EMPEROR Vs. CHAND MAHABOOB

JUDGEMENT

(1.) This is an appeal by the Government of Bombay against the acquittal of the accused Chand Mahoboobsab by the Fourth Presidency Magistrate. He was put before that Magistrate on a charge under Section 112, cl (d), of tin; Bombay City Police Act IV of 1902, namely that being a, reputed thief he was found loitering in the street and without being able to give a satisfactory account of himself. Evidence was given by a Police Constable that he was arrested at 1-15 A. M. on the Proctor Road and that nothing was found in his possession; also that the accused had two previous convictions. There was no cross-examination, and the Magistrate upon this acquitted the accused on the ground that he could not come in the category of a reputed thief, having only two previous convictions,

(2.) It has been objected by Mr. Rele for the accused that in any case accused's two previous convictions have not been properly proved. Certainly, so far as the information sent by the Criminal Investigation Department is concerned, that information would require to be supplemented by other evidence under Section 511 of the Criminal Procedure Code or otherwise to prove the previous convictions, if they are denied by the accused. But we have a scanty record in this case, and" it is possible that the accused himself admitted the convictions. In any case in dealing with this appeal, we must take it that there were two previous convictions, either admitted or proved or provable against the accused. The only point, therefore, is whether the fact of there being two previous convictions for theft suffices to make the accused a reputed thief within the meaning of Clause (d) of Section 11- . The word reputed is defined in Webster's Dictionary as "having the reputation of being, or supposed or thought to be, that expressed or implied by the qualified noun." The prefix re no doubt would ordinarily suggest that the supposition must be entertained by a certain number of people. It is impossible to lay down any definite rule on a question of that kind. The fact that a person has actually been convicted of theft is certainly a ground for taking it that he is a reputed thief. For it is a substantial basis for that reputation among persons who know of the conviction; and it is not, in my opinion, necessary to have additional evidence that some person knows of his conviction and considers him to be a thief. Nor, in my opinion, is it possible to lay down any rule such as the one applied by the Magistrate, namely, that a certain number of convictions (more than two) is necessary before a person can be a "reputed thief." Obviously difficulties would arise in fixing what should be the actual number if convictions that should be taken as sufficient. In the present case the two convictions are within a space of two years prior to the arrest of the accused, and it is not a case where the convictions are many years before arrest, so that the habit of thieving may have ceased. In my opinion, therefore, there was evidence before the Magistrate that the acussed was a "reputed thief," and the ground that ha gave for the acquittal is insufficient.

(3.) It has, however, been urged that there is also no evidence that the accused was loitering in the street at the time of his arrest It is true that the evidence does not show that the Police Constable stated exactly in what circumstances the was arrested, but I think there is a presumption that those circumstances would have appeared, if the evidence had been fully recorded. The Government Pleader asserts that the accused was found in company with another man, in whose possession there were instruments of burglary and who was convicted under Section 112 Clause (e). Certainly, if that is the case, it would be relevant evidence against the accused that at the time of the alleged offence he was in the company of a person who had such instruments upon him, and that evidence would affect any explanation which the accused might offer as to the circumstances of his being in the street at the unusual time of 1-15 or so in the morning. The best course in my opinion, therefore, is to direct a re-trial of the accused by such of the Presidency Magistrates as the Chief Presidency Magistrate may direct, in which evidence, if it has not been already adduced in the way it should have been given, can now be so adduced and, if necessary, the alleged previous convictions should also be proved. I would order accordingly. Madgavkar, J.