1. The Sessions Judge is quite right in supposing that this Court would not ordinarily interfere with the discretion of Magistrates, as to the amount of security to be taken in cases of this kind. The Magistrate is in a much better position than this Court for judging what would be the proper amount of security, which must vary with the danger to be apprehended and the means of the parties. But the Magistrate cannot make an order that is altogether unreasonable. Here the Magistrate, although there has been as yet no breach of the peace, and apparently no very strong determination to resort to violence, has required the parties to enter into bonds amounting altogether to upwards of Rs. 60,000. The parties do not appear to be wealthy; and had the security ordered been really required, in all probability it could not have been furnished. We find, however, that one of the parties, who has been accepted as surety for Es. 5,000, is described as a kotwal and another as a mookhtear, and all the bonds were executed on the very day the order was made. It would thus appear as if the amounts mentioned in the bond are merely nominal, and that no real security to that extent was required.
2. I consider that in this case, the Joint Magistrate has not done that which the law requires. Either he has wholly failed to exercise the discretion which the law requires him to exercise in taking security for good behaviour, or, if he has exercised it at all, he has exercised it in a manner which is altogether unreasonable. Whichever be the case, I do not think we ought to allow such an order to stand.
3. No one appears on behalf of Government to support the order, and the Magistrate has offered us no explanation. We have nevertheless thought it necessary to consider whether this is a case in which we ought to interfere under the powers of superintendence and revision over the subordinate Courts conferred upon the High Court by Chapter XXII of the Code of Criminal Procedure. It has been held, notwithstanding, the very general words of Sections 294 and 297 that this Court ought not, in the exercise of these powers, to go into the evidence and examine the conclusions of the Court below upon the facts. I desire to adhere to those decisions. It seems to me necessary to do so, as otherwise an appeal would virtually lie against every decision of the subordinate Courts, which was clearly not intended by the Legislature. But, nevertheless, I do not think that we are excluded from interference where, in cases requiring the exercise of discretion, it appears upon the face of the proceedings that the Magistrate has exercised no discretion at all, or has exercised his discretion in a manner wholly unreasonable. I think that we have the power and ought to interfere in such cases, just as we have the power, and ought to interfere where a Magistrate has been guilty of misconduct. I did not myself intend to say anything contrary to this in In the matter of Debichurn Biswas 20 W.R. Cr. 40. Nor do I think that the decision in In the matter of Belilios 12 B.L.R. 249 lays down anything contrary to this view. No doubt the language of Pontifex, J., in that case and my own language in the other case might be pressed to the extent of confining this Court when exercising powers of revision strictly to errors in law. As a general rule, that is so. Cases of misconduct or utter want of discretion are rare and exceptional, and were not, I think, contemplated when those decisions were given. I am of opinion that this Court, when exercising its powers of revision, is justified in dealing with such cases, and that we may do this without in any way interfering with the rule that this Court will accept the conclusions of the Court below upon the evidence in the case.
4. Upon the ground that it appears upon reading the proceedings that the Joint Magistrate has either exercised no discretion at all in fixing the amount of security, or that he has exercised his discretion unreasonably, and that the Magistrate has given us no explanation, I think we ought to set aside his order.
5. I am also of opinion that we ought to set aside the order of the Joint Magistrate in this case. Under Section 297 this Court has the power of interfering with judgments, sentences or orders of Courts subordinate to it, if there has been a 'material error in any judicial proceeding' of such Courts. These words, it seems to me, mean any error appearing on the face of a judicial proceeding resulting in an unjust order. For the reasons given by my learned colleague, there appears, on the face of the proceeding of the Court below, such, a material error as would warrant this Court in setting aside the order passed by it.