B.L.Yadav, J. - (1.) THIS revision is directed against the order dated 8-12-86 passed by the Sub-Divisional Magistrate, Hamirpur, summoning the applicant under Section 110 of the Code of Criminal Procedure, 1973 (for short the Code) to show cause as to why he should not execute bond and furnish two sureties to maintain good conduct and peace for a period of two years.
(2.) THE Station Officer, Khuraila, district Hamirpur, submitted a challani report dated 25-10-86 indicating that the applicant Bhagwan Singh is a man of Goonda Type and that he was earlier convicted for an offence under Section 25 of the Arms Act and has been challaned under the provisions of U. P. Control of Goondas Act, 1971. Learned counsel for the applicant urged that there was nothing to indicate in the impugned order summoning the applicant under Section 110 of the Code that the applicant is habitually committing the offence under chapter XII of the Indian Penal Code or habitually commits or attempts to commit or abets the commission of offence prejudicial to peace nor, there was any allegation that the applicant was so desperate or dangerous as to render his being at large without security, hazardous to the community, the learned Magistrate did not apply his mind to the offence indicated or the conditions precedent to be fulfilled before passing the order under Section 110 of the Code. He placed reliance on Bangi Lal v. Emperor, AIR 1931 Alld. 437, Thakur Ram v. State of Bihar, 1962 (1) CrLJ 665, Bhubneshwar Kuer v. King Emperor, AIR 1927 Patna 126, Ishwari Dutta v. Emeror, AIR 1918 Alld. 318, Sheikh Amjad Ali v. King Emperor, AIR 1924 Pat. 498. I am of the view that the revision is devoid of merits. Before proceeding further, it is better to ascertain the object of the legislature in enacting Sections 110, 111 and 112 of the Code. These sections have been placed under Chapter VIII of the Code dealing with security for keeping peace and for good behaviour. The object of the legislature in enacting Section 110 is preventive and not punitive and action under this section is not intended as punishment for the past offences, rather it is aimed at protecting the society from persons having dangerous character so that those persons may be kept under security as would be just a step for precaution to prevent them from becoming hazardous to the community. In other words, it is intended to put a curb on persons dangerous to the society. A bare persual of Section 110 of the Code makes it crystal clear that it is intended not to deal with the convicts, rather with habitual criminals and dangerous and desperate out laws, who have become in fact, incorrigible and that that the ordinary provisions of penal law are not sufficient nor they appear to be adequate for putting safeguard. The proceedings under Section 110 of the Code have to be initiated with these objects in mind.
(3.) IN the instant case the scope of enquiry by this Court at the initial stage when the notice under Section 110 of the Code has been issued to the applicant to appear on a future date is limited. It is not that the Magistrate has finally pronounced his opinion nor it can be said that there was absolutely no evidence at all in as much as the applicant has been challaned under the Convention of Goondas Act and has also been convicted under Section 25 of the Arms Act. It could not accordingly be said that the Magistrate has no material at all to issue the notice. At the initial stage before issuing the notice the Magistrate has just to see whether there exists some prima facie evidence and in case it is so, the proceeding can be started. The applicant shall have opportunity after notice to contest those proceedings, to cross-examine the witnesses and lead his own evidence to indicate that he was not such a person nor he has got such antecedent as indicated under Section 110 of the Code. At that stage the evidence would be weighed by the Magistrate. The objection of Section 110 is not that the person must be punished indirectly when he could not be punished directly for a substantive offence. The Magistrate should scrutinise the evidence led by the police with greatest care. The jurisdiction is preventive with a view to serve the interest of the community. The power under Section 110 must be exercised with caution and circumspection. In Gopalanchari v. State of Kerala, AIR 1981 SC 674= 1981 CrLJ 337 the Supreme Court on page 677 observed as follows : " We direct the trial Magistrates to discharge their duties, when trying cases under Section 110, with great responsibility and whenever the count petitioner is a prisoner give him the facility of being defended by a counsel now that Article 21 has been reinforced by Article 39-A. Otherwise the order to bind over will be bad and void. We have not the slightest doubt that expressions like ' by habit ', Habitual ' desperate ', ' dangerous ', hazardous can not be flung in the face of a man with laxity of semantics. The Court must insist on specificity of facts and be satisfied that one swallow does not make a summer and a consistent course of conduct convincing enough to draw the rigorous inference that by confirmed habit which is second nature, the counter petitioner is sure to commit the offences mentioned if he is not kept captive. " ;