Iqbal Ahmad, J.
1. The judgments of the Courts below are impossible judgments and must be reversed. The judgment of the trial Magistrate is a document full of special pleadings for the prosecution. It exhibits in a remarkable degree an utter disregard of repeated judicial pronouncements emphasising that in cases arising out of security proceedings the Courts ought to approach the consideration of the case in a fair way, having regard to the interest not only of the prosecution, but also of the accused. It teems with unfounded assumptions made as regards the credibility and impartiality of the evidence led by the Crown and with fantastic reasons for discarding the evidence for the defence. It is marked by an absence of logical reasoning and is unredeemed by slightest tinge of judicial balance. The judgment of the learned Sessions Judge is an abridged edition of the judgment of the learned Magistrate and is open to the criticism, to which it has been subjected by the Learned Counsel for the applicant, that the Judge without examining the evidence for himself as he was in duty bound to do contented himself by briefly summarising the reasons contained in the judgment of the Magistrate, as a justification for affirming in appeal the order passed by the Magistrate.
2. If the Courts below approach the consideration of the case in a fair way and subject the evidence both for the prosecution and for the defence to legitimate criticisms this Court is relieved from the necessity of weighing the evidence in criminal revisions. Where however as in the present case, it is clear from the judgment of the Courts below that the evidence has not been fairly considered, it is imperative to examine the evidence with a view to test the accuracy of the decisions of the Courts below and an examination of the evidence in the present case has led me to the conclusion that the decisions of the Courts below are indefensible. The applicant, Raghubar Brahmin is a substantial tenant residing in village Laturra in the District of Agra. The Ferozabad police reported to the Sub-divisional Magistrate that Ragubar is a thief and house-breaker by habit and associates with confirmed bad characters and, on receipt of this information, the learned Magistrate called upon Raghubar to show cause why he should not be ordered to execute a bond with sureties for his good behaviour for a period of one year. The evidence of 25 witnesses on behalf of prosecution and of 32 witnesses on behalf of the defence was recorded by the learned Magistrate. Both parties wanted to examine more witnesses, but the learned Magistrate did not, to quote his words, 'allow the parties to examine witnesses ad infinitum.' It appears that 20 witnesses were summoned through Court by Raghubar and on the date fixed for the recording of the defence evidence, a list containing the names of 166 defence witnesses was filed in Court. The Magistrate ordered that 'the statements be recorded.' The Magist rate however ordered, again to quote his own words,
the prosecution to furnish 15 of their best witnesses, and asked the accused to examine up to 30 of his best witnesses for general reputation.
3. It is needless to observe that the procedure adopted by the learned Magistrate has no sanction in law and the Magistrate had no right to arbitrarily limit the number of witnesses whom the accused wanted to examine in his defence. It is not that the Magistrate cut short the number of defence witnesses on the ground that a large number of witnesses were proposed to be examined for the purpose of vexation or delay or for defeating the ends of justice. It is to be remembered that a person who is called upon to furnish security under Section 110, Cr.P.C., is entitled like other accused persons to have his full say in the matter and there is no warrant in law for calling upon such a person to play the role of a Judge and to decide for himself who are his 'best witnesses' and examine only such witnesses in his defence.
4. It may be that for effective administration of the sub-division committed to his charge a Sub-divisional Magistrate has to keep himself in touch with the affairs of his sub-division and possibly the opening of history sheets in most oases, has his tacit approval, but it is imperative to bear in mind that when trying a case under Section 110, the Magistrate is required by law to function as a judicial officer, and public policy dictates that nothing should be done in trial of such cases which may lay the proceedings open to the comment that the Magistrate was both in the position of a prosecutor and a Judge. In the trial of such cases, like other cases, the procedure prescribed by law must be faithfully followed, the evidence must be judicially considered and findings based on judicial principles must be recorded.
5. The applicant, Raghubar was once convicted under Sections 411/457, Penal Code, and this previous conviction of Raghubar has been pressed into service by both the Courts below as one of the reasons for ordering him to furnish security to be of good behaviour. The conviction was on 6th January 1920. The facts of that case do not appear from the evidence in the case. It must however be taken for granted that Raghubar had such a conviction to his credit. But the fact that the present proceedings were not started against Raghubar for a period of about 12 years after the date of that conviction must also be kept in view. The Station Officer of Ferozabad stated that Raghubar is under serveillanoe from 1926. He however admitted that for about seven or eight months in 1931, the surveillance was discontinued and was 'again taken up in 1932, because of the complaints.' It appears to me that, in the absence of cogent and convincing evidence in proof of the fact that the applicant is by habit a thief or a house-breaker, his previous conviction in 1920 cannot by itself be a justification for binding him over under Section 110. The learned Magistrate rightly observed that the conviction 'is a very old one' and under ordinary circumstances could not be taken notice of, but proceeded to remark that this previous conviction of the applicant 'serves to show that the accused had germs of being a thief in him.' Surely a period of 12 years was more than sufficient to destroy the 'germs' and it was not fair to suppose that the 'germs' got better of Raghubar, after the lapse of 12 years. The prosecution also led evidence to prove that the applicant was responsible for 3 burglaries in the years 1931, 1932 and 1933, and the learned Magistrate accepted that evidence. (After considering the evidence regarding these, his Lordship held that the evidence to prove that the applicant had a hand in either of the three alleged burglaries was wholly un-: convincing and ought to have been rejected by the Courts below, the judgment proceeded.) The trial of the case by the Magistrate was marked by another serious irregularity. It is provided by Section 342 Criminal P.C. that for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court shall question him generally on the case after the witnesses; for the prosecution have been examined. The section is mandatory and as pointed out by their Lordships of the Privy Council in Dwarha Nath Verma v. Emperor it is the duty of the Magistrate to call the accused's attention to any important point against him and ask for an explanation. 'When however I turn to the statement of Raghubar recorded by the Magistrate, I find that not one question was put to him as regards the three alleged burglaries and thus he was not given an opportunity to offer his own explanation about the evidence for the prosecution on the point. This omission on the part of the Magistrate was unwarranted by law. I now proceed to examine the evidence of general repute produced by the prosecution. The fact that a person is an habitual offender may, in view of the provisions of Section 117(4), Criminal P.C., be proved by evidence of general repute or otherwise. It is to be remembered that such evidence of general repute does not offend against the rule against reception of hearsay evidence or the provisions of Section 60, Evidence Act, by which it is provided that oral evidence must, in all cases whatever, be direct, that is to say:
If it refers to a fact which could be heard, it must be the evidence of a witness who says he beard it....
6. If a witness states that 'l know the general repute of the man to be so and so,' this is not hearsay. It is direct evidence given on the basis of the knowledge of the witness, the knowledge of the fact that the man has such and such a general reputation, a fact that has come to the knowledge of the witness because, he has heard people saying so about the man : vide, Emperor v. Babu Ram : AIR1928All1 . What weight is to be attached to such evidence of a particular witness must necessarily depend on the fact whether the witness is independent and impartial, whether he is in a position to disclose the source of his knowledge and whether the source of his knowledge is such as to inspire confidence. If the witness merely states that a man is reputed to be an habitual offender and is unable to disclose the source of his knowledge, his evidence is entitled to no weight whatsoever. The reason is obvious. The reputation of a man means 'what is generally said or believed about his character.' It follows that the evidence of a witness as to the general repute of a man must necessarily depend on what he has heard about his character from others. It follows that the witness-must be able to disclose the name of the, person from whom he has derived the knowledge about the general repute of the man and if he is not in a position to do so, then his evidence cannot be treated as evidence of general repute of the man concerned. (After examining the evidence of both the Crown and the accused his Lordship held that the defence evidence was sufficient to rebut unsatisfactory evidence of the prosecution witnesses and the judgment proceeded.) The learned Magistrate observed that as 15 of the defence witnesses were Brahmins and caste fellows of the accused they presumably were actuated 'by feelings of communal bias'. This comment overlooks what is obvious, viz., that the best persons to testify to the character of a man must be persons with whom he associates and there is therefore no occasion for surprise if Brahmins were produced to prove the good character of the accused who is himself a Brahmin. The learned Magistrate also adversely commented on the fact that most of the defence witnesses came to Court without being summoned. The answer to these comments of the Magistrate is furnished by the decision in Babu Ram v. Emperor A.I.R. 1921 All. 278. It was observed in that case that the fact that the witnesses called for the defence were caste fellows of the accused and had come from distant villages to give evidence voluntarily, without being summoned, was no adequate ground for discarding their evidence. The learned Magistrate has also made the following observation in the course of his judgment:
The accused is a fairly well-to-do tenant and does some money lending. His apparent condition will lull a man into a false idea about his character, if with his regular occupation he happens to be a thief.
7. I should have thought that the facts that applicant carries on cultivation on a large scale and is a well-to do tenant and also does some money lending business are facts in favour of the applicant and not against him. On an examination of the evidence in the case I have come to the conclusion that the orders of the Courts below cannot be supported. I accordingly allow the application, set aside the orders passed by the Courts below and direct that the security bonds furnished by the applicant be discharged. If the applicant in consequence of his inability to furnish security bonds is confined in jail, he must be forthwith released, unless he is wanted in connexion with some other case.