HARI TELANG Vs. QUEEN-EMPRESS

JUDGEMENT

(1.) THE petitioners have been required to give security for good behaviour and their appeal has been dismissed by the District Magistrate. THEy were all three tried together in the same proceedings. In consequence of this irregularity and because we had reason to believe, as represented to us, that the evidence did not justify the order, this rule has been granted to consider the case. Proceedings were taken under Section 110 on three grounds, first that the petitioners habitually commit extortion; secondly that they habitually commit or attempt to commit or abet the commission of offences, involving a breach of the peace; and third that they are dangerous persons so as to render their being at large without security hazardous to the community. Although separate proceedings were drawn up in respect of each of these persons, they have been tried jointly. Objection was taken on this ground before the District Magistrate on appeal, and he held that under the terms of Section 117, Sub-section 4, the proceedings could have been jointly conducted against all the three persons, because they were habitually associated together, and acted together in the interests of their Master, the zemindar. But even supposing that the Magistrate was right in considering that there was habitual association between the three persons in regard to the first and second points mentioned, there certainly would be no such connection between them in regard to their characters so as to make them dangerous persons, and thus to render their being at large without security hazardous to the community. We think, therefore, that the proceedings should have been separately taken against each of these persons. We have consequently considered the evidence on the record in order to ascertain whether this irregularity, to use the words of Section 537 of the Criminal P. C. "has in fact, occasioned a failure of justice." From this evidence, however, it seems that Section 110 is not applicable to the case set up. THE acts of the petitioners, though they might amount to extortion, would not be such as to make them liable to give security for good behaviour by reason of their habitually committing extortion. THE evidence shows that certain acts "amounting" to extortion were committed by these persons in the performance of their duties as burkandazes in a certain zemindari. No doubt, they may have been liable to punishment on conviction in a regular trial for any of these acts, and we think that was the proper mode of dealing with the case, but it cannot be said that they have habitually committed extortion, by which, we understand, is meant that they are in the habit of committing extortion as individual members of the community, because, if it should so happen that they were discharged by the zemindar or cease to be in his employ no doubt the acts of the description stated by the witnesses for the prosecution would no longer be committed by them, for it would no longer be their interest to do such acts in the interest of their employers and they certainly would not be likely to commit them in their own private capacities. We think, therefore, though with some reluctance, that this is not a case in which security for good behaviour can properly be required from the petitioners. It. seems to us rather that the proper way of dealing with this case, if the Magistrate wishes to put an end to the unhappy condition of the tenantry in this zemindari, would be to prosecute these servants of the zemindar or possibly those under whose orders they act for specific acts of oppression. We find from the Magistrate's judgment that he has not considered this case except in regard to the point already noticed, and that his order is not founded on the second or third points on which the proceedings were taken. We are informed by the Magistrate's judgment that two persons, apparently in the same service as the petitioners, were at the time of his delivering that judgment under trial for offences of extortion. If this order requiring the petitioners to give security for good behaviour be maintained, as there is nothing to prevent the prosecution of the petitioners for the acts of extortion regarding which this order was passed, the petitioners would in such a trial be very seriously prejudiced, by an order for security for good behaviour against them. THE object of enabling a. Magistrate to take security for good behaviour is, we may add, for the. prevention and not for the punishment of offences. THE rule is made absolute.