BHUT NATH GHOSE Vs. EMPEROR

JUDGEMENT

(1.) This is an open rule for revising the order of the Sub-Divisional officer of Ghatal under Section 110 (a) read with Section 118, Criminal P.C. confirmed by the Additional Sessions Judge of Midnapore. Two points which have been stressed before us and require consideration are, first, that the proceeding drawn up under Section 112, Criminal P.C. is illegal and secondly that the learned Judge has misread the evidence of some of the prosecution witnesses when ha says that they deposed to the fact of having direct knowledge of the petitioner committing theft.

(2.) As regards the first point it is urged that the notice under Section 112, Criminal P. C, was vague inasmuch as it did not set forth the substance of the information received against the petitioner. Section 112 says that the Magistrate shall make an order in writing setting forth the substance of the information. The proceeding drawn up by the Magistrate a copy of which was served on the petitioner was in these words: Whereas it appears from the report dated 28 February.1928, submitted by Sub Inspector of Police Station, Chandragona that Bhutnath Ghose, son of etc., within the local limits of my jurisdiction is by habit a thief, a robber and housa-breakor and is so desperate and dangerous as to render his being at large without security hazardous to the community etc.

(3.) It may be incidentally noted that the petitioner was found not guilty of the charge of being a desperate and dangerous character ; he has been bound down only under Section 110(a) for being by habit a thief, robber and house-breaker. It is argued that the notice served upon the petitioner merely repeated the words of the section and did not give the substance of the information upon which the Magistrate acted as required by Section 112. It is contended on the authority of Ranga Reddi V/s. Emperor [1920] 43 Mad. 450 and Emperor V/s. Nihal that the notice was insufficient and vague as it merely quoted the words of the section and did not mention the particulars of the information received by the Magistrate. With great respect to the learned Judges who decided those cases I am unable to agree with the interpretation there put on the words "substance of the information" in Section 112. The learned Judges require that the notice should contain such details of information as to enable the accused to know in what cases he has been suspected and the names of the witnesses to prove the charges against him. This, to my mind is not "substance of the information" but details of information which may in some cases be not only very inconvenient but almost impracticable to put in the notice. A person may be suspected in a hundred cases and there may be five hundred witnesses to prove such suspicion and general repute. It is not reasonable to suppose that the law intended that all this information should be conveyed in the notice. If the notice states that the accused has been suspected in a hundred cases and there are five hundred witnesses to support the charge against him, it will not be of any practical help to him. There may be cases in which the substance of the information should be briefly conveyed to him if feasible as, probably, under Section 107 but ordinarily it cannot be insisted that any detailed information, however shortly it may be conveyed, should be supplied by the notice. In my opinion, the words "substance of the information" mean such or so much of the information as would enable the party to know under what clause of Section 110 he is charged or to what particular class of offenders he is said to belong. For instance, in this particular case he is said to be by habit a robber, house-breaker and thief but not a forger. Under Clause (d), Section 110, he may be by habit an abettor of the commission of the offences of kidnapping, abduction, etc. The notice should specify as to which offence or offences mentioned in the clause he is said to be by habit an abettor. I concede that where possible the repetition of the words of the section should be avoided but, it may not be possible in every case. We have authorities of this Court in support of this view. In Chintaman Singh V/s. Emperor [1908] 35 Cal. 243 the notice was in similar words as in the section. It was held that the notice was good though it did not contain more information than that the accused was of a dangerous and desperate-character. Similar objection was taken in Rajendra Narain Singh V/s. Emperor [1913] 17 C.W.N. 238. It is observed at p. 261 "the Magistrate is further not bound to reveal the source of his information" ; it is sufficient if he states the substance thereof and the Crown is not bound at the initial stage even to name the witnesses. This section is intended to meet such a case as arose in Queen Empress V/s. Ishwar Chandra Sur [1885] 11 Cal. 13. where the notice did not mention under what clause of which section the accused was called upon to defend himself under Chap. 8. Even if it be held that it was necessary to give more information in the notice the omision at the most is an irregularity under Section 537 and should not vitiate the entire proceedings without proof of prejudice to the accused. I do not agree with the learned Judges of the Madras High Court that it is an illegality.