HARIKRISHNA NAIKO Vs. EMPEROR

JUDGEMENT

(1.) These petitions are filed against the order of the Sub-Divisional Magistrate of Chatrapur which was confirmed on appeal, directing the petitioners to furnish security for good behaviour under Section 110 of the Criminal Procedure Code. The petitioners are brothers. One of them is the Karji of Panchabuhuti and the other is the Sirdar of Gondhadhars. The notice issued to them by the Divisional Magistrate sets out that the charge-sheet submitted by the Sub Inspector of Police made it appear to the Magistrate that they were habitually protecting thieves habitually committing or attempting to commit or abetting the commitment of offences involving a breach of the pace, and were so dangerous and desperate as to render their being at large without security hazardous to the community. The Sub-Divisional Magistrate directed them td execute a bond for Rs. 500 with two sureties of Rs. 100 each for the period of one year. Various legal objections to the validity of the order are raised and I shall deal with them before going into the evidence.

(2.) The first objection raised is that the Sub-Divisional Magistrate had no jurisdiction to issue notice or try the case, as the accused persons did not reside within his jurisdiction. It appears from the record that the Police sent the charge-sheet to the District Magistrate, who did not issue any notice under the Criminal Procedure Code but sent the charge sheet on for disposal first to the Special Agent and then to the Sub-Divisional Magistrate of Chatrapur. It is contended that the Magistrate issuing the notice under Section 110 of, the Criminal Procedure Code should be the Magistrate within whose jurisdiction, the persons against whom the notice is issued reside and that as the accused admittedly reside outside his jurisdiction, the proceedings taken by him are invalid. As it is clear from the records, and not disputed by the Public Prosecutor, that the accused are residing within the jurisdiction of the Deputy Magistrate of Gumsur, it is clear that the Sub-Divisional Magistrate of Chatrapur had no jurisdiction to issue the notice. It was no doubt open to the District Magistrate to have issued the notice under Section 110 when he received the charge-sheet, as his jurisdiction extends over the whole District and he would be a Magistrate within whose jurisdiction the accused lived, but he did not do so. The issue of notice is not a formal matter and it is clear that Section 110 limits the powers to issue the notice to the Magistrate in whose jurisdiction the accused are. The issue of a notice under Section 110 being a judicial act to be exercised after a due consideration of the materials placed before the Magistrate and not merely an executive order to be passed as a matter of course on the complaint by the Police, the Legislature evidently restricted the jurisdiction to issue the notice to the Magistrate in whose local limits the persons complained against were living or were making themselves a danger to the public peace, as he would presumably have a knowledge of the local conditions and would be the person to judge whether any action was necessary. It is to be noted that under Section 107, Clause 2 of the Criminal Procedure Code, the notice is to be issued by the Magistrate within the local limits of whose jurisdiction the person informed against is residing or the place where breach of the peace is apprehended is situate, while in Section 110 the acts complained of must be done by a person within the limits of his jurisdiction. The question is concluded by the recent decision of Abdur Rahimand Napier, JJ., in Nagireddy Kondareddy In re 41 Ind. Cas. 990 : 41 M. 246 : 18 Cr. L.J. 878. In dealing with a similar objection taken under Section 107 of the Criminal Procedure Code, where the District Magistrate sent on the records to the Divisional Magistrate without issuing a notice, the learned Judges observe that the District Magistrate cannot be said to have taken proceedings under the Section until he issues notice to the person charged to show cause why he should not be proceeded against, that the Magistrate who issues the notice must be deemed to be the person who initiates proceedings and that the District Magistrate to whom the Police reported certain facts and who passed the matter on to the Head Quarter Deputy Magistrate cannot be said to have initiated proceedings and transferred it to the Head Quarter Deputy Magistrate for disposal. They also held that Section 528 did not empower the District Magistrate to transfer the case to a Magistrate who had no local jurisdiction over the matter by reason of Section 107, Clause 2. A similar, view is taken in Nirbikar Chandra Mukherji v. Emperor 1 Ind. Cas. 78 : 13 C.W.N. 580 : 9 Cr. L.J. 148, where it was held that the fact that the District Magistrate directed a Subordinate Magistrate to draw up proceedings against a person not resident in the jurisdiction of the Subordinate Magistrate would not give the latter Magistrate jurisdiction, as the provisions of Section 107 were imperative. Surjya Kanta Roy Chowdhry v. Emperor 81 C. 350 : 1 Cr. L.J. 344 and King-Emperor v. Munna 24 A. 151 : A.W.N. (1901) 233, referred to with approval in Nagireddy Kondareddy In re 41 Ind. Cas. 990 : 41 M. 246 : 18 Cr. L.J. 878, are also in point. It. is argued that the drawing up of proceedings by the Deputy Magistrate is only an irregularity. The question is one of jurisdiction and more appropriately falls under Section 530 of the Criminal Procedure Code. It was treated as fatal to the validity of the proceedings in all the oases above referred to. My attention has been called to Ohiduddin Choudhury v. Emperor 44 Ind. Cas. 122 : 19 Cr. L.J. 266, where it was held that the procedure of the District Magistrate was only an irregularity, but I am bound by the decision of the Madras High Court which is supported by authority. No reasons are given in the above case for taking a contrary view and the decisions of the Calcutta High Court are not even referred to. I am of opinion that the Sub-Divisional Magistrate of Chatrapur had no jurisdiction to issue the notice and try the case and that the proceedings are void.

(3.) The next objection relates to the joint trial of the 1st and 2nd accused. They are brothers who have undivided properties, but they live separately. The 1st accused is the village Karji of Panchabubhuti and lives at Panchabubhuti. The 2nd accused is a Sirdar and lives at Gondhadhars. The two villages are about 10 miles distant from each other. It is contended that evidence against 1st accused has been used as evidence against 2nd accused and vice versa and that the parties have been greatly prejudiced thereby. The test to be applied in all such oases where a plea of misjoinder is raised is whether there has been habitual association between the persons charged in respect of the misconduct alleged on the complaint. The fact that persons are members of an undivided family would not by itself render each member liable for the misconduct of any other member and where they are living separately, there is not even the presumption that one member knew and assented to the misdeeds of the other. In the present case there is no evidence of any association of the two accused in any particular act and even if the evidence against one is true, it is quite consistent with the ignorance of the other accused as to the wrongful acts alleged. There can be Utile doubt that one accused bas been prejudiced by evidence against the other being used as evidence against him, and I am of opinion that both the lower Courts were wrong in not examining the evidence against each of the accused with a view of determining whether security should be demanded against him or not I might in this connection refer to Hari Telang v. Queen-Empress 27 C. 781 : 4 C.W.N. 531 : 14 Ind. Doc. (N.S.) 511, where it was held that it was not legal to try jointly two persons charged under Section 110, Clause (f).