JUDGMENT

1. One Gajadhar Brahman of Village Jamnahi in the Bahraich district was called upon by a First Glass Magistrate of Bahraich under Section 110, Criminal P.C., to show cause why he should not be bound over to be of good behaviour for one year. After recording the evidence produced against Gajadhar and the statement of Gajadhar, who did not produce any evidence in his defence, the Magistrate passed an order under Section 118 of the Code requiring Gajadhar to execute a personal bond for Rs. 250 with two sureties each in the like amount to be of good behaviour for one year.

2. On appeal by Gajadhar the learned Additional Sessions Judge of Bahraich has set aside the order of the Magistrate. The present application in revision has been made to this Court on behalf of the Crown to have the order of the learned Additional Sessions Judge set aside and that of the Magistrate restored. The reason given by the learned Additional Sessions Judge for setting aside the order is that in his opinion the evidence produced was not sufficient to warrant the binding over of Gajadhar. We would be most reluctant to interfere in revision with an order passed on the conclusion arrived at by the Judge if the conclusion has been reached after due consideration of the evidence, but in this case we are satisfied that the learned Additional Sessions Judge's estimation of the evidence has been influenced both by a lack of proper appreciation of the evidence admissible in proceedings under Section 110, Criminal P.C., and by a misapprehension of certain expressions used by the witnesses.

3. In our opinion the evidence, if properly appreciated is amply sufficient to justify the Magistrate's order. Leaving aside the evidence of the Sub-Inspector of Police, there is evidence that in three burglaries, committed on 17th June 1928 and 14th and 15th August 1931, Gajadhar was suspected of complicity and this suspicion was mentioned in each case in the reports made at the police station at the time. Besides this evidence, there is the evidence of the headman of Gajadhar's village, of five other residents of the village and of two residents of neighbouring villages that, Gajadhar has the general repute of being a burglar and a thief. These witnesses belong to various castes, the majority being of the same caste as Gajadhar.; Some of them say that Gajadhar has no other occupation. This evidence is entirely unrebutted either by the cross-examination of these witnesses or by the production of any witnesses by Gajadhar to prove that he is of good character. If such evidence cannot be held to justify an order binding a man over to be of good behaviour, it would be very difficult ever to pass such an order.

4. The learned Additional Sessions Judg appears to have been impressed by the fact that there were no witnesses who had actually seen Gajadhar committing burglary or theft. If such had been the case it is unlikely that these proceedings would have become necessary as action could have been taken against him for the substantive offences. The learned Additional Sessions Judge has also Lald much stress on the fact that the word "habitual" does not occur in the vernacular record of the evidence of the witnesses who state that they consider Gajadhar to be a burglar and a thief. We have read the depositions of the witnesses, and it is clear to us from the words used by them, namely, "he commits burglary and theft" that they meant to imply that he was in the habit of doing so. Lastly the learned Additional Sessions Judge has commented on the fact that the witnesses do not particularise when or where they acquired the knowledge that Gajadhar was a burglar and thief. The witnesses were never asked this. They have clearly deposed that Gajadhar has the general repute of being an habitual offender. Under the provisions of Sub-section (4), Section 117, Criminal P.C., this evidence is admissible evidence in proceedings under Section 110, and it was allowed to go unchallenged. Gaj