Henry Richards, C.J.
1. This is an application in revision against an order of the District Magistrate of Etah, dismissing an appeal of Miharban Singh against an order of a Magistrate of the first class, directing him to give security to be of good behaviour under Section 110 of the Code of Criminal Procedure. Applicant is a zemindar and money-lender. It appears that a band of very desperate dacoits bad as their rendezvous, a place on the banks of the Kali Nadi on the boundaries of Etah and Mainpuri. The gist of the evidence of the Police and unofficial witnesses against the applicant, was that he harboured this band of dacoits. It would rather see as if it was intended at one time actually to charge the applicant as being a member of the gang; presumably because the necessary evidence was not forthcoming, no substantive proceedings were taken against him. Section 110 of the Code of Criminal Procedure defines the class of persons against whom an order for security may be made:
(a) A man who is by habit a robber, house-breaker, or thief, or (b) is by habit a receiver of stolen property knowing the same to have been stolen, or
(c) habitually protects or harbours thieves, or aids in the concealment or disposal of stolen property, or
(d) habitually commits mischief, extortion or cheating or counterfeiting coin, currency notes or stamps, or attempts so to do, or
(e) habitually commits or attempts to commit, or abets the commission of offences involving a breach of the peace, or
(f) is so desperate or dangerous as, to render his being at large without security hazardous to the community.
2. There is not a particle of evidence that the applicant comes under any part of this section except a portion of (c), namely, that he habitually protects or harbours thieves. There is not even any allegation that he was in the habit of concealing or disposing of stolen property. The evidence, such as it is, is confined to his alleged association with a particular gang which had made, as I said before, its rendezvous in the neighbourhood of his village. It must be borne in mind that neither the applicant nor any of his villagers could be bound over under this section merely because they did not actively, oppose the dacoits. It would be very well if zemindars and others recognised their duty and had the courage to give assistance to the Police when gangs of dacoits settled in their neighbourhood, but their omission to do so, does not render them liable under Section 110. There is no evidence that the applicant was in the 'habit' of harbouring or protecting thieves. There is a good deal of evidence from which, if unrebutted, it might well be inferred that he assisted the gang in question. The prosecution examined a number of witnesses who said that the accused harboured these particular dacoits. One witness said that lie had seen them at the house of the applicant, and one witness said that he had fed them. One of the prosecution witnesses, namely, Thamman Singh, while deposing against the accused, said that he had heard that he was a man of good character. No witness was produced on behalf of the prosecution from the accused's own village. The accused produced 46 witnesses, most of them from his own village including the headman and patwari and the headman of a neighbouring village.
3. this Court is not a Court of Appeal in cases under Section 110 and the responsibility of administering that section does not rest with the High Court. It is nevertheless a section which Magistrates ought to administer with the most scrupulous care, both the Court of first instance and the Appellate Court. Magistrates ought always to bear in mind that the indirect results of binding a man over under Section 110 may be very terrible and that there is always the possibility of the section being abused. In the present appeal I do not think that I ought to take upon myself to weigh the evidence given on behalf of one side or the other. I ought only to see whether the Court below has approached the consideration of the appeal in a fair way having regard to the interest not only of the prosecution but also of the applicant. The learned District Magistrate has discarded the evidence of all the witnesses produced by the accused who were his tenants or his fellow-castemen. It may perhaps be urged that when the question at issue is the good or bad character of an individual, the evidence of his fellow castemen ought not to be discarded solely on the ground that the witnesses are his fellow-castemen. The learned District Magistrate proceeds: 'There still remains a large number of others against whom no allegation can be made. The easy course in such cases is simply to say that there is no reason to distrust them and that they must, therefore, be believed. I do not, however, think it is right to do so. The evidence for the prosecution has raised a very strong prima facie case against the appellant and he has to rebut it. As the Deputy Magistrate observes: 'It is never a matter of difficulty for a man who has the influence of a gang of dacoits at his back and is at the same time a zemindar and money-lender to produce as much evidence as he wants, and the production of 46 witnesses |by the appellant does not, therefore, mean that he is of good character. The forces of evil are by no means to be ignored. If they were, we should not be troubled with an outbreak of crime like dacoity.' Appellant has, I think, made full use of his influence to bring up evidence, and has had the help of his position and also no doubt of the aforementioned Misri Lal, whose election to the post of lambardar he was instrumental in securing. This influence has probably prevented the production of purely local evidence, the absence of which is one of the points made by the appellant.' It seems to me that this was not a fair way of dealing with the evidence of witnesses whom no reason could be given for disbelieving. The only reason suggested by the learned District Magistrate is that the applicant had a gang of dacoits at his back. It seems to me that this means that he disbelieved the evidence adduced by the accused because he was guilty. In other words, he convicted the man first. The learned Magistrate said that the accused had to rebut 'the strong prima facie case made against him.' How could he rebut the case otherwise than by producing a large number of witnesses 'against whom no allegation could be made.' The learned District Magistrate has, in my opinion, given no legitimate reason for disbelieving the evidence of a large number of persons who deposed to the good character of the applicant, persons residing in his own village and in the immediate neighbourhood. I cannot help feeling that where a person is of a notoriously bad character, he will as a general rule find difficulty in producing respectable honest persons to depose to his good character. It may possibly be that the applicant in the present case and all his fellow-villagers are little better than the gang of dacoits who made the neighbourhood their meeting place, but this was not the case made either by the Police or by any of the witnesses for the prosecution and it is not the reason which the learned District Magistrate gives for disbelieving a large number of witnesses produced by the applicant and who were not shown to be in any way under his influence either as tenants or even as fellow-castemen. In my opinion the learned District Magistrate did not approach the consideration of the appeal from a proper point of view, and on this account I think the order ought to be set aside. I accordingly allow the application, set aside the order of both the Courts below and direct the bail bond to be cancelled.