1. This is an application in revision. The applicants seek to set aside the order of the District Magistrate of Etawah, confirming that of the Sub-Divisional Magistrate, directing the two applicants to furnish personal bonds of Rs. 500 each and two sureties each of the like amount to be of good behaviour for one year or in default to undergo one year's rigorous imprisonment. The learned Counsel for the applicants has argued the case at some length. In order to appreciate his contention some facts should first be recited. The two applicants, Sardar Singh and Ganga Singh alias Laloo Singh, are brothers. They are land-holders and carry on a paying business at Auraiya. They live in Rahatpur.
2. The Sub-Inspector of Auraiya, who has been there since September 1911, laid information against the applicants to the effect that they protected and harboured thieves, associated with notorious bad characters, and received stolen property.
3. On the basis of that information, a notice under Section 112, Criminal Procedure Code, was drawn up against the applicants. They repelled the charges brought against them. The hearing of the case was fixed for 23rd March 1912. On 22nd March 1912, the Police filed a petition to the effect that the prosecution witnesses had been won over by the defence and some others will be produced later. The case was taken up on 26th March 1912, when nine witnesses were examined for the Police and the case was presumably closed for the prosecution. The applicants were called upon to enter on their defence. They denied the charges contained in the Police information and examined twenty witnesses in support of their character and reputation in the neighbourhood. After the close of the evidence for the defence, seven more witnesses were examined by the Sub-Divisional Magistrate for the prosecution. The Sub-Divisional Magistrate accepted the evidence for the Police and his order was upheld by the District Magistrate. Now, it is contended on behalf of the applicants that the procedure of the Sub-Divisional Magistrate as to the recording of evidence was distinctly erroneous and injurious to the defence. Under paragraph 2, of Section 117 of the Code of Criminal Procedure, the case against the applicants was to be conducted as if it were a warrant-case and the procedure to be observed in the trial of warrant-cases is laid down in Sections 251 to 256, Criminal Procedure Code. According to the said sections, an accused cannot be called upon to enter on his defence until the prosecution closes its case. No further evidence can be admitted against the accused except under Section 540, for which there must be valid reasons and which reasons must be recorded. In the present case, the witnesses for the prosecution examined after the close of the defence evidence were not examined under Section 540, Criminal Procedure Code, and no order appears on the record to show why was additional evidence for the prosecution allowed, after the close of the defence. Such a procedure has obviously placed the applicants at a disadvantage. Further, it is argued that the evidence for the Police relates to general rumour or suspicion, or the statements or conduct of third persons who justified their conduct by reference to the applicants. The Police witnesses with the exception of two men came from distant places and not from the village where the applicants reside or the village where they carry on their business.
4. For the applicants, exception is also taken to the reasons given by the learned District Magistrate for upholding the order of the Sub-Divisional Magistrate. It is said that no reflections were cast on the Sub-Inspector or the Sub-Divisional Magistrate, when it was urged for the applicants that unfortunately for the latter, their enemies had put into circulation reports which found credence with the said officers. It is true that it is difficult to get evidence against well-to-do men and the Police would think twice before laying a charge against such persons, but the latter have more enemies than a poor man, and have a right to the consideration of evidence against them on the same principles as would be applied in the consideration of evidence against a poor man. It is also urged that the absence of any report by former Police officers cannot be ignored on the assumption that they were lazy and did not discharge their duties with diligence. The last argument advanced is that the evidence for the defence is just as good as, if not better than, the evidence for the Police. I think that the procedure adopted by the Sub-Divisional Magistrate in admitting the evidence for the prosecution after the close of the defence was erroneous and unauthorised It was also prejudicial to the applicants. But, apart from the defects in the procedure or the criticism of the reasons of the lower, Courts, I think that the information laid by the Police has not been established. That evidence is open to several objections. Only two men, viz., Laloo and Kanahya, come from Auriaya and the others come from villages, from two to ten miles of the village of the applicants. Laloo admittedly is an enemy of the applicants. He has given evidence against them before, Kanahya was once convicted of gambling (sic) would like to keep friends with the (sic). Another witness, Kalka, has been (sic) and over at the instance of the Police and (sic) no doubt, be willing to please them, (sic) giving evidence. Many witnesses depose (sic) cases in which the applicants were suspected to have received a share of the stolen property. Such evidence is inadmissible as was held by my learned colleague, Mr. Justice Chamier, in the case of Mulu from Etawah so, vide Revision Case No. 344 of 1911.
5. One witness deposes to having paid money to Lashkaria and another, who levied the black-mail on him representing that they had been sent by the applicants. Lal Man who makes that statement admits that he made no report at the time and gives no reason for the omission. Lashkaria and his comrades have not been examined. It is easy to make such statements as Lal Man has made and difficult to refute them. It is also doubtful whether such evidence is admissible.
6. The other witnesses state that there is shohrat-am that the applicants are bad characters. The learned Counsel for the applicants contends that the words shohrat-am mean general rumour and not general repute. I do not think so. I think that the words mean general repute also. The witnesses further say that the applicants associate with Lashkaria and a few others, who are notorious badmashes. This evidence of association, when examined, clearly amounts to this that once or twice the applicants had been seen in the company of Lashkaria and others. The applicants, it is said, are men of business. They receive all sorts of men. Besides, they might have allowed the notorious men in question to talk or walk with them for fear. The allegation that thieves and bad characters are settled by the applicants on their land is not borne out by any reliable evidence. Some of the witnesses say that they have heard so.
7. The only evidence then against the applicants is of some witnesses, who do not live in the villages where the applicants live or carry on business or in the immediate neighbourhood of the said villages, who say that the applicants by general repute are known to be bad characters. But even if the whole of the evidence for the Police were to be taken as admissible, it is, I think, sufficiently rebutted by the evidence for the defence. There is a large volume of evidence for the applicants, and that evidence is of men of the villages where the applicants re-side and carry on their business or of the immediate neighbourhood. No valid reasons have been given by the lower Courts or by the Assistant Government Advocate for disbelieving the evidence for the defence.
8. I thick that it is just as good as, if not better than, that for the prosecution.
9. And in a case under Section 110, Criminal Procedure Code, where the evidence for the defence is equally good with that for the prosecution, the accused are entitled to an acquittal, vide Rajendra Prasad Sahi v. King-Emperor 1 A.L.J. 611; 1 Cr. L.J. 984. I therefore, accept this application and set aside the order of the lower Courts calling upon the applicants to furnish personal bonds and sureties to be of good behaviour for one year.