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Pran Krishna Saha And Others v. The Emperor

Calcutta High Court

Jul 10, 1903

Judgment

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Factual and Procedural Background

A rule was issued calling upon the District Magistrate to show cause why an order binding the applicants to keep the peace under section 107 of the Code of Criminal Procedure should not be set aside. Two grounds were relied upon in the petition: (1) that the record contained no definite evidence showing that each individual person bound down was about to commit a breach of the peace, and (2) that two opposing parties had been proceeded against and bound down to keep the peace in one joint proceeding.

The learned District Magistrate did not appear personally but submitted an explanation. He stated that there was evidence of a combination formed by the appellants to harass certain jotedars, that definite evidence existed against Defendants Nos. 1, 2 and 3, that Defendants Nos. 4–11, 17–10, 23 and 25–27 had been concerned on one or more occasions involving fighting, and that Defendants Nos. 12–16, 20–22, 24 and 29 were shown only to be members of the combination and likely to cause a breach of the peace if not bound down.

The Court considered these explanations and the procedural course taken at the Magistrate's inquiry (including that the twenty-nine persons of one party and ten of the other were tried together and some defendants were examined as witnesses against the opposite party). The Court reviewed the legal standards for inquiries under section 107, considered relevant precedent and statutory provisions, and reached its conclusions. The Court set aside the order as to certain defendants on the first ground and set aside the order as to all twenty-nine persons of the first party on the second ground. The bonds given by the defendants and their sureties were discharged. A similar rule raised by the second party was also made absolute by a subsequent order dated 27 July 1903. The final notation records: "Rule made absolute."

Legal Issues Presented

Whether the order under section 107, Cr. P.C., binding persons to keep the peace should be set aside because the record contains no definite evidence showing that each individual person bound down is about to commit a breach of the peace.
Whether the order should be set aside because two opposing parties were proceeded against and bound down to keep the peace in a single, joint proceeding (i.e., whether the joint inquiry was irregular and prejudicial).

Arguments of the Parties

Petitioners' Arguments

The order binding applicants to keep the peace should be set aside because there is no definite evidence on the record showing that each individual person bound down is about to commit a breach of the peace.
The order should be set aside because two opposing parties were proceeded against and bound down to keep the peace in a single joint proceeding (raising a contention of procedural irregularity and prejudice).

District Magistrate's Explanation

The Magistrate asserted there was evidence a combination had been formed by the appellants to harass certain jotedars of the village.
He stated definite evidence existed as to Defendants Nos. 1, 2 and 3.
He said there was evidence that Defendants Nos. 4–11, 17–10, 23 and 25–27 had been concerned on one or more occasions when fighting took place.
As to Defendants Nos. 12–16, 20–22, 24 and 29, the Magistrate said there was evidence only that they were members of the combination and likely to cause a breach of the peace if not bound down.
Regarding the joint proceeding, the Magistrate maintained that all persons were concerned in the same matter, that it did not appear they were prejudiced by the joint inquiry, and that holding separate proceedings might have given one side a temporary advantage.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Empress v. Abdul Kadir	Supports the view that facts justifying an inference under section 107 must be of a definite nature and show individual, not merely collective, connection with the likelihood of disturbance to the public peace.	The Court relied on this authority to hold that Defendants Nos. 12–16, 20–22, 24 and 29 were not shown by definite evidence to be likely to disturb the public peace and therefore the order against them under section 107 must be set aside.
Bachu Mullah v. Siaram Singh	Contains strong observations condemning the practice of trying opposing parties together and exposing accused persons to testify when their own cases are undecided; notes the practice is a grave irregularity and prejudicial.	The Court found the observations in that case pertinent and emphasized the prejudicial nature of joint proceedings where members of opposing parties are tried together and some are examined as witnesses. The Court also noted that in Bachu Mullah the Judges nevertheless held section 537 cured the irregularity, but the present Court declined to follow that outcome.
Subramania Iyer v. King-Emperor	The Privy Council held that section 537, Cr. P.C., was not intended to cure irregularities of the sort involved in joint proceedings that prejudice the accused.	The Court stated it was bound to follow this Privy Council decision and therefore held that section 537 does not cure the kind of irregularity present here; this supported setting aside the orders made after the joint inquiry.

Court's Reasoning and Analysis

The Court proceeded in distinct analytical steps tied to the two grounds of challenge:

Evaluation of the sufficiency of evidence under section 107:
- The Court emphasized the preventive purpose of section 107 (to prevent, not punish), and acknowledged that actual prior commission of offences need not be proved; it is sufficient that facts exist from which it may be reasonably inferred that the person would be likely to disturb the public peace.
- However, the Court held that the facts relied upon must be of a definite nature and must show that each person sought to be bound is individually (and not merely collectively) connected with those facts.
- Applying this standard, the Court found that for Defendants Nos. 12–16, 20–22, 24 and 29 the only material was membership of a combination; this was too vague to justify binding them under section 107. The Court therefore set aside the order as to those defendants on the first ground.
- The Court cited Empress v. Abdul Kadir as supporting the requirement of definite, individual connection.
Legality and regularity of joint proceedings (second ground):
- The Court found the course adopted — trying together twenty-nine persons of one party and ten of the opposite party, and examining some defendants as witnesses against the other side — to be not warranted by law and "most irregular."
- The Court referred to the principles governing joinder and trial in the Code (noting section 233's general rule for separate trials and the exceptions in sections 234, 235, 236 and 239) and observed that persons belonging to opposing parties cannot, in a proper sense, be said to have been concerned in the same transaction so as to justify joint trial.
- The Court considered whether section 537 (curative provision) could cure that irregularity. It observed that the prejudice was clear where large numbers from opposing parties were tried together and some were examined as witnesses, quoting the strongly critical passage from Bachu Mullah v. Siaram Singh regarding the impropriety and prejudice of such practice.
- However, the Court stated it was bound to follow the Privy Council decision in Subramania Iyer v. King-Emperor, which held that section 537 was not intended to cure irregularities of this description. Consequently, the Court concluded section 537 did not cure the irregularity here.
- Applying this analysis, the Court set aside the order made against all twenty-nine persons of the first party on the second ground (the joint trial irregularity applied to them all).
Relief and remedial observations:
- The Court acknowledged the Magistrate might have had good reason for binding certain persons but emphasized procedural regularity and adequate materials are required before making section 107 orders.
- The Court discharged the bonds given by the defendants and their sureties and expressly stated the Magistrate could take fresh proceedings in due form and, if proper materials are presented, bind any of them to keep the peace.
- The Court also issued a similar ruling on a cross-rule raised by Rajendra Narain Chowdhury and others (the second party), making that rule absolute by order dated 27 July 1903, noting the same grounds applied to them.

Holding and Implications

Holding:

Rule made absolute.

More specifically:

The Court set aside the order under section 107 as regards Defendants Nos. 12–16, 20–22, 24 and 29 on the first ground because the evidence against them was only vague membership of a combination and did not show individual likelihood to disturb the peace.
The Court set aside the order as regards all twenty-nine persons of the first party on the second ground, holding the joint inquiry of opposing parties (and trying them together) was an irregularity not cured by section 537 in light of the Privy Council decision in Subramania Iyer v. King-Emperor.
The bonds given by the defendants and their sureties were discharged.
A similar rule raised by the second party was also made absolute (order dated 27 July 1903), for the reasons given in the judgment.

Implications:

The immediate consequence is relief to the defendants whose bonds and orders were set aside and discharge of their bonds and sureties.
The Magistrate is not barred from initiating fresh proceedings in proper form and on proper materials should he find cause to do so.
The Court followed existing authorities (including the Privy Council) in resolving the curative effect of section 537 and did not purport to establish any new legal principle beyond applying those authorities to the facts of this case.

This summary is based exclusively on the text of the provided opinion. No additional facts or inferences beyond that text have been added.

Show all summary ...

This is a rule calling upon the Magistrate of the district to show cause why the order complained of in this petition binding down the applicants to keep the peace under sec. 107 of the Code of Criminal Procedure should not be set aside on the grounds (1) that there is no definite evidence on the record to show that each individual person bound down is about to commit a breach of the peace and (2) that two opposing parties have been proceeded against and bound down to keep the peace in one proceeding.

No one appears to show cause but the learned District Magistrate has submitted an explanation in which with reference to the first ground he says “there is evidence that a combination has been formed by the Appellants to harass certain jotedars of the village.” As regards Defendants Nos. 1, 2 and 3, there is definite evidence. “There is evidence that Defendants Nos. 4 to 11, 17 to 10, 23 and 25 to 27 have been concerned on one or more occasions on which fighting has taken place between the parties. As regards the remaining Defendants Nos. 12 to 16, 20 to 22, 24 and 29, there is evidence only that they are members of the combination and likely to cause a breach of the peace if not bound down.”

As regards the second ground upon which the rule is granted, the learned Magistrate says that the persons against whom proceedings were taken were all concerned in the same matter; that it does not appear that they have been prejudiced by the joint inquiry, and that on the other hand if the proceedings had been separate the Petitioners whose case would probably have been taken up first would have some objection that the other party obtained thereby a temporary advantage.

It appears from this explanation that as regards the Defendants Nos. 12 to 16, 20 to 22, 24 and 29, there is no evidence that they are likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity beyond the fact of their being members of a certain combination that has been formed. That is evidence far too vague in our opinion to justify an order under sec. 107 binding them down to keep the peace. It is quite true the object of sec. 107 of the Code of Criminal Procedure is to prevent and not to punish offences against the public tranquillity and it is not necessary, therefore, to prove that the persons sought to be bound down to keep the peace have really been guilty of offences against the public tranquillity; and it will be enough if facts are proved from which it may be reasonably inferred that the persons in question would be likely to disturb the public peace. But the facts proved to warrant such our inference must be facts of definite nature and must show that the persons sought to be bound down are individually and not merely collectively connected with them. No hard and fast rule can be laid down applicable to all cases. Each case must be determined upon its own circumstances. This view is in accordance with that taken by the Allahabad High Court in the case of Empress v. Abdul Kadir; and having regard to all the circumstances of this case we think that the Defendants Nos. 12 to 16, 20 to 22, 24 and 29 are not shown to be likely to disturb the public peace so as to render them liable to execute bonds to keep the peace. The order as regards these Defendants must therefore be set aside on the first ground upon which the rule was granted.

There remains then the case of the other Defendants and in regard to them we think that the second ground upon which the rule was granted is a good and valid ground for our setting aside the order made against them.

It appears that men of the two contending parties, namely, the twenty-nine persons belonging to the first party and the ten belonging to the second were called upon to show cause why they should not be bound down to keep the peace and the cases against them were all tried together and some of the Defendants on the one side were examined as witnesses against the other side in one and the same proceeding.

This is a course which in our opinion is not warranted by law. The case against the persons on the one side at least should have been tried separately from that against the other side; and where the number composing one set of persons called upon to show cause why they should not be hound down to keep the peace is large, we think it desirable that they should be divided into batches and separate proceedings held against each batch. It is true the enquiry under sec. 107 of the Criminal Procedure Code need not be as formal as a criminal trial strictly so called; but considering the consequences of an order under sec. 107 which may result in the imprisonment of the Defendants in the event of their inability to furnish the security required the main principles applicable to a criminal trial regarding joinder of charges and the joint trial of accused persons may well be held to be applicable to inquiries under sec. 107. And turning to the sections of the Code relating to the joinder of charges and the joint trial of accused persons we find that sec. 233 lays down the rule that there shall be a separate trial of each person for each offence with which he is charged as a general rule, subject to the exceptions contained in secs. 234, 235, 236 and 239; and sec. 239 provides that “When more persons than one are accused of the same offence or of different offences committed in the same transaction or when one person is accused of committing any offence and another of abatement of or attempt to commit such offence, they may be charged and tried together or separately as the Court thinks fit.” But here not only were the persons on the same side tried together but persons belonging to the two opposite parties were all tried together and it cannot be said that they were concerned in the same transaction in any proper sense of the term. The enquiry therefore was in our opinion most irregular.

Then the question remains whether sec. 537 of the Code of Criminal Procedure does not cure the irregularity where it is not shown that the irregularity has occasioned a failure of justice. To this question there are two answers. In the first place it cannot be said that the Defendants have not been prejudiced where twenty-nine persons belonging to one party and ten persons belonging to the other have all been tried in the same proceedings relating to the question whether all or any of them should be bound down to keep the peace specially when we find that some amongst them have been examined as witnesses in the case. Upon this point the observations of this Court in the case of Bachu Mullah v. Siaram Singh, which was a case in which counter-charges of rioting were preferred and the accused in both the cases were tried together, are pertinent to the case before us. “I think,” says the learned Chief Justice referring to the course followed in that case, “that is a course which is to be deprecated to the last degree. I think it a very great pity that Magistrates should ever adopt it. There is no doubt to my mind that it constitutes a very great irregularity and the reason why it is so very objectionable is that you call a man as witness whose conduct has been inquired into, but the decision in whose case has not been pronounced, and you hear his statement of the case given before the very person who is to decide upon his guilt or innocence and by doing that you introduce an element into the question whether or not be will tell the truth, which ought not be there, because he has a personal interest in the enquiry. His liberty or life may be at stake on what will be the verdict in his own case and it is not in human nature to suppose that he would under such circumstances give his evidence in the impartial way that it ought to be given in a Court of justice. Therefore it seems to me that it is not only an irregularity but an irregularity of a grave kind and in this matter I am speaking not only for myself but I believe for my brother Beverley also and therefore I hope that in similar enquiries in future, Judges and Magistrates will discontinue this irregular and highly objectionable practice.”

These salutary directions, we regret to find, have not been borne in mind in the enquiry in this case. It is true that after making these observations the learned Judges held in the case before them that sec. 537 of the Code of Criminal Procedure cured the irregularity.

With reference to this last-mentioned point, namely, whether sec. 537 can cure an irregularity of this sort, we think we are bound to follow the decision of the Privy Council in the case of Subramania Iyer v. King-Emperor in which their Lordships held that sec. 537, Cr. P.C, was not intended to cure an irregularity of the descriptions similar to the present.

We must therefore set aside the order of the Court below as regards all the twenty-nine accused persons, the second ground upon which the rule was granted being applicable to them all. It may be that the Magistrate had good reason for binding them down to keep the peace. The order we now make will not prevent the Magistrate's taking fresh proceedings in due form and in making an order binding them or any of them to keep the peace upon proper materials, if he finds reason for binding them or any of them to keep the peace. The bonds given by the Defendants and their sureties will be discharged.

[Upon an application of Rajendra Narain Chowdhury and others of the second party, a similar rule having been issued, the following order dated the 27th July, 1903 was passed by their Lordships.

“This Court has already upon the motion of the opposite party set aside the order made against them and the grounds upon which the order made, against the opposite party has been set aside apply equally to the Petitioners before us.

That being so, for the reasons given in our judgment in Revision Case No. 563 of 1903, we make this rule absolute and set aside the order complained of.”]

N.G

Rule made absolute.