GANGA SINGH Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision. The applicants seek to set aside the order of the District Magistrate of Etawah, confirming that of the Sub-Divisional Magistrate, directing the two applicants to furnish personal bonds of Rs. 500 each and two sureties each of the like amount to be of good behaviour for one year or in default to undergo one year s rigorous imprisonment. The learned Counsel for the applicants has argued the case at some length. In order to appreciate his contention some facts should first be recited. The two applicants, Sardar Singh and Ganga Singh alias Laloo Singh, are brothers. They are land-holders and carry on a paying business at Auraiya. They live in Rahatpur.

(2.) The Sub-Inspector of Auraiya, who has been there since September 1911, laid information against the applicants to the effect that they protected and harboured thieves, associated with notorious bad characters, and received stolen property.

(3.) On the basis of that information, a notice under Section 112, Criminal Procedure Code, was drawn up against the applicants. They repelled the charges brought against them. The hearing of the case was fixed for 23rd March 1912. On 22nd March 1912, the Police filed a petition to the effect that the prosecution witnesses had been won over by the defence and some others will be produced later. The case was taken up on 26th March 1912, when nine witnesses were examined for the Police and the case was presumably closed for the prosecution. The applicants were called upon to enter on their defence. They denied the charges contained in the Police information and examined twenty witnesses in support of their character and reputation in the neighbourhood. After the close of the evidence for the defence, seven more witnesses were examined by the Sub- Divisional Magistrate for the prosecution. The Sub-Divisional Magistrate accepted the evidence for the Police and his order was upheld by the District Magistrate. Now, it is contended on behalf of the applicants that the procedure of the Sub- Divisional Magistrate as to the recording of evidence was distinctly erroneous and injurious to the defence. Under paragraph 2, of Section 117 of the Code of Criminal Procedure, the case against the applicants was to be conducted as if it were a warrant-case and the procedure to be observed in the trial of warrant- cases is laid down in Sections 251 to 256, Criminal Procedure Code. According to the said sections, an accused cannot be called upon to enter on his defence until the prosecution closes its case. No further evidence can be admitted against the accused except under Section 540, for which there must be valid reasons and which reasons must be recorded. In the present case, the witnesses for the prosecution examined after the close of the defence evidence were not examined under Section 540, Criminal Procedure Code, and no order appears on the record to show why was additional evidence for the prosecution allowed, after the close of the defence. Such a procedure has obviously placed the applicants at a disadvantage. Further, it is argued that the evidence for the Police relates to general rumour or suspicion, or the statements or conduct of third persons who justified their conduct by reference to the applicants. The Police witnesses with the exception of two men came from distant places and not from the village where the applicants reside or the village where they carry on their business.