1. This is an application of three men on the revisional side of the Court asking that an order under Section 110, Criminal P.C., for filing security be set aside. There are no less than 11 grounds in the application for revision, of which some five have been argued before this Court.
2. It has already been held by the single Judge who referred this case to the present Bench that there is no force in ground 1 that the applicants had no notice under Section 112 before they were arrested. We agree that the terms of Section 113 were fully complied with and that no notice before arrest is necessary.
3. Next, it is urged that the applicants were not given the substance of the information against them in accordance with the terms of Section 112. We have no hesitation in agreeing with the decision in Emperor v. Ramghulam A.I.R. 1927 Oudh 306, in which it was held that ordinarily it is sufficient under Section 112 if that portion of the clause of Section 110 which is applicable to the particular case is specified in the notice that is given. To this we would further add that where the particular clause refers to two or more offences, the particular offence or offences which is appropriate to the particular case should also be mentioned in the notice. This applies more particularly to Clause (d). It is unnecessary to repeat the arguments in the case to which we have referred. But we would note, if the principle which we have approved be not accepted, the utter impossibility of drawing the line at any place or of offering the Magistrates any guiding principle which would assist them in determining how much information is to be given. We may state a specific example. The evidence in this type of case generally consists of something like the evidence of 20 witnesses, who are expected to speak each of them possibly to a separate incident, sometimes one witness being supported by the evidence of another. Is the information to give the substance of the evidence that one witness is likely to give, or two witnesses or three witnesses, or where is the detailing of the information to stop? It is manifest that it would not be of any value for the purposes of giving notice of the evidence of witness 20 to give even in full the evidence that the earlier 19 witnesses were going to give. This practical difficulty only supports the view that it is sufficient if the particular clause of the charge, or where there are more than one offences named in charge, the particular offence or offences is given in the notice. In the trial of an ordinary summons or warrant case before a Magistrate an accused person is not entitled, before he appears in Court to any information as to what detailed evidence the prosecution is going to lead. What we have said on this point refers of course only to Section 110 and has not necessarily any bearing on Sections 107 and 109.
4. The next point taken was that Section 256, Chap. 21, Criminal P.C. is applicable to inquiry into cases under Section 110. One of the members of this present Bench in Tirlok v. Emperor : AIR1927All660 has already held that the terms of Section 256 are applicable so far as practicable. This is in accordance with Section 117(2), Criminal P.C., and we see no reason to hold otherwise. It is contended for the applicants that the accused were not asked to state whether they wished to cross-examine or not. Counsel was not prepared to suggest that there was the smallest possibility of there having been any prejudice to the accused from their not having been so asked, and this is manifest when counsel was asked whether they were represented or not, and he had to reply in the affirmative. There is no force in this contention and it need never have been raised.
5. Next, it is contended that proceedings under Section 110 cannot be instituted or at (2). least are inappropriate where there is an allegation on behalf of the prosecution that the accused have committed a substantive offence under the Penal Code. This again is wholly untenable, and is based on an entire misappreciation of the principles properly applicable. There is not the slightest reason whatever why the police should not institute proceedings under Section 110 despite the fact that there may be some reason to suppose that the accused have committed some substantive offence under the Penal Code. It is only necessary again to give a concrete case. It may be that the accused is suspected in six cases of house-breaking. The police may have adequate grounds for believing that the accused is really guilty of those six cases of house-breaking, but in regard to any individual case it may be that the evidence would be almost certain to prove inadequate for a conviction. It does not follow, of course, that such evidence, that there is, is not trustworthy. There is manifestly here nothing whatever to prevent the police saying 'if we institute a case of house-breaking it will only involve a useless expenditure of time and money. The evidence such as we have is trustworthy, but it would be inadequate for a conviction for the substantive offence.'
6. There is no reason for holding that proceedings under Section 110 would be improper in such a case. It would be possible to multiply the reasons for holding that the mere fact that there is an allegation of a substantive offence is no obstacle to the using of the evidence such as it is in regard to the commission of that offence in proceedings under Section 110.
7. It is, however, desirable to consider the earlier decisions of this Court relevant to this ground. In 1924 the case of Ram Prasad v. Emperor : AIR1925All250 came before a single Judge of this Court. In that case the notice to the applicants was to the effect that they were 'habitual dacoits and belonged to the dangerous gang of Dhani and Ram Kishan dacoits.' The learned Judge of this Court side:
On a reference to Section 110, Criminal P.C. it will be found that it does not provide for any person being called upon to furnish security on the ground that he was by habit a dacoit and belonged to the gang of a dacoit. It is not for the Courts to find out the motive for the ommission, but if it were necessary one could easily be found. Being a member of a gang of dacoits is a definite offence defined and punishable under the Penal Code and it was for that reason that under the preventive sections, action could not be taken for having committed a specific offence.
8. We are unable to agree with the learned Judge in the suggestion that he makes for the reason of the omission. In our view, being a member of a gang of persons associated for the purpose of habitually committing dacoity does come within the purview of Section 110, and is not excluded merely because there is an allegation of facts pointing to an offence under Section 400, I.P.C. Similarly, we are of opinion thai; where the facts alleged are that the person belongs to a gang of persons associated for the purpose of habitually committing theft or robbery, and not being a gang of thugs or dacoits, those facts are susceptible to proceedings under Section 110. Let us suppose the case of a person A being accused of being by habit a thief. Similarly B, C, D and E are each accused of being by habit thieves. It is manifest that the accusation against each one of these persons could be the subject of a separate proceeding directed against him individually under Section 110, Clause (a). Now, if we turn to Section 117, Clause (5) it says:
Where two or more persons have been associated together in the matter under inquiry they may be dealt with in the same or separate inquiries as the Magistrate shall think just.
9. From this it is clear that where two or three or four or five or more persons are accused of being associated together, or, in other words, forming a gang, for the purpose of habitually committing thefts, the legislature has contemplated that those facts may be the subject of a case under Section 110: otherwise there is no meaning in the two clauses read together. This is sufficient to show that the state of facts we have named does come both within Section 401, I.P.C. and Section 110, Criminal P.C. Nor is there any statutory provision forbidding the application of Section 110 to facts which happen to come also within Section 401, I.P.C.
10. Nor do we consider that as a matter of policy or convenience or justice it is even desirable to hold that where the facts come within either section, it should follow that only the section of the Penal Code should be applied, and that there must be a regular trial for the substantive offence. Let us consider the distinction between the two sections. Where a charge in the full sense of the term is laid under a section specifying a substantive offence such as Section 401,I P.C., the evidence and the only evidence which can be led is that of persons who saw acts or heard words, etc. with their own eyes and ears. On the other hand, evidence which is admissible under Section 110, Criminal P.C. includes evidence of 'general repute.' Manifestly, therefore, evidence which might be insufficient for a conviction under Section 401, I.P.C. punishable directly with imprisonment, may, though the facts to be proved are identically the same with the facts to be proved upon a case under Section 110, Criminal P.C. be sufficient for a conviction under Section 110, Criminal P.C. involving merely in the first place furnishing of security, for further evidence bo support the prosecution, e.g., that of 'general repute' is admissible, where the lesser consequence follows, of a nature which is not admissible where the graver consequence follows. We are, therefore, of opinion that it is not illegal to institute proceedings under Section 110 merely because the facts alleged would, if proved, establish an offence under Section 401, I.P.C. Nor is it necessarily improper to institute such proceedings. A case under Section 401, I.P.C. which might necessarily fail for want of the essential evidence might well and properly result in a conviction under Section 110, Criminal P.C., The same reasoning will mutatis mutandis apply to Section 400, I.P.C., and Section 110, Criminal P.C. We do not think it necessary to enter into speculation as to the reason for mentioning theft and robbery in Section 110 and not mentioning dacoity. We have stated why we do not agree with the reason given by the learned Judge in the case to which we have referred.
11. We have also been referred to the decision of one of us sitting with another Judge reported in Budhan v. Emperor : AIR1925All694 . That case was referred to a Bench of two Judges by a single Judge who did not, as we have said we do not, agree with the proposition laid down in the case of Ram Prasad v. Emperor : AIR1925All250 , which we have just discussed. In Budhan v. Emperor : AIR1925All694 , however, the Bench held that the case of Ram Prasad v. Emperor : AIR1925All250 was distinguishable, and therefore cannot be interpreted as having overruled Ram Prasad v. Emperor : AIR1925All250 on the point which we are now considering. Finally there is the case of Ramrup Bhar v. Emperor : AIR1929All813 , That case naturally followed the decision in Ram Prasad v. Emperor : AIR1925All250 which was correctly noted as not having been overruled in Budhan v. Emperor : AIR1925All694 . As our present decision overrules Ram Prasad v. Emperor : AIR1925All250 , it follows that it also overrules Ramrup Bhar v. Emperor : AIR1929All813 .
12. The application is dismissed.