Patna High Court
Firangi Rai vs Emperor on 7 December, 1931
Equivalent citations: 143IND. CAS.687, AIR 1933 PATNA 189
ORDER Mohammad Noor, J.
1. The petitioner Firangi Rai has been ordered under Section 110-118, Criminal Procedure Code, by the Sub-Divisional Magistrate of Gopalganj to execute a bond of Rs. 5,000 and furnish two sureties of the like amount for his good behaviour for a period of three years. On his failure to furnish the sureties he was remanded to custody arid the proceedings were submitted to the Sessions Judge of Saran who confirmed, the order. The petitioner has come up to this Court for revision. In the proceeding drawn up the charge against the petitioner was that he habitually protected and harboured thieves and was so desperate and dangerous that his being at large without surety would be hazardous to the community. This charge came under Clauses (c) and (f), Section 110, Criminal Procedure Code. The trying Magistrate found both the accusations proved, but the learned Sessions Judge has held that the petitioner came only under Clauses (f) as the facts proved do not constitute habitual protection or harbouring of thieves. It is contended by Mr. Manuk that apart from wrong inference drawn by the courts below the facts alleged were not sufficient to prove that the petitioner was desperate and dangerous as is contemplated in Section 110(f), Criminal Procedure Code. On the other hand, Mr. Gopal Prasad for the Crown contends that the learned Sessions Judge has erred in holding that the petitioner did not come under Clause (c) as well. In order to appreciate the points raised it is necessary to analyse the evidence somewhat in detail. I wish, to do so not to test the merits of the evidence but to find of it is admissible, and warrants the findings, above the petitioner coming within Clauses (c) and (f), Section 110, Criminal procedure Code, or within either of them.
2. The prosecution evidence may be divided into two classes: (1) specific facts some of them intended to prove that the petitioner is a habitual protector and harbourer of thieves and others that he is so desperate and dangerous as to be hazardous to the community, and (2) evidence of general repute. Mr. Manuk's contentions are (1) that the evidence of the petitioner's being an habitual protector and harbourer of thieves has been held by the Sessions Judge to be insufficient for such a finding arid that this part of the case should not be re-opened here. At any rate the finding is not justified on facts; (2) that the evidence is not such as would lead to the inference that the petitioner is dangerous and desperate. The isolated acts alleged, even if true, do not show that the petitioner comes under Clause (f), Section 110. It is urged that that was required to be proved was not that he was involved in one or two murders for which he might have had particular motives but that he was by habit such as to commit murders and other offences generally whenever it suited his purpose; (3) That the evidence adduced do not prove general repute.
3. The evidence of specific acts relates to incidents commencing from one of 1923 and ending with one of 1930; the last according to the prosecution was about the time when the institution of the present proceedings against the petitioner was contemplated by the police. I shall take them one by one. (His Lordship mentioned four cases, and proceeded: These are the only four specific oases relied upon by the prosecution (apart from general repute which I shall deal with later on) to bring the petitioner under Clause (c), Section 110, Criminal Procedure Code. In my opinion they are not sufficient and I agree with the learned Sessions Judge, though oft different grounds, that the petitioner does not come Under Clause (c). Case (3) does hot show that the petitioner protected or harboured thieves. Cases (1) and (2) go to some extent to show protection of thieves, but in each one of them Firangi might have special reasons for acting as he did. Habit must be proved. All the facts of these cases are not before me.
4. It is not enough to prove that if the petitioner helped the accused person in whom he was interested in one or two-cases, but that he is in the habit of protecting thieves as such. But these cases are of some value in estimating the evidence of those witnesses who come to prove the general repute of the petitioner. (His Lordship considered two murder cases and a case of arson and continued: Mr. Manuk's comment is that even if Firangi was connected with these cases, he cannot necessarily be said to be dangerous or desperate. He might have special reasons for committing these offences. He contends that isolated cases are not sufficient to prove habit and character. One case perhaps may not be sufficient, perhaps two may not be; but a number of similar incidents cease to be isolated facts and become evidence of habit and character. How many facts must be proved to enable the court to draw a reasonable inference of habit of an accused cannot be laid down by any hard and fast rule; it depends upon the circumstances of each case The provisions of Section 110 and allied sections are not punitive but preventive. We have to consider the past life in order to help us in finding what the future is likely, to be Certain facts not admissible in evidence against an accused in a criminal trial are admissible in these cases by special provision of the law. Evidence of general repute and character, which is not admissible when an accused is being tried for the commission of a specific offence, is admissible in a case of this kind and specific instances where reasonable-suspicion fell upon the accused are good, evidence to show the basis of bad reputation. Whether from these instances habit and character can be inferred is, as I have said, a matter to be decided on the facts of the particular case. If I am permitted to say so, I respectfully agree with the observation of Ashworth, J., in Emperor v. Kumera 125 Ind. Cas. 19 : A.I.R. 1929 All 650 : 1929 Cr. Cas. 346 : 51 All. 275 : 31 Cr. L.J. 755 : Ind. Rul. (1930) All. 643 to the following effect:
Any evidence which supports or explains the fact that a person has acquired a certain reputation appears to me to be admissible. A court is not bound to bind over a person because he has a certain reputation but is bound further to consider, whether he deserves such a reputation. I deprecate reference to general observations as to the evidence admissible in cases under Section 110, because such observations should only be construed with reference to the particular facts of each case. The Evidence Act offers little or no assistance for the hearing of such cases, which depend on a common sense view of the evidence. It may generally be stated that any evidence which enables court to come to a decision that a person is or is not an habitual offender is admissible.
5. In my opinion these cases prove the following, facts: (1) that firing Rai has been mixing with men of bad character and two of his connections were convicted of burglary and attempts were made to save them and the witnesses who went to depose in their favour were dependants and connections of Firangi Rai and they were disbelieved; (2) that Firangi Rai was specially accused in two murder cases. In one he was accused by a lady who had no apparent reason to make a false statement, and in the other his dependants and associates were convicted of the murder. I now come to the evidence of general repute. A large number of witnesses have been examined to prove that Firangi Rai has in his neighbourhood the reputation of being helper of thieves and dangerous, and those who annoyed him suffered. Mr. Manuk's contention is that the evidence of these witnesses is nothing but enumeration of the specific cassis mentioned above and secondly, the evident is not of general repute but of rumour and is mostly hearsay. I am however unable to uphold this contention. Reputation, as has been pointed out by the learned Sessions Judge, is the sum total of the rumours and talks about a man accepted and believed by the those who know him well. The evidence of reputation is made up partly of the belief of the deponent and partly of what he heard from others of their beliefs. Distinction between reputation and rumor is well marked, though it may be difficult to say generally. where a rumour ends and reputation begins. Let us take an illustration. Two persons A and B are on bad terms. Theft takes place in the house of B, It is suspected on some grounds that A is at the bottom of the theft and this rumour spreads. A few believe in this, a few do not-or none believes it. This is a rumour. Again a theft takes place in the house of C with whom A is also enimical. A is again suspected and there is again a rumour.
6. Supposing instances like this become numerous. A now begins to have a bad reputation among his neighbours. In course of time people begin to believe and talk about him as a thief and regard him as a thief this is a stage when A has got a reputation of being a thief. How many instances build up a reputation and how long is takes for rumours to ripen into reputation cannot be laid down by any hard and fast rule. In this particular case specific instances proved against the proposition, are spread over a period of seven or eight years and are connected with Seven people. The witnesses therefore are on substantial ground when they depose that the petitioner has a reputation of being a help of thieves and of being of a desperate and dangerous character. Distinction between reputation and hearsay has been drawn in numerous cases and a number of such cases has been cited from the Bar but I do not wish to discuss them in detail. Each case has facts of its own. The evidence in this case in my opinion is of reputation and not hearsay. I should like to give another illustration. On the basis of reports suspicions and rumours spread that a man has got a bad reputation among his neighbours. These neighbours who live where the reputation is prevailing are competent witnesses and their evidence will not be hearsay. If they give the specific instances leading to the reputation so much the better for the prosecution. If a man goes to the neighbourhood and hears from those persons about the reputation of a man and then comes to depose what he has heard, his evidence will be hearsay evidence. King, J., in the case of Emperor v. Kumera 125 Ind. Cas. 19 : A.I.R. 1929 All 650 : 1929 Cr. Cas. 346 : 51 All 275 : 31 Cr. L.J. 755 : Ind. Rul (1930) All 643 already referred to, observed as following fact:
I venture to think that evidence of general repute must necessarily consist largely of "hearsay" evidence. The reputation of a person meats what is generally, said or believed about his character. A witness may depose believe the accused to bean habitual thief, and that is what persons of the neighbourhood generally say about him. Such evidence is admissible as providence of general repute. So far as the witness gives his personal opinion, the evidence is not hearsay. So far as the witness gives the opinion or the Statements of other persons, his evidence must, in a sense, be 'hearsay'. A witness can only know the opinion of other persons by hearing them say what they think For this reason I think evidence of general repute necessarily consists largely of "hearsay" evidence, i.e., of statements of what persons other than the witness say or believe about the character of the accused.
7. In my opinion the distinction between admissible evidence of reputation and inadmissible hearsay evidence can be stated thus. If the evidence is of those persons who are living in the locality where the reputation is prevailing and where people talk of their beliefs about him and who themselves believe it, it is admissible. But if the evidence is of a man who does not know about the reputation himself but has heard it from, others, it will be hearsay. In other words, the evidence of those who know the man and his reputation is admissible. Evidence of those who do not know the man, but have heard of the reputation is not admissible. I have already noted the observation of Ashworth, J., in the Allahabad case. It is the duty of the court to judge whether a man deserves a particular reputation and, in order to judge this, enumeration of specific cases will serve a valuable guide. In these circumstances I hold that the evidence of the witnesses in this case is admissible to prove that the petitioner has a bad reputation of being a helper and harbourer of thieves and of a dangerous and desperate character. Mr. Manuk has pointed out that the witnesses, except one or two, came from different villages and not from the village of the petitioner. But nevertheless the witnesses are in my opinion competent witnesses. They live in the neighbourhood of the petitioner and know him very well. They come from villages where the petitioner must have some reputation good, bad or indifferent. The fact that a large number of persons has not been produced from the petitioner's village is not surprising. Admittedly the petitioner is a well-to-do Zamindar and has got an extensive money-lending business. He must have been holding a considerable influence in the locality; and, in the circumstances, one cannot expect that the petitioner's villagers will come forward in large numbers to depose against him.
8. It has further been pointed out that the prosecution case was being manoeuvred by Ghughli Rai with whom the petitioner is on bad terms. No doubt Ghughli Rai has naturally been taking a keen interest for the prosecution and possibly has been helping them. This will always happen in such bad livelihood cases. A man who is proceeded against under the preventive sections of the Criminal Procedure Code must have some enemies whom he has hurt and these persons are bound to help the prosecution in getting the man bound down. Evidence of witnesses cannot be discarded on this ground. The only thing required is that the court should be cautious in accepting the evidence of witnesses who come from such quarters. Had not in this case the evidence of the witnesses of general repute been based upon specific instances spread over a period of about seven to eight years, perhaps much could have been said in favour of the petitioner. Then it has been urged that a considerable number of witnesses have come to depose about the good character of the petitioner and it is contended that the Courts below ought not to have discarded their evidence. In my opinion they have considered the evidence and have given very, good reasons for not acting upon the defence evidence. First of all, these witnesses do not show any knowledge of the numerous cases which. I have staled above. At any rate Firangi Rai, was openly accused in the two murder cases and the witnesses pretended ignorance of these cases. As these cases go to build the foundation of the petitioner's reputation, their evidence loses much of its value. Furthermore, it has been brought out in the evidence that there was a meeting in which it was resolved that Firangi Rai should be helped as he was a wealthy man.
9. The reputation of the petitioner so far as, it relates to his being a protector and harbourer of thieves is not supported on sufficient facts, while of his being dangerous and desperate is fully justified and in my opinion he comes under Clause (f), Section 110, Criminal Procedure Code. The application is rejected, and the Rule is discharged.