1. In this case the Magistrate says that in his opinion the sureties appear to be unfit. This is a case of sureties for good behaviour.
2. Section 122, Criminal Procedure Code, says that a Magistrate may refuse to accept any surety for good behaviour offered under this Chapter on the ground that, for reasons to be recorded by the Magistrate, such surety is an unfit person. The Magistrate, therefore, has to determine in each case whether a person offered as surety is a fit or unfit person and as regards this matter, the Legislature has given him a discretion. The Legislature has not particularised any kind of unfitness. It has left the matter to the discretions of the lower Court though this Court will in each case consider, according to its own circumstances, whether the order passed by the Magistrate is a reasonable order to make or not.
3. In my opinion this is not a case in which we should interfere. It has however, been suggested that we are bound to do so by virtue of two reported decisions which have been cited to us. The first is contained in Ram pershad v. The King-Emperor 6 C.W.N. 593 and the other in Abinash Malakar v. The Empress 4 C.W.N. 797. In my opinion, in all cases what we should first look to are the words of the Statute itself I doubt whether a reported decision upon a matter of the kind now before us is binding, unless possibly where the circumstances are in all respects the same as those referred to in the reported decisions which are relied upon as an authority.
4. However that may be, I am of opinion that these two cases do not conclude us. In the first place, I have to point out that the decision in Ram Pershad v. The King-Emperor 6 C.W.N. 593 is obiter dictum. The learned Judges say this that under the circumstances stated they have no alternative but to discharge the rule They then proceed with certain observations which have been relied upon. They say also this that as regards the question of residents or non-residents, we may refer the Deputy Magistrate to the case of Abinash Malakar v. The Empress 4 C.W.N. 797.' If we refer to that case; we find that the learned Judges there decided on the facts of that particular case that the Magistrate was not justified in refusing the sureties simply because they lived at a great distance from the house of one Abinash Malakar and therefore they could not be expected to exercise due supervision over his doings. They considered in that case that the reasons were not sufficient to refuse the sureties. They then made certain general observations which if binding at all upon a matter which is one of discretion bind only upon, the same state of facts.
5. The facts are, however, not the same here. The Magistrate considers, having regard to all the circumstances one of which is the question of control that the persons offered as sureties are not fit persons and has refused to accept them.
6. I would therefore, discharge the Rule.
7. I agree. I am unable to accede to the contention of the learned pleader who has appeared for the petitioner that the word 'unfit' in Section 122, Criminal Procedure Code, has reference only to the pecuniary position of the person who offers himself as surety. The word 'unfit' does not, in ordinary language, connote that idea. If we look at Section 513, Criminal Procedure Code, we find that whereas in an ordinary case a Magistrate may accept a deposit of money in place of a surety, an exception is made where a parson is called on to furnish security for good behaviour. In my opinion, the unfitness referred to in Section 122, Criminal Procedure Code, though it may not exclude the idea of pecuniary unfitness is more concerned with the idea of moral unfitness. I, therefore, agree with the order proposed by my learned brother.