1. Did Clause (e) find a place in the previous Codes?
2. No, and if the scope of Section 110 has been extended by Clause (e), the cases cited would not be direct authorities but would, nevertheless, support the principle of construction that Clause (f) must be read with the preceding clauses, so far as can be, and as contemplating similar cases see Wahid Ali Khan v. Emperor (1907) 11 C.W.N. 789 where Clause (f) was read with Clause (d).
3. The words 'is so' in Clause (f) refer to present danger. Mere inculcation of revolutionary ideas, unaccompanied with overt acts exhibiting present danger to the person or property, would not bring the case within the clause. Next 'Community' in Clause (f) must mean the community in general within the Magistrate's jurisdiction. The finding of a connection between the petitioners and an organization to commit dacoity in other parts of Bengal would not be sufficient, as the dacoities might be committed outside the Magistrate's jurisdiction, and might affect only a fraction of the community, viz, the propertied class.
4. Further, proof of specific acts, showing a person to be a desperate and dangerous character, is necessary under Clause (f): Kalai Haldar v. Emperor (1901) I.LR. 29 Calc. 779, Babu Murtaza Husain v. Emperor (1905) 3 Cr. L.J. 290. Here the findings against the petitioners are (i) of association with each other and with Jogendra, (ii) membership of an association to spread revolutionary propaganda, at some remote time, and to commit dacoities in the future, (iii) connection with a similar organization in other parts of Bengal (of which the evidence is 'not very strong'), (iv) and their antecedents, aliases and absence from home at certain periods. The only specific acts alleged by the Judge are the collecting of recruits and subjecting them to self-discipline for 'some purpose' which may be remote, and the hiring of three houses by two of the petitioners on false excuses and in one instant under a false name, but no dacoity nor even a single act of violence to the person or property was alleged. The Judge has entirely misappreciated the political doctrine of Jogendra which according to the evidence of Ashita was merely Home Rule within the Empire. [The Court after discussion allowed the deposition of Ashita to be read.]
5. As to the next ground, the Judge has twice misapplied Section 10 of the Evidence Act. Firstly, the acts and declarations of a person done and made before the association or conspiracy came into existence is excluded by the section. There is no evidence that the essays were written, or the cartridges and seditious literature obtained, by Gurudas before the association was formed, and hence proof of the finding of these in the house of Gurudas is not admissible against the other petitioners to show the object of the association. Next, the Judge has found only reasonable ground of suspicion to connect the petitioners with other organizations to commit dacoities, whereas the section requires grounds of belief.
6. As to the next ground of the Rule, the Magistrate has no jurisdiction over Manohar, who left Dinajpur before the institution of the proceedings and was brought back in custody. The Magistrate has no jurisdiction unless the person is within the local limits at the lime of the proceedings [Sona Ram v. King Emperor (1905) 3 C.L.J. 195] and not after he has left the same: see In re Ramjibhai Waghjibhai : (1912)14BOMLR889 . The words 'a person within the local limits' denote voluntary presence and not detention in custody: Emperor v. Po Thaw (1907) 7 Cr. L.J. 447, Empress v. Murli (1885) P.R. Cr. 89, Ketaboi v. Queen Empress (1900) I.L.R. 27 Calc. 993, see also In re Krishnaji Pandurang Joglekar (1897) I.L.R. 23 Bom. 35.
7. How does the fact of being brought within the local limits affect the Magistrate's jurisdiction?]
8. When a person who has left the local limits is brought back by the police, he has not submitted himself to the jurisdiction by any act of his own.
9. If a person returns within the local limits, would not the Magistrate have jurisdiction?]
10. Yes, because he has voluntarily submitted himself to it again.
11. [Sanderson C.J. referred to Section 114.]
12. Sections 112 to 114 only lay down the successive stages of the procedure to be followed, and Section 114 does not imply that action under it must be taken on the date of the institution of the proceedings. The section may refer to custody subsequent to such date, and might also include the case of an arrest under Section 55 of the Code of a person coming voluntarily within the territorial limits prior to such date, but does not cover a case where a person has been brought back by the police within the limits in custody. The case of Emperor v. Durga Halwai (1915) I.L.R. 43 Calc. 153 appears at first sight to be against me, but it is distinguishable, as the jurisdiction was based on the ground that the habit and evil reputation were acquired within the local limits and not on presence in custody. Mr. Justice Chitty who decided that case was a member of the Bench which granted the present Rule. The last ground refers to the question of security. Under Section 118 of the Code the demand of security beyond the means of the accused is illegal and ultra vires. The petitioners' earnings did not exceed Rs. 20 per month. The lower Courts have tailed to appreciate the difficulty in getting sureties in cases of this class, as was pointed out by the High Court in Empress v Kala Chand Dass (1880) I.L.R. 6.Calc. 15, 16.
13. This was a Rule obtained by five petitioners calling upon the District Magistrate to show cause why the order against the five petitioners should not be sot aside, and such other or further order passed as to this Court might seem fit, as regards Manohar Pyne, on the ground that the District Magistrate had no jurisdiction to entertain proceedings against him under Section 110, and, as regards all the petitioners, on grounds Nos. 1, 12 and 13 in the petition mentioned, and also on the ground that the proceedings should have been under Section 108 rather than under Section 110 of the Code of Criminal Procedure.
14. It appears that the police Sub-Inspector of Sadar Dinajpur, on the 3rd of May 1917, made a report under Section 110 of the Criminal Procedure Code, Clause (f), against the petitioners, and one Jogendra Kishore Bhattacharjee, to the Sub-Divisional Magistrate of that place, to the effect that the above mentioned persons were members of a secret society, the aim of which was to overthrow the British Government by commission of daeoities and other outrages to collect money, that some 450 cartridges, proscribed books, and a pamphlet, and self-written seditious essays were found in the. possession of petitioner No. 3, that there was strong evidence of association of the accused, that all these accused were contemplating the commission of some dacoity or outrages in or near Dinajpur, in pursuance of the tenets of their secret society, and were, therefore, of so desperate and dangerous a character, as to render their being at large without security hazardous to the community.
15. On the 4th of May 1917, the Magistrate made an order in the following terms: 'The investigating Sub-' Inspector has submitted a report under Section 110 of 'the Criminal Procedure Code against (then he set out 'the names of the five petitioners) and Jogendra 'Kishore Bhattacharjee. Draw proceedings under 'Section 110 of the Criminal Procedure Code, Clause (f), to 'execute a bond of Rs. 10,000, with rive sureties of 'Rs. 2,000, to be of good behaviour for three years. 'Issue warrant, bail Rs. 3,000 against the absconder, 'Jogendra Kishore Bhattacharjee, with two sureties 'of Rs. 1,500 each.'
16. The case was heard by the Magistrate, and after a prolonged hearing the Magistrate ordered that the rive petitioners should be bound down in the terms of the notice. The man Jogendra Kishore Bhattacharjee was not before the Magistrate as he had absconded and was not arrested. In pursuance of Section 123, Clause (2), of the Criminal Procedure Code, the case was referred to the Sessions Judge; and, after going through the evidence, the learned Sessions Judge modified the order as to the security only and in the manner set out in his judgment.
17. I will first deal with the grounds on which all the petitioners rely.
18. The first ground, which is No. 1 in the petition, is 'that the facts found by the Courts below do not bring 'the petitioners within Section 110, Clause (f) of the 'Criminal Procedure Code.' It should be noted that this ground is confined to the allegation that the facts, as found by the Courts below, do not bring the petitioners within the section. The learned Counsel for the petitioners, however, when his attention was drawn by the Court to the actual findings of fact, alleged that such findings were not justified by the evidence, and especially he relied upon an allegation that the learned Judge's summary of the evidence of a witness, whose name was Ashita, was not justified by the evidence itself. The learned Counsel appealed to us to allow him to read the evidence of Ashita. We held that he was not entitled to read such evidence, as the Rule had been confined to the grounds that I have already mentioned. In view, however, of the learned Counsel's appeal, and in order to satisfy ourselves upon the matter, we allowed him to read the evidence of Ashita. We found upon examination of such evidence that the learned Judge's summary was substantially correct except as to one point, namely, the purchase of books: in that respect the learned Judge seems to have held that it was the petitioners who bought certain books which were described as being too dangerous to be ordered in their own names, and, therefore, ordered by Ashita as secretary of various fictitious libraries. It appears from Ashita's evidence that he did get certain, books and magazines, and they were-sent to him as secretary of certain libraries which at that time had ceased to exist, and which may, therefore, be held to have been at the time fictitious. He seems to have paid for a magazine which the Magistrate describes in his judgment as being of a dangerous character by borrowing money from Gurudas, one of the petitioners, and a book of Gokhale's speeches was paid for by Bidhu Bhusan, another of the petitioners. This variation between the learned Judge's summary and the evidence is not of such a nature as to affect materially his findings of fact, which of course were not based on this point alone. We must, therefore, consider the case with reference to the only grounds upon which the Rule was granted.
19. As regards the first ground, namely, that the facts found by the Courts below do not bring the petitioners within Section 110, Clause (f)of the Criminal Procedure Code, the material findings are as follows:--(i) 'I think 'this evidence is quite sufficient to show that the 'accused persons were associated for the purpose of 'spreading disloyal doctrines amongst school-boys and 'students, and that they were collecting recruits and 'subjecting them to a course of self-discipline for some 'purpose of which we do not know whether it was 'immediate or remote.' (ii) 'There are, therefore, 'reasonable grounds for thinking that there was a 'conspiracy to commit an offence under Section 124A of 'the Indian Penal Code, and the fact that seditious 'literature and revolver cartridges were found in the 'possession of Gurudas is evidence against the others. 'The District Magistrate has given quotations from 'this literature of Gurudas. It is sufficient to say that, ''besides several books which advocate revolution to 'shake off the foreign yoke, there are two proscribed 'pamphlets and another pamphlet, inciting to murder 'and insurrection. There are also three essays on duty, 'character and discipline (written by Gurudas according to the prosecution) in which similarly dangerous 'views are expressed' I have looked at the quotations given by the Magistrate, and I think they fully justify the description given to them by the learned Judge. (iii) 'I consider it proved that the accused persons 'were engaged in inculcating ideas of armed re-'volution in the minds of school-boys and students. 'This is certainly dangerous work.' (iv) 'I agree 'with the District Magistrate that there is sufficient 'reason to believe that the accused persons are not 'only engaged in preparing the young for a future 'revolution, but are also connected with an organization 'for the collection of money by dacoity. There is 'evidence, not only of the association with each other 'but that each of them is taking an active part in the 'work.'
20. It was at first argued by the learned Counsel for the petitioners that, whereas the objects of the petitioners were primarily directed against the security of persons and not against the security of property, Section 110 did not apply, and he referred to the case of Rajendra Narain Singh v. Emperor (1912) 17 C.W.N. 238, 261, and to a passage in the judgment of Mr. Justice Mookerjee at page 261, which runs as follows: ' The object of the 'section is preventive and not punitive, and as pointed 'out in Empress v. Nawab (1880) I.L.R. 2 All. 835, the purpose which the 'Legislature had in view was to afford protection to the 'public against the repetition of crimes in which the 'safety of property is menaced and not the security of 'persons alone is jeopardised.' The learned Counsel, however, upon his attention being drawn to Clause (e) of Section 110, which is not limited to offences in which the safety of property is menaced, admitted that he could not pursue that argument further.
21. It is to be noted that the passage referred to in the judgment cited is obiter dictum, inasmuch as the finding of the learned Judge was that the provisions of Section 110 had been misapplied, because the object of the proceedings was found to be to compel a landlord to adopt methods of management of his estate approved by the authorities but not assented to by him. Moreover, there is a decision of this Court, namely, Wahid All Khan v. Emperor (1907) 11 C.W.N. 789, which decides that a man of desperate and dangerous character means a man who has a reckless disregard of the safety of the person or the property of his neighbours.
22. Further, it is to be noted that the finding of the learned Judge in this ease is that the 'accused persons 'arc not only engaged in preparing the young for a 'future revolution, but are also connected with an 'organization for the collection of money by dacoity.' This would involve a menace not only to the persons, but also to the property of the community.
23. It was further argued that it was not found when the revolution or the dacoities were to take place, and that it might be that they might not take place for some considerable time. To my mind if the preparation and organization were being carried on, as found by the learned Judge, the mere fact that the time for the proposed revolution and dacoities had not been proved, does not prevent the danger from being a present one. In my judgment the facts found by the learned Judge are sufficient to bring the petitioners within Section 110 (f) of the Criminal Procedure Code.
24. As regards the second ground which is the 12th in the petition, namely, that the learned Sessions Judge erred in law in holding that there was conspiracy between the petitioners, within the meaning of Section 10 of the Evidence Act, so as to make the acts of one, relevant facts as against each of the accused, the point relied upon by the learned Counsel was that the learned Judge wrongly used the finding of the seditious literature and essays in the possession of Gurudas as evidence against the others to prove the object of the conspiracy The learned Judge has found that there was an association of the five accused, but the learned Counsel argued that the seditious literature might have been obtained and the essays might have been written by Gurudas, before the association was formed or before some of the others joined the association. The seditions literature and the essays together with four misfired revolver-cartridges, and one empty cartridge, were found in a locked box belonging to Gurudas at the time his room was searched, and even if it be assumed as a fact that the literature was bought by Gurudas, and that the essays were written by him before the other petitioners joined the association, that fact would not prevent the learned Judge from considering the possession of the abovementioned literature and essays by Gurudas as one of the facts in the case for the purpose of ascertaining the object of the association of the petitioners.
25. As regards the next ground, namely, that the proceedings if any should have been under Section 108 and not under Section 110, the mere fact that Section 108 may have been applicable does not necessarily make Section 110 inapplicable: and, in my judgment already expressed, Section 110 (f) is applicable to the facts of this case.
26. As regards the amount of the security fixed by the learned Judge, it is clear that he has considered the cases of the petitioners individually, and has varied the order of the Magistrate in the case of each petitioner, and, in view of the serious nature of the case, we do not interfere with the order for security, except that in the case of Manohar Pyne, we consider that the five sureties in his case should be required to be severally liable for Rs. 500 instead of Rs. 1,000.
27. Finally, it was argued that an order should not have been made against Manohar on the ground that the Magistrate had no jurisdiction to entertain proceedings against him under Section 110, the ground being that Manohar was arrested outside the jurisdiction of the Magistrate under the Defence of India Act, and that he was brought in custody to Dinajpur for the purpose of these proceedings and was in custody there at the time when the Magistrate's order was made on the 4th of May 1917.
28. It appears that Manohar was living in the same house as Manindra, and when the house was surrounded by the police on or about March 29th, Manindra fled from it and was chased over several walls and caught. Manohar was not found there though he had been seen there that morning. The Magistrate in his answer to the Rule says that there is absolutely no doubt that he Jived in Dinajpur and associated with the others. It appears that when the police began to take steps about the end of March in this matter, Manohar disappeared: he was arrested, as we were informed, on the 13th of April, under the Defence of India Act, outside the Magistrate's jurisdiction, and later on he was brought to Dinajpur, and on the 8th of May he was released from jail at Dinajpur and he was thereupon re-arrested. It is to be noted that the words of the section are 'any person within the local limits 'of his jurisdiction'--there is nothing said about 'residing' within the jurisdiction. Manohar was undoubtedly within the local limits of the Magistrate's jurisdiction at the time the Magistrate made the order on the 4th of May. The fact that he was detained under the Defence of India Act does not in my judgment take away the Magistrate's jurisdiction. It is, evidently contemplated by the Code of Criminal Procedure that an order may be made under Section 110 against a person who is in custody at the time of the proceedings, for Section 114 provides that ' when such 'person is in custody, the Magistrate shall issue a 'warrant directing the officer in whose custody he is, 'to bring him before the Court'. The learned Counsel argued that that referred only to the case where an arrest had been made within the jurisdiction. But he conceded that if a person has been arrested without the jurisdiction for an offence within the jurisdiction, and the charge of the substantive offence fails, the person can be proceeded against under Section 110. That being so, Section 114 cannot be limited to arrest within the jurisdiction.
29. In my judgment the Magistrate had jurisdiction to entertain, proceedings against Manohar under Section 110.
30. For the abovementioned reasons, in my judgment, the Rule should be discharged.
31. I agree.