1. The petitioners are persona against whom proceedings have been taken under Section 110, Criminal Procedure Code. A Rule was issued upon the District Magistrate to show cause why those proceedings should not be quashed on the grounds, firstly, that in consideration of certain proceedings under the Criminal Tribes Act and of the result of the inquiries made into certain cases of alleged dacoity, there was no material disclosed in the Police report on which the proceedings under Section 110, Criminal Procedure Code, could be based and, secondly, that in view of the sentences of imprisonment which the petitioners Nos. 1, 11, 12, 14 and 15 are undergoing under the provisions of the Criminal Tribes Act the proceedings under Section 110, Criminal Procedure Code, against them cannot stand. In his argument before us to-day the learned Pleader for the petitioners has confined himself to those petitioners who have been registered under Section 4 and the following sections of the Criminal Tribes ' Act. Moreover, he has confined himself to contending that those petitioners cannot or ought not, having been so registered, to be proceeded against under Section 110, The learned Pleader concedes that there is no express provision in the Criminal Tribes Act or in any other Act which has the effect of making it illegal for the Magistrate having jurisdiction to proceed under Section 110, Criminal Procedure Code, to so proceed against a person who has been registered under the Criminal Tribes Act. He has argued, however, that once a man has been registered under the Criminal Tribes Act the authorities have so much control over his movements and his conduct that it is entirely superfluous to take proceedings against him under Section 110, Criminal Procedure Code. Now, in every case there is a question of discretion whether the person proceeded against under Section 110 should or should not be bound down to be of good behaviour under that section. The fact that the persons proceeded against are already registered under the Criminal Tribes Act may be a factor, and an important factor, which the Magistrate should take into consideration before he makes any order against them under Section 110. But, in my opinion, we should be going beyond our duty as Judges. We should be elevating ourselves into a Legislature if we were to lay it down as a fixed and immutable rule--a rule from which there can be no departure under any circumstances or whatever the circumstances of a particular case may be--that a man who has once been registered under the Criminal Tribes Act cannot be proceeded against under Section 110, Criminal Procedure Code. The proceedings which we are asked to quash are proceedings pending before the Court below. This Court has, as a rule, refrained from interfering with any pending proceeding unless there was some strong ground for intervening. The facts of the present case have not been gone into in the Court below and evidence has not been taken; when evidence is taken other matters may come to light which are not now before us. In the circumstances, in my opinion, it would not be right for us to interfere at the present stage The Magistrate will, no doubt, consider the facts of the case of each of the petitioners before passing any order against him under Section 110. At this moment, it is not for us to say that he will not exercise his discretion properly and reasonably. In my opinion, therefore, this Rule should, in the present stage of the proceedings, be discharged.
2. It seems to me that there are essential differences between persons against whom action is contemplated by the Criminal Tribes Act and those who come within the purview of Section 110 of the Criminal Procedure Code. The former Act contemplates joint action against a group of persons forming a tribe, gang or class, whereas the latter contemplates action against individuals. The group of persons contemplated by the Criminal Tribes Act are persons addicted to the systematic commission of non-bailable offences generally, whereas the individuals against whom action under Section 110 of the Criminal Procedure Code may be taken are parsons who habitually commit the particular offences mentioned in the section and persons who are so desperate and dangerous as to render their being at large without security hazardous to the community.
3. It will thus appear that the mere fact that a group of persons have been registered under the Criminal Tribas Act would not necessarily render the individual members of it liable to be proceeded against under Section 110 of the Criminal Procedure Code and vice versa. It cannot, therefore, be said that, as a matter of law, action under Section 110, Criminal Procedure Code, cannot be taken against a person registered under the Criminal Tribes Act, and I agree in holding that the present proceedings under Section 110 of the Criminal Procedure Code against those who have already been registered, as belonging to a criminal tribe, are not illegal. I have, however, been very much impressed by the arguments put forward before us regarding the expediency of taking such a proceeding. It seems to me that as soon as a man is brought under the Criminal Tribes Act, the control obtained over his movements under that Act should ordinarily be sufficient to attain the objects aimed at by proceedings under Section 110, Criminal Procedure Code, and it should not be necessary to proceed further against such a person under that section. One objection to the adoption of such proceedings is this. Having been declared a member of a criminal tribe, it is unlikely that any one would stand surety for such a person and the inevitable consequence would be imprisonment for failure to furnish security. Section 110, Criminal Procedure Code, I need hardly say is not meant to be a penal provision but is a preventive -measure. I would have been prepared as a matter of expediency to quash these proceedings, but the evidence has not been gone into and we are not aware of any special circumstances that may exist for taking these proceedings. I, therefore, agree with my learned brother that at the 'present stage it would be inexpedient for this Court, to interfere with the order complained of.