1. This was a rule obtained by the Crown on grounds Nos. 1 and 2 of the petition. The first point that requires consideration is whether a Judge, hearing a reference under Section 123, Criminal P. C, has jurisdiction to decide who are fit persons to give the security demanded. The second point is whether in this case the correct procedure was followed. It is not necessary to set out in detail all the facts with regard to these proceedings. It will suffice to say that there was a reference under Section 123 of the Code before the learned Sessions Judge of Rangpore. He eventually confirmed the order of the Magistrate on 31st July 1936. Then apparently followed what seems to be the usual manoeuvring in order to avoid surrendering. Eventually, the persons bound over appeared before the Sessions Judge on 4th September and executed a bond. They filed a list of persons who were willing to stand surety for them. Further proceedings followed and eventually the learned Judge accepted certain persons as sureties and the opposite parties were not, therefore, committed to prison.
2. In showing cause Mr. N.K. Bose has contended that the learned Judge had jurisdiction to deal with this matter. In my opinion, the contention of the Crown is correct. That is the view taken by the Patna High Court in Emperor v. Narendra Nath Singh AIR 1930 Pat 217, and in my opinion that case was correctly decided. There is nothing in Section 123 which specifically confers this power on the Sessions Judge. But we are asked to infer it by implication, particularly from the use of the words 'pass such orders on the case'. Now I am bound to say that the more I examine the language of the section the more I am convinced that any attempt to imply any such thing would lead one into a morass. The result is that in my opinion, the first ground on which the Crown obtained this rule was justified.
3. Turning to the second ground I can see no merit whatever in it. There is a procedure laid down which is to be followed by the Magistrate in rejecting a surety. But there is nothing to prevent him from accepting persons, with whom he is satisfied, as sureties without any sort of inquiry or examination of witnesses on oath. In fact, this procedure is followed almost every day. The learned Judge assuming that he had jurisdiction, would, therefore, have acted quite legally if he had accepted the sureties without holding any inquiry or examination of witnesses on oath. We, therefore, have to determine whether this is a case in which we ought to interfere. Under the Code if the Magistrate had refused to accept these sureties the accused persons would have a right of appeal to the District Magistrate. It seems to me a strong thing to say that because the Judge did not hold any inquiry as to the fitness of certain persons who were willing to stand sureties we ought to interfere with the order of the Judge and start the whole thing over again. It should be plain that the only point which the Magistrate had to determine was whether these persons were fit persons. He would have no right whatever to reject the sureties proposed merely as an indirect method of getting the accused persons into jail. That procedure has been condemned over and over again, and has no kind of justification. It is very difficult to say that anything disastrous will happen if these persons are not allowed to stand as sureties; but they run the risk of losing their money, if the bonds are forfeited. I would, therefore, discharge this rule.
4. I am of the same opinion and I do not wish to add anything upon the merits. But upon the interesting point of procedure as to the possible construction of Section 123, Criminal P. C, I should like to say a few words. It seems to me that Sections 122 and 123 when read together show that it was the intention of the framers of the two sections that it was primarily the duty of a Magistrate to deal with the question of the acceptance of the sureties. The precise language employed in Section 122 seems to me to indicate this very plainly indeed. When one turns to Section 123 there is a mention of a Sessions Judge or the High Court being invoked in certain circumstances, not, I think, directly concerned with the acceptance of sureties but with the question arising when there is a difficulty in the accused persons in obtaining proper bail. It seems to me that it is only the language of Sub-section 4, Section 123 that would in any way support the argument that a Sessions Judge ought to deal with this question of the acceptance of sureties as opposed to the Code, and there I consider that the duty of the Sessions Judge, when in certain belated circumstances the question of sureties comes before him, would be to do what this Court does on questions of sureties and that is to refer the matter back to a Magistrate for the purpose of testing the fitness of the persons proposed.
5. My learned brother referred to the Patna case, Emperor v. Narendra Nath Singh AIR 1930 Pat 217, which dealt specifically with this question. That was a decision in Emperor v. Narendra Nath Singh AIR 1930 Pat 217, and it is in that case that Adam, J. very cogently, I think, applies the test to decide the functions of a Sessions Judge and a Magistrate in this regard by his reference to the exact terms employed in Section 406(a) which is the appellate section interpolated rather late in the day with regard to appellate recourse with regard to a Magistrate's decision. The section refers to the three classes of cases where an appeal is directed when the order is made by a Presidency Magistrate to the High Court, when the order is made by the District Magistrate to the Court of Session, and thirdly when made by an ordinary Magistrate to the District Magistrate. It seems to me that the language of that section does point very strongly to the idea that the Court of Session in such a case should be acting only in its appellate capacity and not otherwise. For these reasons I agree with the order proposed by my learned brother.