Mahmood, J.:— This case has been argued before me at considerable J length by Mr. Colvin on behalf of the petitioners, and by the learned Public Prosecutor on behalf of the Crown. The case [454] is one in which the interference of this Court is prayed for in revision under s. 439 of the Criminal Procedure Code.
The facts of the case may be briefly stated to be that, on account of some question relating to the killing of cattle, the police, being under an apprehension of breach of the peace, made a report to the Magistrate, to the effect that certain persons, both Hindus and Muhammadans, should be called upon to give security for keeping the peace, in accordance with the provisions of s. 107 of the Criminal Procedure Code. The report; appears to have been made on the 24th October, 1885, and it contains the names of fifteen Hindus and an equal number of Muhammadans as the persons who were likely to commit breach of the peace and were the leaders 1 of the two opposite factions in the town of Ghosi in the district of Azamgarh, Upon receiving the information contained in the report, the Magistrate I who had to deal with the case passed an order in the following terms:—
“Whereas, from perusal of the record of the local inquiry conducted by Ahmad Hosain, D.C, into certain points of dispute between the Hindu and Muhammadan communities of Ghosi regarding the right to kill cows, claimed by the Muhammadans and opposed by the Hindus, and to celebrate the Ram Lila festival, claimed by the Hindus and opposed by the Muham, madans, and also from perusal of the report made by Chotey Khan, Sub-Inspector of Ghosi, dated 24th October, it seems probable that a breach of the peace will occur between parties of both denominations named in the said report,—order is hereby passed for issue of summons, under s. 107 of the Criminal Procedure Code, directing each of the parties enumerated in the said report to appear on the 4th proximo and show, cause why they should not execute a bond in a sum of Rs. 300, and find, two sureties, each in a sum of Rs. 100, to keep the peace for one year.”
The order, which is dated the 26th October, 1885, appears to have been duly obeyed, and the fifteen Hindus and the fifteen Muhammadans appeared before the Magistrate to show cause accordingly. Although these parties were represented as belonging to one or the other of the two opposite factions, all the thirty persons were tried together, the same evidence being taken against them [455] all, and their cases being disposed of by one and the same order, which runs as follows:—
Having due regard to the condition and means of each of the defendants, I direct, under the provisions of s. 118 of the Criminal Procedure Code, that the defendants, (1) Abdul Kadir, (2) Muhammad Nasir, (3) Muhammad Lati, (4) Deokinandan Lal, (5) Koleshar Lal and (6) Har Prasad, do furnish each a bond in a sum of Rs. 300 and two sureties, each in a sum Rs. 150, to keep the peace for one year. I direct that (7) Ghulam Imam, (8) Malik Ali Abbas, (9) Hifiz Kuddoos, (10) Danial, (11) Shere Ali Khan, (12) Ghura Khan, (13) Wazir Khan, (14) Musharraf Husain Khan, (15) Muhammad Raza Khan, (16) Makdum Baksh alias Mukhi, (17) Hurri Kban, (18) Lal Muhammad, (19) Bishao Pande, (20) Sheoratan, (21) Gokal, (22) Kailowan, (23) Sheoambar, (24) Hansraj, (25) Naik, (26) Chedi, (27) Sukhbasi, (28) Bikram Rai, (29) Ram Raj Rai and (30) Partab Ra, do each furnish a bond, without sureties, in a sum of Rs. 300, to keep the peace for one year. Any of the defendants failing to comply with the terms of the above order will undergo a term of simple imprisonment for one year under s. 123 of the Criminal Procedure Code.”
Of these thirty persons, only Abdul Kadir and Muhammad Nasir have applied to this Court for the exercise of its revisional jurisdiction on their behalf; but when the case came up before me for the first time on the 25th ultimo, I intimated to the learned Public Prosecutor that, under the circumstances of this case, I could not regard the case of the petitioners put before me by Mr. Colvin as distinguishable in principle from that of the other twenty-eight persons to whom the Magistrate's order related: and in view of the fact that some important questions of law were involved, I, at the request of the Public Prosecutor and with the consent of Mr. Colvin, postponed the case; and I have heard the arguments yesterday, both on behalf of the petitioners represented by Mr. Colvin, and on behalf of the Crown represented by the learned Public Prosecutor, Mr. Hill.
The first point of law which has been argued before me is, whether the joint trial of all these persons was illegal. Mr. Colvin has rightly argued that the trial cannot be regarded as one for [456] an offence, because the very nature of the powers conferred by part IV of the Criminal Procedure Code upon Magistrates relates to the prevention of offences, and therefore proceedings initiated under s. 107, and inquired into under S. 117 of the Code, stand upon a footing of their own, which is distinguishable from that of trials for offences, for which the Coda has provided specific rules. The first part of this contention seems to me to be perfectly sound, and I may say at once that the matter is settled by the ratio decidendi in Queen-Empress v. Kandhaia, where I concurred with Duthoit, J., in holding that a person called upon to furnish security for keeping the peace or good behaviour cannot be regarded as a person charged with any offence, and cannot be dealt with as an offender. I do not feel inclined to depart from the view in which I concurred in that case, and the learned Public Prosecutor hasindeed conceded that the present case cannot be regarded as a trial for an offence. But then he argues that the Code itself furnishes authority for the joint trial of persons against whom the Magistrate takes proceedings under s. 107 and s. 112 of the Code. The learned Public Prosecutor relies upon s. 117 of the Code, which, after laying down that “the Magistrate shall proceed to inquire into the truth of the information upon which he has acted, and to take such further evidence as may appear necessary,” goes on to say “such inquiry shall be made, as nearly as may be practicable, where the order requires security for keeping the peace, in the manner hereinafter prescribed for conducting trials in summons-cases.” Mr. Hill then contends further that s. 239 of the Code is applicable to summons-cases, being a general rule applicable to all classes of cases, and authorises a joint trial or rather inquiry in cases such as the present.
I confess I have had some doubt and difficulty in dealing with this part of the argument in the case, the more so, as the exact point is one upon which the case-law is practically silent, though here and there dicta of learned Judges are to be found, indicating the tendency of their views upon the subject. The right of Her Majesty's subjects in India to liberty and freedom may be said to be founded upon almost as stable and constitutional a basis as the right of Her Majesty's subjects in England or any other part of [457] the vast empire of Britain. And if this is so, it is a matter of no small consequence to decide whether persons who have not transgressed the law should, simply because the Magistrate (to use the words of s. 107) “receives information that any person is likely to commit a breach of the peace, or to do any wrongful act that may probably occasion a breach of the peace,” be placed for purposes of inquiry into the truth of the information, under exactly the same rules as those which regulate the trial of actual offenders and criminals. Further, it seems to ma clear upon general principles, that each individual member of the community is, in the absence of exceptional authority conferred by the law to the contrary effect, entitled, when required by the judiciary either to forfeit his liberty or to have that liberty qualified, to insist that his case shall be separately tried. In the eye of the law, each individual citizen is a separate integer or unit of the common wealth, and his rights of liberty cannot, without express authority in the law, be dealt with jointly with those of a crowd of other persons with whom, far from having a community of interests, he may have incompatibility of interests in matters of a nature such as this case presents.
That these general principles are not ignored by our Criminal Procedure Code, is obvious to my mind from the very s. 239 on which the learned Public Prosecutor has relied; for it is only “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 abetment of, or attempt to commit, such offence, they may be charged and tried together;” and the section goes on to say that, even under such conditions, the Court possesses the discretion to try each person separately. In this case, as I have already shown, there is no “offence,” and the question resolves itself into the interpretation of the provision of s. 117, to the effect that, in such cases, “the inquiry shall be made as nearly as may be practicable……in the manner hereinafter prescribed for conducting trials in summons-cases.” And this, indeed, is the provision of the law upon which the learned Public Prosecutor has relied for applying s. 239 to the present case. The phrase “as nearly as may be practicable” seems to me to be almost stronger than the phrases “as far as may be” and [458] “mutatis mutandis,” which frequently occur in our codified statute law.
Such being my interpretation of the language of the Legislature in s. 117 of the Code, I am not prepared, notwithstanding the considerations which I have already stated, to hold that the joint trial or inquiry held in this case was illegal, and, as such, null and void, by the simple fact that more persons than one were dealt with by the Magistrate in one and the same proceeding. The Madras High Court, as stated in a note in Agnew and Henderson's edition of the Code (p. 70), appears to have laid down the rule that “separate proceedings should be taken against each person ordered to find security, unless it is clear that there is such a connection between the parties as indicates the necessity of a contrary course.” And this seems to be the whole scope of the dicta to be found in the judgments of Straight, J., in some of the reported cases. The strongest case is Queen-Empress v. Nathu in which no less than sixty-nine different persons were dealt with by the Magistrate in a single proceeding, and his action was denominated by Straight, J., not as an illegality or nullity, but as creating an “obvious inconvenience.” Then after dealing with some of the circumstances of that case, the learned Judge went on to say:—
“Every person to whom a summons is issued calling on him to show cause why he should not find security, is entitled to proper information as to the materials upon which process has been granted against him, and to a reasonable interval within which to prepare himself to meet such information by evidence or otherwise, as the matter may require. Moreover, his case should be considered by itself and on its own merits, and, except in rare instances, it should not be mixed up with, and should never be prejudiced by, that of other persons.”
Now, if these observations are to be understood as laying down the general rule that a joint inquiry of this nature in which mere persons than one are concerned, when held by the Magistrate in one and the same proceeding is, ipso facto, null and void, I must say that I should have felt inclined in the absence of express words in the Code, to adopt the rule out of the high respect which every [459] exposition of the law by Straight, J., upon matters affecting the rights and liberties of the people, commands from me. But I do not understand that learned Judge to have laid down any such general rule, and indeed his judgment, in setting aside the order of the Magistrate, did not proceed upon any ground of illegality or nullity, as distinguished from irregularity, under the circus stances of that case. Similar conclusions are derivable from the observations of the same learned Judge in other cases, and are consistent with the view taken by Oldfield, J., in Empress v. Batuk where one and the same proceeding dealt with more than one person, and the procedure was regarded only as an irregularity under the circumstances of that case.
I am not prepared to go beyond the rule laid down in these cases, and I hold that the provisions of s. 239 of the Criminal Procedure I Code, read with s. 117, are applicable to cases such as the present, subject to such modifications as the latter section indicates, and subject also to such procedure as the exigencies of each individual case may render advisable in the interests of justice. Further, I hold that even in cases where one and the same proceeding taken by the Magistrate under ss. 107, 112, 117 and 118, improperly deals with more than one person, the matter must be considered upon the individual merits of that 1 particular case, and it would, at its best, amount to an irregularity, which may of may not be covered by the somewhat broadly worded provisions of s. 537 of the Code, according to the circumstances of each case.
Now the next question which the argument of the learned Public Prosecutor has raised is also one of principle, and almost as important as the are which I have just disposed of, though it presents to my mind no difficulty. He contended that inasmuch as, in proceedings initiated by the Magistrate under s. 107 of the Code, consistently with the following two or three cognate sections, the Magistrate is authorised to require any person to “show cause” against the order made under s. 112, such an order must be regarded as in the nature of a rule nisi, and as such implying that the burden of proving innooenoa in such cases would be upon the person against whom such an order has been issued. I am wholly unable to accept this contention, nor am I able to understand the [460] English phrase “to show cause” as implying that the Legislature intended that all the fundamental principles of jurisprudence in connection with criminal cases, should, by dint of such an ambiguous phrase, be reversed. It is not for him who is free and who has not transgressed the law to show why he should remain free and why his freedom should not be qualified: it is for him who wishes to take away that freedom or wishes to qualify it, to establish circumstances which, by the force of law, would operate either in defeasance of, or in derogation of, that freedom. Such has been the rule of the criminal law of all civilized nations, pre-eminently of the English people: and words of the most undoubted and express import are required before I can be convinced that the British rule, in legislating for the Indian people, intended to alter a principle of criminal law which it may be presumed to have brought with it from England, and which, indeed, it found in full force extant in India itself as a doctrine of the Muhammadan criminal law, which constituted the common law of the land at the advent of the British rule, and which, till comparatively recent times, was maintained as almost the only available guide in criminal cases.
The view which I have thus expressed on general principles is supported by no less eminent an authority than Sir Barnes Peacock, Chief Justice of Bengal, to whom we in India are so much indebted, not only for the introduction of important principles of jurisprudence into our case-law, but also for a great deal of beneficial legislation. In the case of Dunnee v. Hem Chandra Chowdhry, which was considered by a. Full Bench of the Calcutta High Court along with another cognate case, Peacock, C.T with the concurrence of all the learned Judges, with the exception of Glover, J., laid down that the onus probandi in such cases clearly lies upon the prosecution to establish circumstances which would justify the action of the Magistrate in calling upon persons to furnish security for keeping the peace. The same view of the law was taken by Spankie, J., in this Court in Queen v. Nirunjun Singh, and for the reasons which I have already stated I follow these rulings. And I hold that, in proceedings taken by a Magistrate under Chapter VIII of the Criminal Procedure Code, for the purpose of taking security for keeping the peace, the usualrule of [461] law in criminal cases, that the prosecution has to discharge the burden of proof, cannot be disregarded; and that, speaking in more general terms, the rule which undoubtedly applies to the trial of the persons for offences, cannot be impaired in proceedings which aim at the prevention of offences.
It must, therefore, be taken that the burden of proof in this case rested entirely upon the prosecution, and that neither the two petitioners who have come up to this Court for revision, nor the other twenty-eight persons who were dealt with in the same proceeding, can be prejudiced by the fact that they produced no evidence to disprove the information upon which the Magistrate initiated the proceedings against them under s. 107 of the Criminal Procedure Code. And viewing the case in this light, I now proceed to consider whether there was any such evidence against any or all of them, which would justify the order of the Magistrate which is now the subject of revision before me.
It appears to ma that the evidence produced before the Magistrate showed these main circumstances in connection with the subject of inquiry. The first of these is that, some time in August last, the petitioner Abdul Kadir sent for a Pandit to teach Sanskrit. The Pandit accordingly came with some pupils, and the petitioner placed a house at his disposal for the school. Then it appears that after a few days the Pandit began reading the Bhagwat, and as a part of the ceremonial he sounded a sankh (or shell) which caused some kind of annoyance to the Muhammadana, who, through the other petitioner Muhammad Nasir, a brother of Abdul Kadir, remonstrate, and, a panahayat being held, the petitioner Abdul Kadir consented to dismiss the Pandit, who than went to put up with Djokinandan, one of the defendants, and there also bagan to perform Bhagwat and to sound the sankh. The Muhammadans appear to have protested again, and, to use the words of the Magistrate, “reports mida at the thana, and recorded in the station diary on the 25th August, by Birju, servant of Daokinandan, on the 4th September, by Salaran on the 7th September, by Jori, chaukidar, and on the 10th, by Lachman, all refer to opposition offered by the Muhammadans to the Hindu sounding the sankh within the town, which the Pandit finally had to leava under escort of the police.”
[462] The next circumstance found by the Magistrate is that, on the 12th September, Salaran, a butcher, was reported to have been threatened by Lxchman and some other Hindus if he killed cows. Then on the 9th October, Abdul Latif and Ali Abbas presented a petition complaining of Deokinandan's intention to hold the festival of Ram Lila, and on the 13th October, Muhammad Latif presented a petition complaining of Daokinandan having threatened him.
These are all the circumstances, which the Magistrate has found as justifying the conclusion that a breach of the peace was imminent between the Hindus and the Muhammadans in the Town of Ghosi, and the Magistrate adds in confirmation of his view that “a system of boycotting has been adopted by one aide towards the other, whereby the Hindu baniahs refuse to sell grain to Muhammadans, and Muhammadan sweepers to serve Hindu masters, or Muhammadan ekka boys to drive Hindu fares.”
Upon this state of the case, the first observation which I have to make is that, according to the theory of the information received by the Magistrate, there were two contending parties opposed to each other and inclined to commit breach of the peace, and this being so, I think that the Magistrate acted irregularly in taking steps against both parties jointly, and in holding the inquiry in one and the same proceeding. In a case of this nature, the principles which apply to the trial of members of two I opposing factions in a riot, are, in my opinion, applicable by analogy. In Empress v. Lochan Straight, J., pointed out the impropriety and inconvenience of trying several persons jointly for rioting, when it was obvious that all of them could not have had a common object. To the same effect is the rule laid down by the Calcutta High Court in Hossein Buksh v. The Empress, though of course neither of these rulings goes the length of laying down the rule that a joint trial of opposite factions would, ipso facto, be null and void. The question would probably depend upon the merits of each case, as to whether the accused had been prejudiced or not, and do not wish to go beyond the rule so laid down.
Another matter which seems to me to be far more serious in this case, in connection with the joint inquiry as to all the thirty persons[463] implicated, is that the circumstances proved before the Magistrate as affording ground for apprehension of breach of the peace were so multifarious that it is impossible to suppose, and indeed the evidence does not prove that all the thirty persons were concerned in the various facts established. Taking, for instance, the case of the two petitioners whom Mr. Colvin represents, viz., Abdul Kadir and Muhammad Nasir, all that the evidence goes to prove is that, so far back as August, the former sent for a Pandit to come and start a school for teaching Sinskrit. Considering that Abdul Kadir is a Muhammadan Maulvi, as the record shows, his action in starting a school for teaching Sanskrit, seems to me a laudable act of enlightened toleration, and I fail to see how it could be regarded as indicative of an inclination to commit a breach of the peace against the Hindu townsmen. The sounding of the sankh appears to have caused some annoyance to the other petitioner, Muhammad Nasir (brother of the first-named petitioner), and some other Muhammadans, who prevailed upon Abdul Kadir to dismiss the Pandit, who seems to have gone away in peace. All this happened as far back as August, and the recorded evidence fails to prove any such conduct on the part of either of the petitioners as would justify an apprehension that they would commit breach of the peace.
The case of the two petitioners is a good practical illustration of how the other persons implicated were dealt with in the joint inquiry. The Magistrate seems to have considered that the best way to secure the public peace was to accept the theory put forward by the police, that fifteen Hindus and fifteen Muhammadans should be bound over to keep the peace; and in holding the inquiry these thirty persons were, to use a quaint expression, “herded” together, as if what was evidence against one would be evidence against all. The Magistrate was no doubt acting in the interest of the public peace, but as Straight, J., so emphatically pointed out in Queen-Empress v. Nathu, no amount of laudable desire on the part of the Magistrate to prevent breach of the peace will justify him in dealing with human beings as if they possessed no individuality of; their own, and might be dealt with, in proceedings of this nature, as if they were members of an indiscriminate crowd. In the present case no attempt appears to have been made, either in the [464] order made by the Magistrate under s. 112 of the Criminal Procedure Code or in taking the evidence, to discriminate between the cases of the various persons implicated by the information which the Magistrate had received; and whilst the evidence of the police speaks of these thirty persons together in one and the same breath, to the effect that “there is a great probability of breach of the Peace occurring any day between the, Hindus and the Muhammadans in Court,” the defence of each one of the persons implicated is, “I have done nothing to deserve being bound over to keep the peace.” It was essential, before any proceedings under s. 107 could succeed, for the prosecution to establish what each individual person implicated had done to furnish a basis for the apprehension that he would commit breach of the peace; but no such attempt appears to have been made in this case. The inquiry, indeed, seems to me to be open to almost every objection which Straight, J., pointed out in the case to which I have just referred, and I cannot help thinking that the Magistrate was unaware of what had been laid down in that case.
Much argument was addressed to me by the learned Public Prosecutor on behalf of the Crown as to the nature and quantum of evidence required in such cases to justify the action of the Magistrate under Ch. VIII of the Criminal Procedure Code. I am willing to concede that the Magistrate may initiate proceedings under s. 107 of the Code, upon any such information as may satisfy him as to the likelihood of a breach of the peace being committed. I am also prepared to hold that, in holding the inquiry under s. 117, the nature or quantum of evidence need not be so conclusive as in trials for offences, but at the same time hold that in such inquiry the Magistrate should not proceed purely upon an apprehension of a breach of the peace, but is bound to see that substantial grounds for such an apprehension are established by proof of facts against each person implicated, which would lead to such a conclusion. What the nature of the facts should be is a question which, of course, defends upon the circumstances of each case, but I have no hesitation in thinking that, when the nature of the information requires it, overt acts must be proved before the Magistrate can make an order under s. 118 of the Code.
[465] This indeed is the general effect of many reported cases, of which Queen v. Abdool Huq, Goshain Luchmun Pershad Pooree v. Pohoop Narain Pooree, and Raja Run Bahadoor Singh v. Ranee Tillessuree Koer are good illustrations. In the last of these cases, Phear, J., laid down the rule that it is only evidence of specific conduct on the part of the accused from which the reasonable and immediate inference is that they are likely to commit a breach of the peace, which will justify a Magistrate in taking action in such cases; and the case of Kashi Chunder Doss is authority for the proposition chat a person cannot be prevented by a Magistrate from exercising his rights simply upon the ground that another person is likely to commit breach of the peace.
The whole inquiry in this case seems to have been conducted irrespective of these principles of law which I have mentioned, and the result is that it is impossible for me to be satisfied from the evidence that the Magistrate was justified in making the order under s. 118 against any single person implicated by the information which he had received. If the circumstances of the case had indicated that a fresh inquiry should be held, I might, perhaps have directed accordingly. But it seems to me that the order of the Magistrate is based upon inadequate data in respect of all the persons, for the evidence upon the record fails to prove satisfactorily that any one of the persons implicated had given cause by any substantial act for thinking that be would commit a breach of the peace. And in considering this part of the case, it is by no means unimportant to observe that the circumstances which the Magistrate was “considering were antecedent to the festival of the Ram Lila and the Muharram. The first is with the Hindus a time of rejoicing in memory of the tradition of a great conquest; the latter is with the Muhammadans a period of mourning in memory of what has been described in their literature as “the darkest day of the history of Islam,” being the period when the massacre of Imam Husain and his followers took place upon the battle-field of the Kerbella. These two festivals, so opposite in traditional characteristics, were coincident during the last year, and it would be then, if at any time, that the ill-feeling between [466] the Hindus and the Muhammadans of the town would burst forth into a breach of the peace. But it is proved in this case, by the evidence of the police themselves, that, in the locality with which this case is concerned, the Hindus celebrated their Ram Lila and the Muhammadans their Muharram, and that no breach of the peace took place. But the evidence of the police adds, almost naturally, “it was with much difficulty that a breach of the peace was prevented.”. What the difficulty was, does not in the least degree anear from the evidence. And in the face of this great fact, which the Magistrate does not seem to have taken into account at all, I find it impossible to uphold the view of the Magistrate, that so late as the 4th of December, 1885, when he made the order now under revision, the state of feeling in the town was such as to create a reasonable I apprehension of breach of the peace being committed by a dispute between the Hindus and the Muhammadans. And under this view, it seems to me that the action of the Magistrate was an unnecessary exercise of the discretionary power which the Code confers upon him in such matters.
I wish, however, to add that, even if upon the evidence taken in the inquiry, the Magistrate were justified in apprehending a breach of the, peace, the order passed by him in this case was much too severe, and, to use the language of Straight, J in the case of Queen-Empress v. Nathu already referred to, it was a most excessive exercise of power to require all the parties to find security for one year. In the present case, the order; being dated the 4th December, 1885, the greater portion of the period has already elapsed, and this reason alone would, to my mind, be sufficient to prevent my directing a fresh inquiry, even if the circumstances upon I which the Magistrate acted in making the order were considered by me adequate to cause apprehensions of a breach of the peace.
For these reasons I set aside the Magistrate's order of the 4th December, 1885, and direct that the surety bonds and recognizances such parsons as have given security be discharged and cancelled, and that if any of the thirty persons mentioned in the order are in prison under s. 123 of the Criminal Procedure Code, such persons be immediately released.
[467] But I do not wish to conclude without saying that I have considered it my duty to deal with this case at such elaborate length, because I feel that the discretionary powers conferred by the law upon Magistrates, in the interests of preserving the public peace, must not be exereised without care and caution, and certainly never in derogation of the rights of liberty and security to which the people are entitled under he British rule.
Application granted.