JABRUDDIN Vs. EMPEROR

JUDGEMENT

(1.) JABRUDDIN, the applicant in this revision, has been bound over for three years under Section 110 of the Code of- Criminal Procedure by a Magistrate of the first class in Moradabad and, on reference under Section 123 of the Code of Criminal Procedure, the learned Sessions Judge of Moradabad has confirmed this order. The applicant has come to this Court in revision, and I have been asked by his learned Counsel to take into consideration the evidence which has been produced on behalf of the prosecution as well as that produced on behalf of his client. It has been remarked more than once by learned Judges of this Court that the High Court is not a Court of Appeal for oases under Section 110 of the Code of Criminal Procedure. The responsibility of administering that section rests primarily with the District authorities. That section coupled with Section 117 of the Code of Criminal Procedure, gives very wide powers, and necessarily so, to the trying Magistrate and it is only in very rare oases that this Court interferes with his decision, when it has been upheld either on appeal by the District Magistrate or on reference, under Section 123 of the Code of Criminal Procedure, by the Sessions Judge. Seeing how extensive the powers of the trial Court are, it is all the more necessary that Magistrates ought to administer it with scrupulous care and ought not to allow materials to be brought on the record which are not legally admissible in evidence and which are liable, if on the record, to prejudice the accused before the Court. In this case unfortunately we have materials on the record which the learned Assistant Government Advocate frankly admits are not admissible in evidence, according to the rulings of this Court by which I am bound. The learned Sessions Judge states that the applicant is apparently a man of some substance, has a considerable amount of cultivation and is also a money-lender. It appears that in October 1914 the applicant was acquitted in a dacoity case. On the 6th November of the same year proceedings were instituted against him under Section 110 of the Code of Criminal Procedure. He was bound over by a Magistrate of the first class on the 19th December 1914, but the learned Sessions Judge, to whom the proceedings were referred for confirmation under Section 123 of the Code of Criminal Procedure, came to the conclusion that the applicant should not have been bound over and discharged the order which had been passed against him. The learned Sessions Judge, from whose order this revision has been filed, says that there are two parties in the village where the accused resides, one of them being headed by Muhammad Zahur and the other by the accused, that these two parties are hostile to each other and that many of the prosecution witnesses seem to be connected with Muhammad Zahur, This is a further reason why the evidence for the prosecution has to be carefully scrutinized. There is on the record a certified copy of a complaint, dated the 31st January 1919, by the present applicant charging Muhammad Zahur of an offence punishable under Section 323, Indian Penal Code. It does not appear what the result of those proceedings was, but very few days after, namely, on the 5th February 1919, the applicant was arrested on a charge under Section 397, Indian Penal Code. There appear to have been two dacoities at Maheshpur and Bhawanipur. The applicant was not named as having participated in either of them, but some time in the month of February he was identified with reference to both the dacoities by one witness regarding each of these two dacoities. This was apparently all the evidence that the Police secured against the applicant, because we find that they dropped the charges under Section 397, Indian Penal Code, against him and, in lieu of those, instituted proceedings on the 1st March under Section 110 of the Criminal Procedure Code. These resulted in an order, dated the 16th May 1919, binding him over for three years. This order was confirmed by the Sessions Judge on the 14th June 1919, Against these orders the present revision has been filed. The learned Sessions Judge says that the chief point for the prosecution is that the accused was identified, as already mentioned by me, as having taken part in two dacoities. The two persons who identified him, were prosecution witnesses in this case. Then the learned Sessions Judge proceeds: Most of the other witnesses refer to him as having been suspected in these or other dacoities of recent occurrence, but the reason they give for their suspicions is that he was mentioned to them by the complainants. The complainants usually say that they did not mention their suspicions to anybody." In the case of Raham Ali v. Emperor 20 Ind. Cas. 231 : 11 A.L.J. 481 : 14 Cr.L.J. 407 Rafique, J, has held that specific instances of crime in which the applicant was suspected were not good evidence and could not be said to fall within the meaning of "general repute" under Section 117 of the Code of Criminal Procedure. The same view was also taken by Chamier, J., in Bechai v. Emperor 26 Ind. Cas. 153 : 12 A.L.J. 937 : 15 Cr. L.J. 705. Chamier, J., says: "The so-called evidence which is supposed to connect him with various offences consists of (1) Police lists of oases in which he is said to have come under suspicion, (2) the statements of witnesses each of whom says that he suspected the applicant of complicity in this or that isolated offence, (3) a list of oases in which the applicant s house has been searched on suspicion that he had committed some offence. Police lists of the kind here referred to have been repeatedly held to be inadmissible and suspicion cannot take the place of proof that a man has committed an offence." In the case with which I am dealing in revision, the learned Sessions Judge observes as follows: "It should be noted that the accused has been recorded on a history sheet as a dacoit for some years." History sheets are not evidence against the accused. This history sheet was produced by an official who is not himself responsible for all the entries on the history-sheet and it was a piece of paper of the kind which was held by Chamier, J., not to be evidence in a Section 110 case. In my opinion, therefore, a considerable amount of inadmissible evidence has been allowed to be brought on the record by the trial Magistrate, and, having regard to the evidence given, I am of opinion that this inadmissible material has seriously prejudiced the applicant.

(2.) TO satisfy myself as to whether the admissible evidence on the record is sufficient to justify an order under Section 110 of the Code of Criminal Procedure I have gone through the evidence of the witnesses for the prosecution. Almost throughout the evidence I find such a quantity of inadmissible material in the statements of witnesses that I am not prepared to say that that evidence is sufficient when contrasted with the evidence produced on behalf of the defence. Regarding the defence evidence the learned Sessions Judge says: "It is true that of the witnesses for the defence many are of higher status than those for the prosecution, but a man of the position of the accused has usually little difficulty in procuring witnesses to speak for him and the defence witnesses are not in a position to know much about his real character." I fail to see why the learned Judge says that the defence witnesses are not likely to know much of the applicant s character. They are in as good a position to know of the applicant s real character as many of the prosecution witnesses were. The reason here suggested by the trying Magistrate for discrediting those defence witnesses, who were of a higher status than the prosecution witnesses, was that a man of his position, that is a man who had the assistance of badmashes at his back, would find little difficulty in procuring witnesses to speak, for him. In the words of Richards, C.J., in the case of Miharban Singh v. Emperor 31 Ind. Cas. 821 : 13 A.L.J. 1046 : 16 Cr. L.J. 805, it seems to me that the Magistrate disbelieved the evidence adduced by the accused because he had decided before hearing them that he was guilty. That is not a fair way of dealing with the evidence of the witnesses for the defence. Specific reasons should have been given for disbelieving them and not merely the reason that, assuming that the accused was guilty, it was easy for him to get witnesses of fairly good status to give evidence on his behalf. In my opinion the Courts below did not proceed to the consideration of the case from the proper point of view, and, for the reasons already stated, I think the order ought to be set aside. I accordingly allow the application in revision, set aside the orders of both Courts below and direct that the applicant s bail bond be cancelled.