1. It has been found by the Joint Magistrate of Sivakasi and his finding has been confirmed on appeal by the Sessions Judge of Ramnad, that the petitioners are by habit house-breakers and thieves; and so they were called upon under Section 110, Criminal Procedure Code, to show cause why they should not execute bonds with sureties for good behaviour. Not having shown cause, they have been called upon to execute bonds and they have done so.
2. Before discussing the actual evidence against these petitioners, I think it is necessary, as this point is frequently raised, to say a word or two with regard to the scope of Section 110, Criminal Procedure Code. It is of course true that Section 110 is intended to deal with persons who cannot readily be brought under the ordinary law and who for special reasons could not be convicted under the Penal Code in respect of the offences said to have been committed by them. It is argued that Section 110 is intended only to deal with gangs of people who are strangers to a locality, who enter that, locality for the purpose of committing crime, and who because of the fact that they are strangers and work together, render their offences difficult of detection. I do not find anything in the wording of Section 110 or of any other section of the Code that leads to the inference that Section 110 can only be used where the parties are strangers to the locality in which the offences are committed. If the persons or the acts which they commit are such as to make it difficult to deal with them under the ordinary provisions of law then Section 110 can be used. If the thefts committed are of a petty nature and if much loss does not result, villagers are reluctant to complain to Courts and be compelled to give evidence at a number of hearings at great inconvenience to themselves. The recovery of some small article of property is very little recompense for the trouble to which they would be put by lodging a complaint. Even when a thief makes himself a general nuisance, an individual villager is unwilling, to put himself to any trouble on behalf of the community. It often happens that villagers fear that if they complain against a person who is committing thefts and house-breaking in the locality they will be subjected to the attentions of the person against whom they have complained to a much greater degree in future; and for that reason they are not willing to complain to the police. Often, petty depradators combine to make themselves a burden to the neighbourhood; and village roughs and rowdies are no less a menace and terror to their village because they live in houses and have a settled habitation. It is in dealing with persons of that kind that the police carefully record over a considerable period the items of evidence against particular persons and when they think they have sufficient material they bring a case under Section 110 before the Court. I can see nothing improper in this procedure. If the police did not take action under Section 110, the villagers would be compelled to take the law, into their own hands, with resulting breaches of the peace. It sometimes happens that persons who commit offences of this kind are members of factions; and offences are committed in pursuance of the factious spirit of the parties. Even there the police are justified in taking action under this section when they find for one reason or another that they are unable to have recourse to the ordinary provisions of the law. It is the duty of the police to see that the law is respected; and if they find they are unable to proceed against persons in the ordinary way they are justified in using these special provisions of the Criminal Procedure Code.
3. It is further contended that before a person can be bound over under this or similar sections it is necessary that a certain number of previous convictions should have been proved. I can see no necessity for this if the evidence that a person is a habitual robber or house-breaker or thief can be proved otherwise. If there are no previous convictions, the quantum of proof necessary would naturally be greater.
4. Turning to the facts of this particular case, we find that the amount of evidence accepted by the learned Sessions Judge is a mere skeleton of what the prosecution attempted to prove by means of the 29 witnesses examined on their behalf. All that the Sessions Judge has believed is, that the appellants trespassed into the house of P.W. 6 at night and that they removed some brass vessels one night from the house of P.W. 10. The learned Sessions Judge has also however accepted the evidence of P.Ws. 3, 8, 9 and 24 to 28 that the appellants bear a bad reputation. Evidence of reputation, although admissible and even important has to be accepted with caution as it is very easy to say that a person is of ill-repute, and in the nature of things such evidence is too indefinite to permit of cross-examination. Reasons why the person is held to be of ill-repute cannot be given by the witnesses; for all evidence in which a person seeks to explain why he considers the reputation of a person is bad amounts to hearsay. Evidence of reputation is the weakest form of evidence and requires material corroboration by other evidence proving the habits of the persons against whom the police are proceeding. In view of the facts the prosecution has sought to establish a very large number of actual crimes committed by these accused and has succeeded in proving only two and that in many cases the trial Magistrate seems to have been of opinion that not only was the evidence insufficient, but false, I do not think that the facts actually established are sufficient to warrant the calling upon the petitioners to execute bonds.
5. The petition is therefore allowed and the security bonds cancelled.