Full Judgment
Banerji, J.
1. Din Dayal has been bound over to be of good behaviour for three years, and the learned Sessions Judge of Mainpuri has confirmed the order. Din Dayal has come up in revision against that order. Although it is not the practice in revisions to look into the evidence in cases, specially in cases under Section 110 of the Criminal P. C., I am of opinion that this is one of those exceptional cases in which the opinion of the Sessions Judge that the man is a habitual thief and robber and a most dangerous character and that he possesses that reputation in his vicinity, cannot be accepted. The case shows the danger of assuming too much because I find that only one witness has come from the village where Din Dayal lives to give him a bad character, and he is Tej Singh, Mukhia, but Tej Singh's evidence really does not prove anything legally against the petitioner Din Dayal. The learned Sessions Judge has assumed that the deficiency of witnesses from the village of the accused on behalf of the prosecution is to be explained by the fact that people know him to be a bad character and are not prepared generally to come and support Tej Singh. I have looked into the record to find some basis for this assumption of the learned Judge. Witnesses, no doubt, have come forward to say that Din Dayal was suspected of having committed at least four murders but this is not a class of evidence which is admissible for the,purpose of binding over Din Dayal. See the case of Raham Ali v. Emperor [1913] 11 A. L. J. 461. A number of witnesses have been called on behalf of the prosecution to prove that Din Dayal bears the reputation of being a habitual thief, dacoit and murderer. Curiously enough these witnesses know nothing about the circumstance of Din Dayal. Their story is most unconvincing and the reason given by them is that because Din Dayal was suspected in murder cases they believed him to be a man of bad character. Some witnesses have come forward to give evidence that as Din Dayal sits on a bridge with, a lathi with some people who are badmashes they believed him to be a badmash too. There is no evidence that these persons with whom Din Dayal associates are badmashes.
2. The learned Magistrate has referred to the evidence of Bhatele Shiam Behari Lal as proving the bad reputation of the petitioner. I have read that evidence. It proves absolutely nothing against Din Dayal, and as a matter of fact, this witness does not even know Din Dayal by sight. He, however, says that Din Dayal was suspected of having, murdered his karinda. This being the state of the evidence it is unnecessary to go into details regarding the evidence called for the defence. A good volume of evidence was called on behalf of Din Dayal but has been brushed aside by the Court of first instance on the ground that these witnesses mostly did not associate with Din Dayal long enough to be able to give any evidence of good character. Some of them are witnesses living in the village of Din Dayal. I have examined all the evidence in the case. Although I realize the difficulties of the prosecution in cases under Section 110 of the Criminal P. C, I cannot, however, shut my eyes and maintain an order unless the record upon which the order is passed is such that it proves conclusively the charge read out, to an accused person under Section 110 Criminal P. C. The difficulties can very easily be overcome if the person responsible for the prosecution of a case under Section 110 carefully beats in mind the observations of Mr. Justice Chamier in the case of Bechai v. Emperor [1915] 12 A.L.J. 937. I set aside the order binding over Din Dayal. If he is in custody he will be forthwith released.