1. This is an application in revision from an order of conviction and sentence passed upon the applicant for an offence under Section 122(d) of the Bombay Police Act, 1951. The accused was prosecuted for, and convicted of, the offence and sentenced to suffer rigorous imprisonment for one month.
Section 122, by Clause (d), provides that:
Whoever is found between sunset and sunrise-...
(d) lying or loitering in any street, yard or other place, being a reputed thief and without being able to give a satisfactory account of himself,...
shall, on conviction, be punished with imprisonment' as stated in the section.
2. In this case, the facts are that the accused was seen by a police constable (No. 686/ G) at Waroda Road, Bandra, at about 9-30 p.m. The police constable questioned him and, according to the police constable, the accused failed to give a satisfactory explanation about his presence at that place. The learned Magistrate accepted the evidence of the police constable and convicted the accused of the offence and sentenced him as already mentioned.
3. In this application in revision the question for decision is whether it is shown that the accused has committed the offence in question. Now, the ingredients constituting the offence are : (1) a person must be found between sunset and sunrise, (2) the person must be lying or loitering in a street, (3) the person must be a reputed thief and (4) the person must be unable to give a satisfactory account of himself. If these ingredients are satisfied, then the accused would be shown to have committed the offence. In this case the accused was found in a public street at 9-30 p.m., i.e. between sunset and sunrise. Technically, the first requirement is satisfied. But it is necessary to remember that 9-30 p.m. is by no means an unusual hour when a person may not be found in a public street, and the defence of the accused was that he had gone to see a relation. If the evidence of the police constable is accepted, then the accused must be taken to be loitering in a public street. Again, if the evidence of the police constable is accepted, then the accused was unable to give a satisfactory account of himself. The question still remains whether it can be said of the applicant that he is a reputed thief. Now, when one speaks of a reputed thief, it means a person having acquired the reputation of a thief. This suggests some course of conduct on the part of the person concerned, i.e. the person has, by repeated acts, acquired a certain reputation. Now, a person does not usually acquire a reputation by a single act. To acquire a reputation there must be a series of acts and in this instance there have been three convictions recorded against the accused for an offence of theft. Two of these were in the year 1919 and the third was in the year 1922. It can be said, therefore, of the applicant that in about 1922 the applicant had acquired the reputation of a thief. He was, therefore, a reputed thief in 1922 or at about that time. But the question remains whether it can be said of the applicant that he was a reputed thief in the year 1953. The accused appears to have been convicted of an offence under Section 406 of the Indian Penal Code in 1929. That is an offence relating to property but not in relation to theft. But one may say that even in relation to the offence the accused had acquired the reputation of a thief in about the year 1929. But it is a long way off between 1929 and 1953 which is spread over a period of 24 years. The question, therefore, is whether it can be said of the applicant that he is a reputed thief for the purpose of Section 122(d). Now, no particular number of convictions would be necessary to acquire the reputation of a thief. The convictions may be two or may be three or may be four and in each case that number of convictions would suffice to make a person a reputed thief. But I think it is not enough to show that the accused has a number of convictions in relation to an offence of theft. What is necessary to render a person guilty of the offence under Section 122(d) would be to show that the convictions for the offence of theft were reasonably near the point of time when he is hauled up under Section 122(d), and in this case it cannot be said of the applicant that the applicant had the reputation of a thief in the year 1953. It is possible that the habit of thieving may have ceased. The accused appears to have been convicted for gambling in the year 1932 and for hurt in the year 1943, but that means that the accused is a criminal by habits and tendencies. Now, Section 122(d) does not apply generally to a criminal; it applies to a criminal who has acquired the reputation of a thief. In this case the evidence of the police constable was that the accused was questioned and he was unable to give a satisfactory account of himself. There is no indication in the evidence of the police constable to suggest that the police constable put him any particular question and the accused person was unable to give a satisfactory explanation of the question asked of him. The evidence of the police constable merely goes to show that the accused was questioned and the accused was unable to give a satisfactory explanation about his presence at that place. Even apart from the question, therefore, as to whether the accused person in this case can be said to be a reputed thief for the purpose of Section 122(d), I am satisfied that there is no clear evidence to show that the accused, when questioned, was unable to give a satisfactory account of himself.
4. On all these grounds, I think the order of conviction and sentence passed upon the accused cannot be sustained and this application must succeed.
5. The application will, therefore, be allowed, the order of conviction and sentence passed upon the accused will be sot aside and the accused will be acquitted and discharged.