1. This Rule was issued calling upon the District Magistrate of 24 Parganas to show cause why orders passed under Section 109, Criminal P.C. on the petitioners should not be set aside.
2. The material facts briefly are as follows. On 13th March 1916, witness Jugal Kishore Dutta, a clerk employed in Calcutta, returned home by the 8/5 train, and descended from the train at Mathurapur Road Station. Going home north from the station, he saw two taxis and a private car turning and entering a tile factory of Messers K.C. Pal. Suspicion was aroused. He went to the adjacent para, and the para people went back with him to the tile factory and questioned the occupants of the cars. The occupants were Sikhs. They stated that they had been hired by Chhotu Maharaj, according to Jugal Kishore, to take his bride. The village people were not satisfied. They sent information to the police, and the police officer arrived there. At about 12/30, Chhotu Maharaj came to the place, and the police questioned him. The Sikh taxi drivera stated that they were hired by Chhotu Maharaj to take his family. Chhotu Maharaj said that he hired them to transport, rice which he had purchased.
3. Considering the explanation unsatisfactory, proceedings under Section 109, Criminal P.C. were started against Chhotu Lal Sharma and the seven occupants of the three cars and another person who was found standing at the gate of the tile factory. Chhotu Lal Sharma was too ill to attend Court during the actual hearing and he was not in the dock at any time when the witnesses were being examined. Four prosecution, witnesses were examined. No defence witnesses were examined. The learned Magistrate held that the three petitioners, i.e., the drivera of the three cars. wore unable to give a satisfactory account of themselves, and he directed that each do execute, a bond of Rs. 500 with two sureties of Rs. 250 each to be of good behaviour for one year, in default to undergo rigorous imprisonment for three months. The learned Magistrate directed that other persons who were tried jointly with the petitioners should be discharged. The petitioners appealed. Their appeal was heard and dismissed, by the Additional Sessions Judge of 24 Parganas. Hence this Rule.
4. The learned Magistrate in his judgment has discussed the case against Chhotu Lal Sharma as though he were an accused jointly tried with the present petitioners. He was not jointly tried it in true that permission to appear by a pleador was granted at one stage, but the trial was completed in his absence and he was never present in Court during the actual trial. The learned Magistrate has taken into consideration statements said to have been made by Chhotu Lal at the place of occurrence at about 12/30 that night. The learned Magistrate has further taken into consideration the statements of persons who were apparently examined by the police. None of these persons were examined as witnesses. Even if they had been examined, their statemonks to the police during investigation were not admissible as evidence. The learned Magistrate has come to the conclusion from the statement of these persons and from the statements said to have been made by Chhotu Lal that the 'explanation given by the accused was untrue and that the explanation given by Chhotu Lal was also untrue. In my opinion, the statements of those persons who have not been examined were not admissible at all. The statement of Chhotu Lal to the police and to the villagers ought; also to have been ignored by the Magistrate and only the circumstances in which the 'three petitioners were found and the statements made by the petitioners, and of course, any evidence legally admissible to disprove those statements ought to have been taken into consideration.
5. It has been argued that the statement given by the drivers of the taxis was on the face of it unsatisfactory: that the place where the cars were parked was a lonely place; that there was no excuse for being there at night: that the place was at some distance from Chhotu Lal's house, and the story going to bring Chhotu Lal's family was on the face of it unsatisfactory. Unfortunately, the learned Magistrate and the learned Seissions Judge have not considered whether thin argument is sound or not. They have merely considered whether, in fact, Chhotu Lal hired those people to take his family or not. The Magistrate has completely ignored the possibility that Chhotu Lal might for some reason of his own give a false explanation to these taxi-wall as for going to that place. There is no sufficient evidence to show that the tile factory was an isolated place and that there were no other buildings near it. There is no evidence to show that the cars could have proceeded further in the direction of Chhotu Lal's house, or that their presence at that place under those circumstances was not natural if Chhotu Lal had hired them for the purpose of taking his family. In my opinion, the Courts below have not considered whether from the circumstances of the case, and the admissible evidence given in the case the account was satisfactory or not. They based their finding entirely on inadmissible evidence. For these reasons, in my opinion, the orders passed by the Courts below cannot be sustained. The Rule is accordingly made absolute. The orders passed on the petitioners under Section 109, Criminal P.C. are set aside and the accused are discharged.