KARU KANDU Vs. EMPEROR

JUDGEMENT

(1.) In my opinion this application should bae allowed. The case for the prosecution is that one Ramnarayan Singh, who is the dafadar of village Mahna, was on the night of 12 June 1939 on patrol duty along with several chaukidars and that about midnight he found the petitioner Karu Kandu walking on a bandh known as the Gupta bandh which is apparently used as a thoroughfare. The petitioner being questioned by the dafadar replied that he was going to a marriage party and he also stated that he had other companions with him. Later on three other persons came out of a reservoir.

(2.) All these four persons were taken to the police station where the dafadar made a report. The dafadar stated to the Sub-Inspector how he had met the petitioner and his companions and added that the petitioner had subsequently stated to him that he had been asked by one Rambaran Singh to commit theft and it was for this reason that he and the other three persons had come to the place where they were discovered by the dafadar. The Sub-Inspector after investigation reported for action against the petitioner and the other three persons under Section 109, Criminal P.C. Now on the facts stated above it seems to me to be quite clear that Clause (a) of Section 109 i has no application to this case. As to Clause (b) we cannot overlook the fact that the petitioner has examined several witnesses in support of the version he gave before the Magistrate.

(3.) The statement of the dafadar that the petitioner had stated before him that he had been invited by Rambaran Singh to commit theft appears to me to be inadmissible under Section 26, Evidence Act, but even if it is held to be admissible, it is not: a statement which should be readily accepted. That being so, there is no positive material on the record to show that the statements made by the witnesses examined on behalf of the petitioner, some of whom at least appear to be independent persons, are not true. Thus Section 109 also is not applicable to this Case. I would therefore allow this application and set aside the order requiring the petitioner to furnish security for good behaviour. Meredith, J.