1. The thirteen petitioners were called upon to show cause why they should not be required to give security under the provisions of Section 110, Code of Criminal Procedure. They showed cause ; evidence was gone into and they were ordered to give security. They preferred an appeal to the District Magistrate. That appeal was dismissed by the learned Additional District Magistrate. On application to this Court, they obtained the present Rule calling upon the District Magistrate to show cause why on the grounds set out and on an examination of the evidence, the order complained of should not be set aside. After going through the evidence, it appears to me that the order passed by the lower Courts cannot be supported.
2. First, with regard to the matter of association, The law. requires that when proceedings are taken against more than one person for a joint trial under Section 110, Code of Criminal Procedure, proof should be given that they wore associated together in the matter under enquiry. The trying Magistrate dealt with this question and he said that proof of association was given by the facts that the accused were seen together at meetings, that these meetings were followed by offences against property and that on numerous occasions after theft had been committed, some or other of the petitioners demanded payment and obtained payment in redemption of the property stolen. The Appellate Court did not deal with this matter at all. Now, if the evidence in support of these statements were good and substantial, there would be good reasons for treating the men as associated. But all the petitioners come from the same village of Bareswar. They all followed the same calling and many of them are related to one another. There is nothing unnatural in their meeting together in the village. The allegations that the meetings were followed by offences is extremely vague. The thefts to which allusion was made occurred 2 or 3 years or several months ago. No attempt was made to give the exact dates, and it is just the same regarding the allegations of extortion. My objection to the judgment of the first Court is that these statements were accepted without any critical examination, while in the Appellate Court's judgment no reference whatever is made to this matter.
3. Then, as to the evidence given against the petitioners, the principal fact in the case appears to me to be this: As I have already said, all the petitioners came from the village of Bareswar. There are 101 witnesses examined, altogether 50 on the prosecution side and 51 on the defence side. Sixty-seven of these witnesses come from the same village of Bareswar; thirty-five appear on one side and 32 on the other. 1 cannot understand how it is possible for such a large body of witnesses, who must represent a very large proportion of the adult male population of the village, to be divided into two parties in this matter unless the whole village is divided by party feeling, and there is abundant evidense to show that there is strong party feeling. There was a murder sometime ago in which the victim was a member of one of the present parties and the accused a member of the other. It also appears that after that murder ease and the trial which followed, a new mosque was established and one part of the village now assembles in the new mosque and the other in the old mosque and that the witnesses for the prosecution on the one side and the defence witnesses on the other are divided on the same lines, That is a very important fact to which the Courts below ought to have given their very careful consideration; but they have omitted it altogether.
4. Another point which I wish to mention is that considerable stress is laid on the evidence given by one Tarak Chunder Chowdhury on the ground that he is a Hindu and a landowner. But it appears in the first place that he had never been to the village, and what is more important is that when he says that his tenants in the village borrowed money from him to redeem the stolen property from the petitioners, it is quite clear that the statement as to the object of the borrowing is inadmissible in evidence. He may prove the borrowing of the money but he cannot say what the object was. In my opinion, the evidence is extremely weak and it has not been subjected to the critical examination which it deserves. I think the order complained of should be set aside and the accused discharged from their bail.
5. I agree.