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In Re: Kottamiddu Ranga Reddi - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in55Ind.Cas.722
AppellantIn Re: Kottamiddu Ranga Reddi
Cases ReferredKalai Haldar v. Emperor
Excerpt:
criminal procedure code (act v of 1898), sections 110, 112, 114, 117 - preliminary order under section 112, contents of--accused not informed of substance of accusation, effect of--dangerous and desperate character--general repute, evidence of, admissibility of--evidence of police witnesses, value of--opinions, hearsay and rumours, admissibility of. - - 5,000 with two sureties in a like sum. 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 rebute, the proceedings cannot be regarded as legal. what i understand him to mean is that the evidence of repute against and for the accused is so evenly balanced that, in the opinion of the appellate magistrate, it.....orderseshagiri aiyar, j.1. this is an application to revise the order of the district magistrate of anantapur, confirming the proceedings taken by the deputy magistrate of gooty calling upon the petitioner to enter into a bond for rs. 5,000 with two sureties in a like sum. the first magistrate was moved to take action under section 110 (a) and (f) of the code of criminal procedure. he examined a large number of witnesses, 33 for the prosecution and 41 for the defense. he came to the conclusion that the petitioner should be bound over. in confirming that order the district magistrate refers to a defect in the procedure of the trial magistrate, namely, that, in recording and reading out the preliminary order under section 112, there was no attempt made to inform the accused of the substance.....
Judgment:
ORDER

Seshagiri Aiyar, J.

1. This is an application to revise the order of the District Magistrate of Anantapur, confirming the proceedings taken by the Deputy Magistrate of Gooty calling upon the petitioner to enter into a bond for Rs. 5,000 with two sureties in a like sum. The first Magistrate was moved to take action under Section 110 (a) and (f) of the Code of Criminal Procedure. He examined a large number of witnesses, 33 for the prosecution and 41 for the defense. He came to the conclusion that the petitioner should be bound over. In confirming that order the District Magistrate refers to a defect in the procedure of the Trial Magistrate, namely, that, in recording and reading out the preliminary order under Section 112, there was no attempt made to inform the accused of the substance of the information received which led to the taking of action against him. The District Magistrate says that the accused had ample opportunities in the course of the hearing to know what evidence was being given against him and as he did not object to the legality of the preliminary order in the lower Court, the objection should be overruled. Although I do not propose to set aside the order on the sole ground that the information communicated to the accused under Section 112 was not sufficient to comply with the requirements of the Code, I must point out that it is of the utmost importance in cases of this description that the first information should be clear and specific. 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 necessitats is a confidential one, the accused is entitled to be told the nature and the 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 rebute, the proceedings cannot be regarded as legal. I entirely agree with the observations of my learned brother Kumaraswami Sastri, J., on this question.

2. I now proceed to deal with the merits of the case. Objection was taken in this Court by the learned Counsel for the petitioner on the ground that most, if not the whole of the evidence let in on the side of the prosecution was irrelevant and inadmissible in evidence. The District Magistrate classifies in paragraph 4 of his judgment the evidence that has been given. He refers, first of all, to what he considers to be reputation evidence. As regards that be says that, if the order rested solely on it, he would have set it aside. What I understand him to mean is that the evidence of repute against and for the accused is so evenly balanced that, in the opinion of the Appellate Magistrate, it would be unsafe to base the proceedings solely upon it. There was a large volume of evidence adduced by the petitioner which showed that in the opinion of a considerable number of the people in and round the place the accused is a man of good character. If that is the view taken by the District Magistrate, there is nothing to be said against it. But I am not sure whether he does not, to some extent, confuse the issue by holding that evidence of repute is altogether inadmissible.

3. It is desirable to point out here in what case evidence of repute may be permitted in proceedings of this character and in what cases it should be avoided altogether. Under Section 110, there are six categories of offences: the first five relate to habitual misconduct, and the sixth to the accused being desperate and dangerous. Section 117, Clause (3), provides 'that a person is a habitual offender may be proved by evidence of general repute or otherwise.' This language is not very happy and Courts have been often at pains to understand the idea which led the Legislature to enact this clause. The expression 'habitual offender', I believe, covers all the first five categories of offenses mentioned in Section 110. One thing at least is clear, that to bring home the charge under Section 110, clause (f), evidence of general repute is not admissible. According to the ordinary rules of evidence, evidence is not admissible to prove that a man is of a bad character. Therefore, Clause 3 of Section 117 must be, taken to have been introduced by way of exception to the general law. If that is so, the exception must be limited to the particular offences referred to in it. That I understand to have been the view taken by Justice Sankaran Nair in Muthu Pillai v. Emperor 8 Ind. Cas. 493 : 34 M.P 255 : 8 M.L.T. 347 : (1911) 1 M.W.N. 34 : 21 M.L.J. 483 : 11 Cri. L.J. 663. In that case it was contended for the Crown that, by admitting evidence of general repute for proving the first five categories of offences in Section 110, Courts can subsequently utilise it for showing that the accused is of a desperate character. The learned Judge rightly overruled this suggestion, because it would be enabling the Crown to let in evidence indirectly which it cannot directly do. I am dear that it is not open to the Magistrate to look into evidence of general repute for finding that a man is dangerous and is of a desperate character within Section 110(f) of the Code of Criminal Procedure. Mr. Justice Bannerjee in Emperor v. Bidyapati 25 A.P 273 : A.W.N. (1903) 36 pointed out that it is only for the purpose of establishing charges under Section 110, Clauses (a) to (e), that repute evidence is admissible. I am in entire agreement with the pronouncement of Sankaran Nair, J., and Bannerjee, J., on this matter.

4. The evidence let in in this case would have, therefore, to be excluded to a considerable extent. The District Magistrate divides the rest of the evidence into two classes, the evidence of official witnesses of sufficient standing and the evidence of witnesses who speak of particular acts of criminality on the part of the accused. Under the first heading he relies mainly upon the evidence of a Deputy Superintendent of Police, two Inspectors of Polios and some Sub-Inspectors of Police. One caution which the learned Magistrate has not kept in view is that in proceedings of this kind as far as possible the evidence of official witnesses like Superintendents of Police and Inspectors of Police should be eschewed. Their minds are naturally biased by the reports that they receive from their subordinates regarding the movements and antecedents of the accused, when they report to the Magistrate that the accused should be bound over. Therefore, their evidence would in the nature of things ordinarily exhibit bias against the accused. This was pointed out in Abdul Khaliq v. Emperor 28 Ind. Cas. 329 : 16 Cri . L.J. 281 : 13 A.L.J. 412. It is a very salutary principle and although there is no rule of law which prohibits a Magistrate from admitting Police evidence, it should, if not wholly discarded, influence his judgment as little as possible. Bearing this in mind, I shall now examine the evidence given by the Superintendent of Police. He says that he knew the accused's reputation and straightway speaks of having heard of the accused being concerned in getting up of dacoities. Then he says as regards one of the cases the accused is said to have engineered: 'I sent the Head Constable to Tadpatri and found the allegations to be true.' This is both opinion and hearsay evidence. Then he refers to the entries in his diary of his having been convinced that one of the articles found on a search in the house of the accused being stolen property, If that was the conviction of this witness, why did he not charge the accused before a Criminal Court? The whole of this evidence, however much it may express the honest opinion of the officer, is either hearsay or rumour of a priori conclusions of the witness on one sided representations made to him. There is not a single fact spoken to excepting that relating to the ear-ring. As regards the identity of the ear-ring the owner has not been examined to prove that it was his property and was stolen from him. The whole of this evidence, namely, that of P.W. No. 1, must be rejected. Then I turn to another witness, P.W. No. 31. He is the Circle Inspector. He first refers to the accused having been entered in the surveillance register, then to a letter from the Superintendent of Anantapur to another Superintendent which the witness was permitted to look into, in which it was mentioned that the accused organised a gang of dacoits. Then he refers to his having heard that some Juttur men were members of a gang. Then he refers to an entry in his diary that the accused paid an advance of Rs. 50 for purchasing a ticket and so on. In cross-examination he said: 'I made no enquiries regarding the purchasing of tickets.' The whole of this evidence must be set aside. The same remark applies to the evidence of the 7th witness. He says that he once went to the house of the accused to check his presence. The accused refused to give him information. 'I wrote in my notebook what took place.' Why this evidence was recorded and how the trial Magistrate considered it relevant, I cannot understand. The evidence of the other Police witnesses is of the same description as that to which I have referred. It seems to me that this evidence should be regarded as inadmissible even if it was given by a private party. They are further vitiated by the fact that it is a record of opinions, rumours and hearsay, which as Police Officers they entered in their note books.

5. Then I turn to the evidence of the second class of witnesses. The District Magistrate specially refers to the evidence of P.W. No. 15 and P.W. No. 17. As regards P.W. No. 16, in my opinion, it is very irrelevant, to say the least. The Vakil says that he heard from somebody that a dacoity was about to be committed in the house of a client of his and that he warned that client. How is this evidence against the accused? The learned Public Prosecutor said that this evidence, must be read with that of P.W. No. 17. P.W. No. 17 says: 'I knew the accused. He has a bad reputation and he is given to commit burglary, dacoity and has bad associates.' Such a general statement can be of no assistance to a Court. It is against all principles to record such vagus statements without calling the witness to give specific instances which could be scrutinised and which the accused will be in a position to rebut. Ha says later on, 'the dacoits were expected to proceed from Juttur and from the house of the accused,' He admits as a matter of fact that owing to his vigilance and the vigilance of his friend, no dacoity took place. This very unsatisfactory evidence should not have been allowed to influence the mind of the Magistrate against the accused. P.W. No. 12 only says that the accused and his men returned on a particular occasion to their houses, saying that Subba Reddy escaped. The 13th witness deposed that, about 4 months back, the accused was talking of murdering Subba Reddy. He said he went to the house where he heard the conversation as a cooly to do work for the owner, but he did not inform anybody about the intended murder and that nothing after wards happened. This kind of evidence can be manufactured against any individual, respectable or otherwise, and no man's reputation can be safe if evidence like this were to influence the proceedings of a Magistrate. I felt considerable doubts whether evidence as regards Clauses (a) to (e) of Section 110 should not relate to something in the nature of previous convictions. The learned Public Prosecutor drew our attention to Pedda Siva Reddi, In the matter of the petition of 3 M.P 238 : 2 Weir 54 wherein the learned Judges say: 'Although witnesses are examined as to general character, their testimony is not of much value as to the habits of a suspected person unless they can, in support of their opinion, adduce instances of...misconduct... when the question is only as to his repute. The evidence of witnesses, if reliable, is not without value, though they may not be abb to connect...suspected persons with the actual commission of crime.' I am not sure that I understand this judgment. Section 110, Clauses (a) to (c), speak of a man being a habitual robber, a habitual receiver of stolen property and a habitual harbourer of thieves, a habitual exortioner or a habitual committer of the breach of the peace. In my opinion the evidence on which the Magistrate has to base his conclusion must relate to particular instances which have come to the knowledge of the deponent and must be specific Evidence relating to mere beliefs and opinions without reference to acts or instances which have induced the witnesses to form the opinion can hardly be regarded as evidence of repute within Section 117, Clause (3). Habitual criminality cannot be regarded as established by the repetition of beliefs and opinions. At any rate Courts ought to discard such evidence as much as possible. Emperor v. Sheik Abdul 33 Ind. Cas. 825 : 23 C.W.N. 725 : 17 Cri. L.J. 185; Chintamon Singh v. Emperor 12 C.W.N. 299 : 7 C.L.J. 177 : 7 Cri . L.J. 146 and Kalai Haldar v. Emperor 29 C. 779 seem to lay down this view and I respectfully follow these decisions. Therefore, the evidence of P.W. No. 13, which speaks generally of the reputation of the accused without reference to specific acts, is not, in my opinion, sufficient to bring the charge home to the accused.

6. The petitioner is a young man of 30 years of age and is in fairly well-to-do circumstances. It is said that he has property worth a lakh of rupee and debts to the extent of thirty thousand rupees. These debts have all been purchased by P.W. No. 22, a distant relation of the accused. It is he that moved the Police to take action in the matter. He has put pressure to bear upon the accused by purchasing litigation. There has not been a single instance in which the accused has been convicted of any offense. Under these circumstances, having regard to the nature of the offence charged and to the character of the evidence let in, I feel no doubt that the proceedings should be set aside altogether. The bond executed by the petitioner and by his sureties must be cancelled and given up.

Moore, J.

7. The petitioner has been ordered under Section 118 of the Code of Criminal Procedure to enter into a bond for Rs. 5,000 with two sureties for a like amount to be of good behaviour for a period of three years.

8. The facts of the case are unusual. The petitioner is a Reddi, owning landed property and paying an assessment of Rs. 1,000. The Police moved the Sub Divisional Magistrate of Gooty for security being taken from the petitioner under Section 110, Clauses (a) and (f), of the Code of Criminal Procedure on the grounds (1) that he was, by habit, a robber, house breaker and thief, and (2) that he was so desperate and dangerous as to render his being at large hazardous to the community. The Sub-Divisional Magistrate in the preliminary order which he issued under Section 11 of the Code of Criminal Procedure, did not set out the substance of the information contained in the Police charge sheet. The order merely reproduces the language of Clauses (a) and (f) of Section 110 of the Code of Criminal Procedure. This was clearly irregular: A notice under Section 110 of the Code of Criminal Procedure must contain something more than a reproduction of the clauses of the section. There should be sufficient indication of the time and place of the acts charged and sufficient details to enable the accused to know what facts he has to meet.' Per Kumaraswami Sastri, J., in Kripasindhu Maiko v. Emperor 47 Ind. Cas. 277 : 19 Cri . L.J. 905 : 8 L.W. 461 : (1918) M.W.N. 751. However, I agree with the District Magistrate that this defeat is not a sufficient ground for quashing the proceedings, as it is not shown that the petitioner was prejudiced by the defect. After a protracted enquiry the Sub Divisional Magistrate passed an order requiring the petitioner to give security and, on appeal, the order was confirmed by the District Magistrate. The first objection taken by Mr. Richmond for the petitioner is that a charge under Clause (f) of Section 110 of the Code of Criminal Procedure cannot be proved by evidence of repute but must be proved by definite evidence, and reliance is placed on Muthu Pillai v, Emperor 8 Ind. Cas. 493 : 8 M.L.T. 347 : (1911) 1 M.W.N. 34 : 21 M.L.J. 483 : 11 Cri. L.J. 663. In that case Mr. Justice Sankaran Nair held, following Kalai Haldar v. Emperor 29 C.P 779 that, when a person is solely charged under Section 110(f) of the Code of Criminal Procedure, evidence of general repute is not admissible to prove that he is of a desperate and dangerous character. That is clear from the wording of Section 117(3) of the Code of Criminal Procedure, which says that for the purposes of this section the fact that a person is an habitual offender may be proved by evidence of repute or otherwise. The learned Judge did not, however, express any opinion on the question whether when a person is tried jointly for charges under Clause (f) and any other clause of Section 110 of the Code of Criminal Procedure, a finding that he is an habitual offender can be taken into consideration in deciding the charge under Clause (f). The lower Courts have not, in my opinion, kept in view the distinction between evidence as to general repute which was undoubtedly admissible to prove that the petitioner was an habitual offender and the evidence requisite to prove a charge under Clause (f) which must be of a definite character. The Sub-Divisional Magistrate, for instance, says that the witnesses speak of 'specific acts of misconduct attributed to the accused which in fact form the basis of their information and impression. The evidence against the accused is so general and overwhelming that there is not the slightest doubt that he associates and intrigues with criminals and bad characters and has been in the habit of committing dacoities, house-breakings and thefts or other offences of the kind specified.'

9. Finally, the Sub-Divisional Magistrate says: 'I am perfectly satisfied from all the foregoing that the accused is, by habit, a robber, house-breaker, thief and that his being at large without security is hazardous to the community.' The District Magistrate has fallen into the same error. He states that most of the evidence on either side concerns the reputation of the appellant... while many of the witnesses for the prosecution say that the appellant has a reputation for habitually engineering dacoities, robberies and thefts and that he is dangerous to society.'

10. The next objection taken by Mr. Richmond is that the Magistrate erred in admitting a large body of irrelevant hearsay evidence in the belief that it was admissible as evidence of repute. This objection is, I think, well-founded. Hearsay evidence amounts to evidence of repute and is admissible for the purpose of Section 110 of the Code of Criminal Procedure, this provision of the law being an exception to the general rule of evidence, and in such cases evidence of repute, though hearsay, is admissible. Emperor v. Raoji Fulchand 6 Bom. L.R. 34 : 1 Cri . L.J. 3 and Pedda Siva Reddi, In the matter of the petition of (8). But as was pointed out in Rai Isri Pershad v. Queen-Empress 23 C.P 621 a case which is frequently quoted: 'It is hardly necessary to say that evidence' of rumour is mere hearsay evidence and hearsay evidence of a particular fact. Evidence of repute is a totally different thing. A man's general reputation is the reputation which he bears in the place in which he lives amongst all the townsmen, and if it is proved that a man who lives in a particular place is looked upon by his fellow-townsmen, whether they happen to know him or not, as a man of good repute, that is strong evidence that he is of that character. On the other hand, if the state of things is that the body of his fellow-towns men who know him look upon him as a dangerous man and a man of bad habits, that is strong evidence that he is a man of bad character, but to say that because there are rumours in a particular place among a certain class of people that a man has done a particular act or has characteristics of a certain kind, those rumours are in themselves evidence under this section is to say what the law does not justify us in saying.' When it is sought to prove the reputation of a person, the evidence which is required is that of respectable persons who are acquainted with the accused and live in the neighbourhood and are aware of his reputation. The test of the admissibility of the evidence of general opinion is whether it shows the general reputation of the accused, and it should at the least be the opinion of a considerable number of persons. It must not he merely the repetition of what certain persons have said to the witnesses. Coming now to the facts of the present case, the evidence of the accused's general repute and bad livelihood, when examined, is very weak and largely hearsay. For instance P.W. No. 8, who acted for a short time as Village Munsif of Juttur, the petitioner's village, says: 'the accused is reputed to be a thief. He never had thefts committed in my village.' The witness gives the names of three persons who consider the accused to be a thief and says: 'I consider the accused as a man of bad character on the strength of what these persons told me. My individual opinion is that the accused is a bad man having some people to commit thefts.' Such evidence, which is based on rumours, should not have been admitted. P.W. No. 10, a resident of Juttur, begins his deposition by saying 'I know the accused who is a man of bad character. He is a murderer and dacoit. His reputation is such.' In cross-examination P.W. No. 10 states: 'I cannot say who said that the accused was a dacoit and a murderer. The whole village said so.' The witness is not a man of any position has been convicted of gambling and is admittedly an enemy of the petitioner. P.W. No. 21, who belongs to another village states: 'I know the accused for 6 or 7 years. He bears the reputation for committing dacoity and murder.' When asked to justify the statement the witness had to admit in cross-examination that he could not say who told him of the accused's bad reputation. I am surprised that the Sub Divisional Magistrate should have allowed such evidence, which was calculated to seriously prejudice the accused, to go in. P.W. No. 17 is a Vakil practising in Gooty. In examination in-chief he stated that be knew the accused and that he bore a bad reputation and was given to commit burglary, dacoity and that he had bad associates. It was elicited, however, in cross-examinations that the witness was a friend of P.W. No. 22 (a wealthy and influential man and a bitter enemy of the petitioner), that during the past five years he had very rarely gone to Juttur and had never seen the petitioner there and that P.W. No. 22 and others told him about the reputation of the petitioner. The statement of the District Magistrate that the witness has known the accused 'long and well' does not appear to be correct. There is undoubtedly a good deal of evidence that the petitioner is suspected of planning dacoities, but it is not clear why a man in the position of the petitioner should have earned this unenviable reputation. P.W. No. 24, for instance, says: 'The accused is a man of large property. I do not know why such a man attempted to commit dacoity.' After reading the voluminous evidence of the prosecution witnesses, I am inclined to think that there is a good deal behind the case and that the charge is the outcome of family feuds among the Redd is. For instance P.W. No. 32, who was Village Munsif of Juttur and is a Dayadi of the accused, states that the accused is a man of bad character committing thefts and dacoities and that he has sent several reports regarding the bad character of the accused and his absence from the village. In cross examination, however, he admitted that he had been at enmity with the accused from the time of his father, that he was on friendly terms with P.W. No. 22, his father's cousin, that there had been long-standing ill-feeling between P.W. No. 22 and the accused and that there are two parties, one headed by P.W. No. 22 and the other by the accused. Finally he admitted that his opinion that the accused was a dacoit and robber was solely based on what his Gumastah told him and that he did not know personally that accused associated with bad characters. The only other non official witness to whose evidence it is necessary to refer is P.W. No. 34. He pays an assessment of Rs. 300. He deposed that be had beard of dacoities said to have been committed by the gangs of the accused and his brother-in -law Chinna Reddi. He made an extraordinary statement that one Muni Reddy owed the accused Rs. 8,000 and a suit was filed and compromised after payment of booty in dacoity.' The whole of this evidence is hearsay. The witness had to admit that he could not say from what source he got his information or give the name of his informants and also that there had been civil suits between accused's brother-in-law and himself. There is also the evidence of a number of Police Officers, P.Ws. Nos. 1, 2, 3, 4, 7, 18, 19, 20, and 31, that the petitioner is a registered suspect, that he and his brother-in-law are reputed to organise dacoities and that his house has been more than once searched. I have read the evidence of these witnesses and I do not think that much weight can be attached to it. The witnesses admit that the accused has never been charged in any case. The evidence of the Police witnesses amounts to this, that rumous are current in the Police circle that the petitioner organises docoities and is an associate of bad characters and that his movements have been watched. For the foregoing reasons I consider that there is not sufficient evidence to support the charge under Section 110(a) of the Code of Criminal Procedure that the petitioner is by habit a thief or a dacoit.

11. As regards the charge under Section 110(f) it has been held in Kalai Haldar v. Emperor 29 C.P 779 that to prove a charge that an accused person is so desperate and dangerous as to render his being at large without security hazardous to the community, there should be proof of specific acts showing that he is a desperate and dangerous character. I respectfully agree with this decision. Practically the only evidence on this part of the case is that of P.Ws. Nos. 16, 17, 12, 13 and 22.

12. P.W. No. 16, a High Court Vakil practising in Cuddappah, says that 5 years ago he sent a telegram to P.W. No. 22 warning him that a dacoity was likely to be committed in his house. The witness cannot even remember the names of the persons who were planning the dacoity. P.W. No. 17 says that he was with P.W. No. 16 when he sent the telegram and that the information he got was the dacoits were expected to coma from the accused's house in Juttur.

13. The District Magistrate says that P.Ws. Nos. 12 and 13 refer to definite attempts made by the accused to bring about the murder of P.W. No. 22, but this is hardly correct. P.W. No. 12 states that he met the accused and 4 or 5 others, that they asked him whether P.W. No. 22 had gone that way, that they returned saying that P.W. No. 22 had escaped and that he informed P.W. No. 22 two or three days afterwards. The accused gave evidence against this witness' son in a murder case. P.W. No. 13 tells a ridiculous story of his having overheard a conversation between the accused and 2 other persons in one Narasimha Reddi's house and that they talked about murdering Pedda Subba Reddi. The evidence of these witnesses is worthless and the District Magistrate was not inclined to attach much weight to it. P.W. No. 22 is a wealthy man and a District Board Member. He is a cousin of the petitioner and they are admitted enemies. He says that he had been warned by P.W. No. 12 and 13 that the accused was threatening to murder him and that he sent a petition to the Police. It appears to be clear that it was at the instance of the witness that the security proceedings were instituted.

14. I am unable to agree with the District Magistrate that there is a large body of evidence 'regarding the petitioner's bad life, his habit of engineering crimes and his general desperate character.' The evidence on record does not warrant any such conclusion. The District Magistrate also says that there is evidence of witnesses who speak to 'definite acts of criminality on the part of the petitioner,' but I cannot find any definite evidence of any specific acts of violence committed by the petitioner, In my opinion the order requiring the petitioner to furnish security to be of good behaviour cannot be supported and should be set aside.


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