1. The Petitioners in this case hare obtained a Rule in the following terms: Let the record be sent for, and a Rule issued upon the District Magistrate to show cause why the order binding down the petitioners for good behaviour should not be set aside, or why such other order on the matter should not be passed as to this Court may seem fit, on the ground that the case of the petitioners was hot separately dealt with by the Sessions Judge and the Additional Magistrate in accordance with law, and why the sureties tendered by the petitioners should not be considered by the Magistrate himself under Section 122, Cr.P.C. and let a Rule also issue on the District Magistrate to show cause why the petitioners should not be released on the securities tendered for good behaviour, and meanwhile pending the hearing of the Rule, let the petitioner, be admitted to bail for their appearance whenever wanted to the satisfaction of the District Magistrate.'
2. It will be seen that there are three principal points for determination, namely, (i) whether the order of the Sessions Judge confirming the orders of the Additional District Magistrate can be sustained, (ii) whether the Petitioners should have been separately tried by the Magistrate, and (iii) whether the, sureties tendered should have been refused.
3. On the first point the learned Counsel fop the petitioners relies on the decision in the case of Jamait Mullick v. Emperor 35 C. 138 : 12 C.W.N. 135 : 6 Cr.L.J. 427, where it is laid down that the judgment of ah appellate Court should show on the lace of it that the case of each accused has been taken into consideration. The learned Counsel for the Court argued; that this ruling is not applicable, inasmuch as the order of the Sessions Judge is not an appellate judgment. Now it may be open to doubt whether the provisions of sections 367 and 424, which apply to judgments in trials and in appeals, govern orders under Section 123, Sub-section (3). But even if they do not, it is only reasonable to require the Sessions Judge, in writing his order, to show that he has considered the case of each individual prisoner, as it is his duty to do. Even if the order need not contain all the details required by Section 367, still each prisoner has a right to have his case considered on its own merits, and the order should show that this has not been lost sight of. I am not entirely satisfied that this has not been lost sight of in the present case.
4. On the second point I am quite satisfied that the joint trial was perfectly legal and proper. Numerous rulings have been cited on the point but the words of the section are perfectly clear in themselves and stand in no need of elucidation. These proceedings have been taken against the accused because they are said to belong to a gang of swindlers who (principally by means of the confidence trick) cheat ignorant people of their money, resorting occasionally to more drastic methods, when the victims are hot sufficiently intelligent. The matter under enquiry is whether these persons do or do not habitually cheat in concert as members of the gang. The confidence trick cannot be worked by a single swindler. It requires numbers and these people are said to have associated themselves together obviously that this difficulty may be overcome. It is argued that by this joint trial evidence of the acts of cheating committed by one member of the gang is improperly used as evidence against another. The argument does not impress me. It can hardly be disputed that evidence of habitual association with habitual cheats would be admissible as evidence against the person so associating. Indeed evidence of association with bad characters is the commonest kind of evidence in proceedings of this nature. If that is so it is surely relevant to give evidence as to what kind of people they are with whom the accused associate, and if they are a gang of swindlers, the fact is certainly relevant and may be proved against the accused. When the question is whether a man is a habitual cheat the fact that he belongs to an organization formed for the purpose of habitually cheating in concert is surely relevant under Section 11 of the Evidence Act. If that is so it is clearly open to the prosecution to prove against each accused that the gang is a gang of cheats, or in other words that the members of the gang do cheat. It would surely the impossible to hold that it may be proved that the accused associates with a gang of swindlers, but that it may not be proved against him that the members of the gang do swindle. It appears to me that the existence of this gang, and the relations of each of the accused to it are the matters under enquiry in these proceedings, and that as the petitioners are alleged to have been associated in these matters, the joint trial is perfectly legal. As to the argument that even if the joint trial is legal, yet separate trials ought to have been held, that has been committed by the Legislature to the discretion of the Magistrate, which I have no desire to abridge. But, in my opinion, this is a case in which the accused persons ought certainly to have been tried together. The Magistrate says 'No one would expect every member of a gang of this sort to be openly engaged in the actual execution of each individual swindle, but the similarity of the tactics employed, the constant association of different groups of this gang in similar swindles, the evidence of complicity offered by several incidents in which members subset quently took a hand, and lastly the evidence of the accomplice who proves the sharing out of the profits of these transaction among the different members of the gang, all these facts show clearly that for the purpose of swindling and extortion the accused were members, oft one gang.' To deal with the members of a great criminal organization like this separately would, in my opinion, have been wholly, injudicious.
5. On the third point there are two rulings of the Allahabad High Court, that an inquiry-under Section 122 must be made by the trying Magistrate himself. It has been contended by the learned Counsel for the petitioners that under that section the trying Magistrate must, on the day that he decides the case, proceed to inquire on sworn testimony, without the assistance of any Police or other officer, into the fitness of the sureties tendered. This means an enquiry into their financial position, their character, and their other qualifications to be accepted as good security for the good behaviour of the accused. In the present case there were 13 persons bound down and 39 sureties required, so that the case itself would have been a mere preliminary to the inquiry into the fitness of the sureties. Of course, if this is the law, it must be enforced, but it appears to me to be a superstructure out of all proportion to the simple words that constitute, its foundation, Those words are A Magistrate may refuse to accept any surety offered under this chapter on the ground that, for reasons to be recorded by the Magistrate, such surety is an unfit person.' That is all and I think it is open to considerable doubt whether the section contemplates an inquiry in the form of a judicial proceeding at all. It has been held in Allahabad that such an inquiry is a judicial proceeding, and in the case of Suresh Chandra' Basil v. The Emperor 3 C.L.J. 575 : 3 Cr.L.J. 468, that learned Judges disapproved of the Magistrate's acting on a police report, which may perhaps imply that they considered that the Evidence Act applied. The point, however, does not seem to have been fully considered.
6. I doubt whether, Section 122 necessitates a judicial inquiry at all; but, if it does, I see no reason why such an inquiry should not be delegated to another Magistrate. It was held in Gurudas Nag v. Gaganendra Nath Tagore 2 C.L.J. 614, that proceedings under Section 145 can be transferred, and that, even if they could not Section 529(f) would cure the irregularity. This principle was extended to proceedings under Section 107 by the decision on the case of Surjya Kant Roy Chowdhury v. Emperor 31 C. 350. I may refer to Sarat Chunder Roy v. Bepin Chundra Roy 6 C.W.N. 552 : 29 C. 389 and Ram Kishore Roy v. Dwarka Nath Sen 10 C.W.N. 1095 : 4 Cr.L.J. 223. Even assuming, therefore, that Section 122 contemplates a regular judicial inquiry, I see no reason why such an inquiry alone, among inquiries under the Code, should not be subject to the operation or sections 192 and 528.
7. Next it is argued that the Magistrate should have recorded his reasons. No doubt this is so, but I do not think that the omission in the peculiar circumstances of this case justifies interference in revision. The Magistrate, to whom the inquiry was transferred, recorded his reasons for rejecting the sureties, and the orders of the Additional District Magistrate, rejecting the safeties, are written just below. It H clear that he accepted the reasons of the inquiring Magistrate and made them his own. Nor could he possibly have done otherwise in most of the cases on the reasons given. As regards several of the petitioners it does not appear from the record that they offered any sureties at all. Nor is any complaint of the rejection of sureties made in the petition on which this rule was granted. In the case of others their sureties were called on to attend for examination but did not do so. It has been argued that this is not a ground for rejection, but it appears to me that it would be wholly unsafe and improper for a Magistrate to accept, as security for good behaviour, men whom he did not know himself, and who would not appear before him to be questioned. The only cases in which personally I would interfere with the rejection of the sureties are those of Bharat Chandra Day, Amiruddi, Rasik Chandra Dey, and Hari Das Dey. In their case the sureties were called on to state in writing what influence they had over the accnsed persons, and on their failing to do so, their security was rejected. This does not seem to me at all a proper order.
8. My learned brother, however, considers that those who tendered sureties are entitled to have an inquiry into their fitness by the trying Magistrate. Although I am unable, with the greatest respect, to agree with his reasons, I do not think that I should dissent from him in directing further inquiry, when he deems it necessary.
9. Accordingly the case will be sent back. Further inquiry should be made into the fit-ness of the sureties offered by the petitioners, Hamezuddi Chowdhury, Kalu Mirza, Madhub Karmaker, Amiruddi Meah, Bharat Chandra Day, Rasik Chandra Dey and Hari Das Dey, Thereafter the Sessions Judge will re-hear the proceedings under Section 123 of the Code, so far as they affect the persons, who have petitioned this Court, and have not been released on security, namely, Debendra Chandra De, Kali Kumar De, Mohendra De, and so many (if any) of the seven men mentioned above as fail to give security.
No. 803 of 1909.
10. This application has been submitted to us so late that we do not think it necessary to issue a rule on the subject. The case of the other accused persons has been sent back to the Sessions Judge in order that he may deal with their cases separately, and in so dealing with them we trust he will also deal separately with the case of the petitioner, Sita Nath Dey.
11. I agree generally on the first and second points decided by my learned brother, but I regret I cannot agree on the third ground.
12. Under Section 122, Code of Criminal Procedure, it seems to me that a Magistrate should himself hold an enquiry into the fitness of the proposed sureties. This has been held in the Allahabad cases already referred to; and I agree with those rulings, the first case of Queen-Empress v. Pirthi Pal Singh A.W.N. (1898) p. 154. It was there held 'we know of no power which the law gives to Magistrates to call upon other parsons to exercise the functions which are entrusted by law to Magistrates alone. It is the Magistrate who is to decide whether the surety is or is not a fit or proper parson. He is to do that upon evidence and cannot do so upon a report famished by another person, which is not evidence.' The same construction appears to have been accepted by the Chief Court of the Punjab. In Abdul Khan and Ors. 10 C.W.N. 1027 : Cr.L.J. 169, it was laid down by this Court that the Magistrate should not refer the fitness of the sureties to be enquired into by the Police. It was there said 'the intention of the Legislature in insisting that a Magistrate should record his reasons in refusing to accept a surety on the ground of unfitness is that the Magistrate should exercise his independent judgment.' Similarly in Suresh Chandra Basu v. The Emperor 3 C.L.J. 575 : 3 Cr.L.J. 468 the Magistrate was directed himself to hold an enquiry and, his orders were set aside on the ground that he had acted on reports submitted by the Police . and not on an enquiry held by himself. There are obvious reasons why an inquiry of this kind should not be. entrusted to the Police, when the Police institute proceedings under this Chapter, they usually desire that the persons proceeded against should go to jail rather than that they should furnish security and remain at large. Basides, the accused persons should certainly have an opportunity of meeting the allegations against the fitness of their sureties which they do not get if the Magistrate acts on an ex parte report of the Police. In this case, however, the enquiry was delegated not to the Police but to a Subordinate Magistrate. It was held in Emperor v. Balwmt 27 A. 293, following certain earlier, cases, that the Magistrate must satisfy himself by legal methods as to the sufficiency of the security tendered by the person against whom an order under sections 110 and 118 of the Code of Criminal Procedure, has been made, and that he cannot delegate his functions in this respect to a subordinate, and cannot decide the question of the (sic) being a fit and proper person upon a report furnished by another person.' I think we should follow these decisions.
13. I would, therefore, direct that the case be referred back to the learned Magistrate to hold himself an enquiry into the fitness of the sureties tendered in the case of the persons enumerated in the judgment of my learned brother and I agree in the rest of his proposed order.