1. This is an appeal by the Government of Bombay against the acquittal of the accused Chand Mahoboobsab by the Fourth Presidency Magistrate. He was put before that Magistrate on a charge under Section 112, cl (d), of tin; Bombay City Police Act IV of 1902, namely that being a, reputed thief he was found loitering in the street and without being able to give a satisfactory account of himself. Evidence was given by a Police Constable that he was arrested at 1-15 A. M. on the Proctor Road and that nothing was found in his possession; also that the accused had two previous convictions. There was no cross-examination, and the Magistrate upon this acquitted the accused on the ground that he could not come in the category of a reputed thief, having only two previous convictions,
2. It has been objected by Mr. Rele for the accused that in any case accused's two previous convictions have not been properly proved. Certainly, so far as the information sent by the Criminal Investigation Department is concerned, that information would require to be supplemented by other evidence under Section 511 of the Criminal Procedure Code or otherwise to prove the previous convictions, if they are denied by the accused. But we have a scanty record in this case, and' it is possible that the accused himself admitted the convictions. In any case in dealing with this appeal, we must take it that there were two previous convictions, either admitted or proved or provable against the accused. The only point, therefore, is whether the fact of there being two previous convictions for theft suffices to make the accused a 'reputed thief within the meaning of Clause (d) of Section 11-'. The word 'reputed' is defined in Webster's Dictionary as 'having the reputation of being, or supposed or thought to be, that expressed or implied by the qualified noun.' The prefix 're' no doubt would ordinarily suggest that the supposition must be entertained by a certain number of people. It is impossible to lay down any definite rule on a question of that kind. The fact that a person has actually been convicted of theft is certainly a ground for taking it that he is a reputed thief. For it is a substantial basis for that reputation among persons who know of the conviction; and it is not, in my opinion, necessary to have additional evidence that some person knows of his conviction and considers him to be a thief. Nor, in my opinion, is it possible to lay down any rule such as the one applied by the Magistrate, namely, that a certain number of convictions (more than two) is necessary before a person can be a 'reputed thief.' Obviously difficulties would arise in fixing what should be the actual number if convictions that should be taken as sufficient. In the present case the two convictions are within a space of two years prior to the arrest of the accused, and it is not a case where the convictions are many years before arrest, so that the habit of thieving may have ceased. In my opinion, therefore, there was evidence before the Magistrate that the acussed was a 'reputed thief,' and the ground that ha gave for the acquittal is insufficient.
3. It has, however, been urged that there is also no evidence that the accused was loitering in the street at the time of his arrest It is true that the evidence does not show that the Police Constable stated exactly in what circumstances the was arrested, but I think there is a presumption that those circumstances would have appeared, if the evidence had been fully recorded. The Government Pleader asserts that the accused was found in company with another man, in whose possession there were instruments of burglary and who was convicted under Section 112 Clause (e). Certainly, if that is the case, it would be relevant evidence against the accused that at the time of the alleged offence he was in the company of a person who had such instruments upon him, and that evidence would affect any explanation which the accused might offer as to the circumstances of his being in the street at the unusual time of 1-15 or so in the morning. The best course in my opinion, therefore, is to direct a re-trial of the accused by such of the Presidency Magistrates as the Chief Presidency Magistrate may direct, in which evidence, if it has not been already adduced in the way it should have been given, can now be so adduced and, if necessary, the alleged previous convictions should also be proved. I would order accordingly.
4. The question argued before us is the construction of the words a ' reputed thief under Section 112, Clause (d) of the Bombay City Police Act IV of 1902. I am unable to agree with the learned Magistrate and the pleader for the accused that these words must be taken to mean a thief who has achieved, not merely one or two convictions, but in addition, a reputation and a distinction amongst his neighbours and his community, as a habitual offender, on evidence of the character referred to in Ranga Reddi v. King-Emperor (1919) I. L. R. 43 Mad. 450 a case under Section 110 of the Code of Criminal Procedure. The present Act applies only to the City of Bombay and the present offence can only be committed between sun set and sun-rise by a reputed thief loitering or lying in the street without being able satisfactorily to account for his presence. It appears to me that the words ' reputed thief' are not something more than a convicted thief but something less and mean a person who even though he might not be convicted is so reputed in the circles to which his reputation is a matter of interest. In a city such as Bombay where a person does not usually know the occupation or reputation of his neighbour, the circles where the reputation of a thief would be known are practically two, the Police and thieves or receivers. A man who has been convicted twice of theft is more than a reputed thief and not less, and the question of reputation is one of fact and cannot further be defined by the Courts. The acquittal must be set aside.
5. There appears to me to be no reason in law, if the accused was arrested in company and along with another person in possession of implements of house-breaking, why the two should not have been sent up together or at least evidence of such fact put in against the present accused. On the meagre record a retrial appears to be the best course. I agree accordingly in the order proposed by my learned brother.