Patna High Court
Raghunath Singh And Ors. vs The State on 8 September, 1952
Equivalent citations: AIR1953PAT1, AIR 1953 PATNA 1, ILR 31 PATNA902
JUDGMENT Jamuar, J.
1. This is an application by four petitioners. By a judgment and order, dated the 30th May, 1950, the Subdivisional Magistrate of Madhipura directed them, under Sections 118 of the Code of Criminal Procedure, to execute a bond of Rs. 4,000/- each with four sureties of Rs. 1,000/- each to be of good behaviour for a period of three years in a proceeding under Section 110, Clauses (a), (b), (c), (d), (e) and (f), of the Code drawn up against them. On a reference made to the Sessions Judge of Bhagalpur for the confirmation of that order, the matter was heard by the Assistant Sessions Judge, Madhipura, who confirmed the order as against the petitioner Raghunath Singh in respect of Clauses (a), (d) and (f) only but maintained the amount of the bond to be executed by him with the four sureties as directed by the Subdivisional Magistrate; and, with regard to the rest of the petitioners, he confirmed the order in respect of Clauses (a) and (d) only, and reduced the amount of bond to be executed by them to Rs. 1,000/- each with two sureties of Rs. 500/- each.
2. The facts relevant to the argument advanced in support of this application are these : On the 9th December, 1949, the Sub-Inspector of Murliganj Police Station submitted four separate reports for taking action under Sections HO, Criminal Procedure Code, against the four petitioners. One report was against the peti-.tioner Raghunath Singh of village Kumarkhat; another was against the petitioner Sheikh Yusuf of village Mangalwara; the third was against the petitioner Gonar Mian also of village Mangalwara; and the fourth was against the petitioner Sheikh Akloo of village Sarhad. As a result, on the 24th January, 1950, the Subdivisional Magistrate ordered for the drawing up of proceedings under Section 110, Criminal Procedure Code, and directed the petitioners to appear and show cause why they will not be ordered to execute bonds of Rs. 4,000/- each with four sureties of Rs. 1,000/- each to be of good behaviour for a period of three years. It appears that, consequent upon this order, three notices were sent under Section 110, Criminal Procedure Code; one to Raghunath Singh of village Kumarkhat, another to Gonar Mian and Sheikh Yusuf together as both are of village Mangalwara, and the third to Sheikh Akloo of village Sarhad. The proceedings appear to have been kept separately against the three sets of petitioners as shown above, and, for one reason or another, the proceedings could not commence till the 7th March, 1950. On the date, the Court. Sub-Inspector, on behalf of the prosecution, filed the following petition before the Subdivisional Magistrate :
"That the 4 accused persons, namely, Raghunath Singh. Akloo Mian, Gonar Mian and Yusuf Mian are members of the same gang, and are associates of each other. "It is, therefore, prayed that they may kindly be placed on joint trial";
and the learned Subdivisional Magistrate ordered for the amalgamation of all the cases. All the four petitioners were present before the Subdivisional Magistrate on that date, and no objection was taken regarding their joint trial. The cases were then taken up on that date, and the examination of witnesses commenced. As many as 258 witnesses were examined by the prosecution and 279 by the defence. The examination of all the witnesses came to an end on the 12th of May 1950. It, however, appears from the order-sheet of that date that the defence, having examined 16 witnesses, filed a petition to examine some more witnesses and time was allowed; but, when the proceedings were taken up on the 19th of May 1950, the defence stated that they would not examine any more witnesses. The learned Magistrate heard the argument on the 23rd and the 24th of May 1950, and passed orders, as stated above, on the 30th of May 1950.
3. The first point taken in support of this application was that the learned Magistrate did not comply with the provisions of Sections 112 of the Code of Criminal Procedure, with the result that the entire proceeding must be held to be bad in law and void. Section 112 is as follows :
"When a Magistrate acting under Section 107, Section 108, Section 109 or Section 110 deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substances of the information received, the amount of the bond to be executed, the term for which : it is to be in force, and the number, character and class of sureties (if any) required."
This section requires that the order must include "the substance of the information received" by the Magistrate, and it was contended that in the present case there has been a complete omission to set forth the substance of the information received by the Magistrate. In the present proceedings, the notices served upon the petitioners were in the following : terms :
"Whereas it appears from the report of the Sub-Inspector Police, Murliganj P. S., dated 9-12-49 that you are :
(a) by habit a robber, house-breaker and thief;
(b) by habit a receiver of stolen property knowing the same to have been stolen ;
(c) habitually protect or harbour thieves and aid in the commission of offences of extortion, mischief, etc. :
(d) habitually commit or attempt to commit or abet the commission of offences involving breach of the peace;
(e) habitually aid in the concealment of stolen property; and
(f) are so desperate and dangerous as to render you at large without security is hazardous to the community. In my opinion, it is better to draw up proceedings under Section 110, Cr. P. C. against you.
I, therefore, call upon you the abovenamed accused to appear before me on 31-1-1950 and to show cause as to why you will not be ordered to execute a bond of Rs. 4,000/- each with four sureties of Rs. 1,000/- each to be of good behaviour for a period of three years."
4. It was contended that this is a mere re-
production of the various clauses of Section 110,
Criminal Procedure Code, and as such the
notices do not conform to the provisions of Sections
112 of the Code which requires that "the sub
stance of the information received by the
Magistrate" should be communicated. Some
cases, mostly of the Madras High Court, were
cited in support of this proposition. I may
state at once that the Madras view supports
the contention. In the case of -- 'Kalia Goun-
dan v. Emperor', AIR 1930 Mad 859, it was
stated that the intention of the words "the
substance of the information received" is to
give in substance an abstract of the facts upon
which the Magistrate charges the persons pro
ceeded against so as to give them notice of
what they have to meet and be prepared to
meet it, and reliance was placed upon the case
of -- 'In re Kutti Goundan', AIR 1925 Mad.
189. The decision in this case was also based
upon an earlier Madras case, -- 'Kripasindhu
Naiko v. Emperor', 47 Ind Cas 277 (Mad),
where it was said :
"Notices under Section 110, Criminal Proce
dure Code must contain something more
than a reproduction of the clauses of the sec
tion. There should be sufficient indication of
the time and place of the acts charged and
sufficient details which would enable the
accused to know what facts he is to meet.
though it is not necessary to give a list of
witnesses."
Reference was also made in the same case to
the case of -- 'In re Kottamiddu Ranga Reddi',
43 Mad 450 where it was stated that where
"the accused is not informed of the charges,
of the nature of the evidence that he is to
rebut, the proceedings cannot be regarded as
legal".
The Allahabad High Court also in the case of--'Emperor v. Rajbansi', 42 All 646 and in the case of -- 'Emperor v. Nihal', 49 All 5 has taken the view that the proceeding provided by the issue of a notice under Section 112 is something in the nature of an indictment or charge, and the notice must contain substantial particulars indicating the grounds upon which the police have given information to the Magistrate : a mere setting out that a man is a habitual thief or robber will not be a compliance of the section.
5. The above cases do indicate that it is not sufficient to specify the section or the clauses of the section under which the Magistrate proposes to proceed, and that the order should give the time and place of facts charged and sufficient details which would enable the accused to know what he has to meet. The view is based on the principle that an order under this section is something in the nature of an indictment or charge, and that, therefore, it should contain substantial particulars indi-
eating the grounds upon which the information to the Magistrate is based.
6. A contrary view, however, has been taken by the Calcutta High Court. In -- 'Chintamon Singh v. Emperor', 35 Cal 243. the proceeding under Section 110, Criminal Procedure Code, was in the following terms :
"Whereas I have received information from the Assistant Superintendent of Police, Ara-
ria, that Chintamon Singh of Matiari, thana Fobesgunj is by habit a robber, habitually protects and harbours dacoits, etc., and habitually commits mischief and extortion and abets the same, and is so desperate and dangerous a character as to render his being at large without security hazardous to the community, I hereby under Section 110 direct him to show cause on August 9th, 1904 why he should not be called upon to execute a bond for Rs. 500/-, with two sureties of Rs. 500/- each, for his good behaviour for a period of three years."
Their Lordships (Rampini and Sharfuddin JJ.) gave the following opinion on this point :
"We now proceed to discuss the points of law urged by Mr. Hill. The first is as to the want of the necessary materials in the order of the District Magistrate under Section 112 of the Criminal Procedure Code. We consider that the order of the Magistrate gives all the necessary information required by the section. This section enacts that when a Magistrate acting under Section 110, Criminal Procedure Code deems it necessary to require any person to show cause, he shall make an order in writing setting forth (i) the substance of the information received, (ii) the amount of the bond to be executed, (iii) the term for which it is to be in force, and (iv) the number, character and class of the sureties required. All the above four matters are distinctly stated in the order in question. It has been contended that no list of witnesses is to be found either in the report to the Magistrate or in the order of the Magistrate under Section 112 of the Criminal Procedure Code. The law nowhere requires that any list of witnesses should be so given."
7. Another case of the Calcutta High Court is -- 'Bhutnath Ghosh v. Emperor', 57 Cal. 503. It has been held that the term "substance of the information" in Section 112 of the Code of Criminal Procedure means substance as distinguished from details or particulars, and a notice under Section 112, Criminal Procedure Code, need contain so much of the information as would enable the party to know under what clause of Section 110 he is charged or to what particular class of offenders he is said to belong. It was not contemplated that the notice should set out details in the manner of a charge drawn up at a trial. The Madras case of --'Kottamiddu Ranga Reddi v. Emperor', 43 Mad 450 and the Allahabad case of -- 'Emperor v. Nihal', 49 All 5 were expressly dissented from. In -- 'Bhutnath Ghosh's case', the proceeding was under Clause (a) of Section 110, Criminal Procedure Code, and the notice served upon the man proceeded against was as follows :
"Whereas it appears from the report, dated the 28th February. 1928, submitted by the Sub-Inspector of police station Chandrakona that Bhutnath Ghosh, son of ..... within the local limits of my jurisdiction is by habit a thief, a robber and house-breaker and is so desperate and dangerous as to render his being at large without security hazardous to the community....."
As I have said, the proceeding was under Clause (a) of Section 110 of the Criminal Procedure Code, and all that appeared in the notice was merely a reproduction of that clause. The accused in that case was found not guilty of the charge of being a desperate and dangerous character, but he was bound over only under Clause (a). As in the present case, so in that case, the argument advanced was that the notice merely repeated the words of the section and did not give the substance of the information upon which the Magistrate acted as required by Section 112 of the Code, and the cases of -- 'Kottimaddu Ranga Reddi v. Emperor', 43 Mad 450 and -- 'Emperor v. Nihal, 49 All 5 were cited in support of that argument. Suhrawardy, J. said :
"With great respect to the learned Judges, who decided those cases, I am unable to agree with the interpretation there put on the words 'substance of the information' in Section 112. The learned Judges require that the notice should contain such details of information as to enable the accused to know in what cases he has been suspected and the names of the witnesses to prove the charges against him. This, to my mind, is not 'substance of the information', but details of information, which may, in some cases, be not only very inconvenient, taut almost impracticable to put in the notice." I would with respect adopt the reasoning of Suhrawardy J. The words "substance of the information" mean such or so much of the information as would enable the party to know under what clause of Section 110 he is charged or to what particular class of offenders he is said to belong. A man may be suspected in a hundred cases, and there may be five hundred witnesses, as observed by Suhrawardy, J., to prove such suspicion and general repute. Does the law require that all this information must be conveyed to the accused? I must, nevertheless, say that a mere repetition of the words of the various clauses of Sections 110 ought to be avoided; but it may not be possible to do so in every notice, and I would not lay it down as the law that, where a notice contains a mere repetition of the words of the various clauses of Section 110, it is, on that account alone, illegal. As Suhrawardy J. pointed out : "Though I hold that the law is satisfied if the notice contains the gist of the information and not a reference to cases and witnesses, proceedings under Chapter VIII should not be carried on in such a way as to hamper the offender in his defence and place him in a worse position than if he were accused of a substantive offence. Before he defends himself by cross-examining the witnesses for the prosecution and examining his own, he must know definitely the case that he has been called upon to meet."
Graham, J., the other learned Judge who constituted the Division Bench, expressed agreement by saying :
"As I understand the words ("substance of the information"), it means substance as distinguished from details or particulars, and I do not think that it was ever contemplated that the proceedings should set out details in the manner of a charge drawn up at the trial. The distinction between an enquiry of this nature and a trial should be borne in mind."
8. The order made under Section 112, Criminal Procedure Code, was served upon the petitioners, and if it did not contain any particulars which the petitioners wanted to know, they were entitled to complain and to ask to be furnished with such particulars; but, at no stage till now, did they take any exception to the contents of the notice served under Section 112. If no exception is taken to the notice, and the person against whom it is made shows cause and is eventually bound over, he can scarcely have any legitimate ground for complaint on that score. I am of the opinion that, in the present case before us, the notice served upon the petitioners gives all the necessary information required by the section.
9. Even if it were to be held that there was no sufficient compliance of Section 112 of the Code, that would not be sufficient, in my opinion, to vitiate the entire proceedings. The petitioners must go further and show that they have been prejudiced in their defence by reason of such a non-compliance. In the case of --'Jaisingh v. Emperor', 23 Cri L J 42 (Pat), which is a case of this Court, the same point arose for consideration, namely, as to the effect of the omission to set forth the substance of the information received as provided by Section 112, Criminal Procedure Code; but it was pointed out that no objection had ever been taken from first to last before the Magistrate that the petitioners had been in any way hampered or embarrassed by reason of any defect in the notice. It was also observed :
"Even assuming, without deciding, that there was some defect or irregularity in the form of the notice served, I am quite satisfied that, if that must be taken to have been so, it did not in any degree prejudice the appellants in putting forward their case before the Magistrate and under the provision of Section 537 of the Criminal Procedure Code, I do not think that even if it were thought there had been some technical omission in the form of that notice, we have any power to reverse or alter the order made by the Magistrate in the present case."
A later decision of this Court in the case of --'Bangali Ahir v. Chaturbhuj Prasad', AIR 1941 Pat 241 relied upon the previous decision. It was observed that proceedings are liable to be quashed on such a ground but not after the whole matter has been enquired into unless there is a reasonable suggestion of possible prejudice or unless the defect goes to the jurisdiction. In the present case no objection as to prejudice on this account has been taken till the stage of the argument before us; it was not taken at the trial stage nor before the Assistant Sessions Judge nor in the grounds of the petition presented to this Court. From what has been stated in the earlier part of this judgment, it will be clear that, if the petitioners desired to show prejudice, they had ample opportunity to do so at the earlier stages of the case. In my judgment, the object of Section 112 in requiring the substance of the information to be given in the notice is to afford reasonable opportunity to the accused to come prepared with what he has to meet. The failure to comply with the provisions of Section 112, however, does not divest the Magistrate of his jurisdiction to deal with the proceeding; and, in the absence of prejudice, the subsequent, proceedings ought not to be treated as being void 'ab initio.' 9a. While I am on the point of prejudice, another argument advanced on behalf of the petitioners may be examined. It was argued that, according to Sub-section (2) of Section 117, the procedure prescribed for the conduct of trials in warrant cases should have been adopted in this proceeding; whereas the procedure adopted was that prescribed for conducting tirals in summons cases. Sub-section (2) of Section 117 of the Code of Criminal Procedure is as follows :
"Such enquiry 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 and recording evidence in summons-cases; and where the order requires security for good behaviour in the manner hereinafter prescribed for conducting trials and recording evidence in warrant-cases, except that no charge need be framed."
It is to be noticed that where the order requires security for good behaviour, as in Section 110 --cases, the enquiry shall be made "as nearly as may be practicable" in the manner prescribed for conducting trials in warrant-cases. From a perusal of the record in this case, it appears that the petitioners cross-examined each of the prosecution witnesses as they were examined in chief, as in summons-cases. At the close of the evidence for the prosecution, they could have taken advantage of the provisions of Sections 256 of the Criminal Procedure Code which is one of the provisions for the trial of warrant-cases; but they never did. At no stage did they ask for the re-summoning of any prosecution witness for further cross-examination. If the petitioners did not desire to cross-examine any of the prosecution witnesses further, they cannot now be heard to say that they have been prejudiced because the opportunity of cross-examining the witnesses, as required under Sections 256, Criminal Procedure Code was denied to them. It was, however, argued that it was the duty of the Magistrate to proceed to apply the provisions of Section 256, and to ask the petitioners if they wished further to cross-examine the prosecution witnesses., In the case of --'Chintamon Singh v. Emperor', 35 Cal 243 which has been referred to once before, when dealing with this point the following observa-tion was made :
"No doubt, under Section 117 of the Criminal Procedure Code, the enquiry into bad livelihood cases should be made 'as nearly as may be practicable' in the manner prescribed for conducting trials and recording evidence in warrant cases. But we do not think that the provisions of Section 256 of the Criminal Procedure Code indicate that the person called upon to show cause under Section 110 of the Criminal Procedure Code has a right to further cross-examine the prosecution witnesses under Section 256 of the Criminal Procedure Code, inasmuch as the provisions of this section relate to cases where a formal charge, as required by Section 254, has been drawn up and the accused has been called upon to meet that charge. In cases under Section 110 of the Criminal Procedure Code the order of the Magistrate under Section 112 of the Criminal Procedure Code is equivalent to a charge. The object in giving the substance of the information in an order under Section 112 of the Criminal Procedure Code is that the person called upon to show cause may clearly understand the matter that he has to meet in his defence, and a Magistrate . has no power to go beyond the requirements of his order under Section 112 of the Criminal Procedure Code. In warrant cases a charge sheet is" prepared for similar purposes.
In the above view the cross-examination of witnesses in a proceeding under Section 110 mount to their cross-examination after charge. It cannot be contended that in the present instance the appellant had no information as to the matters which he would be required to meet. In trials of warrant cases it is when a charge sheet is drawn up that the accused is for the first time informed as to the offences that have appeared from the evidence against him to have been committed by him, and hence it is only right that the accused should in warrant cases be given an opportunity to cross-examine the prosecution witnesses after a charge has been framed. In summons cases the accused is informed in the summons as to the charges against him and hence the Legislature does not require the preparation of any formal charge, as in warrant cases, nor any second cross-examination. For the above reasons we think that the petitioner had no right to any further cross-examination, especially when the prosecution witnesses had already been cross-examined to a very unreasonable length."
In the present case before us, the prosecution witnesses had been fully cross-examined, and there is no complaint made that the petitioners had been denied the right to fully cross-examine these witnesses at the stage that they were cross-examined. Here, again, I cannot hold that the petitioners have been prejudiced. Had the petitioners asked the Magistrate to recall the prosecution witnesses for further cross-examination under Section 256, Criminal Procedure Code, and if that prayer had been refused, it might well have been argued with some show of force that the petitioners have been prejudiced. I would respectfully agree with the observations made in -- 'Chintamon's case', and I cannot accede to the argument that, by reason of non-compliance of the provisions of Section 256, Criminal Procedure Code, the order passed against the petitioners should be set aside.
10. There was another point taken in support of the application, and that was that the learned Magistrate ought not to have allowed a joint trial in these proceedings. Sub-section (5) of Section 117, Criminal Procedure Code, gives the Magistrate discretion in this respect. It provides :
"Where two or more persons have been associated together in the matter under inquiry, they may be dealt with in the same or separate inquiries as the Magistrate shall think just."
If the Magistrate thinks it to be just to try each of the persons proceeded against separately, he has been given powers so to do. Where, however, there is an allegation of association between two or more persons in the matter under enquiry, the Magistrate is at liberty to order a joint proceeding. In the petition filed by the Court Sub-Inspector on the 7th March, 1950, quoted above, for a joint trial, it was alleged that all the four petitioners were members of the same gang, and were associates of each other. It was also stated in the reports submitted by the Sub-Inspector of Murliganj Police Station against the four petitioners that the petitioners were members of a gang known as Raghunath Singh's gang, and that they were all his associates. In these circumstances, I do not think that the learned Magistrate had erred in ordering a joint trial. It was, however, argued that, at least so far as Clause (f) of Section 110 is concerned, there can be no joint trial of two or more persons under that clause, and that, if there is such a tria], it will be illegal, and reliance was placed on some cases in support of this argument. In the case of -- 'Hari Telang v. Queen Empress', 27 Cal. 781, proceedings under Clauses (d), (e) and (f) of Section 110 were drawn up separately against the petitioners; but the petitioners were tried jointly, and an objection to the joint trial was taken. It was held in that case that, even supposing that the Magistrate was right in considering that there was habitual association between the three persons in regard to the first and second points mentioned, there certainly would be no such connection between them in regard to their character so as to make them dangerous persons, and thus to render their being at large without security hazardous to the community, and, therefore, it was ruled that the proceeding should have been separately taken against each of the petitioners. When considering the merits, however, their Lordships found that, on the evidence adduced in that case. Section 110 was not applicable at all. The order passed by the Magistrate binding over the petitioners was, in the circumstances, set aside. In -- 'In re : Kutti Goundan', AIR 1925 Mad 189, reliance was placed upon the Calcutta case just noticed, and in this case also their Lordships, on examining the evidence, came to the conclusion that the evidence as regards the association of the accused did not seem to be strong. The order passed by the Magistrate was, therefore. quashed. The case of -- 'Krupasindhu Pani-grahi v. Rex', AIR 1951 Grissa 277 followed the Madras case. A similar view was taken in --'In re Rathinam Pilley', AIR 1938 Mad 35 as also in the case of -- 'Emperor v. Angnu Singh', 45 All 109. In another case of the Madras High Court, -- 'In re : Ganti Veera Reddi'. reported in the same volume, that is, AIR 1938 Mad 615, however, an order passed against the petnrs. who were bound over under Clauses (e) and (f) of Section 110 at a joint trial was upheld and Horwill, J. observed :
"In every case it has to be considered how far the evidence proves association and how far the various persons tried are prejudiced by a joint trial. In the present case, I am satis-fled that the joint trial was desirable as well as permissible."
11. In a later case of the Calcutta High Court in 1934 -- ('Parbaticharan v. Emperor'. 61 Cal 588), it was ruled that a joint trial in a proceeding under Section 110 (f) of the Code of Criminal Procedure is permissible where there is evidence in the nature of a conspiracy and acting in concert. The contention that a joint trial under Clause (f) of Section 110, Criminal Procedure Code, was illegal was also raised in that case, and reliance was placed upon the cases which I have just mentioned, namely, the cases of -- 'Hari Telang ', 27 Cal 781, -- 'Kutti Goundan', AIR 1925 Mad 189 and -- 'Emperor v. Angnu Singh', 45 All 109. Their Lordships examined these cases, and proceeded as follows :
"On an examination of the decisions referred to above, it is abundantly clear that, on the facts and in the circumstances of those cases joint trials of persons under Section 110 of the Code of Criminal Procedure 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 a 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, persons who are associates and confederates, so as to call into operation the provision contained in Section 117 (5) of the Code of Criminal Procedure."
I have indicated already that there had been an allegation against the petitioners from the very beginning that they are members of Raghunath Singh's gang, and are associates of each other. The Magistrate has found them to be so, and this finding is not challenged. I think, therefore, that the Magistrate was right in ordering a joint trial under Section 117 (5) of the Code. A joint trial in a case under Sections 110 is always permissible where there is evidence in the nature of a conspiracy or acting in concert. Indeed, it seems to me that to hold that there can never be a joint trial when Clause (f) of Section 110, Criminal Procedure Code is applied would be going against the statute. Sub-section (5) of Section 117, under which a Magistrate is empowered to order a joint trial, does not exclude Clause (f) of Sections 110. It is equally applicable to all the clauses of Section 110. Moreover, the petitioners cannot be said to have suffered any prejudice by their having been jointly tried, as I have noticed that the learned Magistrate has been careful enough to examine the evidence against each of the petitioners separately.
12. For these reasons, I do not find that any miscarriage of justice has been caused in this case. I would, accordingly, dismiss the application, and discharge the rule.
Ahmad, J.
13. I agree.