Shaikh Amjad Ali vs King-Emperor

Facts:--The petitioner wan ordered to execute a bond of Rs. 900 with two sureties of Rs. 100 each to be of good behaviour for a period of one year, u/s 118 of the Criminal Procedure Code, by the Sub-Divisional Officer of Kishenganj. He was tried along with another person named Kalu who was also ordered to execute a similar bond to be of good behaviour for one year. They appealed to the District Magistrate of Purnea who discharged the order as against Kalu bat affirmed the order as agamst the petitioner, Shaikh Amjad. The petitioner has Bled the present application in revision against the said order of the learned District Magistrate. The proceedings against the petitioner as well as against Kalu were drawn up under Clauses (a), (6), (d) and (f) of Section 110, but the prosecution only tried to prove that the accused persons were by habit house-breakers and thieves.

Kulwant Sahay, J.

[After stating foots his Lordship continued.] The petitioner objected to the joint trial and the learned District Magistrate agrees with the Sub-Divisional Magistrate that the petitioner had not been prejudiced by such joint trial. He says that if the petitioner had really apprehended prejudice, be could have objected to the joint trial at the beginning of the proceedings bat he did not do so. It has been contended by the learned Vakil for the petitioner that it was not possible for him to object to the joint trial at the beginning before the nature of the evidence adduced in Court was known and it was only when the evidence was given in Court for the prosecution that he was in a position to object to the joint trial. There is some force in the argument of the learned Vakil, but, having regard to the circumstances of the case, this ground by itself is not sufficient to set aside the order. The petitioner knew from the proceedings drawn up by the learned Sub-Divisional Magistrate what the nature of the case of the prosecution against him was and be ought to have made his objection, if not at the beginning, at least at an early stage of the trial. The objection, as a matter of fact, was taken only after all the witnesses for both sides had been examined, and when the case was being argued by the learned Vakil for the petitioner. I am, therefore, of opinion that this objection on the ground of joint trial is not sufficient to set aside the order.

Turning to the merits of the ease, the learned District Magistrate holds that the avidence of general repute produced in the case was not in his opinion particularly strong. On going through the evidence he found that a great many men only began to suspect the accused of being thieves and badmashes after the present proceedings had been started. He, therefore, does not rely upon the evidence of general repute. He observes that

the prosecution in this case stands or falls not so much on proof of general repute of the accused as on proof of specific instances in which they were suspected on reasonable grounds or actually detected in the commission of crimes.

He divides the evidence upon which he relies and to which be attaches great weight under two heads. The first head consists of evidence furnished by records of information given to the Police and written in the form of station diary entries, first information reports, etc The second head consists of the evidence of specific instances in which crimes were committed regarding which no statements recorded by the Police had been filed in Court, but which have been sought to be proved by evidence of witnesses. Under the first head the learned Magistrate observed that there are seven exhibits, but as a matter of fact, two duplicate copies of the same documents had been admitted in evidence and, therefore, there were realty five documents of the nature described under the first head. Of these five documents, three relate to the present petitioner, namely. Exs. 1, 5 and 6.

* * * 5. Mow, this is all the evidence in the case referred to by the learned magistrate as against the present petitioner. The evidence at the most discloses merely a case of suspicion. The evidence is of a very vague nature and the evidence of mere suspicion of a person having taken part in certain criminal offences is not an evidence of general repute within the meaning of Section 117, Clause (3), Criminal Procedure Code. In the case of Raham Ali v. Emperor (1913) 11 A.L.J. 461 Mr. Justice Rafique observes that,

evidence as to cases in which the applicant was suspected cannot be said to fall within the meaning of general repute u/s 117 of the Code of Criminal Procedure.

These are instances of mere suspicion which, to my mind, are not sufficient in order to bind down a person to be of good behaviour u/s 110. The evidence in such a case must be evidence in which the petitioner is proved to have been concerned or some direct evidence to establish the complicity of the petitioner in such cases. The evidence ought to be of such a nature as to lead to a reasonable and definite ground for coming to the conclusion that the petitioner is a habitual thief. Such evidence is wanting in the present case. Moreover, the petitioner has examined no less than 145 witnesses in his favour to testify to his good character. Of these 145 witnesses, 24 witnesses belong to his own village and they all come and bear testimony to the good character of the petitioner. The learned Magistrate does not consider this as evidence at all. As was laid down by the Chief Justice of the Allahabad High Court in the case of Hakim Singh v. Emperor (1915) 13 A.L.J. 1055 where proceedings u/s 110 are taken against a person and he is able to produce witnesses on his behalf to speak of his good character, the Court ought to pay particular attention to such evidence. By this it was no doubt not meant that the Court must necessarily believe these witnesses, but the Court should find substantial reason for not believing the evidence before it makes an order. Powers given by the Code u/s 110 should be exercised with extreme caution and with very great discretion. A person must be found upon evidence to have habitually committed or attempted to commit offences before he could be bound down to be of good behaviour. Such evidence is, to my mind, wanting in this case. I have gone through some of tint evidence in this case, as I was invited to do so by the learned Yakil for the petitioner on the ground that the evidence had been misapprehended by the learned Magistrate, and on going through the evidence referred to by the learned Magistrate I am bound to say that, in my opinion, that evidence is not sufficient in order to require the petitioner to furnish security to be of good behaviour. The order passed by the learned Sub-divisional Magistrate must be set aside. If the petitioner has given any security such security will be cancelled.