1. This is one of the most remarkable cases under Section 110 which' has ever come under my notice. There are various reasons why I say that. In the first place, the procedure which has been adopted from first to last, appears to me to be an abuse of the section. Twelve men were charged together or notices were issued against them together under this section, I will not say, without anything upon the evidence seriously connecting them, but with a very (sic) colouring of evidence and a vague, general and hearsay description connecting them together as partly ringleaders of a gang, partly notorious dacoits and partly habitual receivers. The police, in support of this case, called a variety of witnesses of every sort and description to establish the character which they sought to prove, amounting altogether to 76 in number, and having little or nothing in common except the fact to which most of them spoke,--(a) that they lived at least 8 miles away from the village of the defendants, and (b) that they have no personal knowledge of them themselves indeed it is impossible to read the principal evidence for the prosecution which has been relied upon by the Magistrates in the courts below, without acquiring the impression that it was really a gang case which the police were running on hearsay evidence under the guise of a badmashi charge under Section 110. The witnesses who were put in the box were not disposed of at one hearing and each by one piece of evidence, but they were scattered about and divided up in the most bewildering fashion, so that it is a work of considerable magnitude and one almost impossible of accomplishment by any appellate court without the assistance of somebody who has minutely studied the record, to trace the sequence of statements of any particular witness. But, so far as I can tell, the result of this voluminous and chaotic recording of evidence was that the defence evidence and the examination of the accused under Section 364 was not even reached until the 9th of September, 1921, fully two months after the hearing had been commenced. Apart from any other feature of this case, it seems to me very hard, almost oppressive, to any set of defendants to charge them together in this way, unless the whole of the evidence against all of them is precisely the same and they are to be dealt with on the same facts, and compel them to. fight each his own individual battle during a prolonged inquiry, a great deal of which concerns for the moment only one out of the general body. I have myself upset orders under this section where the evidence against one person charged has been used in the judgment as evidence against another not mentioned by the particular witness. There is always a danger of that, and a danger of its unconsciously operating on the mind of the tribunal even though such operation does not manifest itself in the judgment, and if there were no other feature in the case, I should have been disposed to set aside the proceedings on that ground alone, disregarding the merits, and directing the Magistrate to hold a further inquiry into the case of each accused separately or each batch of accused who could fairly be said to be classified under evidence common to each individual member of the batch. But that would be a great hardship upon the defendants, and there are many other points in this case which render the further consideration of this question superfluous, except that I recommend these observations to the consideration of the District Magistrates in general. Without laying down any rule or consulting any section, common sense and common justice dictates that proceedings against a man for badmashi should be confined to himself alone, unless the case is that he has a confederate or a partner to whom all the evidence is equally applicable.
2. A further objection based upon the same procedure, but entirely separate and independent, is the objection which to my mind arises out of the enormous mass of witnesses in this case on the prosecution side. There are seven defendants in all, and although it may not be out of the way in a heavy gang case, it seems to me monstrous and to amount to something like persecution, that each individual in a group of persons, supposed each in his own way to be a badmash, should be condemned to submit to, and to employ counsel for, the examination and cross-examination of a number like 76 witnesses during a proceeding lasting over two months. If the police cannot satisfy an experienced Magistrate with less than 76 witnesses, or in less time than two months, that a man is a badmash, the sooner they surrender the task at its inception the better for the interests of public justice. It cannot be to the good of any body that such unheard of prolixity and waste of public time should be indulged in as was indulged in in this case. The Magistrate himself observed upon this feature saying: 'If the reputation of a man cannot be proved by the evidence of 10 or 14 witnesses, it cannot be proved by 500.' But a feeble protest of that kind is quite useless, and it is the duty of the District Magistrate, if he thinks that 10 or 12 witnesses are as a general rule sufficient for a case of this kind, and he finds one of his subordinate officers permitting 76, to lay down some rule of common sense to guide his subordinates in the exercise of their discretion, not a caste-iron rule like the section of a Code but something to enable them to guide their own proceedings within reasonable limits. The Magistrate's main complaint on this head seems to have been the heavy record which he says has taken him a, long time to read and digest. I have already taken a day and a half over this case, but 1 have not read and have declined to read the record to which the Magistrate refers. If he read it, it is very much to his credit, although it must have consumed an enormous amount of public time, but whether he ever digested it is a matter which I Shall proceed to consider in a few moments. Naturally enough, the defendants confronted with this mass of voluminous evidence or, as one might describe it, 'massed attack,' resorted to the expedient of trying to defeat the prosecution at their own, game. I am not impressed with the tactics which guided their decision nor with the result, but I cannot blame them and I do not quite know what they were to do unless they had somebody in charge of their case strong enough to protest against the public scandal of the prosecution proceedings, and to entreat the Magistrate to use his common sense and get a few selected but relevant witnesses put forward by each defendant. The result has been that in this case the total number of witnesses, so far as I can discover by a rough computation, and there is naturally considerable margin for error, amounts to 402, and the time spent upon this proceeding before a Magistrate specially appointed to hear it was no less than six months. I imagine that this proceeding is without parallel in the administration of this section. It seems to me to amount to a scandalous waste of public time and Magisterial energy and to be a very serious infliction upon the defendants who have asserted continuously before me through their counsel that these proceedings have practically exhausted their financial resources. As I have said before, if it is going to take the police and the Magistrate anything like six months, or even more than a month, to prove badmashi they had much better drop them altogether and devote l/10th of their efforts to catching one of the miscreants in the accomplishment of the crime in which he is said to be daily engaged.
3. I recognize that it is a very serious matter to interfere with an order of this kind, especially one to which so much public time and energy have been devoted. I recognize also that the question in issue is, in the main, a question of fact, the finding on which this Court has no right, in the ordinary way, to interfere with or even to 'review. I recognize also that the District Magistrate who heard this case in appeal has managed to put his judgment into a form which suggests that he has given full consideration to the defendants' case and heard the appeal fairly and according to law. But I propose to state certain principles which, in my opinion, have been established in this Court by a series of decisions explaining how this Court deals with such cases in revision. The High Court, it has been said, is not a court of appeal, but it is its duty to endeavour to weigh the evidence and to see whether the case has been fairly considered from the point of view of the defendant: Miharban Singh v. Emperor (1915) 13 A.L.J., 1046.
4. Secondly, if the evidence for the defence is equally good as that for the prosecution, the High Court may quash the order in revision: Ganga Singh v. King-Emperor (1912) 10 A.L.J. 383.
5. Thirdly, witnesses who voluntarily come forward, whether as friends or associates of the accused, to give them a good character, must not be brushed aside unless they are discredited as regards their good faith and honesty, just as witnesses in any other proceeding must be discredited before they are rejected by the tribunal: Emperor v. Rahu (1920) I.L.R. 43 All. 186.
6. Fourthly, evidence of general repute by persons who have no personal knowledge of the accused and know nothing of his' business and circumstances, is not sufficient in itself to justify an order: Kallu v. Emperor (1920) 19 A.L.J. 39. And, lastly, vague repetition, unaccompanied by direct evidence personally affecting each accused person, or accompanied by direct evidence which breaks down, is not sufficient in itself to justify an order: Bisheshwar Dayal v. Emperor (1921) 19 A.L.J. 668.
7. In the light of these authorities I have listened to the very able criticism, of Mr. Saila Nath Mukerji and Mr. Dillon, only of those witnesses whom the appellate court, following the trial court, has vouched for as having satisfied his conscience in deciding upon this mass of complicated and general evidence that the conclusion reached was correct.
[His Lordship dealt with the evidence at length and proceeded:]
8. I am quite satisfied that in dismissing the appeal upon the grounds on which he did, the District Magistrate has totally ignored or hopelessly misunderstood the salient features of the evidence. However lamentable such a feeble result from such a voluminous proceeding may be in the public interest, nonetheless there has been a grave miscarriage of justice and the whole proceedings must be set aside and the bonds, if entered into, discharged in the case of all the applicants.
9. On the application of Mr. Saila Nath for Nawab Singh, I have no hesitation under Section 195 of the Criminal Procedure Code in sanctioning the prosecution of Qasim Ali, son of Basharat Ali, for having sworn on the 7th of August, 1921, at the hearing of the case against Nawab Singh under Section 11.0 before the Magistrate, Saiyid Zamiruddin Khan, while under cross-examination, that he had not written any part of the hukumnama, (exhibit H, which was shown to him) and that it was not in his handwritng, and, within a minute or two afterwards, that he had written it and that it was in his Handwriting.
10. It has been generally supposed and sometimes ruled by single Judges that before sanction is granted, notice should be issued to the person proposed to be charged. There is no statutory obligation upon any Judge to do anything of the kind. There is no authority binding upon him in this Court compelling him to issue notice unless he thinks it is a case in which notice ought to be issued. In this case, if the record which is before me is correct, this man, who must certainly have some education and who has acted for many years as a karinda, must have known perfectly well whether he had issued written orders to his tenants or whether he had not. He must also know his own handwriting. He must know that it is wrong and dishonest and grossly unfair to an accused person, when giving evidence in a criminal case, to deny what you know is true. Granting sanction merely removes the statutory bar which otherwise prevents Nawab Singh taking steps to posecute Qasim Ali Khan for this alleged falsehood. It is the duty of the Judge to grant sanction if he thinks it is in the public interest, independently altogether of any future grievance of complaint which the alleged delinquent may think he has a right to make. He may have an answer on the merits but that has nothing to do with me. I grant sanction with the hope that it will not be used to put pressure upon Qasim Ali or for airy Other purpose except taking fair and proper steps for prosecution, but I should grant it just the same and on the same terms whether Qasim Ali was represented by 100 counsel, and I, therefore, regard issuing notice to him as a sheer waste of public time. I sanction the prosecution of Qasim Ali for the statement abovementioned for an offence punishable under Section 193 of the Indian Penal Code; Nawab Singh to take necessary steps for such prosecution within six weeks from today, otherwise the sanction to lapse, with liberty to apply to me for extension of time.