JUDGMENT

Banerji, J. - This is an application in revision by one Raj Narain, who has been directed by a Magistrate of the First Class of Benares to furnish security for good behaviour. That order has been confirmed in appeal by the learned Sessions Judge. Although the High Court is not a Court of appeal in cases u/s 110 of the Criminal P.C. and the responsibility of administering that section does not rest upon it, it is nevertheless a section which ought to be administered with scrupulous care both by the Court of first instance and the appellate Court. It is only when something appears unsatisfactory and unusual that this Court will look into the record to examine if the order has been properly passed. The case appears to have been put up before a Magistrate by the Police and evidence which has been repeatedly held to be inadmissible by this Court, has been used as substantive evidence against the applicant. Moreover, it has been brought to my notice that a finding of both the Judge and the Magistrate is contrary to the evidence of a witness called Mohammad Ismail. I have, therefore, examined the evidence in this case.

2. The evidence can be divided into two parts: (1) The evidence of the police witnesses showing in how many cases, both cognizable and non-cognizable, the applicant Raj Narain had been suspected; (2) evidence of general repute. I must at the outset repeat what was said by Mr. Justice Chamier in the case of Bichai v. Emperor [1914] 12 A.L.J. 937, namely, that inquiries under Chap. 8 of the Criminal P.C. are governed by the ordinary rules of evidence, and evidence which is not admissible under the Evidence Act cannot be admitted in proceedings u/s 110 of the Criminal P.C. In that case Mr. Justice Chamier also observed that evidence of general repute may be either evidence as to general opinion of the neighbourhood or community in which the person suspected lives or to which he belongs or the personal opinion of the witnesses who are examined. The gentleman responsible for prosecution in cases like this may with great advantage read and study that ruling and although it has been repeated over and over again that mere suspicion is no evidence in a case, in this case the learned Sessions Judge has treated it as substantive evidence and has held that in a number of cases the suspicion was well founded, whatever that may mean. Reference may also be made to the following cases as regards the admissibility of evidence in which Courts have repeatedly held that suspicion is no evidence. See the case of Chandi v. Emperor [1918] 21 O.C. 132, Sanku v. King-Emperor AIR 1924 Oudh 112, Rahman Ali v. King-Emperor [1913] 11 A.L.J. 461, and Raja Ram v. King-Emperor [1921] 23 O.C. 371.

3. On the 28th June 1926, the Magistrate recorded the following order:

Whereas I am satisfied from the police record that you Raj Narain are by habit a thief and housebreaker, you are called upon to explain why you should not be bound over to be of good behaviour and conduct and furnish two good and reliable sureties of Rs. 2,000 each and a personal bond of Rs. 500 for three years.

4. Raj Narain is an ordinary cultivator having a few bighas of land and it looks as if the persons responsible for this prosecution wanted to be sure that Raj Narain should not be able to furnish security and will have to remain in jail for three years. Otherwise it is absolutely inexplicable as to why such heavy security was demanded in the first instance. (After considering evidence the judgment proceeded). I am of opinion that the evidence in this case does not make out that the petitioner was by habit a thief and housebreaker. I, therefore, set aside the order requiring him to furnish security to be of good behaviour and direct that he be forthwith released.