1. The petnr. was served with a notice under Schedule 12, Cr. P. C., to show cause why he should not be directed to execute a bond to be of good behaviour under Schedule 10, Cr. P. C. for a period of three years. Along with the petnr. two other persons were also impleaded & served with similar notices & an enquiry M. c. No. 647/47 was started against the three persons by the Sub-divisional Mag., Ghumusur. The Police filed a report under Section 110 (d), (e) & (f), Cr. P. C. against these three persons on 24-9-47 & cited 84 instances of acts of misbehaviour & offences alleged to have been committed or threatened to have been committed by one or the other of the persons named in the report covering a period of over twelve years commencing from 1935. The Police also cited 140 witnesses to be examined to prove the various acts of high-handedness alleged to have been committed at different times by these persons. The Mag. drew up proceedings on the 4th November in the following terms :
'Perused the report of the S. I, of Police, Aska & it appears from the Police report that you (1) Krupasindhu Panigrahi (2) Dondia Gowdo, & (3) Bancha Palo of village Horodapadoro, P. S. Aska, within the criminal jurisdiction of this Ct., habitually commit theft, extortion, cheating, & mischief & other offences involving a breach of the piece & also are be desperate & dangerous as to render your being at large, without security, hazardous to the community as detailed in the police report (copy enclosed).'
You are, therefore, requited under Schedule 10 (a), (d), (e) & (f), Criminal P. C. to show cause by 11-11-1947 why you Krupasindhu Panigrahi should not be ordered to execute a bond of Rs. 2000 with two sureties for like amount & Dondia Gowdo & Banoha Palo should not be ordered to execute a bond of Rs. 500 etc....etc....'
2. Although the order recites that a copy of the Police report is enclosed it is asserted by the petnr. & it is not denied by the learned Advoeate Gcneral appearing for the Crown that no such copy has been served upon the petnr. The peter, appeared in due course & applied to the Deputy Mag. to take up his case separately & not to try him jointly with the two others as he apprehended that prejudice would be caused to him. He also prayed that his personal attendance may be waived & that he may be permitted to appear through a pleader as he was sick & was not able to attend the proceedings which were likely to occupy a long time. The Deputy Mag. dismissed his petn. & rejected both his prayers on the ground that the Police report showed that the petnr. & the two other persons charged with him were his associates & that there would be no prejudice or illegality in a joint trial. He rejected the petnr.'s prayer for exemption from personal attendance on the ground that the petnr. not being an accused person, Schedule 40A, Criminal P. C. did not apply. It is against this order that the petnr. has now come up in revn. to this Ct. The petnr. also moved the Dist. Mag. before filing his revn. petn. in this Ct., & the Addl. Dist. Mag who heard his appln.,, has recommended to this Ct. that the order of the Deputy Mag. should be quashed & that a separate trial should be ordered as, in his opinion, a joint enquiry would be prejudicial to the persons proceeded against:
3. The case against the petnr. as it appears from the Police report, is that he is a rich landholder & money-lender in village Horodopadoro, under the jurisdiction of the Aska Police Station :
'Since about 12 years he started Increasing & adding to his landed properties by making clandestine purchases from one party or other having disputes on lands & also made or attempted to make people quit their lands in his favour by putting them in fear of grievous assault & other kinds of mischief such as rendering them homeless, by setting fire to their houses & by assulting them with the help of a set of ruffians maintained by him solely for the purpose & also by damaging & stealing their crops through the help of the same ruffians ...
Accused 2 & 3 & two mochis who were all persons of the most desperate & dangerous character were the principal henchmen of their leader, accused 1.'
It is then alleged that accused 2 & 3 committed
'numerous instances of zulums such as setting fire to houses, cutting & carrying away crops from land, committing theft of other properties, assaulting persona, killing & maiming of cattle & of persons with whom their leader & employer had any dispute.'
The leader (referring to the petnr. before me) also singly committed high-handedness such as extorting documents, rendering persons homeless, by driving them from their houses, etc. It will be seen from the above that the petnr. himself is not accused of any of the acts falling within cls. (a), (d), (e) & (f) of Schedule 10. These acts are specifically attributed to the other two accuses who are sought to be tried jointly with the petnr. So far as the petnr. himself is concerned, the acts of high handedness charged against him are
'extorting documents, rendering persons homeless, & by driving them from their houses.'
If the Mag. who drew up proceedings against them under Schedule 10 had only cared to go through this Police Report he would have been able to discriminate the case against the petnr. from that of the rest, & he would not have fallen into the error of holding that joint trial is necessary in the interests of justice. Even according to the Polios Report, the petnr. is described as 'a leader & employer,' & it is not suggested that he employed these persons to commit the offences sought to be proved against them. The specific allegation of being a 'desperate & dangerous character' is made only against the other two persons who are roped in along with the petnr. It is well settled that the characteristic of being a desperate & dangerous character is a personal attribute & should be proved separately against every individual charged with that attribute. The Mag. appears to have gone farther than even what the Police seek to prove inasmuch as he has drawn up proceedings under Schedule 10 (a) while the Police restricted their report to cl. (d), (e) & (f) of that section. It is also passing strange that the Deputy Mag. failed to notice that the evidence required to prove 84 instances extending over a period of 12 years is bound to be vague indefinite & conflicting, & that it would be impossible for any person called upon to meet the charge to decide which of the allegations have been made out & to what extent. The number of witnesses cited is equally formidable & the Police Report does not give the least inkling as to which of these allegations is going to be proved and by which bunch of witnesses. If the character of a person cannot be proved to fee of the description contemplated under Schedule 10 by half a dozen witnesses, it cannot be established by 140 witnesses either. If the object of the Police was to overawe the petnr. & his alleged associates this purpose has been served admirably, but I quite fail to see how a Mag. will be able to analyse the evidence which is bound to be of the character merely of hearsay & suspicion & how he will be able to estimate the character of each of the accused persons.
4. Mr. K. Patnaik, appearing for the petnr. has placed before me a tabular statement of the acts alleged against the petar. alone & those he is supposed to have been responsible for along with the two other accused persons. The specific acts attributed to the petnr. are Items 1, 12, 16, 18, 45, 47, 52, 63, 69, 70, 79 & 84 of the tabular statement. These acts range over a period of twelve years. (After discussing these items His Lordship proceeded.)
5. In spite of the fact that an enquiry under Section 110, Cr. P. C. is bound to be wide in its scope, I cannot understand how a person accused of such elastic, sprawling & pervasive charges as those cited against the petnr. in this case can ever hope to meet them & convince a Ct. that he is not a threat to the community at large. Time & again the Ota. have registered their protest against a free & indiscrimate use of this section. Reported oases show that the Police appeal to this Section for bringing down a person whom they otherwise cannot harass. Instead of investigating into particular offences &, bringing the offender to book, recourse is had to the security sections in order to humble local dictators or oppressive money-lenders. The growing tendency of trying to humiliate persons who assume the role of local dictators Instead of prosecuting them for substantive offences itself suggests that this loose practice constitutes a serious threat to fairness in our administration of justice. The rule of evidence laid down in Section 117 (4) makes it all the more difficult to try persons without prejudice to an innocent man. When the prosecution chooses to array a hotchpotch of acts described as 'threats & instigations' it is extremely difficult for a Mag. to control or analyse the evidence & to estimate its effect on each of the persons standing trial in proof of so sprawling a charge as 'being a dangerous & desperate character.' Evidence of bad reputation is often admissible only on the assumption that the person accused has a bad reputation & that he is an associate of the other persons. The result is that if the other two persons have a local bad reputation or ate dangerous & desperate the mere inclusion of the petnr. as an associate of the other two petnrs. makes the entire evidence admissible against the petnr. There generally will be some evidence of wrong-doing by some of the persons but it is extremely difficult for an individual accused to make his own case stand on its own merits as Mags, are only too prone to believe that birds of the same feather flock together. It is therefore imperative to ascertain before permitting a joint trial that the birds belong to the same feather. According to the prosecution report, the petnr. is a rich landlord & owner of bus service & is otherwise highly respectable, According to the petnr. the present proceedings have been initiated by the Police at the instance of his political rivals. If therefore he chooses to dissociate himself from the two other accused jointly with him, & tries to throw the blame on the others, the inevitable consequence will follow that the other two will try to throw the entire blame on the petnr. A Ct. faced thus with mutual accusations & recriminations between persons standing their trial, is apt to hold that all the three are responsible for the acts of each one of them. The result will inevitably be that persona jointly tried often convict each other. If, on the other hand, the petnr. chooses to stand alone & is silent, he will be taken to have admitted the accusations made against him or his associates. In either event, the result will be disastrous to the petnr. & there cannot be a fair trial. I am in entire agreement with, the observation of Walsh J., in Angnoo Singh v. Emperor, reported in A.I.R. (10) 1928 ALL. 35 : (24 Cr. L. J. 257) that it seems very hard almost oppressive-to any set of defts. to charge them together unless the whole of the evidence against all of them is precisely the same. To the same effect is the case reported in Jai Rao v. Emperor, A I.R. (10) 1923 pat. 104: (23 Cr. L. J. 100), where it was laid down that a joint trial is not permissible unless there is evidence of something in the nature of a conspiracy. Ordinarily, under Schedule 10, Cr. P. C. every person has to be tried separately for the offences enumerated therein. Mr. Patnaik relied' upon Deodhari v. Emperor, in AIR (12) 1925 pat. 131: (26 Cr. L. J. 738) where it was laid down that the evidence to prove a charge under Schedule 10 should not be vague generally & of a hearsay character & In re Rathinam Pillai, A.I.R. (25) 1938 Mad. 35: (39 Or. L. J. 230) where Newsam J., generally laid down that a joint enquiry Under Section 117 (5) is out of question when one charge at least is that two persons are so desperate & dangerous as to render their being at large hazardous to the community. There certainly can be no such intimate connection between two individuals in regard to their individual characteristics as to render them liable to joint inquisition. It was further held in that case that to apply Section 110 to local bosses & faction leaders is undoubtedly to abuse it. The Section is intended to apply to criminal maniacs & desperados against whom the only weapon to be used is the weapon of public opinion.
6. I have, therefore, arrived at the conclusion that the reference made by the Addl. Dist. Mag. that the joint enquiry against the petnr. along with the other two persons, cannot proceed, & that the police, if so advised, may initiate separate proceedings against the petnr., alone, should be accepted.
7. Mr. Patnaik also complained that the order drawn up by the Mag. is all-too brief, vague & indefinite & does not give any due to the petnr. as to the acts charged against him. An order under Section 112 is not a formal order but is intended to give sufficient notice to the individual against whom the order is made, of the accusation made against him, The section in specific terms says that the order shall set forth the substance of the information received. The Mag. who drew up the proceedings has entirely ignored that requirements of this section in so far as he has failed to set out the substance of the information before him. The failure to annex a copy of the Police report is itself a grave irregularity which, in the circumstances of this case, must be held to have vitiated the proceedings. The order does not comply with the provisions of the Code & is bad in law. For a similar Case, reference may be made to Kutti Goundan v. Emperor, it M.L.J. 689: (A.I.R.(l2)1926Mad, 189: 26 Or. L. J. 673) and In re Krupasindhu Naik, 8 M.L.W. 416: (A.I.R. (6) 1918 Mad 219), wherein Kamaraswami J,, observed that a notice under Schedule 10, Cri. P. C., must contain something more than a re-production of the clauses of that section. There should be sufficient indication of the time & place of the acts charged & sufficient detail which should enable the accused to know the facts that he hag to meet. It should be remembered that the petnr. is put on his trial on information received behind his back, extending over a period of 12 years or more. Had the proceedings started on a private complaint he would have been entitled to copy thereof, but in the case of a police report, such as the one placed before me, the petnr, gets no clue as to the dates when the persons in respect of whom, & the nature of the acts which one alleged to have been committed by him. I have no doubt in my mind that the notice served on the petnr. is bad in law & is of be effect. But whether that would justify the quashing of the proceedings altogether at this stage is a matter on which I am not prepared to hazard an opinion. There is no legal proceeding against the petnr. according to the view I have taken & the question of quashing; the proceedings does not arise. Mr. Patnaifc has, therefore, very adroitly conceded that if & when proper proceedings are drawn up against; the petnr. he will take the earliest opportunity of raising this question again & wanted to reserve liberty to move this Ct. for quashing of proceedings later. I think that this is the only reasonable course to adopt at present.
8. I should, however, like to observe that the Dist. Mag., or the Head of the Police who is responsible for the initiation of these proceedings should very seriously consider the propriety of clubbing together acts, real or imaginary, extending over such a long period & trying to prove them at great expense & waste of time. It is preposterous to suggest that a case cannot be proved except by examining as many as 140 witnesses. I shudder to think how long this enquiry will occupy if all the witnesses are to be examined, having regard to the leisurely way in which the Prosecuting Officers conduct even petty cases in the Cts. below. It will be the duty of the officers in charge of the prosecution to shift the evidence & reduce the number of witnesses to the minimum possible in the interests of fairness of trial & in order to save avoidable waste of time & money. The enquiry, will now be confined to the case against Dandl Gowdo & Bancha Palo alone & if the prosecution ultimately decides to take action under Schedule 10, Cr. P. C. against the petnr. also, they must await the result of the enquiry against Dandia Gowdo & Banoha Palo. It may perhaps be that as a result of the enquiry against these two persons the prosoeution may find that the evidence against the petnr. is too exiguous to sustain an order under Schedule 10. That however,, is a matter for the prosecutor to decide. So far as this revn. petn. is concerned the order will be that the notice under Schedule 12, Cr. P. C. served' on the petnr. is bad in law & the interim bond taken from him should be discharged; that any enquiry Under Section 110 against him should be separately undertaken & should await the result; of the enquiry against the two principal accused, who, according to the Police, are desperate & dangerous characters. Subject to this modification this revn. is allowed.