V. B. RAJU, J. ( 1 ) HIS Lordship after narrating the facts in details and after considering the defence of each individual appellant proceeded to discuss what the prosecution should prove in a charge under sec. 401 I. P. Code. ( 2 ) BEFORE we deal with the evidence it would be desirable to state what the prosecution has to prove in a charge under sec. 401 Indian Penal Code which reads as under :--"whoever at any time after the passing of this Act shall belong to any wandering or other gang of persons associated for the purpose of habitually committing theft or robbery and not being a gang of Thugs or dacoits shall be punished with rigorous imprisonment for a term which may extent to seven years and shall also be liable to fine. " ( 3 ) AS the section clearly mentions the prosecution has to prove that the accused person charged under section 401 belong to a gang of persons and that the gang of persons is associated for the purpose of habitually committing theft or robbery. The word being implies something more than casual association it involves the notion of continuity and requires the proof of more or less intimate connection with a body of persons extending over a period of time sufficiently long to warrant the inference that the person affected had identified himself with the gang the common purpose of which was the habitual commission of either theft or robbery. It would therefore not be sufficient for the prosecution merely to rely upon the fact that an accused person had associated himself with the gang in the commission of only one offence. The prosecution must also prove that the members of the gang were associated for the purpose of habitually committing theft or robbery. It is not necessary for the prosecution to prove the actual commission of any offence of theft or robbery. If the prosecution is able to prove that the common purpose for which the members of the gang were associated was to habitually commit the offence of theft or robbery then the prosecution would succeed even though it dose not lead evidence to prove the actual commission of an offence of theft or robbery. If the prosecution is able to prove that the common purpose for which the members of the gang were associated was to habitually commit the offence of theft or robbery then the prosecution would succeed even though it dose not lead evidence to prove the actual commission of an offence of theft or robbery. But the purpose for which the members of the gang were associated is usually not a matter of direct proof by direct evidence and is generally a matter of inference from the facts circumstances proved and acts done by the accused. Usually if the prosecution proves that the members of the gang were associated in the commission of several offence of thefts or robbery an inference may well be drawn that the purpose of the gang was to habitually commit offences of theft or robbery. It is also not necessary that the members of the gang should be members right from the beginning. An accused person may join a gang sometime after the gang had been formed. But if it is proved that a person subsequently joined and belonged to a gang of person associated for the purpose of habitually committing theft or robbery he would be guilty under sec. 401 I. P. Code although he may not have been a member of the gang from the beginning. As already observed the association of the members must be for the purpose of habitually committing offences of theft or robbery. The evidence of the prosecution that a person was associated with the gang for the purpose of committing other offences for instance offence of demanding or taking ransom or of being in possession of stolen property would not be sufficient to justify his conviction under sec. 401 Indian Penal Code. ( 4 ) (AFTER narrating the fact his Lordship then considered whether the evidence of general bad repute is admissible or not and proceeded.) Evidence of general bad repute is a type of evidence of general bad character. It is provided in Sec. 54 of the Evidence Act that in criminal proceedings the fact that the accused person has a bad character is irrelevant unless evidence has been given that he has a good character in which case it becomes relevant. It is provided in Sec. 54 of the Evidence Act that in criminal proceedings the fact that the accused person has a bad character is irrelevant unless evidence has been given that he has a good character in which case it becomes relevant. Exception 1 to section 54 provides that this section does not apply to cases in which the bad character of any person is itself a fact in issue. Exception 2 to Sec. 54 provides that a previous conviction is relevant as evidence of bad character. It is therefore. clear that evidence of bad character is relevant only when evidence has been given of good character of the accused and in cases where the bad character of the accused is itself a fact in issue. In Mankura Pasi and others Vs. Queen Empress I. L. R. 27 Calcutta 139 it is held relying on 17 W. R. Cr. 50 that the character of the accused not being a fact in issue in the offence of belonging to a gang of persons associated for the purpose of habitually committing theft punishable under sec. 401 of the Indian Penal Code evidence of bad character or reputation of the accused was inadmissible for the purpose of proving the commission of that offence. But in Bhona Vs. Emperor I. L. R. 38 Calcutta 408 it has been observed that in cases where the other evidence has established association for the purpose of habitually committing theft evidence of previous convictions whether for offences against property or for bad livelihood has always been admitted not as evidence of character but as evidence of habit. It was also observed that Such evidence must of course be weighed. A single instance of theft for instance would count for little or nothing. There must be at least two or more cases against the same individual to show habit. It was also observed that to hold that the evidence of such previous convictions was inadmissible is clearly against the weight of authority in the Calcutta High Court. But even in I. L. R. 38 Cal. the question which was considered was whether evidence of previous convictions was admissible and it was held that the evidence of previous convictions was admissible in the case of an offence under sec. 401 of the Indian Penal Code not as evidence of character but as evidence of habit. But even in I. L. R. 38 Cal. the question which was considered was whether evidence of previous convictions was admissible and it was held that the evidence of previous convictions was admissible in the case of an offence under sec. 401 of the Indian Penal Code not as evidence of character but as evidence of habit. Imliedly therefore even in this the it was held that in a case under sec. 401 I. P. Code evidence of bad character is not admissible but it was held that because in a case under section 401 I. P. C. habit has to be proved previous convictions may be admissible to prove habit of committing offences of theft. The case reported in I. L. R. 38 Cal. 408 was referred to in Emperor Vs. Tukaram Malhari 14 Bombay Law Reports p. 373 and the same view was taken in Emperor Vs. Motiram Hari 26 Bombay Law Reporter 1223 The evidence of Ramanbhai Devjibhai is not evidence of previous convictions for theft but of general reputation or of general bad character of the accused referred to by the witness and is therefore inadmissible in evidence. The decision of the Calcutta High Court (I. L. R. 38 Cal 408 was partly commented on in 14 Bombay Law Reporter 373 and particularly the following passage in the Calcutta decision:--"in cases where the other evidence has established association for purposes of. habitually committing theft evidence of previous convictions whether for offences against property or for bad livelihood has always been admitted not as evidence of character but as evidence of habit. " ( 5 ) THE learned Judges of the Bombay High Court observed that for the purpose of the appeal before them it was not necessary that they should go a step further than the Calcutta High Court when in I. L. R. 38 Cal. 408 Their Lordships were however of the view that it was not necessary for the admission of evidence of previous convictions that the prosecution should have first affirmatively established the association for the purpose of habitually committing theft. Their Lordships of the Bombay High Court were also of the view that where the question is as it is under sec. 408 Their Lordships were however of the view that it was not necessary for the admission of evidence of previous convictions that the prosecution should have first affirmatively established the association for the purpose of habitually committing theft. Their Lordships of the Bombay High Court were also of the view that where the question is as it is under sec. 401 Indian Penal Code whether a party of accused persons constituted a gang of persons associated for the purpose of habitual theft evidence that each individual of that party is a convicted theft is relevant evidence for the purposes of that question and whether that evidence is tendered before or after the prosecution have established the association is a matter of no particular moment. With respect we agree that if certain type of evidence is relevant ordinarily it does not matter whether such evidence is tendered before or after other admissible evidence but at the same time evidence of previous convictions being evidence of bad character is admissible under sec. 54 of the Evidence Act only when bad character of the accused is a fact in issue or when evidence has been given of good character. Under sec. 401 Indian Penal Code bad character of the accused is not a fact in issue. In view of sec. 54 of Evidence Act in cases where evidence of good character has been given evidence cannot be given of bad character when bad character is merely a relevant fact and not a fact in issue of course to prove the purpose of association of the gang or habit of committing thefts evidence can be given of commission of other thefts. In such cases under Explanation 2 to sec. 54 of Evidence Act evidence can be given of previous convictions for theft. ( 6 ) IN some cases the view was taken that in a prosecution under sec. 400 or 401 Indian Penal Code the bad character of the accused is a fact in issue. Vide A. I. R. 1956 Orissa 177 and the cases cited there. With great respect even in cases under sec. 400 or 401 Indian Penal Code the general bad character of the accused is not a fact in issue but only a particular trait of bad character namely association with others for the purpose of habitually committing offences of dacoity or robbery or theft. With great respect even in cases under sec. 400 or 401 Indian Penal Code the general bad character of the accused is not a fact in issue but only a particular trait of bad character namely association with others for the purpose of habitually committing offences of dacoity or robbery or theft. The effect of explanation I to sec. 64 Evidence Act is to cancel the effect of sec. 54 in cases where the bad character of the accused is a fact in issue. In the absence of Explanation 1 to sec. 54 Evidence Act evidence of bad character of an accused would not have been admissible even when st was fact in issue because the main part of sec. 54 Evidence Act provides that the bad character of an accused is irrelevant in criminal proceedings. The effect of Explanation 1 to sec. 54 is to allow evidence of fact in issue to be given even in cases where the fact in issue happens to be the bad character of an accused. In criminal proceedings evidence of general bad character of an accused cannot be given unless general bad character of the accused is a fact in issue or unless evidence has been given of his good character. In cases under Sec 400 and 401 Indian Penal Code general bad character of accused is not a fact in issue In such cases evidence can be given of bad character in so far as it is a fact in issue The fact in issue in a case under sec. 401 is a particular trait of bad character namely association for the purpose of habitually committing offences of robbery or theft. Evidence can be given of that particular trait of bad character bug not of general bad character. In such a case evidence cannot be given that the accused is a murderer or immoral person or a cheat. (The rest of judgment is not material for this reports ). .