1. This is a petition asking the Court to quash security proceedings initiated by the Sub-Divisional Magistrate of Mayavaram against the two petitioners who are mirasidars and residents of Manigramam.
2. By an order dated 21st November, 1936, the petitioners were called upon to show cause why they should not furnish security for their good behaviour for two years. The order stated that it was based on information that they habitually committed the offences of extortion, mischief, theft and assault and were so dangerous and desperate as to render their being at large, without security, hazardous to the community. It purported in fact to be made under els. (a), (d), (e) and (f) of Section 110 of the Criminal Procedure Code. The substance of the information given to the Magistrate was set out in an appendix consisting of 21 heads of charge.
3. One hundred and seventeen witnesses were cited to prove the information, twenty-four of these were examined between 9th December, 1936 and 23rd February, 1937 (that is, in 2 months) and they were examined by the Magistrate, who is a touring officer, at several sittings in nine different camps in his division. As the end was still not in sight, the petitioners then presented this petitition and proceedings were stayed.
4. Various grounds have been urged on behalf of the petitioners for quashing the entire proceedings; one grievance is that in 1936, the first counter-petitioner was shot at and wounded by some members of the opposite faction who were tried and convicted for the offence. Some persons who gave evidence on behalf of the accused in that case are now witnesses for the prosecution in this case.
5. Another ground taken is that the time and place at which the incidents mentioned in the heads of charge took place are not given. Some of the incidents are stale, some were the subject-matter of criminal complaints which were dismissed.
6. In the third place it is urged that there is no justification at all for a joint inquiry. It is not even pretended that the two counter-petitioners (petitioners herein) have been habitually associated together or in all the matters now under enquiry; The first incident for example (looting of houses in 1936) relates to the second counter-petitioner only. His men were tried for this alleged offence and were acquitted. The second incident (extortion of Rs. 2-4-0) relates to the first counter petitioner only, according to the evidence of P.Ws. 8 and 9. But there is no indication in the order that both incidents do not relate to both petitioners and no details of time and place were given for either.
7. I propose to take this latter point first. Section 117(5) of Criminal Procedure Code states that 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. It has not been denied before me that the two counter-petitioners were not associated together in all the matters under inquiry, and there fore it is not only not just, but it is not legal to deal with there both in the same inquiry. That such a joint inquiry prejudices the counter-petitioners in cases of this nature has been repeatedly laid down. Walsh, J., in a case reported in Emperor v. Angnu Singh I.L.R. (1922) 45 All 109 has said:
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.
8. And Madhavan Nair, J. in a case reported in Kutti Goundan, In re : AIR1925Mad189 approved of these remarks and further approved of a comment in Hari Telang v. Queen-Empress I.L.R.(1900) 27 Cal. 781 that a joint inquiry is out of the question when one charge at least is that two persons are so desperate and dangerous as to render their being at large without security hazardous to the community. There certainly can be no such intimate connection between two individuals in regard to their characters as to render them liable to a joint inquisition.
9. On this ground alone I think the present proceedings should be terminated.
10. But there is another and I think an even stronger ground for quashing the present proceedings. Neither of the petitioners has ever been convicted of any crime. A mere perusal of Section 110 is sufficient to show that it is intended to deal with ex-convicts or habitual criminals and dangerous and desperate outlaws who are so hardened and incorrigible that the ordinary provisions of the penal law and the normal fear of condign punishment for crime are not sufficient deterrents or adequate safeguards for the public. As an additional measure of protection against this hopelessly irresponsible class of persons, the section provides that they may be called upon to find truly responsible and reliable persons willing and able to answer to good behaviour of their proteges. In other words persons so addicted to crime that the ordinary sanctions of law are powerless to control their incurable proclivities are placed in much the same category as lunatics. They must either find eligible and responsible guardians or be temporarily confined for the public safety.
11. The section is obviously not intended for use against merely undisciplined people such as local bosses and faction leaders to clip their wings, to deplete their resources by an expensive inquiry, to humble their pride by treating them as criminal mad men, to advertise publicly their high-handed behaviour. To apply the section to such as these is undoubtedly to abuse it.
12. It is only possible to do so by interpreting Section 117(4) of the Code of Criminal Procedure, as if it laid down a general rule of evidence for every security case. The section is as follows:
For the purposes of this section the fact that a person is a habitual offender or is so desperate and dangerous as to render his being at large without security hazardous to the community maybe proved by evidence of general repute or otherwise.
13. The words make it quite clear that this is an exception to the general rule of evidence and like all exceptions to be sparingly used and only in exceptional circumstances. The general rule of law, of course, is that every man is presumed not to be a criminal or an offender until he has been found guilty by a competent Court. Conviction by public opinion should only be permitted to take the place of conviction by a Court in rare and exceptional circumstances, as for example, where the advent of a suspicious stranger in a village coincides with a series of crimes and suspicion waxes so strong and is so well justified that it may fairly be allowed to take the place of proof and in such unusual circumstances the section sanctions an experimental use of the security sections. But where a person has lived all his life in a locality and has never even been accused before a Court of law for any crime, far less convicted, there is absolutely no justification for any such experiment or for making any presumption that he is a criminal, not to say a habitual criminal.
14. In the present case the allegations against the counter-petitioners amount to this--that they are tyrannical and highhanded, self-appointed village dictators; that they fine poor people who disobey them, force people in a better position to put themselves in their power by executing pronotes in their favour, punish labouring men for alleged disrespect to them (such as not dismounting from a bicycle when passing their house), and even gratuitously interfere in marriages between third parties. As no complaints were ever made by any of the people thus bullied, it is safe to conclude either that they were not themselves wholly blameless and had to acknowledge that rough justice had been done to them or that they admire bullies and like being bullied.
15. It is only necessary to repeat that Section 110, Criminal Procedure Code, is intended to protect the public against irresponsible criminal maniacs and desperadoes and that the weapon of public opinion is the only one adapted to the suppression of undisciplined local dictators.
16. For the above reasons 1 direct that these proceedings be terminated.