1. This is an application to revise an order of the Sub-Divisional Magistrate of Jalaun, dated the 21st of December 1908, which the District Magistrate of Jalaun upheld in an order, dated the 11th of February 1909. The Sab-Divisional Magistrate directed the petitioner, Shiam Lal to furnish a personal bond of RS. 200, 'with one surety of a zamindar of Orai khas' in a like amount to be of good behaviour for a period of one year, or in default to be kept in rigorous imprisonment for that period. The difficulty, that I have had in dealing with the petition is due to the circumstance that although Shiam Lal had an appeal on the merits to the District Magistrate, under Section 406 of the Code of Criminal Procedure, the order in appeal which is before me, says very little by way of criticism on the evidence in the case, with the result that the petitioner here complains that his appeal did not receive proper consideration, and asks for a hearing on the merits. This Court will not interfere on the merits with proceedings under Section 110 of the Criminal Procedure Code, except in very exceptional cases, provided that the Court hearing the appeal under Section 406 will take the trouble to show in its judgment that it has really and not merely nominally gone through the record and considered the evidence that was given in the Court below. This it can do by stating clearly what it believes the evidence proves against the appellant, giving a short summary of that evidence, and making such criticisms as go to show that the evidence is reliable. District Magistrates frequently do not realize when dealing with these cases, that they are sitting in appeal and not in revision, and in consequence applications which would otherwise not have been entertained by this Court have to be admitted and the evidence gone into, to some extent at least, at the hearing. It is not a question of the length of the judgment, but of its matter. The present case was one which particularly called for full consideration by the appellate Court, for I find that the recommendation of the Superintendent of Police that the petitioner should be proceeded against under Section 110, opens with the statement that Shiam Lal was strongly suspected of having arranged the burglary in which the Tahsildar lost a considerable amount of property.' Now Shiam Lal and some other men, though actually arrested and kept in custody for sometime on suspicion of having been concerned in this burglary, were discharged, presumably because no case could be proved against them. In case where proceedings under Section 110 follow soon after a discharge or acquittal, it is always necessary to make it clear that the proceeding under Section 110 was not instituted as a means of punishing, in an indirect way, a man, who the police were convinced, was guilty.
2. The story told about the petitioner is a curious one. It is said that for some 10 or 11 years he was continuously in the employment of three different Tahsildars as cook and khansama, and he seems to have been dismissed by his last master only a short time before he was arrested. From his discharge until the institution of these proceedings, we have a period of only 9 or 10 months. If then the evidence of the witnesses called by the prosecution is true, this man must have been a notoriously bad character for at any rate a portion of the period during which he was serving' as a private servant to a Government official, for I certainly do not understand the witnesses to mean that Shiam Lal was of good character until the was dismissed from service. This suggests the question how, if the petitioner was such a notorious character, did the Tahsildar not get to hear of it sooner. The petitioner called evidence to show that his character and behaviour, while in the service of his first two masters, was satisfactory, but the trying magistrate, wrongly I think, held that that evidence had no bearing on the case. He apparently does not accept the maxim nemo fire repente turpis sinnas.
3. I shall deal with the case with reference to the question whether there is evidence to show that the petitioner is 'an associate of thieves and burglars,' for it is under this head that he evidence seems to me to be strongest. Now in trying in Orai a man who has incurred the enmity of the Tahsildar of Oral for the excellent reason, so far as the Tahsildar is concerned, that he is convinced that the man committed a robbery in his house, the position of the Tahsildar in the place is a matter of first importance. Not only would his influence be sufficient to persuade witnesses to come forward to give evidence against the man whom he believed had stolen his property: but it would also prevent Shiam Lal from getting witnesses to support his defence. I am, therefore, not surprised that the Sub-Divisional Magistrate found some of the evidence for the prosecution to be 'distinctly united.' For the reasons set out above I have been compelled to go more fully into the case than I would have done had I had before me a more considered judgment by the appellate Court. Having heard the learned vakil for the petitioner, however, and looked into the record, 1 am satisfied that the order passed in this case was a proper one, though I have arrived at this conclusion with some hesitation. My attention was called to the following passage in the judgment of the Sub-Divisional Magistrate : That accused should be a regular bully is no wonder at all considering that he has been in the service of revenue officials who have to perform executive functions, and to rule people, and now that he is away from the atmosphere of hukumat, it is natural that there should still be left in him a tendency to aggrandize himself, which in his present position must be felt as a tyranny by the public of Orai, since it is exercised by accused for his personal benefit and for which he can have now no excuse or justification.' If I were to accept the suggestion that Revenue officers require, and may, therefore, employ bullies to assist them in the performance of their executive functions and if I believed that the petitioner's bad reputation had resulted solely from bullying practised with the tacit approval of his former Tahsildar masters, I would set aside the order of the Magistrate. I think, however, that the evidence proves much more than this.
4. But I consider that part of the order which says that the surety must be a 'Zamindar of Orai Mas' should not be allowed to stand. I order that surety shall be a resident of the Jalaun District as to whose position the District Magistrate is satisfied. I make the alteration because I cannot close my eyes to the fact that there is fear of the Tahsildar of Orai. preventing sureties from Orai khas from coming forward. Subject to this alteration in the order this petition is dismissed.