Emperor Prosecutor v. Kurwa Accused.

Boys, J.:— This case while headed as a criminal appeal has been heard by is on the revisional side, since it has already been ruled by this Court that an application by the Local Government against an order of a Sessions Judge setting aside an order that an accused person should furnish security is an application which can only lie on the revisional side and no appeal can be filed at all. We have, therefore, heard it as a revision.

2. This Court has time and again pointed out to the Police and to Magistrate the great desirability of proceeding in these cases strictly in accordance with the Code of Criminal Proceedure, but the advice repeatedly given is as regularly ignored; and so it has been in this case.

3. The proceedings commenced with what purports to be an order under s. 112 of the Code of Criminal Procedure by which it is suggested that notice was given in accordance with law to the accused of what charges he had to meet. The notice describes him as a habitual thief and “mischief-doer” and as having had the reputation of being such in the locality. “Mischief-doer” no doubt refers to habitually committing mischief within the terms of s. 110 (d). So far there is no objection to be taken to the notice. It continues: “You have been suspected in the following crimes.” It has been ruled numbers of times by this Court and other Courts that evidence cannot be, led in these cases under s. 110, that an accused person has been suspected of committing such and such offences. To allow that sort of evidence is to admit what is purely hearsay evidence and nothing else. What apparently so often misleads the Magistrates in this respect is that evidence of general repute can be given in support of a charge of being a habitual thief, etc. But evidence of general repute is evidence of a definite fact and is in no sense hearsay evidence. The notice continues by describing the crimes of which the accused is said to be suspected as:—

“Crime No. 24, crime No. 23, crime No. 13 and crime No. 8.”

4. It is difficult to understand how the Magistrate could be under the impression that he was by this clause in the notice giving the accused in fact notice of anything at all. It must have been obvious to any body that the accused could have no possible means of knowing what crime “Crime No. 24” might be. It is, therefore, manifest that at least half the “notice” issued under s. 112 ought never to have found place in such an order.

5. When the case came before the Magistrate the first witness to be examined was M. Danish Ali, the station officer. He was allowed to state that the accused was suspected in certain cases. We have already pointed out that this evidence is hearsay and inadmissible. His next statement is that the accused's requtation in the locality is very bad. Assuming this to refer to his requtation as a habitual thief or that he habitually commits mischief, it is evidence and, for what it is worth, the Magistrate would be entitled to consider it. The witness then goss on: “It is necessary to take security from him for good behaviour.” This is a statement of his opinion which the witness should never have been permitted by the Magistrate to make. He proceeds to say that the accused associatad with certain persons who were what is known as “history-sheeters.” There is no question here of a charge of being associated with a gang for the purpose of committing offences. Finally, he is allowed of say: “I have submitted the report Ex. A and it is correct”. It is manifest that that report is full of statements of facts, if they are fects, which the witness could only know from hearsay. After this some five more witnesses were examined, one of whom gave no evidence at all of any sort against the accused. The other four did make, together with many'statements of a nature similar to those on which we have commented as being inadmissible, several statements about the accused which were admissible and which, if believed, might justify an order under s. 110. All four of them did make the definite statement that the accused committed theft habitually and commitled mischief hahi tually, and some of them said that his requtation was very bad. Where the Police or the Magistrate want to make use of s. 117(4) the witness should be allowed to depose, if he can in fact give that-evidence, that the accused has a general reputation as a habitual thief (or robber, etc, as the case may be), but he should not be allowed to state that the accused is a bad character or has the reputation of being a bad character. Evidence as to general repute is permitted by law; but it is obviously a type of evidence which requires to be weighed very carefully; and that is the greater reason for being careful that no improper laxity is permitted.

6. After six witnesses had given evidence the Magistrate proceeded to examine the accused. We are informed by the learned Government Advocate that there were at least twenty witnesses summoned to give evidence on behalf of the Grown. We are probably doing no injustice to the Magistrate if we say that it seems highly probable, if not absolutely certain, that he had some information that the accused was not likely to put up any great resistance to being orderd to give security, for at the end of these six witnesses he proceeded to examine the accused. This was not illegal, but it was certainly unusual. The proceeding had to be conducted according to the procedure provided for a warrant case, with the exception that no charge need be framed. When the accused was examined he was asked first: “Do you habitually commit thefts and mischiefs”? He plainly denied it: “I do not commit thefts or mischiefs.” The question to him was a proper question. The next question: “Do you associate with Bind a and Basanta, who are bad characters”? was wholly improper. There was no charge against him of associating with bad characters. However, he flatly denied that he associated with them, Then he was asked; “Have you previous convictions”? and he replied: “I have three previous convictions.” Asked if he would give a defence, he said “No.” Asked if he had anything to state, he said: “I am prepared to give security for good behaviour.” Now, it has been suggested to us that the accused's statement “I am prepared to give security for good behaviour” was in effect equivalent to a plea of guilty. We have been referred to certain other cases in which the question has been considered how far a Magistrate was justified in stopping a case and passing the final order for security on the strengh of some similar statements. But it is obvious that a right decision can only be arrived at in such cases upon an examination of the particular facts. In one case an expression of readiness on the part of the accused to give security may fairly be construed as a plea of guilty: in other cases it could not possibly fairly be so construed. In this case the man had already flatly denied his guilt on every point. At the worse he had admitted three previous convictions. There is nothing whatever in his statement to show to what previous convictions he was pleading, and he should certainly have been asked specifically in regard to them. But asssuming everything on this point in favour of the Grown we will take it that his plea that he had been three times previously convicted referred to the three convictions set out at the end of the report of the Police Officer, which we have already held not to be admissible in evidence as a whole. The details of the convictions appear nowhere else. They were all in Bijnor, the district from which this case comes. The first is dated the 11th July, 1901. It was a conviction under s. 457 of the Indian Penal Code and not as printed in the paper-book “s. 405.” So far proof of that conviction was relevant in this case. The next two so-called convictions are cases where orders were passed against the accused in 1903 and 1923, under the very section of the Code in accordance with which the present proceedings have been taken. It has already been held by a Bench of two Judges of this Court that the terms “conviction” and “acquittal” are not appropriate or properly applicable to an order in such proceedings. But even assuming that these two orders can be treated as convictions it is manifest that by no strained process of reason could it possibly be suggested that the accused's admission as to these three cases could possibly be construed as a pela of guilty in reference to the present charge against him. We cannot refrain from commenting on the fact that two of the instances raked up against this accused date so far back as 1901 and 1903, 26 and 21 years ago respectively. The only point in regard to which fault is found with the order of the Additional Sessions Judge setting aside the order for security is that a few lines from the end of his judgment he has said: “1 find that not a single conviction is against the appellant.” If he meant that no single conviction has been properly proved he was right; otherwise he would appear to have been in error in not noting that there was one conviction under s. 457 of the Indian Penal Code against the accused by which the accused was sentenced to one year's rigorous imprisonment 26 years ago.

7. For the reasons we have given above there is no force in this application and it is dismissed.

8. We are informed that the accused in this case has been arrested, and that he is at present in the precincts of this Court. Let him be forthwith released.

9. Application dismissed.