

last conviction in order to see whether during that period he has shown a disposition to conduct himself properly or whether there are indications

that he has continued the previous course though he may not have actually brought himself within the clutches of law. Similarly cases of acquittal

may be taken into consideration u/s no because where evidence is taken as to reputation, the Court cannot and should not exclude the reasons

which induced the members of the community to form a bad opinion of the accused and if their opinion is based wholly or partly on the belief that

he had committed a crime which has not been brought home to him, the Court cannot rule out as inadmissible all evidence on which the belief of

the witness is based. Hence instances of specific crimes are admissible evidence although they are not supported by evidence of such amount and

value as would secure a conviction for a substantive offence. It has been held that evidence relating to the incident which formed the subject-matter

of the previous trial cannot be excluded ; the fact of acquittal although it may diminish and destroy value of the evidence, has not the effect of

rendering such evidence inadmissible. Evidence of repute no doubt cannot be let in proceedings u/s 107 as in the case of proceedings u/s No. But

even in the case of proceedings u/s 107 reports or complaints by the several prosecution witnesses on various dates regarding the past conduct of

the accused and his disposition to use violence, though not substantive evidence of the matters mentioned in them, are admissible u/s 157 of the

Evidence Act to corroborate what the witnesses testify in Court that the person sought to be bound over is likely to commit a breach of the peace

or disturb the public tranquillity or do a harmful act that may probably occasion a breach of the peace or disturb the public tranquillity. Khetrabasi

Sahu and Others Vs. Emperor, , In Re: Rangaswami Nayudu and Others, .

In taking interim bond u/s 117(3) the Magistrate who is the head of the Taluk, Division or District and is responsible for the maintenance of law

and order there, is vested with a wide discretion. An order u/s 117(3) being in the nature of an interim order must be of a kind which could be

made in a permanent order in the proceedings. It is not a mere routine order to be appended to an order u/s 112 and is not meant merely to

anticipate the final order that may be made u/s 118. It is designed to meet an emergency. The Magistrate must direct his consideration particularly

to the question of emergency and the necessity of immediate measures as a separate case. But this does not mean that he should conduct an

enquiry within an enquiry, take evidence of witness on oath and their cross-examination in the usual manner. If the Magistrate is satisfied that an

emergency exists and urgent orders are necessary, he can act upon the application of the Police Officer or upon the sworn testimony of a Police

Prosecutor given in the witness-box or in the form of affidavits. An order under Sub-section (3) of Section 117 passed after considering the

question of emergency as a separate question is not bad merely because the Magistrate has based it on the same information which was the basis

of his order u/s 112. Pir Shah v. Emperor 27 Cri. L.J. 1030, Bachal v. Emperor AIR 1942 Sind 77, Emperor v. Ghulan AIR 1943 Sind 122,

Emperor v. Nabibu AIR 1942 Sind 86 , Emperor v. Ratnam AIR 1943 Sind 173 , In Re: Venkatasubba Reddy and Others, , Jaswant Singh, In re

AIR 1954 Madh. Bha. 192 , Surat Ishar Singh v. Jagat Singh Jiwan Ram AIR 1955 N.U.C. Punj. 1614 , Hurmat Vs. The State, , Ratilal Jasraj

Vs. The State, , Jagdish Prasad Verma and Others Vs. The State, , Munshi Ghafur Khan and Others Vs. Sk. Saratullah and Others, , Kartick

Chandra Ghosh and Others Vs. Panna Lal Chatterjee, .

An order passed under Chapter VIII of the Code is no doubt revisable by the High Court. The High Court, however, is not a Court of appeal

and will not ordinarily interfere on the merits provided the lower Court shows in its judgment that it has really and not nominally considered the

evidence on record and has approached the case in a fair way having regard to the interests of the prosecution as well as the defence.

Bearing these principles in mind, if we examine the facts of this case, there cannot be the slightest doubt that the detailed order of the learned

Magistrate based upon relevant and admissible materials and showing that he has approached the matter from the point of view of emergency is

irreproachable.

This Revision is dismissed.