Holmwood and Sharfuddin, JJ.
1. This was a reference made by the learned Sessions Judge of the 24-Parganas in a case in which the Magistrate has refused to accept certain sureties under Section 122 of the Criminal Procedure Code, because he considered them unfit, the reason given by the trying Magistrate himself being because Elem, the person bound down, was a notorious dacoit, and there was a consensus of opinion that his brothers would not be able to keep him in control.
2. When the rule was first issued by the learned Judge in the Court below the Sub-divisional Officer, who was then in charge and who had tried the 110 case, rightly said that he would not reply to the rule until he had made a careful enquiry on the spot. He went out, he made a careful enquiry and he found as we have said. He made enquiries not only at the Fatelapur Hat but also at Baderia. But this did not satisfy the learned Judge who has referred the matter to us because another Sub-divisional Officer who succeeded the first has given some details by way of example in support of his predecessor's finding which the learned Judge thinks are not reasonable. One is the report of the police officer that Asiraddi Mandal is a mohurrir of some mukhtear. That of course may or may not be. a ground against him. The learned Sub-divisional Magistrate in his report speaks of him as a pleader's clerk, and is clearly wrong in saying that the pleader's clerk is presumably a tout. Bat another example which he gives of their inability to control this man, is that, although they are his elder brothers, they could not induce him to get rid of a prostitute with whom he was openly living on the public road which practically caused a scandal to the family. But these are only instances, and we do not think the learned Judge is quite right in giving them as the only reasons in his statement of errors on a point of law which the Magistrate made. The real reason is the consensus of opinion in the neighbourhood, and we cannot say that this is an unreasonable ground.
3. There have been many apparently conflicting decisions upon this point, but the law now appears to have come back to the point at which it originally stood in the statute itself, and in the judgment of this Court delivered in the case of In re Narain Sooboddhee (1874) 22 W.K. Cr. 37. The statute merely says that the Magistrate may refuse to accept any surety offered under this chapter, for reasons to be recorded by him, that such surety is an unfit person, and in the case we have referred to in the Weekly Reporter it is laid down that the ground of refusal must be valid and reasonable. That is all. In the case of Ram Pershad v. King-Emperor (1902) 6 C.W.N. 593 a Bench of this Court gave certain advice to the Deputy Magistrate, but without having the case argued before them and without issuing any Rule. It is impossible to conceive that this case should have been reported in the authorised law reports in the Indian Law Reports series, for it is not a judgment of this Court and cannot be held to be a ruling. It was cited, however, before another Bench of this Court to which one of us was a party, in the case of Adam Sheikh v. Emperor (1908) I.L.R. 35 Calc. 400 and was followed by that Bench without any reference to another case which had been decided by Geidt and Woodroffe JJ.,--Jalil v. Emperor (1908) 13 C.W.N. 80. There long and considered judgments were delivered by both the Judges, and it was laid down that the unfitness of a surety for good behaviour, though it may not exclude the idea of pecuniary unfitness, is more concerned with the idea of moral unfitness. That was laid down by Mr. Justice Geidt, while Mr. Justice Woodroffe laid down that under Section 122 the Magistrate has to determine whether a person offered as surety is a fit or unfit person; as the Legislature has not particularized any kind of unfitness the matter is left to the discretion of the Magistrate subject to the High Court's power of declaring in each case according to its own circumstances whether the order passed by the Magistrate is reasonable or not. These cases came up before another Bench of this Court in the case of Jafar Ali Panjalia v. Emperor (1910) I.L.R. 37 Calc. 446 and after considering the apparent conflict between some of these rulings, it was again laid down, as was laid down in In re Narain Sooboddhee (1874) 22 W.R. Cr. 37, that the ground of objection must be dealt with in each case as it arises. The head note seems to be rather misleading, for it is set out that where a surety is competent in a pecuniary sense, the fact that he is not in a position to exercise control over the person bound down so as to ensure good behaviour in future, is not a sufficient ground for his rejection. A perusal of the judgment shows that the learned Judges never laid down any such doctrine at all. They say that in this particular case the sureties are men of sufficient substance to pay Rs. 2,500, but they are not in the opinion of the Magistrate in a position to control the petitioner sufficiently to ensure his good behaviour in future. They do not say anything further about this ground, nor do they say that the complete want of control is not a reasonable and sufficient ground. On the contrary, they say that there may be other objections to a man becoming a surety although he is pecuniarily fit for the opposition, but these it is not possible to specify, and such an objection must be dealt with in each case as it arises.
4. We are, therefore, brought back to the original doctrine laid down in In re Sooboddhee (1874) 22 W.R. Cr. 37 that the only thing we have to see is that the order in each case is reasonable and valid. It appears to us that the reason given by the Sub-divisional Officer who tried the case was a reasonable and valid one, even though the examples with which his successor endeavoured to support it may not meet with approval. We, therefore, decline to interfere with the order of the Magistrate. The papers will be returned to the lower Court.