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Harikrishna Naiko Vs. Emperor - Court Judgment

LegalCrystal Citation
Decided On
Reported in47Ind.Cas.277
AppellantHarikrishna Naiko
Cases ReferredNilkamal Das v. Emperot
criminal procedure code (act v of 1898), sections 110, 117, 528, 530 - bad livelihood proceedings--notice, issue of, by magistrate to person not within jurisdiction, legality of--proceedings drawn up on reference by district magistrate, effect of, on want of jurisdiction--joint trial of two persons, legality of--misjoinder--undivided members of hindu family, liability of, for misconduct of particular members--evidence, nature of--rumour and hearsay, admissibility of--'repute', meaning of--notice to accused, form and contents of--landlord keeping tenants of bad character, liability of--forest offences--statements in office files, admissibility of. - - 1. these petitions are filed against the order of the sub-divisional magistrate of chatrapur which was confirmed on appeal, directing the.....kumarasami sastri, j.1. these petitions are filed against the order of the sub-divisional magistrate of chatrapur which was confirmed on appeal, directing the petitioners to furnish security for good behaviour under section 110 of the criminal procedure code. the petitioners are brothers. one of them is the karji of panchabuhuti and the other is the sirdar of gondhadhars. the notice issued to them by the divisional magistrate sets out that the charge-sheet submitted by the sub inspector of police made it appear to the magistrate that they were habitually protecting thieves habitually committing or attempting to commit or abetting the commitment of offences involving a breach of the pace, and were so dangerous and desperate as to render their being at large without security hazardous to.....

Kumarasami Sastri, J.

1. These petitions are filed against the order of the Sub-Divisional Magistrate of Chatrapur which was confirmed on appeal, directing the petitioners to furnish security for good behaviour under Section 110 of the Criminal Procedure Code. The petitioners are brothers. One of them is the Karji of Panchabuhuti and the other is the Sirdar of Gondhadhars. The notice issued to them by the Divisional Magistrate sets out that the charge-sheet submitted by the Sub Inspector of Police made it appear to the Magistrate that they were habitually protecting thieves habitually committing or attempting to commit or abetting the commitment of offences involving a breach of the pace, and were so dangerous and desperate as to render their being at large without security hazardous to the community. The Sub-Divisional Magistrate directed them td execute a bond for Rs. 500 with two sureties of Rs. 100 each for the period of one year. Various legal objections to the validity of the order are raised and I shall deal with them before going into the evidence.

2. The first objection raised is that the Sub-Divisional Magistrate had no jurisdiction to issue notice or try the case, as the accused persons did not reside within his jurisdiction. It appears from the record that the Police sent the charge-sheet to the District Magistrate, who did not issue any notice under the Criminal Procedure Code but sent the charge sheet on for disposal first to the Special Agent and then to the Sub-Divisional Magistrate of Chatrapur. It is contended that the Magistrate issuing the notice under Section 110 of, the Criminal Procedure Code should be the Magistrate within whose jurisdiction, the persons against whom the notice is issued reside and that as the accused admittedly reside outside his jurisdiction, the proceedings taken by him are invalid. As it is clear from the records, and not disputed by the Public Prosecutor, that the accused are residing within the jurisdiction of the Deputy Magistrate of Gumsur, it is clear that the Sub-Divisional Magistrate of Chatrapur had no jurisdiction to issue the notice. It was no doubt open to the District Magistrate to have issued the notice under Section 110 when he received the charge-sheet, as his jurisdiction extends over the whole District and he would be a Magistrate within whose jurisdiction the accused lived, but he did not do so. The issue of notice is not a formal matter and it is clear that Section 110 limits the powers to issue the notice to the Magistrate in whose jurisdiction the accused are. The issue of a notice under Section 110 being a judicial act to be exercised after a due consideration of the materials placed before the Magistrate and not merely an executive order to be passed as a matter of course on the complaint by the Police, the Legislature evidently restricted the jurisdiction to issue the notice to the Magistrate in whose local limits the persons complained against were living or were making themselves a danger to the public peace, as he would presumably have a knowledge of the local conditions and would be the person to judge whether any action was necessary. It is to be noted that under Section 107, Clause 2 of the Criminal Procedure Code, the notice is to be issued by the Magistrate within the local limits of whose jurisdiction the person informed against is residing or the place where breach of the peace is apprehended is situate, while in Section 110 the acts complained of must be done by a person within the limits of his jurisdiction. The question is concluded by the recent decision of Abdur Rahimand Napier, JJ., in Nagireddy Kondareddy In re 41 Ind. Cas. 990. In dealing with a similar objection taken under Section 107 of the Criminal Procedure Code, where the District Magistrate sent on the records to the Divisional Magistrate without issuing a notice, the learned Judges observe that the District Magistrate cannot be said to have taken proceedings under the Section until he issues notice to the person charged to show cause why he should not be proceeded against, that the Magistrate who issues the notice must be deemed to be the person who initiates proceedings and that the District Magistrate to whom the Police reported certain facts and who passed the matter on to the Head Quarter Deputy Magistrate cannot be said to have initiated proceedings and transferred it to the Head Quarter Deputy Magistrate for disposal. They also held that Section 528 did not empower the District Magistrate to transfer the case to a Magistrate who had no local jurisdiction over the matter by reason of Section 107, Clause 2. A similar, view is taken in Nirbikar Chandra Mukherji v. Emperor 13 C.W.N. 580 : 9 CrI. L.J. 148, where it was held that the fact that the District Magistrate directed a Subordinate Magistrate to draw up proceedings against a person not resident in the jurisdiction of the Subordinate Magistrate would not give the latter Magistrate jurisdiction, as the provisions of Section 107 were imperative. Surjya Kanta Roy Chowdhry v. Emperor CrI. L.J. 344 and King-Emperor v. Munna (1901) A.W.N. 233, referred to with approval in Nagireddy Kondareddy In re 41 Ind. Cas. 990, are also in point. It. is argued that the drawing up of proceedings by the Deputy Magistrate is only an irregularity. The question is one of jurisdiction and more appropriately falls under Section 530 of the Criminal Procedure Code. It was treated as fatal to the validity of the proceedings in all the oases above referred to. My attention has been called to Ohiduddin Choudhury v. Emperor 44 Ind. Cas. 122, where it was held that the procedure of the District Magistrate was only an irregularity, but I am bound by the decision of the Madras High Court which is supported by authority. No reasons are given in the above case for taking a contrary view and the decisions of the Calcutta High Court are not even referred to. I am of opinion that the Sub-Divisional Magistrate of Chatrapur had no jurisdiction to issue the notice and try the case and that the proceedings are void.

3. The next objection relates to the joint trial of the 1st and 2nd accused. They are brothers who have undivided properties, but they live separately. The 1st accused is the village Karji of Panchabubhuti and lives at Panchabubhuti. The 2nd accused is a Sirdar and lives at Gondhadhars. The two villages are about 10 miles distant from each other. It is contended that evidence against 1st accused has been used as evidence against 2nd accused and vice versa and that the parties have been greatly prejudiced thereby. The test to be applied in all such oases where a plea of misjoinder is raised is whether there has been habitual association between the persons charged in respect of the misconduct alleged on the complaint. The fact that persons are members of an undivided family would not by itself render each member liable for the misconduct of any other member and where they are living separately, there is not even the presumption that one member knew and assented to the misdeeds of the other. In the present case there is no evidence of any association of the two accused in any particular act and even if the evidence against one is true, it is quite consistent with the ignorance of the other accused as to the wrongful acts alleged. There can be Utile doubt that one accused bas been prejudiced by evidence against the other being used as evidence against him, and I am of opinion that both the lower Courts were wrong in not examining the evidence against each of the accused with a view of determining whether security should be demanded against him or not I might in this connection refer to Hari Telang v. Queen-Empress 4 C.W.N. 531 : 14 Ind. Doc. 511, where it was held that it was not legal to try jointly two persons charged under Section 110, Clause (f).

4. Objection has also been taken to the admission of a large body of irrelevant evidence in the belief that it was admissible as evidence of repute. Evidence has been let in to the effect that A heard from B that the latter suspected one of the accused of misconduct. It seems to me to be clear that such evidence is not evidence of repute and is dearly inadmissible. Evidence of general repute under Section 117, Clause (3), does not, for the purpose of enquiry into conduct of persons under Chapter VIII, mean hearsay and repute has been clearly pointed out in Rai Isri Pershad v. Queen-Empress 12 Ind. Dec. 413. The following observations are in point: it is hardly necessary to say that evidence of rumour is mere hearsay evidence and hearsay evidence of a particular fact. Evidence of repute is a totally different thing. A man's general reputation is the reputation which he bears in the place in which he lives amongst all the townsmen and if it is proved that a man who lives in a particular place is looked upon by his fellow townsmen, whether they happen to know him or not, as a man of good repute, that is strong evidence that he is a man of that character. On the other hand if the state of things is that the body of his fellow townsmen who know him look upon him as a dangerous man and a man of bad habits, that is strong evidence that he is a man of bad character; but to say that, because there are rumours in a particular place among a certain class of people that a man has done particular acts or has characteristics of a certain kind, these rumours are in themselves evidence under this potion, is, to say what the law does not justify us in saying.' The case was considered in Chintamon Singly v. Emperor 12 C.W.N. 299 where, all that was held was that when an offence, e.g., dacoity, was committed in another village, evidence of repute given by parsons residing evidence of repute given by persons residing in that village was also admissible. In Alep Pramanik v. King-Emperor 11 C.W.N. 413 it was held that persons ought not to be bound down under Section 110 of the Criminal Procedure Code upon the mere statement of witnesses that they suspect or are under the impression that the persons proceeded against are thieves or daxoits, where no fact is mentioned to indicate that there was sufficient reason for their suspicion or impression.

5. The next objection is that the notice to the accused to show cause is vague and insufficient. The notice issued by the Divisional Magistrate runs as follows: 'Whereas it has been made to appear to me by the charge, sheet submitted against you by the charge sheet submitted against you by the Sub-Inspector of Police, Bugada station, under Section 110(e) and (f) of the Criminal Procedure Code, that you are habitually protecting thieves, habitually committing or attempting to commit or a betting the commitment of offences involving a breach of the peace and are so dangerous and desperate as to render your being at large without security hazardous to execute a bond for Rs. 500 with two sureties of Rs. 100 each to be of good be haviour for a period of two years.' I am of opinion that notice under Section 110 must contain something more than a reproduction of the Clauses of the section. There should be sufficient indication of the time and place of the acts charged and sufficient details which would enable the accused to know what facts he is to meet, though as pointed out in Chintamon Singh v. Emperor 12 C.W.N. 299 , it is In Nagireddy Kondareddey In re 41 Ind. Cas. 990 it was held that a general notice which did not state when the threats complained of were uttered or who the persons threatened were or when the apprehension of a breach of the peace arose was vague and bad in law and that the proceedings were liable to be quashed on that ground. I am, however, of opinion that when a party does not during the trial seek for information and does not complain in the lower Court or show that he has been substantially prejudiced, the High Court in revision ought not to quash the proceedings in the absence of any proof of prejudice. In the present case I am unable to find anything to show that the accused were unable to cross-examine the prosecution witnesses effectively or cite their own evidence in consequence of the vagueness of the charge.

6. Turning to the merits I think the order ought not to have been made, as the evidence which is relevant is totally insufficient to bring the accused under Section 110. The 1st accused is the Karji of Panchabhubhuti and the 2nd accused is the Sirdar of Gondhadhars. They own extensive properties and have several Panos in their service like other landlords in the district. So far as the 2nd accused is concerned, the Governor-General in Council presented him with the certificate Exhibit II in recognition of his help in preventing riots in 1889 and his good services in watching the frontier in 1894 He was also given a gun in 1905 and Coronation Medal in 1912 by the Government. He was also appointed Member of the Taluk Board. There is a large body of evidence of respectable Government officials and also of non-officials which, in my opinion, certainly outweighs the unreliable and interested evidence of the prosecution witnesses. Mr. Green, the Deputy Magistrate of Gumsur, since 1913, within whose jurisdiction the accused live and who had ample opportunities of knowing their character, states that be never received petitions in the effect that the accused were receiving stolen property or were dangerous to the public and that he never came across any such complaints in the records prior to his time. He states that in his opinion, the two accused are of good conduct. It is to, be regretted that all kinds of insinuations were, allowed to be made by the Police against Mr. Green, the more so as there is nothing, so far as I can see, to warrant the belief that Mr. Green who is a responsible Government servant of long standing abated improperly. The Sub Divisional Magistrate has fallen into a strange error when he states that P.W. No. 10 complained against the 1st accused and 40 persons having cut his crop and Mr. Green took the case on his file and dismissed it as false. P.W. No. 10 states in his evidence, that he complained to the Superintendent of Police Who referred him to a Magistrate and that, he never filed any complaint before the, Deputy Magistrate, Mr. Green. Par from dismissing any case brought by P.W. No. 10, Mr. Green dismissed a case filed against P.W. No. 10 Mr. Narayanamurthy, D.W. No. 1, who is a Pleader and who was chairman for 15 years, states that 2nd accused was a Member of the Taluk Board, that he has known accused Nos. 1 and 2 for 10 or 12 years and that they are reported to be good men. There is no cross-examination of this witness, as to the unreliability of the source of his information. The District Magistrate discredits him, because, in his opinion, he made contradictory statements as to his having been retained as a Pleader by the accused. He states that he was, never retained as a Pleader by the accused and immediately afterwards states that he was engaged as their Pleader in a case. What the witness evidently meant is that he had no general retainer as Vakil to appear in all their oases, but was only engaged on a special occasion by them and there is, no contradiction if the well-known distinction between a Pleader having a general retainer to appear, for a party and his being engaged; only, in a special case, is kept in view. D.W. No. 2 was the Sub-Assistant Surgeon of Russalkonda for 8 years prior to 1912. He states that he has only heard' good reports of their character. As the prosecution has let in evidence of acts said to have been committed 7 or 8 years ago, his evidence is certainly, relevant. D.W. No. 3 was the, Stationary Sub-Magistrate of Russalkonda in 1910 and Tahsildar of Gumsur, Taluk in 1918. He states he, does not remember having heard any bad reports, about the 2 accused. D.W. No. 5 is a land-holder and merchant who has 1,500 or 1,600 bharnams of land and who was a Taluk Board and Union Member. He speaks to the good character of the accused and says he has known them for 25 years and never heard that the accused caused thefts to be committed or harboured thieves or received stolen property chasing skins from Panos as a skin merchant is no ground for discrediting his evidence nor is his having testified to the 1st accused's character on a previous occasion. There is nothing in his cross-examination to suggest he does not own 1,500 or 1,600 bharnams of land. D.W. No. 6 is the trustee of a temple and owns 180 bharnams of land paying a kist of 80 or 90 rupees. He speaks to the conduct of the accused and says that they are known to be respectable persons in the Mittah. D.W. No. 7 also speaks to their good character. D.W. No. 8, who says he is school-master and owns 150 bharnams of land, spates that accused have good characters and are not known to be receivers of stolen property or abettors of thefts or harbourers of thieves. D.W. No. 9 is a Karnam and he speaks to the character of the accused. D.W. No. 10, who is an inamdar and owns 700 bharnams of land, states that he has known the accused for 15 or 16 years and that their character has been good and that he never heard any reports against them. D.W. No. 11, who lives near the accused's village, states that accused get an income of Rs. 25,000 from their lands, that they are respectable and charitable persons. D.W. No. 12, who owns about 450 bharnams of land, states that he knows the accused well and that they bear a good character. D.W. No. 14, who is a retired Deputy Collector and who was in Gumsur Division in several capacities for several years till April 1913, states that he knows the accused well and that he never heard any one say that they received stolear properties, harboured thieves, or forcibly carried away properties. He says that 2nd accused's conduct was excellent. This witness had ample opportunities of knowing their character and his evidence shows that at any rate till 1913 they bore a very good character. D.W. No. 15 is the Sub-Assistant Director of Survey, who was in charge of Gumsur Division in 1909 and 1915. He says he heard nothing against their character and that he knows that their character is good from conversations be had with them and the ryots. D.W. No. 16 was a Revenue Inspector of Gumsur for 3 years (1906-1910). He says that their character is good and that he never heard complaints about their having received stolen property or harboured thieves or taken forcible possession of property. D.W. No. 17, who was a Deputy Ranger for 1913 and 1915, also speaks for their good character. D.W. No. 18 who owns 300 bharnams of land says he has known accused since their infancy and that they have always borne a good character and that he never heard anything against them. D.W. No. 19, who was Deputy Collector in Gumsur in 1902, 1905 to 1908, 1911 and 1912, states that he knows accused Nos. 1 and 2, that their conduct was good, that accused Nr. 2 was Member of the Taluk Board and that he never heard that they harboured thieves or reoeived stolen property. D Ws. Nos. 22 and 23, who own lands in the neighbourhood, also speak to their good character. D.W. No. 24, who was Tahsildar of Gumsur from 1911 to 1914, states that their character was good and that he heard nothing against them. As 1st accused was his subordinate he had special means of knowing his character. D.W. No. 25, who is a ratired Tahsildar and at present manager under the Maharaja of Bobbili, states that he was Sub-Magistrate of Gumsur from 19i0 to 1912 that he knew 2nd accused and that he heard nothing against his character. D.W. No. 26 is a retired Deputy Tahsildar, who says he knows accused Nos. 1 and 2 from 1888 and that he never heard anything against them. D.W. No. 27 is the Revenue Inspector who has been there for about 3 years, and be states he heard nothing against the accused. D.W. No. 28, who was a Revenue Inspector, says that during his stay in the division the character of accused Nos. 1 and 2 was good and that he heard nothing against them. I am unable to agree with the Divisional Magistrate who dismissed the defence evidence summarily as being of a negative and intangible character and not of persons living on the spot. It is difficult to believe that, if the accused were notoriously bad persons or were guilty of even a fraction of the acts attributed to them, Deputy Collectors, Tahsildars, Sub-Magistrates, Revenue Inspectors and persons owning lands in the vicinity would not have heard of it. Nor am I able to appreciate the remarks of the District Magistrate that the evidence of Mr. Green's subordinate has to he discounted, as I see nothing which casts any doubt on the bona fides of Mr. Green. The evidence of the prosecution witnesses is vague and indefinite as to time and some acts complained of take us back to several years. It also appears to me that men who bore a good character till a few years ago would not suddenly have degenerated into thieves and dangerous persons. The evidence of the defence official witnesses cannot be, therefore, rejected so summarily as the District Magistrate has done.

7. Before discussing the prosection evidence, it is necessary to bear in mind the circumstances under which the present complaint was laid by the Sub Inspector who, as found by the Divisional Magistrate, has identified himself with the faction opposed to the accused in the dispute about Gochabadi land. The 1st accused has taken a lease of the village from Rome of, the junior members and had also purchased some shares and was in possession for a long time. The Sirdar of Koradabadi tendered pattas to tenants alleging that he was en titled to 1/5th share. The disputes culminated in 1997 by the High Court deciding that the Koradabadi Sirdar could not tender pattas see Raghu Gowdo v. Gowdo Ghandro Naiko 7 M.L.J. 248. Exhibits 32 and 33 series are the documents under which 1st accused got possession. The Koradabadi Sirdar having failed in the High Court did not file a regular suit, but tried to get possession through the Mahapatros who had lent moneys to Goohabadi Mokassadar. The lessors of 1st accused at one stage supported him but afterwards took sides with the Sirdar and the Mahapatros. Proceedings were taken by 1st accused under Section 145 on the 13th April 1914 and order (Exhibit 44) was passed in favour of the 1st accused and his possession was confirmed. No suit was filed to contest this. The Koradabadi Sirdar then wanted to prevent 1st accused reaping paddy and filed a criminal complaint of theft of paddy which was dismissed. Disputes continued. The 1st accused again applied under Section 145 in April 1916 and the order Exhibit P 3 was passed directing that 1st accused should not be disturbed as regards 4/5ths of the estate and the counter-petitioner as regards 1/5th. The order as regards 1/5th was ultimately upset by the High Court, Taking advantage of the order of Mr. Arudt, the Special Assistant Agent, the Koradabadi Sirdar attempted to enter on the lands and cut the crops, but the tenants who raised the crops objected that it was they that should harvest and not the landlord who bad at best only a claim to the Rajabhagam, after tenants harvested. The 1st accused filed a suit on the 23rd November and got a temporary injunction Exhibit P-4. The Koradabadi Zamindar was in the meanwhile harvesting the crops and it was alleged that though the order of the Civil Court was shown to the Police they declined to interfere. The evidence of the constable P.W. No. 22 supports this. Mr. Green then passed an order, dated 27th November 1916, directing the Police to obey the order of the Civil Court. The Magistrate finds, and there can be little doubt from the evidence, that throughout these proceedings the Sub-Inspector of Police, who is responsible for the initiation of the proceedings under Section 110 against the accused and who is a relation of the Mahapatros, was an active partizan of the apposite party. It was after the order of Mr. Green and when the Mahapatros and the Sirdar were defeated in their attempts to get possession that proceedings were initiated under Section 110 against the accused. Under these circumstances the evidence of the Sub-Inspector and the Police witnesses has to be received with considerable caution.

8. As already pointed out, the charges against the accused are (1) habitually protecting theives, (2) habitually committing or attempting to commit or abetting the commission of, offences involving a breach of the peace, (3) being dangerous and desperate.

9. The second charge relates to cutting crops and taking forcible possession of lands. The chief items are Goohabadi lands, Panokyari lands and lands in Singapur. As regards Goohabadi lands' I have already given a history of the dispute. The case against the 1st accused that he was present and came to the land with a number of persons is clearly disproved, as the 1st accused was on that date at Berhampore. The Sub-Divisional Magistrate observes in this part of the case: 'My opinion of this affair, as far as it relates to the first accused, is that he did send his men to Gochabadi to make a show of force but that he did not intend to use force. His idea was obviously to hold up proceedings in Gochabadi while he took steps in Civil Courts. I cannot acquit 1st accused of all blame in this matter, even though the ultimate responsiblity for it tests on other shoulders.' It appears from the evidence that the lands were shared, on the Rajabhagam system and if this is so, the ryots were justified in objecting to the landlord cutting the crops even assuming that the Sirdar was entitled to l-5th of the lands. The order of Mr. Arudt was admittedly set aside by the High Court. The 1st accused would well have been within his legal rights if he took steps to prevent the opposite side from unlawfully entering on land in his possession, especially as Mr. Arudt's order referred to a fifth unspecified share. It is difficult to see how on the findings of the Magistrate the case is one for security under Section 110.

10. As regards the Panokyari lands the contesting parties were P.W. No. 19 and one Govinda Naiko. Lakkow Prodhano purchased the lands in 1910 under Exhibit III and leased them to Govinda Naiko by the deed Exhibit Va. In 1913 the brother of P.W. No. 13 got a sale-deed from the same vendor, Exhibit V b. The dispute between the rival claimants is pending in second appeals in the High Court. Exhibits V a and VI are leases in favour of Govinda Naiko. Prima facie title is in Govindo Naiko and the Magistrate states that Exhibits 4, 5, 6 and 7 show that Govindo Naiko has a title. The learned Magistrate was wrong in stating that 1st accused admitted bringing his men to out the crop. His Vakil denies, it and I have not been referred to any part of the record supporting the Magistrate's statement. It is clear that 1st accused had no interest in the land. As remarked by the Magistrate, P.W. No. 19 is a bitter enemy of the 1st accused, and it is difficult to see how his statement can be accepted. No report was sent to the. Police and it is extremely unlikely that P.W. No. 19 or the enemies of the 1st accused would not have filed complaints, if as a matter of fact 1st accused went to the land with several men and carried away the crops. The paddy, was not taken to accused's house but was in Govinda Naikd's house at Khyronadi, Exhibit 22 shows that the accused were discharged in the theft case and Exhibit 23 that the District Magistrate upheld the order of discharge. I find it difficult to see how the accused can be ordered to furnish security on so flimsy materials.

11. As regards the Singapur lands the Magistrate has fallen into the error already pointed out by me that Mr. Green took the complaint of P.W. No. 10 on his file and threw it out. It appears from the evidence that Mr. Green threw out the complaint against P.W. No. 10, The evidence of P.W. No. 10 is worthless, especially as he wants to make out that the complaint which was thrown out was concocted with the assistance of the Deputy Collector.

12. As regards the dispute between P.W. No. 9 and D.W. No. 29 about lands, it is clear from the evidence that D.W. No. 29 obtained a decree Exhibit 24 against, P.W. No. 9. It also appears that he got possession. P.W. No. 9 says that accused Nos. 1 and 2 out the crops with the help of Panos 5 years ago. The statement of P.W. No. 9 that the Deputy Collector (who was not then Mr. Green) asked him to complain against the Haddis and Panos and not against 1st accused, is, on the face of it absurd. It seems to me impossible to act on evidence of this kind relating to an occurrence said to have taken place 4 or 5 years previously. The evidence of P.W. No. 11 is equally worthless. He is a servant of the opposite faction. He says he complained to, no body about the alleged conduct of the. 1st and 2nd accused even though according to him the Karji sent him to the Police station with a false report.

13. The evidence as to forcible cutting, and. carrying away of crops is, therefore, worthless and cannot, in my opinion, be accepted. As regards the complaint about the rescue of prisoners, it is said to have taken place so long ago as 1908. There is little to connect Sola Pano with the accused. It is difficult to see how the accused can be held, to be liable for the acts of the Panos in rescuing a fellow Pano. It not unfrequently happens that amongst the lower classes a fellow casteman who is arrested is rescued by the other villagers turning up, and it is a large order to hold the landlord liable simply because some of his servants rescued others. It does not appear that any finding was recorded in the trial that accused had any hand in the rescue of Sola Pano. His plea seems to have been that he escaped while the constables escorting him were asleep. P.W. No. 28, the constable, speaks to the contents of reports and to his evidence in the case. The originals ought to have been produced, if it was intended by the prosecution to rely on them. The second case about a rescue is limited to an attempt in 1915 by the 1st accused and the evidence is equally worthless. It is difficult to see why, if the evidence of P.W. No. 22 is true, no steps were taken against 1st accused at the time. The evidence of this witness as to 1st accused turning up at Gochabadi with 300 men is false, as 1st, accused is proved to have been at Berhampore on the date and the Magistrate finds that he was not at Gochabadi when the ryots turned up and refused to allow the Koradabadi servants to cut the crops. P.W. No. 16 states that he turned up with 12 men to support P.W. No. 22 and that the Panos of 1st accused ran away but 1st accused remained there. This is improbable. He admits that neither he nor the constable reported that 1st accused attempted to resoue the prisoners.

14. As regards complaint of theft or the abetment of theft, the evidence of witnesses who say that they heard from A that he suspected the Sirdars or that theft was at their instance has, for the reasons already given by me, to be excluded. It is not evidence of repute and if the thefts are sought to be proved, the witnesses who have a direct knowledge of the affair ought to have been called. The Magistrate seems to have thought that because Panos committed theft and some prosecution witnesses state that they are accused Panos, the case against the accused is proved. It is well known that Panos like Marravars, Kallars and other tribes are addicted to theft and lawlessness especially, during the non-cultivating seasons. The District Magistrate in his judgment says that Panos are notoriousry addicted to crime. Under these circumstances great caution has 40 be used in fixing liability on the landlords, especially au almost every landlord in those parts has to employ Pano cultivators. In this connection I may refer to the observations in Nilkamal Das v. Emperot 6 C.L.J. 711, where it was held that the facts that a landlord has tenants of bad character under him, that he lends money to tenants of bad character under him when they are in difficulty and that he mediates between his tenants who are accused of theft and their victims, are not grounds for requiring security under Section 110. If these remarks are borne in mind and hearsay evidence excluded, there is very little reliable evidence to show that accused either took part in or abetted thefts. They are rich and influential persons, and it is difficult to believe that they either profited by the small thefts or instigated Panos (who required little inducements to thieve) to commit theft. The fact that in 2 or 3 oases they interested themselves in the case against the Panos, even if true, is quite consistent with a desire to help servants whom they considered wrongly charged. The Magistrate erred in thinking that in spite of acquittals of the persons actually charged with offences the facts relied on by the prosecution in those oases Can be relevant evidence against the present accused. I need only refer to the observations in Nagireddy Kdndareddy In re 41 Ind. Cas. 990 already referred to.

15. As regards forest offences, any inference that particular forest officials may draw as to the persons who committed theft will not be evidence of repute. The Court has to test the sources of the information that led them to infer that the accused had anything to do with the thefts. Statements in forest department files will not be evidence by themselves. As other landlords besides the accused have Pane servants, the fact that the. Forest Ranger was of opinion that, from the nature of the wood stolen, others ought to be behind them would apply generally to landlords, and there is no special reason why the accused should be charged in particular. The forest officials were not likely to be afraid of the village Karji (the 1st accused) and there is no reason why they did not prosecute him. The illicit grazing of the buffalos on one occasion in respect of which compensation was levied by the forest department, even if true, would not be a ground for requiring security under Section 110; nor would the remarks in a file that some shicaries on one occasion used the gun of 2nd accused be sufficient.

16. As regards the evidence of P.Ws. Nos. 14 and 15 it is difficult to see how, even if it is true, any case of theft can be made out. First accused told P.W. No. 14 that his servants brought timber without orders and offered to pay the price, which offer the merchant accepted. P.W. No. 15 says that stolen timber was found near the village where 1st accused and several others lived. The fact that 2nd accused purchased the logs and paid Rs. 75 for them would not show he was the thief.

17. As regards evidence of repute the prosecution witnesses are not men of any special consequence and the evidence is in my opinion more than counterbalanced by the evidence of officials and respectable residents, which I have already referred to. Several prosecution witnesses are on bad terms with the accused and evidence of the sort they give is easily procurable by the Police Sub-Inspector P.W. No. 1, who is on bad terms with the accused and who launohed the present prosecution after all attempts to help the Mahapatros and the Sirdar in the land dispute between them and accused had failed. The Magistrate is of opinion that the Sub-Inspector P.W. No. 1 is the champion of the faction opposed to the accused, and I have little doubt that the present proceedings were not instituted bona fide by P.W. No. 1.

18. The case has been very fully argued on both sides, and I have little hesitation in holding that both on the points of law and the questions of fact raised the order requiring security is unsupportable. I set aside the order and direct that the bonds if executed by accused Nos. 1 and 2 be cancelled.

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