Lancelot Sanderson, C.J.
1. 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 set aside and such other or further order passed as to this Court might seem fit, as regards Monohar Pyne on the ground that the District Magistrate had no juris* diction 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, Criminal Procedure Code.
2. 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 Bhuttacharjee 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 dacoities 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.
3. 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, Criminal Procedure Code against,' (then he set out the names of the five petitioners) 'and Jogendra Kishore Bhuttacharjee. Draw proceedings under Section 110, Criminal Procedure Code (f), to execute a bond of Rs. 10,000 with 5 sureties of Rs. 2,000 to be of good behaviour for 3 years. Issue warrant bail Rs. 3,000 against the absconder Jogendra Kishore, Bhuttacharjee with 2 sureties of Rs. 1,500 each.'
4. The case was heard by the Magistrate and after a prolonged hearing, the Magistrate ordered that the five petitioner should be bound down in the terms of the notice. The man Jogendra Kishore Bhuttacharjee 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 and in the manner set out in his judgment.
5. I will first deal with the grounds on which ail the petitioners rely.
6. 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 facts 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.
7. 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:
(1) 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.
(2) There are, therefore, reasonable grounds for thinking that there was a conspiracy to commit an offence under Section 124A, 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 worked at the quotations given by the Magistrate and I think they fully justify the description given to them by the learned Judge.
(3) I consider it proved that the accused persons were engaged in inculcating ideas of armed revolution in the mind of school boys and students. This is certainly dangerous work.
(4) 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.
8. 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 Narayan Singh v. Emperor Page of 17 C.W.N.--Ed 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 of India v. Nawab 2 A. 835 : 1 Ind. Dec. (N.S.) 1120, 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 persona 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.
9. 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 Ali Khan v. Emperor 11 C.W.N. 789 : 6 Cr. L.J. 1 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.
10. Further it is to be noted that the finding of the learned Judge in this case is 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.' This would involve a menace not only to the persons but also to the property of the community.
11. 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.
12. 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 seditious literature and the essays together with four misfired revolver cartridges and one empty cartridge were found in a looked 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 above mentioned literature and essays by Gurudas as one of the facts in the case for the purpose of ascertaining the objects of the association of the petitioners.
13. 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 the case.
14. 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 Monohar 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.
15. Finally it was argued that an order should not have been made against Monohar on the ground that the Magistrate had no jurisdiction to entertain proceedings against him under Section 110, the ground being that Monohar 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.
16. It appears that Monohar 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. Monohar was not found there though he had been seen there that morning. The Magistrate in his answer to the Rule fays that there is absolutely no doubt that he lived 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, Monohar 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; Monohar 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. Bat 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.
17. In my judgment the Magistrate had jurisdiction to entertain proceedings against Monohar under Section 110.
18. For the above mentioned reasons, in my judgment the Rule should be discharged.
18. I agree.