George Knox, J.
1. In the month of May 1914, a case under Section 110 of the Code of Criminal Procedure was pending before a Magistrate of the first Class of Mainpuri.
2. The person against whom proceedings were instituted was Khalaq Singh, a thakur, and he was called upon to show cause why security should not be taken from him on the ground that he was a habitual dacoit and an associate of dacoits and the people of the neighbourhood were in terror of him.
3. The case was partly heard by Babu Raj Bahadur and partly by Thakur Hukum Singh. Thakur Hukum Singh came to the conclusion that none of the charges alleged by the prosecution had boon made out or established against the accused. He found, him to be a man of position, good life and family and he was not a person to he bound over under Section 110, and he accordingly discharged tint order made against him calling upon him to show cause.
4. These proceedings came to an end on the 19th of May 1914.
5. Somewhere in July 1914 Khalaq Singh applied for sanction to prosecute Abdul Khaliq, Circle Inspector, for having committed an offence under Section 193 of the Indian Penal Code.
6. Babu Raj Bahadur Singh refused to entertain this application. The grounds on which he refused to entertain it were two fold. The learned Magistrate thought that Abdul Khaliq had probably made inquiries in some dacoity case and that what he deposed might have been learnt and come to his knowledge during those inquiries. The second ground was that there was nothing on the record to show that Abdul Khaliq had made two contradictory statements in the course of a judicial proceeding. Khalaq. Singh then went to the District and Sessions Judge of Mainpuri, asking that the order of Babu Raj Bahadur might be set aside and sanction might be given to prosecute Abdul Khaliq under Section 193. There is nothing in the petition laid before the District and Sessions Judge in which the statements supposed to be perjuries are to be found but I am told that they are to be found, in the petition made to Babu Raj Bahadur and that they are as follows.–“(1) I know Khalaq Singh accused. He is in the habit of committing dacoity. (2) There is a general complaint against him of committing dacoity and people fear him. (3) Khalaq Singh was suspected in the Nabigunj dacoity case, also in the Yamudandi case, also in the Namkarari case. (4) The complainant (apparently in the Nabignnj case) put his suspicion on Khalaq Singh in the beginning, middle and end of the inquiry. (5) Names of the persons whom Murli took in the dacoity were the enemies of Murli. (6) Kandora was not a servant of his when Nabi Singh was arrested.
7. How far these statements are the ipsissimma rerba used by Abdul Khaliq. I do not know. I have not compared them with the original record, and I have not been asked to compare them by the learned Advocate who appears for Abdul Khaliq nor by the learned Vakil who appears on the other side.
8. It was for the petitioner, Kuar Khalaq Singh, to satisfy the Courts before whom he pressed his application that there WRS a prima facie case of perjury with regard to each one of those statements put into the month of Abdul Khaliq. So far as 1 can judge, the Magistrate dealt with the case in a very proper manner. It is to be regretted that he did not deal with the case, when it was before him under Section 110, in an equally succinct and common sense way. He was satisfied, and it must be remembered that most of the evidence had been recorded by him, that it was quite possible with reference to each one of those statements that Abdul Khaliq was deposing to what he came to know during the inquiry and that there was nothing in the statements which could not be explained away and honestly explained in this way. I admit that the fourth statement, if it has boon correctly stated before me, is not so easily explained; but the misfoutnne is that, so I. am told, there was no cross-examination of Abdul Khaliq to show on what foundation he based the several statements made by him.
9. To my mind it is always strange that Magistrates in the present day attach so much weight and examine at such in ordinate length the Police officers who appear before them in proceedings under Section 110. These officers, generally speaking, know nothing more than this that there is current in their Circle a rumour to the effect that a certain person is an associate of bad characters or otherwise a person who needs watching under that section.
10. There may be cases in which such officers do see something with their own eyes and in that case their evidence is of course valuable; but when it is evidence based upon hearsay rumour and above all on diaries, it is of infinitesimal value, more particularly where there is evidence available, as I understand there was in this case, of, certain number of witnesses who were not Police officers who came, forward on either side.
11. It is the custom now, so far as I have seen in cases coming before me, to have 30, or 40 witnesses on one side and to have as many as 40 or 50 witnesses on the other side, as though proceedings under Section 110 wore best judged by the number of witnesses.
12. In the judgment recorded by Mr. Hukum Singh there is this clear defect that he deals with the case mainly upon the Police diaries and upon little else. His judgment is an apology for the diaries showing that they are entitled to be ranked as the best evidence in the case. Police; diaries are sometimes of use when one has to decide about the guilt of an accused person and they contain matter which seems to point in the opposite direction, but so far as my experience goes they are dangerous evidence against a person. I am not dealing with a case in which the diaries are the diaries of the investigating officer and the question is how far he is responsible for what is contained in them; that is quite another story. Abdul Khaliq had nothing to do with these diaries except to review them after they had been written by others, Nothing in the diaries is put before me as his own personal knowledge. I do not for a moment suggest that the deeds ion arrived at in the long run by Hukum Singh as regards the reputation of Khalaq Singh is in any way wrong, that is not a matter before me to-day; but there is nothing in his very lengthy judgment winch gives ground for a prima facia conclusion that Abdul Khaliq has committed perjury in the evidence which he gave before Babu Raj Bahadur. Nothing whatever of this kind has been pointed out to me and it was very properly stated before me that if the Police diaries betaken out of the judgment, there remains no foundation on which a sanction for prosecution can safely be based.
13. The learned Judge never seems to have had before his mind the first ground on which sanction was refused, he dealt only with the second ground and his judgment is that the Sub-Divisional Officer, instead of going into the merits, threw the application out on the ground that there were not two mutually contradictory statements. As I read the judgment of the first Court the strong point in the judgment is that statements made by Abdul Khaliq might welt have been made from inferences which came before him aliunde.
14. The case is certainly not one in which sanction should have been given under Section 193, The Magistrate who heard the evidence evidently did not consider that he could take upon himself the responsibility of acting under Section 476. On every ground, therefore, I hold that this application for revision of the order of the Sessions Judge of Mainpuri is a good and proper application.
15. I set aside the order and revoke the sanction, which has been given.