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IN THE HIGH COURT OF BOMBAY
Chitre J.G., J.
Bhumiraj Ramswami Tewar .... Petitioner.
Versus
Sr. Inspector of Police another.... Respondents.
Criminal Application No. 1546 of 1997, decided on 27-3-2003.
Advocates appeared :
C.N. Chavan, for petitioner.
K.V. Saste, A.P.P., for prosecution.
Section 110 - Criminal Procedure Code - Interpretation of 'habitual' and 'so desperate and dangerous as to render his being at large without security hazardous to the community'
Fact of the Case:
The petitioner challenged the order of the Special Executive Magistrate, Matunga Division, Mumbai, which dismissed the initial objection raised by the petitioner in respect of Chapter Case No. 11 of 1997 under section 110(e), (g) of the Criminal Procedure Code, 1973.
Finding of the Court:
The Court found that the allegations against the petitioner, including the use of lethal weapons and robbery, supported the Magistrate's reasonable belief that the petitioner's being at large was hazardous to the community, as indicated by sub-clause (g) of section 110 of the Code.
Issues: The issues revolved around the interpretation of the word 'habitual' in relation to the acts indicated by sub-clauses (a), (b), (c), (d), (e) and (f) of section 110, as well as the assessment of whether the petitioner's actions rendered his being at large hazardous to the community, as per sub-clause (g).
Ratio Decidendi: The Court interpreted 'habit' to indicate repeat occurrences of instances and emphasized the need for a reasonable belief regarding the hazardous nature of the individual's presence in the community. The Court also highlighted the subjective judgment of the Magistrate in assessing the dangerousness of the individual.
Final Decision: The Court upheld the Magistrate's decision, finding that the procedure of proceeding further with the chapter case did not require any interference.
Key Points: - The judgment interprets "habit" to indicate repeat occurrences and emphasizes the need for a reasonable belief regarding hazardous presence in the community, with subjective judgment by the Magistrate (!) (!) . - It explains that for sub-clauses (a)–(f), habit may be shown through conviction for acts; for clause (g), the assessment revolves around whether the person’s being at large is hazardous to the community, based on reasonable conclusion by the Magistrate (!) (!) . - The Magistrate is empowered to consider alleged instances and activities of the person and must arrive at a reasonable conclusion about public safety; higher courts review whether sufficient material supports this conclusion (!) (!) . - In the present case, allegations of using lethal weapons and robbery, with-association of associates, supported a reasonable belief that being at large was hazardous to the community, upholding the Magistrate's order (!) . - The petition challenging the order was dismissed; the procedure to proceed with Chapter Case No. 11 of 1997 under section 110(e), (g) was not interfered with (!) (!) . - The decision references reliance on Lalookhan Haideralikhan v. M.M. Kamble and distinguishes the application of clause (g) from (a)–(f) (!) .
2. Shri Chavan placed reliance on the judgment of Single Bench of this Court in the matter of (Lalookhan Haideralikhan v. M.M. Kamble, Special Executive Magistrate, Byculla Division, Bombay others)1, reported in 1997(Supp.) Bom.C.R. 740. By placing reliance on that judgment he submitted that for proceeding against a person in view of provisions of section 110 of the Code, he should have been convicted for any offence in the Court. Shri Chavan submitted that in the present case only complaints have been mentioned which have been filed against the applicant in Police Station and there is nothing on record to show that the present petitioner has been convicted in any of those offences complained of. He submitted that in the matter of one complaint the petitioner was in jail at the relevant time. Shri Chavan submitted that some other complaints are relating to the activities of the alleged friends of the petitioner and, therefore, for their acts, the petitioner cannot be held responsible. Shri Chavan submitted that the impugned order is illegal and, therefore, it be set aside.
3. Shri Saste appearing for the State of Maharashtra submitted that there is ample material on record to allow the learned Magistrate to proceed against the petitioner and the order which has been passed by him is correct, proper and legal.
4. Section 110 of the Code has to be read as a whole. It empowers the concerned Magistrate to proceed against the person who comes under the purview of any sub-clause of section 110 of the Code. Sub-clause (a) deals with persons or person who is by habit a robber, house-breaker, thief, or forger, sub-clause (b) also deals with a person who is by habit a receiver of stolen property knowing the same to have been stolen. Like that Clauses (c), (d), (e) and (f) also revolve around the word "habitual". Therefore in those cases, the question of interpreting the word "habit" would come in picture. Habit means not one or two instances alleged to have been committed by such person or in which such person has been involved. The word "habit" indicates repeat occurrence of such instances. Therefore, the judgment on which Shri Chavan is placing reliance would be applicable to those cases. In such cases, the Court may look for a conviction for coming to the conclusion whether such person is in habit of committing the acts which are indicated by sub-clauses (a), (b), (c), (d), (e) and (f). The Court may also look for conviction in context with the acts allegedly revolving around sub-clause (a). But if it is a matter relating to the acts which have been indicated by Clause (g), then the matter will have to be looked into with different angle.
5. Clause (g) indicates that such person should be "so desperate and dangerous as to render his being at large without security hazardous to the community". Therefore, while dealing with such cases, Magistrate would be obliged to consider the instances even alleged to have been committed by him. He may look for the information about the activities of such persons for coming to a reasonable conclusion whether his being at large, is hazardous to the safety of the community. He has to come to a reasonable conclusion whether his being at large is safe to the public tranquillity and welfare of the society concerned. The Magistrate would be entitled to Judge subjectively whether he is a bravado, whether he is so dangerous so as to make his being at large dangerous and hazardous to the welfare of the society concerned. The Higher Court would be examining whether there has been sufficient
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