JUDGMENT
U.N. Sinha, J.
1. The petitioner in this case has been ordered to execute a bond of Rs. 2,000 with two securities of Rs. 1,000/- each for maintaining good behaviour for a period of two years by the Sub-divisional Magistrate, Kishanganj, by his judgment and order dated the 4th May, 1956. The order was passed in a proceeding, under Section 110 of the Code of Criminal Procedure. Along with the petitioner another person, namely Ijabat Mian has also been proceeded with and the order mentioned above was passed against both the persons.
Thereafter, there was a reference to the Sessions Judge under Section 123(2) of the Code of Criminal Procedure which was heard and disposed of by the Additional Sessions Judge of Purnea by his judgment and order dated the 29th June. 1956. An appeal had also been filed against the order of the Sub-divisional Magistrate and the said appeal was also heard along with the reference. The learned Additional Sessions Judge accepted the reference and dismissed the appeal.
2. Jharua Mian only has moved this Court under Sections 435 and 439 of the Code of Criminal Procedure.
3. Upon a report made by the Police, the Sub-divisional Magistrate of Kishanganj initiated a proceeding under Section 110 of the Code of Criminal Procedure against the petitioner and Ijabar Mian on the 17th March. 1950. The relevant portion of
the notice issued to the petitioner may be quoted from paragraph 2 of the application filed in this court namely;
“Whereas it appears from the prosecution report submitted by the S. I. of Chopra P. S. that you
1. Jhorwa Mian son of Jahar Ali,
2. Ijabat Mian son of Hasmat Mian both of Chandagachh P.S. Chopra district Purnea are
(a) by habit, thief, robber, burglar and dacoit etc.
(b) You are by habit receiver of stolen properties knowing or reason to believe them to be stolen properties.
(c) You habitually protect or harbour thieves Or aid the concealment or disposal of stolen properties.
(d) You spend lavishly beyond your mean and remain absent from your house during the dark period of the month to commit crimes.
(e) You are so desparate and dangerous as to render your being at large without security hazardous to the community.
You are, therefore, called upon to show cause by 24-3-56 as to why (you) should not be ordered to execute a bond of Rs. 3,000/- with 3 sureties each of Rs. l,000/- for your good behaviour for a period of 3 years.”
4. During the hearing before the learned Subdivisional Magistrate a large number of witnesses were examined to prove the allegations made against the petitioner and Ijabat Mian. Upon a consideration of all the evidence adduced before him, the learned Subdivisional Magistrate came to the conclusion that the case against both the persons with respect to the allegations mentioned above had been clearly established. For the reasons given by him, the learned Subdivisional Magistrate passed an order to the effect that the petitioner and Ijabat Mian must execute bonds with two sureties for maintaining good behaviour for a period of two years.
5. The learned Additional Sessions Judge also came to the conclusion that both the persons proceeded against were by habit thieves and robbers and were such desparate and dangerous persons that they created a terror in the locality and that they ought not to be allowed to remain at large without furnishing security for their good behaviour. It may be mentioned that the learned Additional Sessions Judge has not accepted all the evidence adduced in the case. He has held that some of the allegations made against the two persons have been proved. But he has come to the same conclusion as did the learned Subdivisional Magistrate.
6. Mr. Sarwar Ali appearing for the petitioner has submitted that the proceeding against the petitioner was illegal on two grounds. The first ground urged by learned counsel is to the effect that a joint enquiry against the petitioner and Ijabat Mian was not legal in the absence of any accusation of association having been made at the very outset of the proceeding before the enquiry had commenced before Court. Learned Counsel has elucidated his submission by contending that before the two persons could be dealt with in the same enquiry, it was incumbent upon the learned Subdivisional Magistrate to conclude expressly that the two persons had been associated together in the matter under enquiry.
He has contended that in the preliminary order
passed by the learned Subdivisional Magistrate, it as not been mentioned that there is such association between the two persons proceeded against,
that they should be dealt with in the same enquiry. Learned counsel has referred to Section 117, sub-s. (5) of the Code of Criminal Procedure in this connection and has urged that under the circumstances mentioned above a joint enquiry against the petitioner and Ijabat Mian was not permissible. For his contention Mr. Sarwar Ali has relied upon the case of Sk. Ohid v. The Crown, AIR 1950 Cal 177.
It was held in Sk. Ohid’s case, AIR 1950 Cal 177 that a joint enquiry against a number of persons would be justified in law only on the basis of the accusation made against them and not on the facts finally proved on the evidence. It was held that it was obvious that the Magistrate has to decide whether he should hold same or separate enquiries against a number of persons before he starts the enquiries. The learned Judges held that as there was no such accusation to justify a joint enquiry, the joint enquiry held was not in accordance with law.
The facts of Sk. Ohid’s case. AIR 1950 Cal 177 are clearly distinguishable from the facts of the present case. In the present case, the learned Subdivisional Magistrate mentioned specifically that the petitioner and Ijabat Mian were being proceeded against on the basis of the allegations made in the prosecution report submitted by the Sub-Inspector, Chopra police station. The report submitted to the Sub-divisional Magistrate clearly indicate an association between the petitioner and Ijabat Mian. In fact, the report gave various details of the association between these two persons. Therefore, an accusation of association was, in fact, made and accepted and so the joint enquiry was quite in order.
7. The second ground that the learned counsel has urged is that two persons cannot be proceeded against in the same enquiry where one of the allegations against them is that they are so desparate and dangerous as to render their being at large without security hazardous (o the community. Learned counsel submits that to be desparate is an individual characteristic of a person, and, therefore, there cannot be such intimate connections between two persons alleged to be desparate and dangerous as to render a joint enquiry permissible.
In order to substantiate this argument, the case, In re, K.S. Rathinam Pillai, AIR 1938 Mad 35 and the decision of In re, Kutti Goundan. AIR 1925 Mad 189 and of Hari Telang v. Queen Empress, ILR 27 Cal 781 mentioned therein are relied upon. Before dealing with those decisions I may mention that the argument it seems if accepted will, lead to the strange result. If an association between two or more persons has been alleged and accepted, a joint enquiry will be permissible under Section 117, Sub-section (5) of the Code of Criminal Procedure.
But then an allegation of association rendering two or more persons as desparate and dangerous characters, within the meaning of Section 110, Clause (f) of the Code of Criminal Procedure, will take out the case from the purview of Section 117, sub-section (5) of the Code of Criminal Procedure. In the case of AIR 1938 Mad 35 more than one person was proceeded against in an enquiry under Section 110, Code of Criminal Procedure. One of these allegations covered clause (f) of Section 110 of the Code.
It had been urged on behalf of the petitioner in that case that the two counter petitioners were not said to have been associated together in all matters under enquiry and, therefore, it was not only unjust but it was not legal to deal with them both in the same enquiry. From the judgment of Newson J. it is clear that the learned Judge accepted only that part of the argument which
was to the effect that the propoed enquiry will
not be a just one. The learned Judge held thus:
‘That such a joint enquiry prejudices the counter-
petitioners in cases of this nature has been repeatedly laid down.”
Then the learned Judge mentioned that in AIR 1925 Mad 189. a comment in ILR 27 Cal 781 that a joint enquiry is out of the question when one charge at least is that two persons are so desparate and dangerous as to render their being at large without security hazardous to the community, had been approved. Learned counsel for the petitioner has strongly relied upon this part of the judgment of Newson J. In my opinion, this dictum o£ the learned Judge ought to be considered along with the facts of that case.
The recital of the facts of that case gives an indication that the two counter-petitioners were not associated in all the matters which were going to be proved against them. In ILR 27 Cal 781 one of the allegations was that the three persons proceeded against in a joint enquiry were dangerous persons within the meaning ot Section 110, Clause (f), Code of Criminal Procedure. Their Lordships of the Calcutta High Court were of the opinion that separate proceedings should have been taken against each of these persons.
In my opinion, the ratio decidendi of that case was that there was no such connection between the three persons in regard to their characters so as to make them dangerous and separate persons. It may be remembered that Hari Telang’s case, ILR 27 Cal 781 was decided before amendment of Section 117, Code of Criminal Procedure in 1923. By that amendment the original sub-section (4) was re-numbered as sub-section (5) and the words ‘or is so disparate or dangerous as to render his being at large without security hazardous to the community’ were introduced in the present sub-section (4).
It appears that in Hari Telang’s case, ILR 27 Cal 781, although there was an allegation in terms of Section 110, Clause (f) of the Code, there was no proof of habitual connection between different persons proceeded against. In the instant case, the learned Additional Sessions Judge has mentioned that the prosecution witnesses nave proved uniformly that the accused persons are of bad gene-mi repute as thieves, robbers, burglurs and dacoits and are desparate and dangerous to the community at large. Acceptance of this evidence adduced in terms of Section 117(4) of the Code of Criminal Procedure proves the association which would bring the petitioner and Ijabat Mian within the terms o£ Section 110, clause (f) of the Code of Criminal Procedure. I am fortified in my conclusion by a judgment of the Bombay High Court in Emperor v. Raoji Fulchand, 6 Bom LR 34. Their Lordships held thus:
“In ILR 27 Cal 781, a joint enquiry under these sections was held bad but the decision there proceeded upon the ground that there was no habitual connection between different persons in regard to their characters so as to make them dangerous persons. In the case before us it is not contended that such connection does not exist. The Magistrate’s judgment proceeds upon the existence of the connection and the evidence also tends in the same direction.”
In my opinion, for the reasons given by me above, Hari Telang’s case, ILR 27 Cal 781 is distinguishable from the case of the petitioner. The decision in AIR 1925 Mad 189 was based upon the reason that the evidence in that case as regards association of the accused persons was not a strong one. Madhavan Nair J. held that evidence relating exclusively to the nefarious acts of one of the petitioners had been led in addition to the evidence regarding their association together and that the Magistrate had come to the final conclusion upon such evidence.
His Lordship thereafter pointed out the dangers which may result from such a procedure. It was held that the procedure adopted by the Magistrate had caused prejudice to the petitioners in that case. In that connection reference was made to Hari Telang’s case, ILR 27 Cal 781. The answer to the question raised by the second ground of Mr. Sarvvar Ali is to be found in the observation of Walsh J. in the case of Angnoo Singh v. Emperor, AIR 1923 AH 35 quoted in AIR 1925 Mad 189 and in AIR 1938 Mad 35, Walsh J. stated thus:
“I have myself upset orders under this seclion 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 bad-mashi should he confined to himself alone, unless the case is that he has a confederate or a partner to whom all the evidence is equally applicable.”
I have already mentioned that the prosecution report against the petitioner and Ijabat Mian and the evidence led in Court against them dearly indicate an association in their activities leading to the conclusion that they were desparate and dangerous to the community. In dealing with the old section 1I7(4) of the Code of Crminal Procedure, Beachcroft J. said, in the case of Jogendra Kumar Nag v. Emperor, 25 Cal WN 334: (AIR 1921 Cal 625), thus:
“The sub-section has, however, been introduced into a section which deals with proceedings under Section 110 as well with those under Section 107. and I do not intend to question the view that there can be a joint trial of persons called on to show cause under Section 110 as the view has frequently been taken that such a trial is a good one as for instance, in the cases of Kalu Mirza v. Emperor. ILR 37 Cal 91 and Godhan Ahir v. King Emperor, 4 Pat LJ 7: (AIR 1918 Pat 98) where there is evidence in the nature of a conspiracy or of acting in concert. And if there can be a joint trial in respect of Clauses (a) to (e) of Section 110 which deal with habitual offenders, I do not see why the same provision should riot be applicable to Clause (f) where it is the association of persons which make them dangerous to the community.”
Hari Telang’s case ILR 27 Cal 781 mentioned earlier has also been considered by a later decision of the Calcutta High Court in Parbati Charan v. Emperor, AIR 1934 Cal 482. Guha J. held thus:
“Reference was made in the course of argument before us to the case of ILR 27 Cal 781, and some other cases decided by other High Courts in India; ILR 1923 All 35; AIR 1925 Mad 189 and Jai Rao v. Emperor, AIR 1923 Pat 104, in which joint trials of persons under Section 110, Criminal P. C. were held to be improper. On an examination of the decisions referred to above, it is abundantly clear that on the facts and in the circumstances of the cases joint trials of persons under Section 110, Criminal P. C. could not be supported. The cases cited before us were cases in which joint trials could not properly be held, inasmuch as the matter under enquiry was whether a person individually was or was not an habitual offender. There can however be no doubt that a joint trial could be held, and a joint trial was the proper procedure, in the case of persons acting in concert with persons who are associates and confederates, so as to call into operation the provisions contained in Section 117(5), Criminal P. C. In cases where proceedings are taken jointly against more persons than one, under Section 110, the Magistrate is required to come to separate findings as regards each of the persons charged, individually. That has been done, in this case, both by the Additional District Magistrate and the Sessions Judge.”
It is clear, in my opinion, that in cases where there are allegations against two or more persons bringing the case within Section 110, Clause (f) Code of Criminal Procedure, the Magistrate has to consider the allegations against the persons and the evidence led to prove the allegations and thereafter he has come to a conclusion regarding each of the persons proceeded against.
In the present case the learned Sub-divisional Magistrate and also the learned Additional Sessions Judge, have considered this aspect of the matter and have come to the conclusion that it is a fit case in which the petitioner and Ijabat Mian should be called upon to execute a bond for maintaining good behaviour. I do not think, this question of law raised by Mr. Sarwar Ali can succeed.
8. Learned counsel for the petitioner has further relied upon the case of Krupasindhu Panigrahi v. Rex, AIR 1951 Orissa 277. In my opinion, that case also is distinguishable on its own facts. It may be noticed that Panigrahi J. was dealing with a case against the preliminary order of the Magistrate drawing up proceedings against three persons. The petitioner in that case had appeared in due course and had applied to the Deputy Magistrate to take up his case separately and not to try him jointly with the two others as he apprehended that prejudice would be caused to him,
The Deputy Magistrate had dismissed his petition but the Additional District Magistrate had recommended that the order of the Deputy Magistrate should be quashed as a joint enquiry would Be prejudicial to the persons proceeded against. The specific allegation of being desparate and dangerous characters has been made only against two persons who were going to be proceeded against along with the petitioner in that case, and not against the latter.
Under those circumstances, Panigrahi J. held that a joint enquiry should not have been ordered and his Lordship stated that he was in entire agreement with the observations of Walsh J. in Angnu Singh’s case, AIR 1923 All 35 to the effect that it seems very hard and oppressive to charge a number of persons together unless the whole of the evidence against all of them is precisely the same.
In the instant case, all the allegations and evidence against the petitioner and Ijabat Mian were the same. In my opinion, therefore, it cannot follow as a matter of law as contended by Mr. Sarwar Ali, that as soon as it was alleged that the petitioner and Ijabat Mian were desparate and dangerous persons within the meaning of Section 110(f) the proceeding against them should have been split up into separate proceedings.
9. Lastly Mr. Sarwar AH has argued that both the Courts below have erred in their conclusions, even accepting the evidence adduced in the case. In my opinion, it is not possible at this stage, to enter into the evidence adduced. Both the Courts below have gone into the matter in detail and nave held that the petitioner is such a person that his remaining
at large will be hazardous to the community unless he is ordered to execute a bond for maintaining good behaviour.
10. In the result, the application fails and is hereby dismissed.
S.C. Misra, J.
11. I agree.