HAKIM SINGH Vs. EMPEROR

JUDGEMENT

(1.) THE five appellants Hakim Singh, Dal Singh, Gandharp Singh, Hukam Singh, and Khem Singh have been ordered to furnish security under Section 110 of the Code of Criminal Procedure. All five are thakurs. Hukam Singh and Dal Singh reside in one village, the other three in another village. Hukam Singh and Dal Singh have been represented by Mr. Bajpai, whilst the other three applicants have been represented by Mr. Sital Prasad Ghose. THEy were separately represented in the Court below also. I have gone carefully through the evidence on both sides. THE learned District Magistrate in confirming the order of the. Court below says: "THEre is no doubt that the Magistrate has admitted a great deal of evidence which was quite inadmissible, for instance, the evidence of suspicions without any tangible ground having been stated for these suspicions, also second hand evidence or mere hearsay about what some person told another person and that person not being produced as a witness and so forth." He then proceeds to say that in dealing with the evidence for the prosecution, he will eliminate all such evidence. All the applicants are possessed of some zemindari and cultivation. Of course, it by no means follows that because a man is the owner of some zemindari, he is not a badmash. At the same time the fact that he has some property and position ought to be taken into consideration when dealing with a person under the provisions of Section 110. THE evidence, in my opinion, given in the Court of first instance, was very unsatisfactory and very vague. THE statements were made against all seven persons who were then charged in a "lump." Witness after witness says "all these persons are bad characters." THE Magistrate ought to see that the witness is really speaking and has reason for speaking against each. If I were trying the case as a Court of first instance, I hardly think that I would feel justified, on the evidence, in binding the accused over under Section 110; at the same time I must bear in mind that this is not the Court upon whom rests the responsibility of administering the provisions of Section 110, I can only deal with the case in revision. Accordingly unless I can find some substantial grounds for thinking that the Court below has gone astray, I ought not to interfere. In the present case, I think such grounds do exist. THE Court below has wiped out all the evidence that was given on behalf of Hukam Singh and Dal Singh simply because it was of opinion that the thakurs had held a panchayat in connection with this case. It seems to have thought that it necessarily follows that the evidence given in support of the good character of the applicants was false because it was the result of a panchayat. No doubt it might happen that the thakurs would take up the case of the accused and come to a decision to support them at all hazards, quite irrespective of the merits. On the other hand, it might very well be that the thakurs of the neighbourhood might have reason to think that their fellow-castemen were not being fairly treated and that all that they did, was to lend support to witnesses ready to come forward and to speak the truth. I have a great dislike to lay down any hard and fast rule as to how cases under Section 110 should be dealt with. Each case should be dealt with on its own facts and circumstances. I think, however, one rule may very safely be laid down, and that is this. Where proceedings under Section 110 are taken against a person and he is able to produce witnesses on his behalf to speak of his good character, the Court ought to pay particular attention to such evidence. I do not mean to say that it should necessarily be believed, but the Court should find substantial reason for not believing the evidence before it makes an order. Badmashes who happen to be rich or influential may, of course, be able to procure false evidence as to their character. But speaking generally, I think a person who really is a notorious bad character would find considerable difficulty in getting a large number of his neighbours to come forward and speak to his good character. In the present case, after carefully reading the judgments of both the Courts of first instance and of the District Magistrate, I am of opinion that proper attention has not been paid to the evidence which all of the five applicants adduced. Under the special circumstances of this case, I think that the order both of the Magistrate and of the District Magistrate should be set aside. I accordingly allow the application, set aside the order of both of the Courts below and the accused will be released if in custody. If they have given security, such security will be cancelled.