1. This is an application ii revision against an order made by a Firs Class Magistrate under Section 110, Criminal Procedure Code, directing the applicant Bisheshwar Dayal, to give security in Rs. 300 or to be detained in custody for three years. The cases in which this Court can, I think, interfere in revision on questions of fast, particularly under Section 110, Criminal Procedure Code, are rare. On the other hand the administration of Section 110, Criminal Procedure Code, has to be very carefully watched. If there is clear and apparently credible evidence in support of the prosecution case and the decision has been arrived at in a well-balanced judgment, speaking for myself, I decline to interfere. Where evidence has been misunderstood or ignored, difficulties have not been seen, or the Rules of evidence have not been followed, it becomes a very difficult matter and if the judgment itself does not commend itself to the Appellate Court, one is inclined to look narrowly at the grounds upon which a man has been bound down. In this case I propose to interfere merely upon a most unsatisfactory impression left upon my mind by the substantive evidence, for the prosecution on which the case has been built up and by the judgment of the Magistrate. I am not acting on the defence evidence at all. I am treating the case as though none had been given for the defense. The application is really against the order of the Sessions Judge, but it is obvious that the Sessions Judge has reviewed the case in a very perfunctory way without noticing the palpable defeats in the evidence to which I will refer in a moment. He has even misunderstood it because he says: 'the article in the paper was in the middle of 1920, whereas the entry of Bisheshwar Dayal's name in the history sheet and the transactions in which he was concerned date bask for many years.' At the time that order was written it was only one month old and it is obvious that the learned Judge had not studied the case very thoroughly. I, therefore, pass by the Sessions Judge's judgment and examine the original evidence and the judgment of the Magistrate, and I do so with some care and possibly superfluous minuteness, because it is desirable to assist Magistrates and give them some standard to guide them in Bases under this Section, and also because a Magistrate, who with the assistance of the Police has worked up a case of this kind and tried it at great length with a host of witnesses and decided it to his own satisfaction, naturally finds it difficult to understand why the High Court suddenly undoes his work of months by a short order without explanation. I think it is due to the Magistrate to point out the grounds on which this Court interferes. For that reason I always go into considerable detail when I am interfering with an important order of the Court below, I will state particularly the two grounds upon which I interfere.
(1) The evidence of the Police and of their principal witnesses is extremely vague, general in character and consists almost entirely of repetition.
(2) In the only case in which they attempt to bring home to the applicant complicity with a definite piece of badmashi, namely, assisting in the attempt of a thief to avoid arrest, they have come hopelessly to grief.
2. It is quite clear that the four principal Police witnesses have put in the forefront of their complaint against the accused that he has been a frequent defence witness. This is rather a dangerous ground to take up. It would be very hard on members of the general public if, merely because they happened on occasions to be witnesses for the defense, it should be held to be a ground for trying them as badmashes. If a man is a professional witness and constantly gives untruthful evidence in the Court, that is an offence in itself. In this case, there is too much reason to fear that the Police have felt some times hurt, or have taken it sometimes as a grievance against the applicant, that he should have given evidence for the defence. They constantly refer to it in the course of their evidences, but a great deal of the evidence of the accused was given in 1917 and although his name was entered in the history sheet, it was not entered until the month of October or November 1920, which is a very significant fact, tending to show that the Police had nothing definite against him up to that time. One of the witnesses called by the Police, who pays Government revenue of Rs. 400 and whom the Magistrate treated as an important respectable witness, committed himself to a somewhat bold statement, namely, that the accused was the ringleader of badmashes' and helped them all by standing security as well as appearing for the defence. This seems to me very like proving too much. A badmash is obliged to stand by his friends, as Mr. Malacomson points out, With that I agree. But a professional ringleader of badmashes, if he is encouraging and assisting the badmashi, could hardly venture to give surety in all the cases in which the badmashes were nailed upon to give it. Such assistance would only defeat itself. I think that statement must be taken with a grain of salt, Babu Sheo Parshad, second officer, says that he knows that the applicant got up a case of theft when two of his friends were in jail, in order to create the impression that thefts continued although these two men were confined in prison. It seems to me that this statement is a palpable falsehood. He may have a shrewd suspicion, but he cannot know it because if be did, it would have been his duty long ago to have made a report and chalaned the applicant for the offense. But he has the candour to say that he never saw the accused with badmashes. The remaining collection of respectable Zemindars sailed on behalf of the Police produce no impression upon my mind except that of weary repetition amounting to monotony. They all say that he harbours thieves and assists them. That is the extent of their knowledge and none of them seem able to add to it. One exception is the witness P.W. No. 9, Ulfat, who took part in the arrest of one Ram Sewak who was supposed to have been hiding in the house of Bisheshwar Dayal, the applicant. This is the sole attempt on the part of the prosecution to prove anything definite. As I have already said, it hopelessly breaks down. Ulfat is on his own showing a person of short memory. He does not remember whether the accused obtained a decree against him or not. I suppose he has also forgotten whether he has paid it or not. He makes a carefully guarded but suggestive statement on oath that the Thanadar same to arrest Ram Sewak, but that he did not actually see Ram Sewak some oat of Bisheshwar Dayal's house and was not present at the arrest. The Magistrate's English record does not accord with the vernacular written by the peshkar, and some of the Magistrate's English notes make mo doubt whether he paid much attention to thin witness. But the impression which the witness's evidence makes on my mind is completely contradicted by the Thanadar, who says he did not go to the arrest but deputed constables to go. At one portion of his evidence the Thanadar gays that this incident, which arose out of a charge of theft and which was followed by a charge of assault upon the constables, occurred in 1917. In another part of his evidence he gives the date as the 17th of May 1920. It is quite clear that the Police tied themselves into a knot over this incident and hopelessly contradicted one another and, in my opinion, were contradicted by their corroborators. The point baa proved a difficult one to unravel. The lamentable thing is that it does not receive the very modest tribute even of notice in either of the judgments delivered in the case. So far from the Magistrate and the Sessions Judge having tried to unravel the tangle, they do not disclose in their judgment the fast that they knew that it existed. This, of course, is a very serious blot upon the judgment and in the face of that it seems hardly necessary to say mush about the judgment of the Magistrate in this case. But for his own sake I would beseech him in future, in dealing with what is always a difficult question of fact, to give up any attempt at poetic embellishments or literary flourishes in his judgment, He speaks of 'badmashes and thieves basking in the sunshine of the patronage of the applicant' without condescending to analyse the evidence by which that basking is established, He says that for the applicant to remain at large would be 'hazardous to public tranquillity' without stating any-where in the judgment what the applicant has done or proposes to do with a view to disturbing the public tranquillity. He complains that in the conduct of his detente the applicant has sought 'to trumpet his respectability,' but. I am at a loss to know what a man may be allowed to do who is charged under the law with being a man of bad character and liable to severe penalties, if be is not allowed, by the Court which tries him, to proclaim his respectability with the enthusiasm of a trumpeter. It is not necessary in order to justify a conviction to pay profuse compliments to the Circle Inspector, and does not add to the weight of the decision in this case to know from the Magistrate that the Circle Inspector, who attributed nothing at all towards the evidence, 'is a very popular person and an officer of established reputation who cannot be pulled by the nose by his subordinates.' The learned Magistrate appears to be very fond of mountains' and 'mole-hills,' but his temptation to indulge in metaphor has not protested him from arriving at the strange conclusion that, although the prosecution witnesses have proved that the applicant has amassed wealth, the defense witnesses when they say that he is very well off 'are colossal liars.' The Magistrate does not seem to realise that he finds by his judgment that the prosecution witnesses have all satisfied him that this man is very well off and the defense witnesses have satisfied him that he is very poor. He cannot be both, but the fast that he 18 both appears to be one reason why this order has been made against him. I have no alternative but to quash the order of the Sessions Judge and to direst that the security bonds be discharged, and if the accused is in custody, he will be forthwith released.