1. This is one of the most remarkable cases under Section 110 which has ever come under my notice. There are various reasons why I say that. In the first place, the procedure which has been adopted from first to last appears to me to be an abuse of the section. Twelve men were charged together, or notices were issued against them together, under this section, I will not say without anything upon the evidence seriously connecting them, but with a very superficial colouring of evidence and a vague, general and hearsay description connecting them together as partly ring-leaders of a gang, partly notorious dacoits and partly habitual receivers. The Police in support of this case called a variety of witnesses of every sort and description to establish the character which they sought to prove, amounting altogether to 76 in number, and having little or nothing in common except the fact to which most of them spoke: (a) that they lived at least 8 miles away from the village of the defendants, and (b) that they had no personal knowledge of them themselves. Indeed, it is impossible not to read the principal evidence for the prosecution which has been relied upon by the Magistrates in the Courts below without acquiring the impression that it was really a gang case which the Police was running on hearsay evidence under the guise of a badmashi charge under Section No. The witnesses who were put in the box were not disposed of at one hearing and each by one piece of evidence but they were scattered about and divided up in the most bewildering fashion, so that it is a work of considerable magnitude and one almost impossible of accomplishment by any Appellate Court without the assistance of somebody who has minutely studied the record to trace the sequence of statements of any particular witness. But, so far as I can tell, the result of this voluminous and chaotic recording of evidence was that the defence evidence and the examination of the accused under Section 364 was not even reached until the 9th of September 1921, fully two months after the hearing had been commenced. Apart from any other feature of this case, it seems to me very hard, almost oppressive, to any set of defendants to charge them together in this way, unless the whole of the evidence against all of them is precisely the same and they are to be dealt with on the same facts, and compel them to fight each his own individual battle during a prolonged enquiry, a great deal of which concerns for the moment only one out of the general body. I have myself upset orders under this section where the evidence against one person charged has been used in the judgment as evidence against another not mentioned by the particular witness. There is always a danger of that, and a danger of its unconsciously operating on the mind of the Tribunal, even though such operation does not manifest itself in the judgment, and if there were no other feature in the case, I should have been disposed to set aside the proceedings on that ground alone disregarding the merits, and directing the Magistrate to hold a further enquiry into the case of each accused separately or each, batch of accused who could fairly be said to be classified under evidence common to each individual member of the batch. But that would be a great hardship upon the defendants, and there are many other points in this case which render the further consideration of this question superfluous except that I recommend these observations to the consideration of the District Magistrates in general without laying down any rule or consulting any section: common sense and common justice dictate that proceedings against a man for badmashi should be confined to himself alone, unless the case is that he has a confederate or a partner to whom all the evidence is equally applicable.
2. A further objection based upon the same procedure, but entirely separate and independent, is the objection which, to my mind, arises out of the enormous mass of witnesses in this case on the prosecution side. There are seven defendants in all, and, although it may not be out of the way in a heavy gang case, it seems to me monstrous and to amount to something like persecution that each individual in a group of persons, supposed each in his own way to be a badmash, should be condemned to submit to and to employ Counsel for the examination and cross-examination of a number like 76 witnessed during a proceeding lasting over two months. If the Police cannot satisfy an experienced. Magistrate with less than 76 witnesses or in less time than two months that a man is a badmash, the sooner they surrender the task at its inception the better for the interests of the public justice. It cannot be the good of anybody that such unheard of prolixity and waste of public time should be indulged in as was indulged in this case. The Magistrate himself observed upon this feature saying: 'if the reputation of a man cannot be proved by the evidence of 10 or 12 witnesses, it cannot be proved by 500.' But a feeble protest of that kind is quite useless, and it is the duty of the District Magistrate, if he thinks that 10 or 12 witnesses are as a general rule sufficient for a case of this kind and he finds one of his Subordinate Officers permitting 76, to lay down some rule of common sense to guide his subordinates in the exercise of their discretion, not a caste-iron rule like the section of a Code, but something to enable them to guide their own proceedings within reasonable limits. The Magistrate's main complaint on this head seems to have been the heavy record which he says has taken him a long time to read, and digest. I have already taken a day and a half over this case, but I have not read, and have declined to read, the record to which the Magistrate refers. If he read it, it is very much to his credit, although it must have consumed an enormous amount of public time, but whether he ever digested it, is a matter which I shall proceed to consider in a few moments.
3. Naturally enough, the defendants confronted with this mass of voluminous evidence, or as one might describe it 'massed attack', resorted to the expedient of trying to defeat the prosecution at their own game. I am not impressed with the tactics which, guided their decision nor with the result, but I cannot blame them and I do not quite know what they were to do unless they had somebody in charge of their case strong enough to protest against the public scandal of the prosecution proceedings, and to entreat the Magistrate to use his common sense and get a few selected and relevant witnesses put forward by each defendant. The result has been that in this case the total number of witnesses, so far as I can discover by a rough computation, and there is naturely considerable margin for error, amounts to 402, and the time spent on this proceeding before a Magistrate specially appointed to hear it, was no less than 6 months. I imagine that this proceeding is without parallel in the administration of this section. It seems to me to amount to a scandalous waste of public time and magisterial energy and to be a very serious infliction upon the defendants who have asserted continuously before me through their Counsel that these proceedings have practically exhausted their financial resources. As I have said before, if it is going to take the Police and the Magistrate anything like six months, or even more than a month, to prove badmashi, they had much better drop them altogether and devote one-tenth of their efforts to catching one of the miscreants in the accomplishment of the crime in which he is said to be daily engaged.
4. I recognise that it is a very serious matter to interfere with an order of this kind, especially one to which so much public time and energy has been devoted. I recognise also that the question in issue is in the main a question of fact, the finding on which this Court has no right in the ordinary way to interfere with or even to review. I recognise also that the District Magistrate who heard this case in appeal has managed to put his judgment into a form which suggests that he has given full consideration to the defendant's case and heard the appeal fairly and according to law. But I propose to state certain principles which, in my opinion, have been established in this Court by a series of decisions, explaining how this Court deals with such cases in revision. The High Court, it has been said, is not a Court of Appeal, but it is its duty to endeavour to weigh the evidence and to see whether the case has been fairly considered from the point of view of the defendant Miharban Singh v. Emperor Ind. Cas. 821 : 13 A.L.J. 1046 : 16 Cr.L.J. 805.
5. Secondly, if the evidence for defence is equally good as that for the prosecution, the High Court may quash the order in e revision Ganga Singh v. Emperor 17 Ind. Cas. 404 : 10 A.L.J. 383 : 13 C.L.J. 772. Thirdly, witnesses who voluntarily come e forward whether as friends or associates of the accused to give them a good character, must not be brushed aside, unless they are discredited as regards their good faith and honesty just as witnesses in any other proceeding must be discredited before they are rejected by the Tribunal Rahu v. Emperor 59 Ind. Cas. 547 : 18 A.L.J. 1114 : 43 A. 186 : 22 Cr.L.J. 115.
6. Fourthly, evidence of general repute by persons who have no personal knowledge of the accused and know nothing of his business and circumstances, is not sufficient to justify an order Kattu v. Emperor 60 Ind. Cas. 1002 : 19 A.L.J. 39 : 22 Cr.L.J. 314 and, lastly, vague reputation unaccompanied by direct evidence personally affecting each accused person or accompanied by direct evidence which breaks down, is not sufficient in itself to justify an older. Bisheshwar Dayal v. Emperor 63 Ind. Cas. 452 : 19 A.L.J. 668 : 22 Cr. L.J. 660.
7. In the light of these authorities I have listened to the very able criticism of Mr. Saila Nath Mukerji and Mr. Dillon, only of those witnesses whom the Appellate Court, following the Trial Court, has vouched for as having satisfied his conscience in deciding upon this mass of complicated and general evidence that the conclusion reached was correct. Any one reading the District Magistrate's judgment would suppose that he had read through the record with great care and that the witnesses whom he cited were beyond cavil. I have already pointed out that a great number of these witnesses are so dealt with that their evidence is split up and scattered over the record. It is a remarkable fact that, looking through the record in this case, which runs into hundreds and hundreds of pages and which I believe to be the same which the District Magistrate had before him, I do not find one single passage from beginning to end which has been marked with the pencil of the learned Magistrate with a view to assisting his memory. After a very long experience both at the Bar and on the Bench, I am able to say that it is humanly impossible to read through and remember such a record as this, split up into different pieces as this has been split up and to carry it in one's head. It is conceivable that the learned Magistrate read the evidence-in-chief of the witnesses whom I am going to mention in a moment and never reached their cross-examination at all. If so, it is an unfortunate instance of oversight on the part of an Appellate Tribunal. If, on the other hand, he did read the cross-examination to which I am going to refer, his failure to comment upon it or deal with it or even mention its existence when he was acting upon the positive evidence of the witnesses in question, is equally unfortunate to the mind of a fair minded person. Very little reference has been made by Counsel for the applicants to the positive evidence for the defence. Out of 326 witnesses they have not referred me, I think, to more than three. At any rate, I am not going to cite more than three, but these witnesses give evidence which in itself was almost sufficient to secure the acquittal of at least one of the accused, and so far from the Magistrate having dealt with the evidence and dismissed it as not worthy of credit, he has in one case entirely ignored it and in the other case, namely, that of the Sub-Divisional Officer, while describing it as unimpeachable, so misstated it that I find it difficult to believe that any man, let alone a person occupying the position of a District Magistrate, could state it so unfairly, and it is impossible not to ask one's self whether the learned Magistrate really tried to state it correctly at all.
8. As regards Nawab Singh, the learned Magistrate cites 7 or 8 witnesses. Having been taken carefully through their evidence and their admissions in cross-examination, I do not hesitate to say that nobody ought to act upon the evidence of a single one of these witnesses in taking away the character of another person. The first, Chaube Jagdish Rao, who is a young man of 22 and lives 8 miles away from Nawab Singh, failed to recognise any of the accused, merely repeating hearsay what had been repeated to him, alleging that they belonged to a gang and admitted being engaged in unfriendly litigation with the family of Nawab Singh. Qasim Ali, the next to whom I will refer, relied upon by the District Magistrate, is the karinda of a local Raja who in a recent election was engaged on the opposite side to that with which the accused are connected. This man by his own confession in the witness-box was a dishonest witness, and I propose to sanction his prosecution for perjury in this proceeding. His evidence-in-chief is almost contemptible. He stated: 'It is heard that they are habitual receivers but I have no direct knowledge.' He did not know what their cultivation was. He did not know their affairs, and, in spite of this, he alleged airily that dacoity was their chief source of income, and he first denied, and then under pressure of cross-examination admitted, having written the hukamnama (Exhibit II) calling his principal tenants to come and give evidence. The next man, Harbilas, spoke generally of a gang but he knew nothing about the defendants sources of income, and the only piece of definite evidence which he gave was that Nawab Singh consorted with a bad character named Maula. As there was no evidence that Maula was a bad character and the witness himself in cross-examination admitted that his information was derived from a man named Jwala Prasad who himself was a bad character and whose information had been acquired from general hearsay, it is remarkable how the learned District Magistrate persuaded himself that this witness was worthy of credit as one of the principal pillars of the Police prosecution. The next, Debi Singh, came from the town of Etawah, 8 miles distant from the defendant's village. He said that his belief was that the accused were regular dacoits, but up to that moment the case had been that they were regular receivers. He admitted that he saw nothing with his own eyes, that he had been a witness in previous Section 110 cases but did not know how many. There seems reason to suspect that this witness is a professional witness whom the Police have utilised more than once and who, if he is not careful, will find himself before long in Jail, for the class of evidence which he appears to be ready to give in these eases. The next witness, Gyan Singh, lives 12 miles away. He admitted that he had no direct personal knowledge but say; that he hears generally that the accused are habitual dacoits, not habitual receivers, as was the principal evidence against them by one or two of the earlier witnesses. This man admitted owing Rs. 5,000. He admitted that the Police had that year become his best customers for cloth. He admitted having given evidence for the Police in other cases and he rendered himself liable for prosecution for perjury by first denying and then admitting that he knew that Raja Ram and Angnoo Singh had purchased a certain share in a village. If this man is not careful he also will find himself in Jail for perjury before very long. Budhoo Singh, the next witness whom I propose to deal with and relied upon by the Magistrate, said that, although he did not recognise anybody in particular, they had been dacoits for ten years. He did not know as much about Nawab Singh or Angnoo Singh or Raja Rani as to be able to say whether they were Zemindars or tenants, arid, although he had sworn that he had seen the gang of Nawab Singh and Babu Ram together, he admitted in cross-examination that in a recent case in Gwalior State he had sworn exactly the contrary. The last, Kirpal Singh, lives 12 miles away, and he, although speaking of the general public believing these men to be habitual dacoits, admitted that he had no personal knowledge on the subject, that he was a tenant of Chaube Jagdish Rao whom I have already mentioned, not in itself a great matter, but his memory would appear to be unreliable if it be true, which is difficult to believe, that he cannot to-day remember whether he was ever fined in a Criminal Court on some previous occasion. There are very few people living who cannot remember an incident of that kind when they are asked to do so. Whether the Magistrate, as I have said above, was aware of the exhibition that these seven witnesses made of themselves under cross-examination I do not know, but I am at a loss to understand if he read the record, as he said he did, with intelligent appreciation of the fact that this isolated piece of cross-examination had a direct bearing on the examination in-chief, how he could have omitted to refer to it in his judgment. But I do not hesitate to say that a finding of fact such as the Magistrate arrived at 'that it was impossible' to ignore the sworn testimony of such men as 'these,' amounts to a miscarriage of justice. He goes on to say that he has only named a few of the prominent men against Nawab Singh. The Assistant Government Advocate has had nothing to say in respect to this criticism. It is true that Mr. Saila Nath Mukerji has in one sense had it all his own way and has drawn my attention to selected passages from the evidence, but in this respect he has been scrupulously fair, because these selected passages are relevant to the prominent witnesses whom the District Magistrate accepted, and if the rest of the witnesses have said anything really worthy of being cited, the learned District Magistrate has not drawn attention to them and it is difficult to see what the Assistant Government Advocate could have said, if he had been here, more than what has been said by the Magistrate in his judgment. I have dealt with these topics up to this moment in the same order as that in which they were pressed upon me in the course of the hearing. Naturally, having formed the opinion which I have formed about the matters already dealt with, I come to the consideration of the ease of Angnoo Singh and Raja Ram who were represented by Mr. Dillon with a mind pre-disposed in their favour. I decline to express any opinion upon Mr. Dillon's contention as to the genesis of this attack upon these two men. It may well be that it is due to the escape of Babu Ram and to the belief on the part of the Police that these two men assisted Babu Ram in escaping. It might also be that these two men did assist Babu Ram in escaping. I express no opinion about that whatever, but if they did and the Police have any reason for thinking so, they could have been charged with that offence, and it clearly had no bearing upon the question of evil livelihood and was no justification for starting these proceedings if that was the real reason as the themselves believed. But it is impossible for any fair minded man to read the evidence of Bishamber Singh, the principal Police Officer concerned, who had been at a Thana 40 miles away, who only came into this Circle in December 1920, who had never made any report, who had never received any report against these applicants, who admitted that the Superintendent of Police and the Sub-Divisional Officer had directed these proceedings to be taken, who could not remember the date of the Superintendent of Police's order, who admitted that Angnoo Singh was still on the list of assessors and that when he, the Station Officer, visited his village at night he was always present, without agreeing with Mr. Dillon that some explanation was required, and no explanation has been forthcoming in this case why suddenly after the failure to arrest Babu Ram in June, tins attack supported by a mass of witnesses going back for many years, should suddenly have been let loose upon the accused. A case of this nature grows by slow degrees with unfavourable reports of things of that kind corrobrated by witnesses, increasing as the critical moment when the Police decide to strike approaches. It is a just observation in this case that there is a marked contrast between the alleged prolongation of the evil livelihood for a long period of years and the suddenness with which the knowledge of it seems to have reached the Police.
9. I now come to the last point relating to the case of these two men specially made by Mr. Dillon. The Sub-Divisional Officer, Saiyid Ainuddin, whom the District Magistrate describes as unimpeachable, swears that during his three years from 1917 to 1920 he never heard any complaint or report of any evil conduct on the part of Angnoo Singh, although he did know that he was the uncle of Babu Ram. I regret to say that the Magistrate makes no reference to this important piece of evidence. The Magistrate says that this Officer represents Angnoo Singh and Babu Ram as generally figuring together. That phrase is a distortion of the Sub-Divisional Officer's evidence. His evidence is quite clear, that before 1919 the public complained of the influence of these two men Angnoo Singh and Babu Ram, that after a certain compromise had been reached in 1919 Babn Ram helped the enemies of Angnoo Singh and that the two men were on opposite sides. This unimpeacheable witness further swore that in May 1921 Babu Ram, the peg upon which the prosecution tried to hang the whole of this circumstantial evidence of notoriety against the others, came to him, Saiyid Ainuddin, and said he was giving up his evil life. If the Magistrate believed this unimpeachable witness, the omission of all reference to this piece of evidence is unexplained.
10. Prem Shanker, another witness called for the defence, is in Government employment as the Superintendent of the Agricultural Farm in Etawah on a salary of Rs. 160 per mensem. He is a man of position whose evidence is at least worthy of notice and is corroborated in a way in which no single witness for the Police was corroborated. He gives evidence not merely of the good character of Angnoo Singh and Raja Ram but of their general respectability and systematic occupation in substantial agricultural operations. He gives the figures of their dealings in grain, cattle and sugarcane. He has seen their houses and beleives them to be men of honesty and substance. This sort of thing is, of course, just possible and not always, even in my short experience, dissociated from nefarious practice in dacoities, but it is wholly inconsistent with the sort of case which the prosecution started out to make, and is further significance to my mind is this: that, assuming it to be true, as the Magistrate must have done, there is no explanation of the total silence on the prosecution sine of this part of the defendant's life which is consistent either with honesty or with their, real acquaintance of the persons about whom they speak. It is one thing to say I know so and so; it is quite true he keeps cattle and grows corn, but I have been him calling on notorious badmashes, I have seen him with fire-arms, I have seen him with the proceeds of loot and I know that he is leading a bad life from what I, have seen; but to say generally about a man, that you do not know him by sight, that you do not know what his occupation is, when he is in fact extensively engaged in agricultural occupation, and that you can only say that the genera public regard him as a robber, is either to write one's self down as a dishonest person or as a very inefficient detective agent and an unreliable collector of general information. I am quite satisfied that, in dismissing the appeal upon the grounds, which he did, the District Magistrate has totally ignored or hopelessly misunderstood the salient features of the evidence. However lamentable such, a feeble result from such a voluminious proceeding may be in the public interest, none-the-less there has been a grave miscarriage of justice and the whole proceedings must be set aside and the bonds, if entered into, discharged in the case of all the applicants.
11. On the application of Mr. Saila Nath for Nawab Singh, I have no hesitation under Section 195 of the Criminal Procedure Code in sanctioning the prosecution of Qasim Ali, son of Basharat Ali, for having sworn on the 7th of August 10,21 at the hearing of the case against Nawab Singh under section no before the Magistrate, Saiyid Zamir-ud-din Khan, while under cross-examination, that he had not written any part of the hukamnama, Exhibit H, which was shown to him and that it was not in his handwriting, and within a minute or two afterwards that he had written it and that it was in his handwriting.
12. It has been generally supposed and sometimes ruled by single Judges that before sanction is granted notice should be issued to the person proposed to be charged. There is no statutory, obligation upon any Judge to do anything of the kind. There is no authority binding upon him in this Court compelling him to issue notice unless he thinks it is a case in which notice ought to be issued. In this case if the record which is before me is correct, this man who must certainly have some education and who has acted for many years as a karinda, must have known perfectly well, whether he had issued written orders to his tenants or whether he had not. He must also know his own handwriting. He mast know that it is wrong and dishonest and grossly unfair to an accused person when giving evidence in a criminal case, to deny what you know is true. Granting sanction merely removes the statutory bar which otherwise prevents Nawab Singh taking steps to prosecute Qasim Ali Khan for this alleged falsehood. It is the duty of the Judge to grant sanction if he thinks it is in the public interest independently altogether of any future grievance or complaint which the alleged delinquent may think he has a right to make.
14. He may have an answer on the merits but that has nothing to do with me. I grant sanction with the hope that it will not be used to put pressure upon Qasim Ali or for any other purpose except taking fair and proper steps for prosecution, but I should grant it just the same and on the same terms whether Qasim Ali was represented by 100 Counsel and I, therefore, regard issuing notice at him as a sheer waste of public time. I sanction the prosecution of Qasim Ali for the statement above-mentioned for an offence punishable under Section 193 Indian Penal Code. Nawab Singh to take necessary steps for such prosecution within 6 weeks from to-day, otherwise the sanction to lapse, with liberty to apply to me for extension of time.