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In Re: Kutti Goundan and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1925Mad189; (1924)47MLJ689
AppellantIn Re: Kutti Goundan and anr.
Cases ReferredIn Hari Telang v. Queen
Excerpt:
.....for three years by executing a bond each in the sum of rs. a preliminary notice under section 112, criminal procedure code, was sent to them on or about the 10th of january, 1923. a joint enquiry against both the petitioners was then held and the order complained against was passed by the sub-divisional first class magistrate of coimbatore and this has been confirmed by the district magistrate. that a notice which did not at all state when the threats complained of were uttered, who are the persons who were threatened and when the apprehension of a breach of the peace arose was vague and bad in law. therefore, if the substance of the report made to the magistrate is not clearly disclosed, and the accused is not informed of the charges, of the nature of the evidence that he is to rebut,..........to revise an order passed against the petitioners under section 110, cls. (d), (e) and (f) of the criminal procedure code, binding them over to be of good behaviour for three years by executing a bond each in the sum of rs. 3,000 with two sureties each for rs. 1,500 as being habitual extortioners and oppressors of their fellow-villagers. proceedings were first taken against them under section 107, criminal procedure code, but these were dropped on the 5th of january, 1923, and apparently on the same day the proceedings which form the subject-matter of this revision were started against them on a fresh petition. a preliminary notice under section 112, criminal procedure code, was sent to them on or about the 10th of january, 1923. a joint enquiry against both the petitioners was then.....
Judgment:
ORDER

Madhavan Nair, J.

1. This is an application to revise an order passed against the petitioners under Section 110, cls. (d), (e) and (f) of the Criminal Procedure Code, binding them over to be of good behaviour for three years by executing a bond each in the sum of Rs. 3,000 with two sureties each for Rs. 1,500 as being habitual extortioners and oppressors of their fellow-villagers. Proceedings were first taken against them under Section 107, Criminal Procedure Code, but these were dropped on the 5th of January, 1923, and apparently on the same day the proceedings which form the subject-matter of this revision were started against them on a fresh petition. A preliminary notice under Section 112, Criminal Procedure Code, was sent to them on or about the 10th of January, 1923. A joint enquiry against both the petitioners was then held and the order complained against was passed by the Sub-divisional First Class Magistrate of Coimbatore and this has been confirmed by the District Magistrate.

2. Dr. Swaminadhan, who argued the case at great length, has attacked this order on two grounds, namely, (1) that the proceedings are vitiated on the ground that the notice served upon the petitioners under Section 112 does not comply with the provisions of the Criminal Procedure Code inasmuch as it is very Meagre and does not contain sufficient details regarding the charges brought against them and, in consequence, the petitioners have been handicapped in their defence, and (2) that the trial of the petitioners jointly has also in the circumstances of this case considerably prejudiced them.

3. I now proceed to consider these grounds separately. The notice served upon the petitioners runs thus :--'Whereas it has been made to appear to me that you, within the last 18 months, at Malamachampatti and its neighbourhood, have been oppressing people with your illegal exactions, and have been a menace to the security and safety of the villagers owing to your unlawful acts and have been consequently committing and abetting the commission of offences involving a breach of the peace and are so desperate and dangerous as to render your being at large without security hazardous to the community : You are hereby required to show cause why you should not be ordered to furnish security. ' When the case came on for hearing, the petitioners took the objection ' that the notice served upon them in the above case is not in accordance with Section 112, Criminal Procedure Code, in that it does not give the substance of the information against them and that the accused are, therefore, not in a position to meet the charge against them in the way they are entitled to. ' On this being brought to the notice of the Court it appears from the records that the Prosecuting Inspector of Police explained the case for the prosecution and the Magistrate made a note that ' Every facility will be given to enable the counter-petitioners' Vakil to know the detailed information deposed to by each witness before they are cross-examined. ' It is obvious that the note of the Magistrate just mentioned has nothing to do with the objection raised by the petitioners as the latter refers to defects in the notice and the note refers to facilities to be given to the petitioners for knowing the evidence of each witness. The learned District Magistrate himself has stated in paragraph 5 of his judgment, ' It is true that the preliminary order under Section 112 is very brief and does not contain details of the case proposed to be proved '; but this defect did not seem to him to be of any importance in view of the fact that at the beginning of the trial the case was explained to the petitioners by the Prosecuting Inspector of Police who appeared for the prosecution. In this Court the learned Public Prosecutor has not stated that the notice gives full information, but his contention has been that the substance of the information which they were entitled to under Section 112, Criminal Procedure Code, was given in the notice and the defect, if any, was cured by the explanation given by the Prosecuting Inspector at the commencement of the trial. The records make it clear that, at the time when the notice was sent, the Police had more or less complete information against the petitioners at their disposal and the vague description given in the notice cannot in any sense be said to be a substance of the available information. As pointed out in In re, Kripa-Sindhu Naiko and Harikrishna Naiko (1918) 8 LW 461, 'notices under S. no, Criminal Procedure Code, must contain something more than a re-production of the clauses of the section. There should be sufficient indication of the time and place of the acts charged and sufficient details which would enable the accused to know what facts he is to meet though it is not necessary to give a list of the witnesses. ' The notice given to the petitioners in the case reported in In re, Kripasindhu Naiko and Harikrishna Naiko (1918) 8 LW 461 is very similar to the notice in the present case. In Nagi Konda Reddi v. King-Emperor ILR (1917) M 246 it was held by Abdur Rahim and Napier, JJ. that a notice which did not at all state when the threats complained of were uttered, who are the persons who were threatened and when the apprehension of a breach of the peace arose was vague and bad in law. In Ranga Reddi v. King-Emperor ILR (1919) M 450 : 38 MLJ 97 after stating that it is of the utmost importance in cases of this description that the first information should be clear and specific, the learned Judges observe :--'The accused is to be put on his trial on information received behind his back. In the case of a complaint, the accused may be entitled to a copy, if he applies for it, but in the case of an information of this kind, which ex necessite is a confidential one, the accused is entitled to be told the nature and extent of the information on which the Magistrate intends to base the action against him. It is that communication that is expected to enable the accused to summon witnesses on his side. Therefore, if the substance of the report made to the Magistrate is not clearly disclosed, and the accused is not informed of the charges, of the nature of the evidence that he is to rebut, the proceedings cannot be regarded as legal.' Having regard to this observation, it must be held that the notices to the petitioners issued in this case do not contain the necessary information required under Section 112, Criminal Procedure Code. The question is whether the explanation of the case at the beginning of the trial by the Prosecuting Inspector of Police is sufficient to make up for the disadvantages under which the petitioners laboured owing to the vagueness of the notice. In view of the fact that the object of the notice is to enable the accused to prepare for his defence and to summon witnesses on his side before the actual trial commences, I do not think an explanation of the prosecution case by the Prosecuting Inspector at the commencement of the trial will be sufficient to make up for the extreme vagueness of the notice and will be a compliance with the strict provisions of law contained in Section 112, Criminal Procedure Code. The issue of a notice is not a formal matter; it is a judicial act to be exercised after due consideration of the materials placed before him by the Magistrate [see In re, Kripasindhu Naiko and Harikrishna Naiko (1918) 8 LW 461]; and, therefore, the defects in the notice cannot in any way be remedied by explanations given by the Prosecuting Inspector at the time of the trial. I, therefore, hold that the notice issued to the petitioners in this case was bad in law.

4. The second argument urged on behalf of the petitioners is that they have been considerably prejudiced by their joint trial. Evidence relating exclusively to the nefarious acts of each of the petitioners has been let in in this case in addition to the evidence regarding the events in which it is alleged that they were associated together, and the Magistrate has come to his final conclusion on a consideration of the entire evidence thus introduced into the record against both the petitioners. The dangers resulting from such a procedure have been very well pointed out in the following observations made by Walsh, J. in Emperor v. Angnu Singh ILR (1922) A 109;--'I have myself upset orders under this section where the evidence against one person charged has been used in the judgment as evidence against another not mentioned by the particular witness. There is always a danger of that, and a danger of its unconsciously operating on the mind of the tribunal even though such operation does not manifest itself in the judgment; and if there were no other features in the case, I should have been disposed to set aside the proceedings on that ground alone.... Without laying down any rule or consulting any section, common sense and common justice dictates that proceedings against a man for badmashi should be confined to himself alone, unless the case is that he has a confederate or a partner to whom all the evidence is equally applicable. ' In the light of these observations with which I agree I think it must be held that the procedure adopted by the Magistrate in this case has considerably prejudiced the petitioners in their defence. It has also to be observed that in this case the proceedings were taken against the petitioners not only for their conduct coming within cls. (d) and (e) but also under Clause (f) for the reason that they are so desperate and dangerous as to render their being at large without security hazardous to the community. In Hari Telang v. Queen-Empress ILR (1900) C 781 the petitioners were called upon to execute bonds for their good behaviour on the ground (1) that they habitually commit extortion, (2) that they habitually commit or attempt to commit or abet the commission of offences involving a breach of the peace, and (3) that they are dangerous persons so as to render their being at large without security hazardous to the community and were tried jointly by the Magistrate under Section 117, Criminal Procedure Code, and each of them was ordered to execute a bond with sureties to be of good behaviour for three years. As regards the objection that they should not have been tried jointly under Section 117, Clause (4), Criminal Procedure Code, the learned Judges held that, even supposing that the Magistrate was right in considering that there was habitual association between the three persons in regard to the first and second grounds, there certainly would be no such connection between them in regard to their characters so as to make them dangerous persons, and thus render their being at large without security hazardous to the community, and that proceedings should have been separately taken against each of them The evidence in this case as regards the association of the accused does not seem to be strong. I, therefore, think that the petitioners in this case should not have been jointly tried.

5. Under these circumstances, I would set aside the order that has been passed against the petitioners and direct that they should be tried separately after serving a proper notice to them in strict compliance with Section 112, Criminal Procedure Code.


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