EMPEROR Vs. SARJU

JUDGEMENT

(1.) THESE are applications of two persons, Sarju and Lallu, who have been required to furnish security to be of good behaviour for a period of one year. They were brought before a Magistrate along with four other persons, the case for the prosecution being that these six men were individually habitual thieves and house- breakers and also were associated together in the matter under inquiry, The judgment of the trying Magistrate and the appellate judgment of the learned District Magistrate show that the police had beyond question very substantial reasons for the action taken by them. The six men had been arrested together under circumstances of grave suspicion and the circumstances of their arrest constituted in themselves evidence of association. As against four out of the six men there was overwhelming evidence of their being habitual criminals as alleged by the prosecution. Such being the case the evidence of habitual association on the part of Lallu and Sarju with these criminals of inferior social status would constitute in itself very strong ground for an inference that such association could only be based upon community in crime. As regards Sarju there was, over and above the evidence as to the arrest, certain documentary evidence as to which I agree with both the courts below that it was suspicious in a high degree. The contents of the documents and the circumstances under which they came into the hands of the police were such as in my opinion very definitely to warrant the inference that Sarju was associated with habitual criminals as their accomplice and partner in crime. The case against Lallu differs from that against Sarju mainly because he is not implicated in any of these documents. In this connection a question of law has been raised, for the consideration of which no doubt this application in revision was admitted by the learned Judge of this Court before whom it was presented. It appears that after the arrest of the accused persons two of them, namely. Chheda and Narain, made statements which amounted to confessions of the actual commission of a particular offence and which contained incriminating matter regarding the relations of Sarju and Lallu with the other persons associated with them in this inquiry. The question is whether anything contained in those statements could lawfully be taken into consideration by the Court in coming to a conclusion as regards the propriety of binding over Sarju and Lallu to be of good behaviour. I am satisfied that the provisions of Section 30 of the Indian Evidence Act, considered by themselves, do not justify the admission in evidence of these statements. It is true that the word "offence" is not defined in the Indian Evidence Act and that the subsequent definition of that word in the General Clauses Act cannot be treated as governing its use in the Indian Evidence Act, a Statute already in force when the General Clauses Act was passed. At the same time, having regard to the way in which the word "offence" is defined elsewhere, I do not think that persons against whom proceedings are being jointly taken under Section 117 of the Code of Criminal Procedure in one and the same inquiry can be said to be on their joint trial for the same offence, within the meaning of Section 30 of the Indian Evidence Act. I do not think, however, that this consideration altogether disposes of the point now before the Court. The inquiry was one under Section 117 of the Code of Criminal Procedure. The prosecution had to make good the assertion that the six persons before the Court had been associated together in the matter under inquiry and moreover as I have already pointed out, the fact of association with the other four persons was a strong point against Lallu and Sarju. Under these circumstances I think the prosecution were entitled to put the statements in evidence which two of the persons then before the court had made before a responsible Magistrate and which, if true, established the existence of such association as the prosecution alleged. I do not mean to say that the statements by Chheda and Narain could have been taken in evidence against Lallu and Sarju in the absence of all other evidence of association, or could have been accepted as proof of criminal association in the absence of any other evidence. In the present case the court had before it prima facie evidence of criminal association in the circumstances under which the arrest of the six men had been effected. The principle underlying the provisions of Section 30 of the Indian Evidence Act obviously is that, when a Statement can be proved against one of two accused persons jointly on their trial, it is very difficult, if not practically impossible, to require the court to exclude that statement altogether from its mind when it comes to consider the case against the other accused. Such a consideration seems to mo to apply a fortiori to proceedings in an inquiry under Section 117 of the Code of Criminal Procedure, when once the prosecution has made out a reasonable case for dealing with two or more persons in the same inquiry under Sub-clause (4) of the said section. The effect of the words "or otherwise" is to render admissible any evidence which would be relevant if the accused person or persons were being tried on a charge of being habitual offenders. Thus the words of the section are wide enough to admit of these statements being put in evidence and of their being taken into consideration by the court when coming to its conclusion as to whether the case of habitual association for the purpose of committing such offences as theft and house- breaking was made out against each of the persons before the court. On a consideration of the record as a whole I see no reason to doubt that the order in question was justified as against Lallu, as it certainly was, in my opinion, in respect of Sarju. I dismiss both these applications.