1. This Rule is obtained by the petitioner against an order of the Sessions Judge, Noakhali dated 25-7- 68 upholding the order of Mr.. J. A. Chowdhury, Magistrate 1st Class, Noakhali dated 31-8-67 directing the petitioner to execute a bond in a proceeding under section 110 of the Code of Criminal Procedure.
2. The petitioner has been ordered to execute a bond of Rs. 2,000 with two sureties of like amount each to be of good behaviour for the period of one year with effect from 8-9-67, failing which he will suffer rigorous imprisonment for that period or until such bond is furnished earlier.
3. The allegations out of which the proceedings arose, were that the petitioner Siddique Ulla was a habitual thief, burglar, robber, dacoit, cattle-lifter and a receiver of stolen property. He had no known source of income to maintain his family consisting of one wife and four minor children. The Officer-in-Charge of Lakshmi-- pur P. S. On consulting the thana records found that the Union Councils Nos. 15, 16 and 18 were crime affected areas. He contacted the local leading people and the basic democrats and came to learn that the accused-petitioner was responsible for most of the crimes committed in the said areas. He was a surveillie bearing history-sheet No. 442. He was suspected in several theft and burglary cases. The Officer-in-Charge then obtained sanction from the Superintendent of Police, Noakhali and submitted a prosecution report under section 110, Cr. P.
4. C. Against him.
5. Accordingly a proceeding under section 110, Cr. P. C. Was drawn up against the petitioner. He showed cause and thereafter a formal enquiry commenced at Laishmara Union Council.
6. Sixty P. Ws. And no D. W. Were examined in the enquiry. A number of first information reports and case records were also produced before the Magistrate. On appraisal of the evidence and materials on record, the learned Magistrate found the petitioner to be a habitual thief, burglar, robber, dacoit, cattle---lifter and receiver of stolen property and accordingly directed him under section 118, Cr. P. C. To execute a bond as mentioned above, by an order dated 31-8-67. The accused-petitioner preferred an appeal before the Sessions Judge, Noakhali against the said order and the learned Judge confirmed the order of the learned Magistrate by a judgment dated 25-7-
68. Hence the present petition before this Court.
7. At the hearing of the appeal the only point urged before the learned Sessions Judge was that the period for which the bond was ordered to be executed should be reduced. In view of the state of evidence on record, the lower appellate Court declined to interfere with the impugned order and thus dismissed the appeal.
8. In this Court Mr. Moinul Huq, the learned Advocate for the petitioner has argued that mere production of history-sheet or evidence of suspicion or general impression of bad character is sufficient for an order under section 110, Cr. P. C. In this connection, he has contended that the petitioner having been either acquitted or discharged from the specific cases and no previous conviction on any specific charge having been proved against him and he being merely suspected by police in some F. I. R. Cases, he cannot be bound down in a proceeding under section 110, Cr. P. C.
9. It may be pointed out here that the allegations levelled against the accused-petitioner attract clauses (a) and (b) of section 110 of the Code of Criminal Procedure. To substantiate charges under clauses (a) and (b) of section 110 of the Code, the person proceeded against is to be proved by habit a thief, robber, dacait, house--breaker or a receiver of stolen property knowing the same to be stolen.
10. The word "habit" implies a tendency or capacity resulting from the repetition of the same acts. It means a persistence in doing an act, a fact which is capable of proof by adducing evidence of the commission of a number of similar acts.
11. A charge either under clause (a) or (b) may be: proved by adducing evidence of general repute.
12. Positive evidence as to the actual commission of an offence is not necessary in proceedings, under section 110, Cr. P. C. Instances of specific crimes are admissible in evidence although they are not supported by evidence of such amount and value as would secure a conviction for a substantive offence. Even where a prosecution for a substantive offence has ended in an acquittal, it has been held that evidence relating to the incident which formed the subject-matter of the previous trial cannot be excluded the fact of acquittal although it may diminish and destroy the value of the evidence, has not the effect of rendering such evidence inadmissible. In this connection, the cases reported in 34 Cr. L J 160, AIR 1925; All. 694, AIR 1930 Oudh 357 and 1953 Cr. L J 1246 may be refrred to.
13. To prove charges under clauses (a) and (b) of section 110, Cr. P. C. No specific offence need be proved. It is not necessary, in order to bind over a person under this section on the ground of his being by habit a thief, etc. That a certain number of previous convictions should be proved against him. The fact that the accused has been discharged or acquitted in a specific case o substantive charge is no bar to the proceeding under section 11 of the Code of Criminal Procedure. There is no bar in initiating a proceeding under section 110 of the Code simply because the same person has been acquitted or discharged of any substantive charge in a case. A previous conviction is not necessary for an order of security being passed in proceedings under section 110, Cr. P. C. The case of Emperor v. Khuda Baksh (AIR 1938 Lab. 428) and the case of Amjad Ali v. The Crown (7 D L R 98) support the above propositions of law.
14. The case reported in I L R 43 Cal. 1128 and relied on by x the learned Advocate does not help the petitioner in any way. In that case also it has been held that the general statements of witnesses e.g. That the accused are all pickpockets and that every one is afraid of them are not wholly inadmissible in evidence. What the Court has actually held there is that the general statements of witnesses as to the bad character of a man in a proceeding under section 110, Cr. P. C. Are admissible in evidence but the Court before accepting the said statements should carefully examine the particulars of the fact's on which these general statements are made. From that case it does not follow that the evidence of general repute are not admissible in evidence and these general statements cannot prove the charges under clauses (a) and (b) of section 110, Cr. P. C.
15. In the case of Islamuddin v. Emperor (AIR 1939 Lah. 269) the evidence adduced by the accused were more trustworthy and dependable than the evidence adduced by the prosecution. In that context, the Court, observed "Apart from authority, to my mind an order, under section 110 read with section 118, Criminal P. C. Cannot be made on vague allega--tions, otherwise none would be safe.
16. Unless the requirements of section 110 are fulfilled or in other words, a man is proved by habit a robber, house-breaker, thief or forger or by habit a receiver of stolen property, etc., this drastic measure cannot be taken against him and if in a case like the present the prosecution witnesses themselves admit that in all cases in which the person proceeded against was sent up, he was either discharged or acquitted, it cannot be urged that the requirements of section 110, Criminal P.
17. C. Are satisfied. Besides as against the twenty witnesses examined by the prosecution, some of whom are police officials the petitioner has also examined twenty witnesses and barring Lala Savitri Parshad, Treasury Officer, Simla, who had been summoned merely to prove an order made by him dropping proclamation and attachment proceedings against the petitioner in a case pending before him, all the remaining witnesses who are both respectable and independent have deposed that the petitioner's character is reported to be good. In these circumstances the order made against the petitioner cannot be maintained".
18. In the facts and circumstances of that case, the observation made above, may be quite logical but that cannot be accepted as a general principle in every case. In each case, the question shall be decided by its own facts and evidence.
19. In a proceeding under section 110, Cr. P. C. What the Magis--trate is required to do is to scrutinise the evidence with the greatest care and come to the conclusion whether there is sufficient evidence to warrant an order demanding security. It is incumbent on the Magistrate before whom the proceedings are pending to consider and weigh the evidence produced by the prosecution to prove that the person against whom the proceedings are started is a habitual thief, etc. Before he proceeds to pass the final order. Since an B order under section 110 read with section 118 should not be made on vague allegations or rumours, the Magistrate must consider the nature, quality and standard of evidence produced by the prosecution. He shall also guard that an action under section 110, Cr. P. C. Is not taken as a means of punishing an individual an indirect way when the police merely suspected him to be _ _ of the substantive offence and dropped that case, otherwise no one would be safe.
20. In the present case, 60 P. Ws. From different walks of life including professors, businessmen, chairmen of Union Councils.1 Basic Democrats, village elders and so forth have been examined.
21. Soiree of the witnesses examined by the prosecution are highly educated and respectable people of the locality. They have no enmity or grudge with the accused-petitioner and have also no reason to come before the Court to take false oaths. These disinterested and reliable witnesses have uniformly stated that the accused is a thief, robber, burglar, cattle-lifter and a receiver of stolen property and is also a terror to the people of the areas.) Some of these witnesses have been cross-examined by a defence lawyer but nothing tangible have elicited against them. The accused-petitioner is a survoillie bearing history-sheet No. 442. He has been specifically named in several first informa--tion reports of Lakshmipur P. S. During the period 1965-67. He has also been suspected by the Laksh mipur Police in a number of specific cases under section 380/395/397/457, P. P. C. As deposed to be P. W.
1. The Exhs. 1 to 11 have given support to the story narrated by P. W. 1 the Officer-in-Charge Lakshmipur P. S. The Officer-in-Charge has also added that when the accused-petitioner is in custody, crime against property in the area decreases.
22. The evidence of the local leading and respectable persons coupled with the evidence of P. W. 1 and the exhibits unmistak--ably lead to the inference that the accused-petitioner is a habitual thief, robber etc. Both the Courts below have considered the evidence in their judgments and recorded independent findings on facts. The two Courts, on perusal of the evidence, both oral and D documentary, have held that the accused-petitioner is a veteran and notorious thief, robber, dacoit, cattle-lifter and receiver o stolen property. The concurrent findings of facts recorded therein are quite reasonable. There is nothing on record to disturb the concurrent findings of facts. I, therefore, find no reason to disagree with them in the view taken by them of the evidence. So there is no reason for interfering with the order on the ground raised above by the learned Advocate.
23. The learned Advocate has next submitted that the simul--taneous order under sections 118 and 123, Cr. P. C., passed by the learned Magistrate is not in accordance with law and as such cannot be maintained. He has argued that there cannot be a simultaneous order to execute bond and in default, to suffer imprisonment and that the simultaneous default order to suffer imprisonment passed in the case is illegal.
24. The relevant portion of the Magistrate's order runs as follows: -- "The accused is, therefore, ordered to execute a bond of Rs. 2,000 with two sureties of like amount each to be of proud behaviour for the period of one year with effect from 8-9-67, failing which he will suffer R. I. For that period or until such bond is furnished earlier. The bond is to be furnished by 8-9-67."
25. The order was passed on 31-8-67 and the petitioner was asked to execute bond by 8-9-67. This shows that he was given a reasonable time to execute the bond. The portion "failing which he will suffer R. I. For that period or until such bond is furnished earlier" indicates that the petitioner was entitled to be released from the prison as soon as he furnished the security.
26. Section 123 (I), Cr. P. C. Provides that if any person ordered to give security under section 118 does not give such security on or before the date on which the period for which such security is to be given, commences, he shall be committed to prison or if h is already in prison, be detained in prison until such period expires or until within such period he gives the Security to the Court of Magistrate who made the order requiring it. In view of the provisions of subsection (1) of section 123 of the Code, in my opinion, if a simultaneous default order to suffer imprisonment is passed by the Magistrate under section 118, Cr. P. C., giving a reasonable time to the accused to execute the bond and also an opportunity to him to come out of the prison as soon as he furnishes the bond, the order will not be bad. But if the order is passed without giving a reasonable time to the petitioner to execute bond and also an opportunity to him to be released from custody the moment he furnishes the security, the order will be highly improper and bad in law.
27. The learned Advocate has in this connection, drawn my attention to the cases reported in 7 D L R 98 and 14 D L R 718. The case reported in 14 D L R has just followed the proposition of law laid down in 7 D L R. In the case reported in 7 D L R 98, it appears, this. Court took the view that a simultaneous order to suffer imprisonment in default was illegal, because the petitioner was not given reasonable time to execute the bond and the impugned order was so couched that the petitioner had no opportunity to come out of the prison even after furnishing of the security within such period of imprisonment.
28. A careful perusal of the decision under reference (i. e. 7 D L R 98) will show that the order passed by the Magistrate in hat case and the order passed by the Magistrate in the present case are quite different. In that case, the learned Magistrate in his order requiring the bond, did not give any time to the petitioner to execute the necessary bond and in the default order to suffer imprisonment, there was no indication for release of the petitioner from the prison the moment he furnished the security In the context and background of the Magistrate's order, this Court was fully justified in holding there that the simultaneous default order to suffer imprisonment was illegal. But in the instant case, the learned Magistrate has given a reasonable time to the petitioner to execute the bond. He has also indicated in his default order, for release of the accused-petitioner from prison as soon as he furni--shes the bond. The ordering portion, as quoted above, shows that the petitioner can be released from the custody the moment he furnishes the security. The present case is thus distinguishable. That being the position, it cannot be said that the impugned order suffers from any legal defect. The simultaneous default order to suffer imprisonment having been passed, in conformity with the provisions of sections 118 and 123 (1), Cr. P. C., for the sake of expediency, no exception can be taken thereon. Even if there be any slight irregularity in it, that cannot vitiate the order. I cannot therefore, accept the contention of the learned Advocate as raised above.
29. In result, this Rule is discharged.