1. The petitioners have been bound over Under Section 110(e) and (f), Criminal P.C. for habitually committing offences involving a breach of peace, to wit, attempts to rape, and they have also been deemed, by virtue of this habitual practice, to be desperate and dangerous members of a community, whom it is not safe to leave at large without furnishing security. This order was confirmed on appeal by the learned Sessions Judge of Bellary. It has been contended for the petitioners that attempts of rape do not involve a breach of the peace, that they are not desperate and dangerous to the community, and that it was illegal to try the three petitioners together. The principal case quoted before me from which it was sought to deduce that an attempt to commit rape does not involve a breach of the peace is Arun Samanta v. Emperor (1903) 30 Cal 366 In that case, the counter-petitioners were found to have been attempting to seduce women and of behaving obscenely towards them. It was rightly pointed out that before a person could be bound over Under Section 110 (e) he must be found to have committed offences of which a breach of the peace was a necessary constituent. Reference was made to Section 106, Criminal P.C. for ascertaining the meaning of 'breach of the peace' and it was held that from the wording of Section 106, it was clear that a 'breach of the peace' was not involved in committing offences such as the accused in that case were found to have been guilty of. Section 106 makes it quite clear that an assault is an offence involving a breach of the peace; and clearly an attempt to rape does involve an assault upon the person against whom this offence is committed. In Akhoy Kumar Chatterjee v. Queen Empress 5 C.W.N. 249. The accused was found to have been guilty of certain lewd behavior and of making improper gestures towards women; but these acts were not of such a nature as to amount to any assault or to any act of violence or force against the person. In Muhammad Asghar Khan v. Emperor (1915) 2 A.I.R. All 352 the counter, petitioners had made certain indecent overtures towards boys. It seems however clear that as in the case before us, the offences committed involved assaults, force, and violence, they did involve a breach of the peace.
2. Seven charges were framed in the preliminary order Under Section 112. Pour of them were of attempts to rape P. Ws. 3, 4, 5 and the wife of P.W. 6. Two others related to the first counter-petitioner only, and one to counter petitioners 1 and 2 jointly. The learned Sessions Judge has ignored the charges relating to counter petitioners 1 and 2 only and has considered the case against the three counter-petitioners of being jointly responsible for the attacks on the four women. Clearly, this was a case in which it was not only permissible for the accused to be tried jointly, but was a case in which the accused should have been tried jointly; for, they acted together in committing these offences. It would have been better not to have added the specific charges against counter-petitioners 1 and 2; but as the learned Judge pointed out, these charges were trivial and hardly relevant to the matter under enquiry. I do not think that the counter-petitioners have been in any way prejudiced by these additional charges being tacked on to the four for which they were jointly responsible. In re Kutti Goundan (1925) 12 A.I.R. Mad 189 which has been relied on by the learned advocate for the counter-petitioners, only two charges were common to all the persons tried; and it was found that the evidence of association of the various persons tried was weak. In Hari Telang v. Queen-Empress (1900) 27 Cal 781 also there were only two counts common to all the counter-petitioners. In every case it has to be considered how far the evidence proves association and how far the various persons tried are prejudiced by a joint trial. In the present case, I am satisfied that the joint trial was desirable as well as permissible.
3. Emphasis has rightly been laid on the fact that although the evidence is that specific offences Under the Penal Code were committed, with respect to which charges of complaints should have been made to the village Magistrate and trial under the Penal Code could have taken place; yet P. Ws. 3, 5 and the wife of P.W. 6 made no complaint to any person in authority. That is explained by the facts that the offences were against their modesty and that a complaint might have brought disgrace upon them, their bus bands and their families P. Ws. 3, 4 and 5 would, even today, not have come forward and spoken to the attacks upon them had it not been for the fact that the unfortunate wife of P.W. 6 was thrown into such despair by the attack made on her that she committed suicide. P. Ws. 3 to 5 were driven to speak to the attacks upon them in order that some action might be taken against the counter-petitioners to prevent a recurrence of such attacks in the future. I therefore agree with the Courts below that the accused were habitually committing offences involving a breach of the peace and that as they are in the habit of waylaying women working in fields and attempting to rape them, they are desperate characters whom it is dangerous to leave at large without calling upon them to furnish security. I therefore think that the order passed was justifiable and accordingly dismiss this petition.