628. Procedure in cases under sections 400 and 401, Indian Penal Code.
(a)It is the desire of the Provincial Government that where a gang is known to exist, steps should be taken to prosecute the members in specific cases. If, however, it is thought that this procedure will not effectively break up the organisation and there appears to be sufficient material for the institution of a gang case (sections 400 and 401 of the Indian Penal Code), the Superintendent will request the Deputy Inspector-General, Criminal Investigation Department, to depute an experienced Inspector of his department to collate the evidence available. On conclusion of this enquiry the Inspector will place before the Superintendent and the Government Pleader of the district concerned a report accompanied by statements based on the different headings of clause (b) below. The Superintendent will forward it with his and the Government Pleader's opinion through the District Magistrate, to the Deputy Inspector-General, Criminal Investigation Department. The Deputy Inspector-General will consult the Legal Remembrancer and if he concurs will sanction the institution of the case and inform the Inspector-General and the Deputy Inspector-General of the Range. (See regulation 1126.)(b)Though no exact rules can be prescribed for the investigation of gang cases, as each case has its peculiar features, the following general instructions are laid down for the guidance of police officers in such cases. Evidence on the points noted below must always be sought for and obtained, if possible :-(i)Evidence of the existence of a gang for the purpose of committing dacoity, robbery or theft during the time specified in the charges (established by proof of facts as contemplated in section 10 of the Indian Evidence Act, 1872.)(ii)Evidence of the association of the suspected persons for the purpose of committing dacoities or thefts.(iii)Evidence of relationship by blood or marriage amongst the members of the gang.(iv)Evidence in corroboration of the approver's statement on material points as contemplated in section 114(6) of the Indian Evidence Act, 1872, duly verified by a responsible police officer.(v)Evidence of confessions of co-accused previously recorded at different times and places, (vide sections 30 and 114 of the Indian Evidence Act, 1872).(vi)Evidence of specific cases of dacoities and thefts committed by the gang.(vii)Evidence of the recovery of property stolen in dacoities and thefts, or suspicious property found in possession of the accused.(viii)Evidence of the simultaneous absence from their homes in batches or singly of known members of the gang coincident with the occurrences of dacoities and thefts in the neighbourhood.(ix)Evidence of any increase or decrease in the number of dacoities or thefts coincident with the presence or absence of the members of the gang.(x)Evidence of the cessation of dacoities and thefts in the affected area after the arrest of the members.(xi)Evidence of the habitual commission of dacoities or thefts to be proved by an aggregate of acts.(xii)Evidence of changes of residence to avoid suspicion.(xiii)Proof of previous convictions for dacoities and thefts (the former alone can be proved in a case under section 400 of the Indian Penal Code, but convictions under sections 379, 380 and 457, etc. of the Indian Penal Code, can be proved on a charge under section 400 or 401 of the Indian Penal Code, to establish the habits of individuals or the association of the members).(xiv)Proof of orders under section 110 (a), (b) and (c) of the Code of Criminal Procedure requiring any of the accused persons to give security for his good behaviour, to prove that the person is a habitual thief (vide unreported case of Emperor v. Meher Ali Sarkar and Ors., decided on the 20th March, 1901 by J. J. Prinsep and Hill).(xv)Proof of orders for security for good behaviour, when two or more of the accused have been bound over in one proceeding under section 110 (a), (b) and (c) of the Code of Criminal Procedure as evidence of association [vide section 117(4) of that Code].(xvi)Documentary evidence in the shape of relevant entries in enquiry slips, in the surveillance register, the Village Crime Note-Book, and other registers which are required by order of the Inspector-General to be maintained at a police-station. This evidence would probably be admissible under section 35 of the Indian Evidence Act, 1872; but, if not, might be used under section 159 of that Act to refresh memory.(c)Much evidence which is not ordinarily admissible in criminal cases, is admissible in cases under sections 400 and 401 of the Indian Penal Code, as the persons accused in these cases are in fact members of a conspiracy, and so section 10 of the Indian Evidence Act, 1872, will apply. Previous convictions of dacoity are admissible in a case under section 400, and of thefts under section 401 of the Indian Penal Code, under Explanation 2, section 14 of the Indian Evidence Act, 1872 (Emperor v. Nava Kumar Patnaik, 1 CWN 146).Much of the evidence enumerated under the different heads above will be admissible under section 11 of the Indian Evidence Act, 1872.
