1. The petitioner Surendra Nath Manna has been bound down under Section 118 of the Criminal Procedure Code in his own bond of Rs. 800 with two sureties in the sum of Rs. 300 each to be of good behaviour for three years.
2. It appears that there were numerous dacoities in the neighbourhood of petitioner's village in the year 1915. One of these dacoities was committed at Rajipur in December and a man named Bahir Das Bagdi was arrested; he made a confession implicating the petitioner, and the latter was arrested some time in January 1916; he was committed to the Sessions, and in February 1917 he was acquitted by this Court on a reference under Section 307, Criminal Procedure Code, being made by the Sessions Judge. The same Bahir Das Bagdi named the petitioner as an associate in a dacoity at Shamserpur, which took place on January 19, 1916: and the petitioner was committed to the Sessions on that charge also: be was acquitted in June 1916.
3. In May 1918 there was a dacoity committed in the village of Joynagar and a man named Ashu Bagdi was arrested: he made a confession implicating the petitioner, and the latter was arrested on May 12, 1918: he remained in custody until July 6, 1918, when he was discharged, but on the same day the present proceedings under Section 110, Criminal Procedure Code, were initiated.
4. These facts are important. The petitioner spent the whole of 1916 either in custody or on bail awaiting a final decision upon the charge of dacoity, and he was arrested again in May 1918 and kept in custody for nearly two months, again upon a charge of dacoity. The Police have, therefore, failed to establish his guilt in regard to three specific charges, and immediately on their third failure the present proceedings have been begun.
5. The first ground on which the Rule was issued challenges the propriety of this course of action, but I do not think we ought to go so far as to hold that the Magistrate was wrong in instituting these proceedings, but it is, to my mind, clear that in such circumstances, the evidence against the accused must be very satisfactory before security can be demanded. The other four grounds attack the evidence, and amount to this, that the evidence does not establish the fact that the petitioner is a thief or a dacoit.
6. The first criticism is that the petitioner has been acquitted of the charges connect ed with the dacoities at Rajipur and Shamserpur, and discharged in regard to the dacoity at Joynagar, and, therefore, the evidence of the approvers to the effect that he did take part in those dacoities ought not to have been admitted. That is true as regards the Bajipur and Shamserpur dacoities, but Bahir Das Bagdi names several other dacoities in which he says that Surendra took part. Ashu Bagdi does the same. With regard to these other dacoities I think the learned Magistrate was quite wrong in holding that there was any corroborative evidence that is to say as against the petitioner! He mentions the finding of a sword in Surendra's tank in 1918, which was identifieded by the complainant in the dacoity case at Khedah, but it does not appear that the disappearance of a sword was mentioned to the Police. The witness (P.W. No. 6) is most unsatisfactory: he contradicts him-self about the recovery of some earrings in a way which makes it impossible to believe him. (Parenthetically I may remark that one part of his statement is pure hearsay and should not have been admitted.) The injury on Manik's person the sword found in Manik's bedding and the notes found on Manik's person lend no corroboration to the approvers as against Snrendra the petitioner. Lastly the learned Magistrate alludes to the evidence given by some goldsmiths, P.Ws. Nos. 91 92, 93. The two latter who melted the gold say that they told the Police at once: they are not friends of Surendra and there is no reason why they should be chosen for such a compromising job. I should be disposed to regard their evidence as ludicrous. As this is all the evidence to corroborate the approvers so far as Surendra is concerned, I think statements of the approvers ought to have been left out of consideration, and it follows that there is nothing to connect Surendra with any particular dacoity The prosecution has further tried to show that Surendra has spent money lavishly on wine and women, but it is clear that he was at one time well-to-do, and he may quite possibly have raised the money in a legitimate way. The same evidence is used to prove association with bad characters. I think only one ex-convict is mentioned in the evidence, Ganesh Shou. The learned Magistrate refers to the evidence of P. Ws. Nos. 102 to 107 but what they say is not very dear, and amounts to little more than that Surendra is leader of a gang, among whom are some men who were convicted in 1917 The other evidence is merely that Surendra lived a dissipated life in company with men beneath him in social status. Of course, such evidence has its value but it does not carry the case far.
7. Lastly evidence of general repute is assailed, and a two-fold criticism is made, firstly, that much of the unfavourable evidence results entirely from the action taken by the Police and secondly, that the favourable evidence given by one or two prosecution witnesses and by many defence witnesses has been brushed aside in a most summary manner.
8. I think both these objections must be sustained. It is true that a great many people from Snrendra's own village of Ramnarayanpur and from adjoining villages say that they believe him to be a thief and a dacoit, but over and over again they say in cross examination that their suspicion is the outcome of the house searches and the arrests. The learned Magistrate has not attempted to make allowance for these admissions. It is, of course, very difficult for a witness to say what his grounds are for suspecting a neighbour, if he cannot give concrete in-stances of suspicious conduct, but when the witnesses admit that one reason at least was in fast that the Police suspected Surendra, the accused ought to have the benefit of the admission. In the circumstances of this case it is particularly necessary that regard should be paid to the origin of the suspicion, for villagers are only too ready to believe that there must be something to justify repeated arrests and house searches.
9. Then as to the defence evidence the learned Magistrate says there is no satisfactory evidence to show that the case is due to party feeling and quotes two witnesses who say that there is no daladali in the village. He does not consider that if there is no daladali, it is a very remarkable fact that so many witnesses are ready to give Surendra a good character. Some witnesses, however, say that there is daladali and that Umesh Chandra Kar P.W. No. 28 is head of one party. P.W. No. 82 admitted that Umesh made him attend as a winter sections It seems, therefore, quite possible that there is a quarrel in the village. But be that as it may, there is the positive evidence that Surendra is a good man, and it is not a sufficient reason for casting it aside to say that proof of malice is wanting.
10. From this review of the evidence and of the Magistrate's judgment, my conclusions are that the judgment is vitiated by three main defects, first, that various statements have been treated as corroborative of the approvers which, even if true, do not corroborate them as against Surendra: secondly, that the Magistrate has failed to take into his consideration the admitted effect of the house searches and arrests in originating the general repute which is said to attach to the petitioner and thirdly, that the Magistrate has omitted to consider the volume of evidence directly in favour of the petitioner.
11. On these grounds I think the order requiring the petitioner to give security must be set aside.
Shamsul Hudi, J.
12. I agree.