W. Comer Petheram, C.J. and Beverley, J.
1. This is a rule, which was granted by a Division Bench of this Court, on the 6th of August last, calling upon the District Magistrate of Sarun to show cause, why an order made under Section 118 of the Code of Criminal Procedure, by which a person called Rai Isri Pershad was directed to be bound down with sureties to be of good behaviour for a period of three years, should not be set aside on the ground that the order is based mainly on evidence that is inadmissible; and that, if that evidence be excluded, the remaining evidence will not support the order.
2. The rule was argued before this Bench for several days, and is now ready for judgment.
3. In considering the matter it will be necessary to consider several sets of circumstances in their order of date, in order that we may arrive at a proper conclusion in this case, and the first set of circumstances, which I propose to consider, is the set of circumstances connected with the proceeding's under Section 110 and the sections which follow, and those circumstances are these: Some time early in the month of August 1894 Rai Isri Pershad was cross-examined before a criminal tribunal in the interests of a person called Buldeo Ram, and after that examination had taken place, Buldeo Ram, on the 6th August, presented a petition to the Magistrate of Patna City, which is the foundation of these proceedings. That petition, as I said just now, is dated the 6th August 1894, and was presented to Mr. Hughes, the City Magistrate of Patna. In it Buldeo Ram states that, after the examination of Rai Isri Pershad, he is very much afraid of his life, as he has come to know from very reliable sources that Isri has given orders to badmashes to beat the petitioner wherever he may be found; that only the day before yesterday, when the petitioner went to the temple of Gokaljee to worship, a boy came running to him and saved him from the hands of badmashes by giving the petitioner timely notice; that a person by the name of Gopee who was in the employ of Isri Pershad, and which post he had given up for fear, as the Rai Saheb asked him to do many things outside his legitimate duty, came and informed the petitioner and his master to be very careful about their movements, as free orders had been given to the badmashes to thrash the petitioner; and that the petitioner and his master, belonging to the firm of Ganga Ram, were obliged to give up bathing in the river, and were constantly afraid of their lives; and the petition on these statements requests that they may be protected, and that proceedings may be taken against Rai Isri Pershad under Section 110; and it states that the petitioner is in a position to prove every act of extortion on his part. On that, the City Magistrate made an order that two constables should be deputed to protect these persons.
4. The next thing that happened was that on the 22nd of August the police commenced to collect evidence, and they were engaged from the 22nd to 31st of that month in collecting the statements of several persons as to the character and acts of this man, Isri Pershad. Before the taking- of that evidence had been completed by them, they, on the 27th of August 1894, submitted to the District Magistrate a report for his orders, and the report which they submitted to him may or may not have been accompanied with the evidence of the witnesses which had been recorded by them. It is not clear that it was; at any rate, the report does not allude to it. However that may be, the report says:
I bog to submit herewith the report for the institution of proceedings under Section 110 of the Criminal Procedure Code against Rai Isri Pershad for favour of sanction to the prosecution and signature of the report. Of the first seventeen witnesses, Babu Sita Ramjee and Bhowani Persad, (I should say that this Bhowani Persad is the master of the petitioner Buldeo Ram), will prove extortion, and the rest general bad character and extortional habit of the accused. The remaining thirty witnesses will give direct evidence in support of extortion.
5. The names of the witnesses are appended to the report. Upon that the District Magistrate made an order sanctioning the prosecution.
6. Now it is to be noticed that no sanction by a Magistrate is necessary under the law before proceedings are taken under this section; but it appears to have been the practice for the District Magistrate of Patna to have the proceedings submitted to him before any action of this kind was taken, and it was accordingly done in this case.
7. The District Magistrate having made the order sanctioning the proceedings, the next thing that was done was that Mr. Hughes, the City Magistrate of Patna, on 3rd September, recorded a proceeding under Section 112 of the Code, in which proceeding he said that he was satisfied from credible information received, that is, the report of the Inspector of Police, Patna City, dated 27th August last, on the petition of Buldeo Ram, dated 6th August, that the above-named Rai Isri Pershad habitually committed extortion, and in order to the committing of extortion habitually put and attempted to put persons in fear of injury, and he accordingly ordered Rai Isri Pershad to show cause why he should not execute a bond in personal recognisance of Rs. 25,000, with two sureties each in Rs. 12,500, to be of good behaviour for a period of three years.
8. Now it appears from this proceeding that the City Magistrate acted entirely on the report of the Inspector of Police, but there is nothing on the face of that report to indicate that the statements of the witnesses, who were examined by the Police, were before him to justify him in calling upon this man to show cause why he should not be bound down in consequence of his habitually committing extortion.
9. However, the next day the ordinary notice to show cause was served on Isri Pershad, and then the matter went for trial before the Patna Magistrate in the ordinary way. But on the 19th September 1894 a rule was obtained from this Court to transfer the matter to some other district. Mr. O'Donnell, the District Magistrate, showed cause by letter, but that rule was made absolute on the 24th October 1894 to transfer the case to the District Magistrate of Sarun. On the 4th November 1894 the enquiry was commenced before the District Magistrate of Sarun and continued for a very long time, the final order being dated 6th June 1895. An enormous number of witnesses were called, and, so far as we can ascertain, during the whole of that time the bulk of the expenses was borne by Buldeo Ram or his master, Bhowani Persad, who may be properly described as the private prosecutor in this case. We are told that the Government Pleader appeared for the Crown; but Counsel appeared for the private prosecutors during the whole of the enquiry, and apparently the expenses of the witnesses connected with the hearing were defrayed by the private prosecutors. Bo far as the proceedings on the record show, the prosecution was conducted, not in the interest of any public affair or in the interest of the public generally, but in the interests of these two persons Buldeo Ram, the petitioner, and Bhowani Persad, his master. On the 6th of June 1895 the District Magistrate of Sarun made an order, and by that order he found that this person Isri Pershad had been for a long time in the habit of committing extortion, so as to bring the matter within the meaning of the law, and he made an order that he should be bound down in his own bond for Rs. 25,000, with two sureties each for Rs. 12,500, to be of good behaviour for three years, and in default of his executing such bond he sentenced him to undergo three years' rigorous imprisonment, unless the bond was executed in the meantime. Upon that, rather than go to prison, Isri Pershad elected to execute the bond, and he executed the bond and obtained two sureties, so that the thing was complete so far as it went.
10. Having done that, this rule was obtained, and it has been opposed by Mr. Pugh, who appears for the Crown, and he has been assisted during the hearing before us by the same Counsel as appeared for the private prosecutors at the enquiry in the Court below.
11. It has been contended by Mr. Pugh, on the part of the Crown, that the proceedings in this case having been referred by the Magistrate for the orders of the Sessions Judge, under the provisions of Section 123 of the Code of Criminal Procedure, this Court ought not to interfere at the present stage, but should leave it to the Sessions Judge to revise the proceedings and make such orders as he may deem necessary. It appears, however, that the bond which Rai Isri Pershad was ordered to execute has been executed by him, and that he is not, and has not been, detained in prison in default of executing such bond. That being so, it appears to us that it was not necessary to submit the proceedings for the orders of the Court of Session under Section 123, and that the Court of Session has no jurisdiction to interfere with the order made by the Magistrate. By Section 110 the Magistrate is authorized to require an habitual offender of any of the classes therein specified to show cause why he should not be ordered to execute a bond with sureties for his good behaviour for such period not exceeding three years as the Magistrate thinks fit to fix. Then Section 123 runs as follows:
If any person ordered to give security under Section 106 or Section 118 does not give such security on or before the date on which the period for which such security is to be given commences, he shall, except in the case next hereinafter-mentioned, be committed to prison, or if he is already in prison, be detained in prison, until such period expires or until within such period he gives the security to the Court or Magistrate which or who made the order requiring it, or to the Officer in charge of the jail, in which the person so ordered is detained.
When such person has been ordered by a Magistrate to give security for a period exceeding one year, such Magistrate shall, if such person does not give security as aforesaid, issue a warrant directing him to be detained in prison pending the orders of the Court of Sessions, or if such Magistrate be a Presidency Magistrate pending the orders of the High Court, and the proceedings shall be laid, as soon as conveniently may be, before such Court.
Such Court, after examining such proceedings and requiring any further information or evidence which it thinks necessary, may pass such order on the case as it thinks fit : Provided that the period (if any) for which any person is imprisoned for failure to give security shall not exceed three years.
Imprisonment for failure to give security for keeping the peace shall be simple.
Imprisonment for failure to give security for good behaviour may be rigorous or simple, as the Court or Magistrate in each case directs.
12. Now the whole of this section, as we read it, relates to the procedure to be followed in case the person ordered to give security does not give it on or before the date on which the period for which the security is to be given commences. The first clause is general, and provides that, except in the case mentioned in the second clause, the person ordered to give security shall on' such default be committed to or detained in prison, until such period expires, or until within such period he gives the security required. The case mentioned in the second clause is where the person has been ordered to give security for a period exceeding one year; and in that case the Magistrate, instead of issuing a warrant for the detention of such person in prison during the period for which security is to be given (unless the security be given in the meantime), or making an order for imprisonment, as Mr. Slack has done in this case, is required to issue a warrant directing his detention in prison pending the orders of the Court of Session, and to submit his proceedings to that Court for such orders as it thinks fit; and it is for the Court of Session to make an order then, if it thinks fit, for the detention of such person in prison, if he fails to give the security, for a period not exceeding three years. But the whole of the section has reference to the case where default is made in furnishing the security required. If that security is given, the section does not apply, and no reference to the Court of Session is necessary.
13. This, as we are given to understand, was also the view of the law which was taken by the Bench of this Court which granted the rule, and we think it is the correct view; and according to that view it is this Court and this Court only that has jurisdiction to revise the proceedings in the present case by virtue of the powers vested in it by Section 439 of the Code.
14. That being our view of the law, it becomes necessary for us to consider this case upon the evidence to enable us to form an opinion as to whether this order is justified according to the law. In considering that evidence, the learned Magistrate has divided it into three heads. He says:
The evidence given falls under one or other of the following heads:
I. Specific instances of extortion committed by or under the orders of Rai Isri Pershad.
II. Association with badmashes by the accused.
III. General reputation.
15. And he proceeds to discuss each of these heads in detail in the order in which he has mentioned them, though in doing so it is to be noted that he continually reasons in a vicious circle, holding that particular instances are proved because of general reputation, and vice versa. I think it is better, for the purpose of what I have to say, to consider the last two heads before the first; the second being association with badmashes, and the third general reputation.
16. Evidence of general reputation is admissible in a case of this kind under Section 117 of the Code; the concluding part of that section running as follows:
For the purposes of this section the fact that a person is an habitual offender may be proved by evidence of general repute or otherwise.
17. Now the evidence of associating with badmashes on this record falls pretty much in the same category as evidence of general repute, because the evidence of consorting with badmashes, except in one or two instances which I shall mention later on, is really evidence which is supposed here to be evidence of repute. Now as to that, after considering this evidence very carefully and putting the greatest value we can upon it, we think that none of it is practically evidence of general repute at all. What it is, is that it is evidence that there were rumours in this city of Patna that this particular man had committed acts of extortion on various occasions that he had badmashes in his employ to assist him in that way, and generally that he was a man of bad character. 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 a man of that character. On the other hand,, if the state of things is that the body of his fellow-townsmen 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 particular acts 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, and consequently we think that the evidence of general repute in this case is evidence of little or no value. And, in addition to the evidence which is supposed to be evidence of repute, there are whole pages of evidence, which is hearsay evidence on the face of it, and there is line after line of evidence in which witnesses deliberately state, and are allowed deliberately to state, things which they have heard from other people, which can be no evidence of repute, and no evidence of the circumstances.
18. That being the state of things with reference to the evidence as to the man's reputation, we think that the question resolves itself into a question of the value of the instances of extortion committed by or under the orders of Isri Pershad. Now there was evidence given before the learned Magistrate of no less than thirty-two specific instances of extortion. After considering the evidence as to them all, the Magistrate came to the conclusion that twenty out of the thirty-two cases were not sufficiently proved, but that twelve out of the thirty-two were sufficiently proved for him to act upon, and he considered that this person, Isri Pershad, had been guilty of those twelve acts of extortion, or attempts at extortion, and that was enough to induce him to come to the conclusion that he committed this particular kind of crime habitually, and that it was right for him to make the order he did.
19. The first thing which struck us in going through this record was that the Magistrate had paid very little attention, practically no attention, to the order in which the various offences here happened, and when one looks at the order of events and the state of things in each of these twelve cases which are said to have been proved, and which are said to have happened, we think that it throws very considerable light upon the case; and in that view I propose to consider what the position of this man, with reference to his fellow-townsmen and to the authorities, had been for some time before these acts had taken place, and what it was at the time of their occurrence, and then to consider what kind of offences they are which he is said to have committed.
20. It is necessary to go back as far as the beginning of the year 1891. In the month of March of that year Rai Isri Pershad was living at Patna, in the same place, so far as we know, that he is living in now. It is part of every one's case that he is a zemindar of very considerable means, and apparently he is living there and has been living there on his property and in his own house, and on the 31st March 1891 a person called Jaggernath Singh, who was a notorious badmash (by badmash I understand the Magistrate here to mean a bazaar bully; I think that is the expression used somewhere in these proceedings), and the leader of a gang of bullies who terrorised and ill-treated the people in the town of Patna and in the bazaar, was, at the instance of Rai Isri Pershad, convicted of criminal intimidation and bound down to keep the peace, and that conviction and sentence was upheld on appeal on the 18th April of that year.
21. So far as this record shows, nothing further happened until the month of December 1892, and on the 31st of that month a man of the name of Babu Khan, who is said to be a man of the same description as Jaggernath Singh, was bound down to keep the peace, also at the instance of Rai Isri Pershad, on the 25th of March 1893.
22. And now in 1893 we come to a year which is very important in the consideration of these special cases. On the 29th March 1893 a man called Govind Persad with two others were committed for trial for an assault on Rai Isri Pershad, and on the 8th May of that year they were all three convicted, Govind Persad being sentenced to ten years' rigorous imprisonment and the other two to terms of seven years each. During all that time Mr. Birch had been District Superintendent of Police of the district of Patna, he himself living at Banki-pore, which is quite near to the city of Patna; and on the 2nd September 1893, when apparently he was leaving the district, Mr. Birch wrote the following letter to Rai Isri Pershad:
I write to thank you for the very valuable assistance you and your friend Bajpai Vija Narayan have afforded me from time to time during my incumbency as District Superintendent of Police, Patna; you have always shown yourself a staunch friend to Government interests, and I hope that, though I am going away, you will always keep me in mind and occasion ally let me know how you are and how everything is going on in the Patna district, in which I take a great interest, and where I hope to be remembered.
23. That was the state of things; at all events, that was this man's reputation with the Police of the district on the 2nd September 1893.
24. As I said just now that is a date which is very material for the purpose of what I shall say presently. On the 8th of that month a person called Gunga Singh was also, at the instance of Rai Isri Pershad, ordered to execute a bond by the authorities, and it may be noted in passing that this man, Gunga Singh, was sentenced to three months' imprisonment dating from about September, which would take it up to December in that year. Whilst this person, Gunga Singh, was in prison (it may be just noted, though the fact has nothing to do with what I have to say now) there was some question as to the paving of a gully in Patna city, and in that connection a book of accounts is produced by Bhowani Persad who is the master of Buldeo, whose name appears as complainant on this petition; and in that book there is an entry, of date the 10th October 1893, of the payment of a sum of Rs. 200 by Bhowani Persad to Isri Pershad. Bhowani Persad has been called as a witness in this case, and he says that this sum of Rs. 200 was paid by him to Isri Pershad under compulsion as his contribution towards the expenses of paving this gully, and that the person who was used for that purpose was Gunga Singh. That was on the 10th October 1893, when apparently Gunga Singh was in prison. On the 19th November of the same year, a little more than a month after, an order was made by the Municipality that the gully should be paved, and that Isri Pershad was to defray the expenses of paving it. The only thing which I will at this moment notice as to that is what this circumstance shows, namely, that Isri Pershad, on the 19th November, had, as between himself and the Municipality, undertaken to bear the expenses of paving the gully, but as between himself and Bhowani Persad he had, at all events before giving the undertaking, got a contribution from him towards it.
25. That was the state of things at the end of the year 1893. In the month of February 1894 Gunga Singh had been released from prison, and then it appears that at that time Rai Isri Pershad was willing to take him into his service, if the authorities saw no objection to his doing so, and on the 6th February 1894 he wrote a letter to Mr. Judge, who was then District Superintendent of Police at Patna, having taken the place of Mr. Birch, who had apparently been transferred in the September before. The object of that letter was to tell him (it appears to have been in continuation of a conversation which he had previously had with him) that this man Gunga Singh had come out of jail; that he was badly off and had applied to him for employment; and that he, Isri Pershad, would be willing to take him into his employ if the authorities saw no objection; and the letter contained a suggestion that, if the man proved himself a reformed character, his name might be expunged from the surveillance register. Mr. Judge replied on the same date, and his reply was this: 'I will make enquiries about the man referred to by you, and, if he is really trying to be honest, I will strike his name off the register.' Under these circumstances Rai Isri Pershad did retain this man in his service; and, so far as we know, he is in his service still; at all events, he was in his service for some time after, at any rate down to the month of May. In the month of May 1894 Buldeo Earn, who is the complainant here, made a complaint against Gunga Singh and other persons, Gunga Singh being the person who had been in the employ of Rai Isri Pershad. We do not know what became of that case, but in August 1894 another complaint was made by Buldeo Ram against Narain and three others, in which he complained that they were in the service of Rai Isri pershad, and that they had committed an assault upon him, charging Rai Isri Pershad with having instigated it. It is said that the charge brought by Buldeo in August 1894 was eventually dismissed; at any rate, we do not know what became of it; certainly, Isri Pershad was never convicted of any offence. That brings the matter down to the month of August in last year, and the correspondence with Mr. Judge, which is in February 1894, shows that, so far as the District Superintendent of Police and the Police were concerned, down to February 1894 nothing was known against Isri Pershad. In September 1893 he got from Mr. Birch a testimonial of the warmest kind in his letter wishing him good-bye, and in February 1894 he got from Mr. Judge his acquiescence to his taking this man Gunga Singh into his service, and what his acquiescence to the suggestion made by Rai Isri Pershad amounted to was that the man's name should be struck off the surveillance register, if he conducted himself well in Rai Iari Pershad's service. This is a state of things which it is hardly possible to suppose would have existed, if Mr. Judge was aware that this man was a man of bad repute, and it is hardly possible to imagine that he should have been a man of bad repute in the sense that his general character in the place was a bad one, if the District Superintendent of Police knew nothing at all about it.
26. That being the state of things, so far as his general reputation, and so far as the Police were concerned, we will now consider what these twelve cases are which are mentioned by the Magistrate, and the material part of them is the occasion when they are said to have happened. The earliest of them is the case of Mewa Lal, and the extortion in his case is said to have taken place in February or March 1893, that is to say, six months before Mr. Birch left the place. All of them are in 1893, except one, the case of Nepali Dhanna, as to which the Magistrate says it is impossible to ascertain when it took place, although he considered that it was sufficiently proved for him to act upon it, and the last of them, so far as any date is given, is that of Latchmee Narain, which is said to have taken place in December 1893; so that all these come well within the period covered by the knowledge of these men, or rather the opinion which these men formed of his character in the course of their experience as District Superintendents of Police, namely, Mr. Birch and Mr. Judge.
27. I do not propose to consider all these cases but only one or two of them. The first case that I may as well consider is that of Bhowani Persad, the master of Buldeo Sam, the complainant in this case, and the person who himself made the complaint against Rai Isri Pershad and his servants in August 1894, a very few days before this petition was filed by Buldeo. His grievance is with reference to the sum of Rs. 200 which I mentioned just now as having been paid by him on the 10th October 1893 towards the paving of the gully. His story is that he was sent for one day early in the month of October by Rai Isri Pershad through some of his servants; that when he went there attended by some of his servants, Rai Isri Pershad told him that the gully had to be paved; that he had to subscribe and to pay a sum of money; and that if he did not do so, he would experience trouble afterwards, or some such expression which I understand conveys some considerable meaning when used between people in this country, and because he thought, from Rai Isri Pershad's reputation as an extortioner and a badmash, and from his consorting and associating with badmashes, that if he did not pay the money, something terrible would happen to his honour, he paid it. Now it must be borne in mind that a witness was called by Rai Isri Pershad as to this interview, and he says that he was present on that occasion, and that it was a mere question of obtaining subscriptions towards the paving of this gully and that the thing was done amicably; and the parsons who subscribed did so because they wished to see the work done; and this view is borne out by the fact that Rai Isri Pershad does not seem to have consented to beer the expenses of paving the gully, until he ascertained how much other people agreed to contribute towards the work. This is shown very clearly by the dates, for this money was paid by Bhowani Persad in October, and Rai Isri Pershad undertook to bear the expenses in the end of November. Under these circumstances, and having regard to the fact that this is not a prosecution instituted in the interests of the public, but one instituted in the interests of these men, the private prosecutors, we do not think that this is evidence which we are prepared to act upon. The probabilities appear to us to be very strong in favour of the view set up by the defence, and we do not think that this case of Bhowani is a case on which we should consider it safe to act upon. Several other cases relied on by the Magistrate have reference to money, which is said to have been extorted for the purpose of paving this gully.
28. There are one or two other cases which we will notice, particularly the case of a man called Dip Lal, which is said to have taken place in October 1893. The case made there is that at this time Rai Isri Pershad, and the whole of the Police connected with the city of Patna, were acting in concert, the head constable, the inspectors and everybody concerned, and were in the habit of doing so, and when a person wanted to extort money either for Rai Isri Pershad or the Police, the practice was for, some of Rai Isri Pershad's servants, or for the Police, who were acting with them, to go and bring the man they had pitched on to Rai Isri Pershad's house, and when he was there for Rai Isri Pershad to inflict a fine upon him with an intimation that, if the money were not paid, he would be sent to the thannah to be dealt with by the Police. In this case, that of Dip Lal, it is said that he was brought to Rai Isri Pershad's house by fifteen or sixteen constables. This is the statement that was made before the Magistrate, but before the Police the statement was that he was taken there by ten or twelve constables. If that was the state of things in Patna, it is hardly possible that it should not have been, notorious. This is said to have been the case in October 1893, and yet in February 1894 we find the District Superintendent of Police treating this man as if he were a man to be trusted and a man in whose service an old badmash could regain his character. We feel it difficult to understand how a badmash, such as Isri Pershad is said to be, could gain such a character with the authorities, or how such a state of things as is revealed in the case of Dip Lal could have existed. As to that class of cases, this is not the only one in which the Police are said to have been implicated. We cannot understand that, if that was the state of things, and if the Police authorities during all these years had known, as they must have known at all events in February 1894, that things were in this state with the Police, there should have been no enquiry into their conduct. So far as the Police are concerned, it is said that one or two of them have been transferred to other places, and it appears that that is the usual mode of dealing with them when they fall under the suspicion of the authorities, but we have not been told that there has been any enquiry into their conduct, or that any Police officer has been punished for his complicity in these transactions. It has been said that no enquiry has been made into the conduct of any Police officer, because nobody has bad the hardihood to come forward and prosecute Rai Isri Pershad, or any of his servants, for the offences which they are said to have committed.
29. Now that being the state of the evidence, there being such a mass of testimony of general rumour which is not evidence in any sense of the word, and the testimony which is evidence, if it is true, being of such a character, we do not think it is possible, in this state of things, to act upon it here, having regard especially to the fact that this was not a prosecution instituted in the interests of the public, but instituted at the instance and in the interests of a man who is manifestly on bad terms with this man Isri Pershad, We cannot help thinking that, if that state of things, which is said to exist and to have existed, had in truth existed there, some very different measures would have been taken by the authorities on their own motion than those which have been taken; and that being the state of things, we cannot think it safe to act upon this evidence, and the result is that the rule will be made absolute and the bonds will be cancelled.