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Criminal Reference No.189/1954, decided on 22^nd November, 1954.

Woman‑---Likely cause of breach of peace between two factions‑Woman cannot be remanded to custody.

A woman, over whom two factions threatened to commit a breach of the peace, was remanded to judicial custody by a Magistrate. The order had no reference to section 91 Cr. P C but was passed in the interest of public tranquillity.

Held, that such a motive did not give the Magistrate juris diction to confine anyone to jail. The woman was adult and when such a woman is produced before a Court, the duty of a Magistrate is to allow her to go where she chooses provided that the Magistrate is satisfied that she is of sound mind and not terrorised and to take other steps to prevent breach of the peace.

Abdul Jabbar, for Opponent.

S. Nasir‑ud‑Din, for the Crown.

‑This is a reference by the learned Sessions Judge Tharparkar, Mr. Awan. The nominal Opponent is a woman who was alleged to have been abducted. The case of abduction was proceeding before the Sub‑Judge and Resident Magistrate Umerkot Mr. Yacoob Hussaini, and in that case he ordered a search warrant to issue, pre sumably under section 100 Cr. P. C. When the woman arrived he recorded her statement and then proceeded to write an order stating that she had been produced before him in compliance with a search warrant issued by the Court. He proceeded "it is said that Mst. Qaisar is required in 2 cases one on the 8th May and the other on the 18th May. She wants to be sent to the village of Kamil Kallar which is said to be one mile away from Munir Palli's village taluba Umerkot, but she did not mention the name of any person except one Qazi Ghulam Rasool Palli. She may be released on bail if Qazi Ghulam Rasool Palli produces a solvency certificate in the sum of Rs. 10,000. The surety be bound down to produce Mst. Qaisar before the Court " on any date that may be notified". The surety after some time refused to continue since he said it was too expensive to bring 50 men to guard her each time she attended the Court. There upon the learned Magistrate passed an order:

" I hereby order in the best interest of justice and public tranquility that for the present the woman should not be given back either to the complainant or to the surety as the surety himself is not prepared to continue his job without police aid. Mst. Qaisar be kept in judicial custody as both the advocates of the complainant and the present accused persons are satisfied with that arrangement."

The woman appears to have sent an application to the Magistrate to be released as she was prepared to offer surety, but the learned Magistrate passed no order thereupon. There after she applied to the Sessions Court under section 498 Cr. P. C. The learned Sessions Judge held that the Magistrate must be presumed to have acted under section 91 Cr. P. C. but that the Magistrate had acted wrongly in passing no orders upon her application to give a further surety. The Sessions judge stated that if the Magistrate apprehended breach of peace between the parties he should have taken proper action against them. The learned Sessions judge though of the opinion that section 498 Cr. P. C. did not apply to the case since she was not an accused person, released her on bail in the sum of Rs. 5000. He has made a reference to this Court to set aside the order of the Magistrate remanding her to custody as illegal.

Mr. Nasiruddin on behalf of the Crown has supported the reference, and it is supported by Mr. Abdul Jabbar on behalf of Mst. Qaisar.

We consider that the Magistrate's order requiring surety from this woman for her production was not passed under section 91 Cr. P. C. We think that it was passed as the Magis trate later himself said in the interest of public tranquility. Such a motive, however, does not give a Magistrate jurisdic tion to confine anyone to jail. The woman was adult a and when such a woman is produced before a Court, the duty of a Magistrate is to allow her to go where she chooses provided that the Magistrate is satisfied that she is of sound mind and not terrorised and to take other steps to prevent breach of the peace.

In the circumstances we set aside the order of the Sub -Judge and Resident Magistrate Umerkot and direct that the bail bond ordered by the Sessions judge be cancelled.

A. H. Order set aside.

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