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Criminal Revision Application No. 557 of 1958, decided on 19th January 1959.
S. 117 (3) Requiring surety for 2 years instead of till completion of enquiry Illegal.
Section 117 (3) empowers a Magistrate to call upon the suspect to furnish sureties for maintaining good behaviour until the conclusion of the inquiry and the Magistrate may detain him in custody until such bond is executed or, in default of execu tion, until the inquiry is concluded. The Magistrate can direct the applicant to furnish sureties for maintaining good behaviour only for the period during which the inquiry is held and no more.
S. 122 (1) proviso Rejection of surety without inquiry‑Illegal.
Section 122, Criminal Procedure Code, 1898 provides that the Magistrate may refuse to accept any surety offered, on the ground that such surety is an unfit person for the purpose of the bond. Proviso to section 122 (1) provides, that before so refusing to accept or reject any such surety, the Magistrate shall either himself hold an inquiry on oath into the fitness of the surety, or cause such inquiry to be held. and a report to be made thereon by a Magistrate subordinate to him. If the Magistrate before refusing to accept the surety, has not held any inquiry as to the fitness of the persons who had offered themselves as sureties for the applicant it amounts to a violation of the mandatory provision of the proviso of section 122 (1), Cr. r. C., and is illegal.
Azizullah Shaikh for Applicant.
Mohd. Hayat Junejo for Respondent.
Date of hearing :19th January 1959.
This is a revision application under section 435/439, Cr. P. C. against the order of S. D. M. Shahdadpur, passed under sections 112, 117 (3) and 122, Cr. P. C.
On 23‑7‑58, Mr. Umedali, Station House Master, Shahpur Chakar Station, filed a complaint before the S. D. M, against the applicant, alleging that, he was a thief, and was dealing with the disposal of stolen property on receipt of Bhung Money, harbouring thieves, was a habitual offender, and that there was a general cry that he was desparate and dangerous person. He farther alleged that if the applicant remained at large, it would be hazardous to public. Notice under section 112, Cr.. P. C., was served upon the applicant to show‑cause, why he be not required to execute a bond in the sum of Rs. 5,000 with two sureties in the like amount, jointly and severally responsible for keeping good behaviour for a period of 2 years and that the sureties be respectable Zamindars residing within the radius of five miles from the applicant, paying annual land revenue of Rs. 1,000, possessing an unencumbered immovable property, and be such as to control the activities and movements of the applicant to the entire satisfaction of the Court.
On the application of Mr. Umedali, the learned S. D. M. examined the applicant and two others, and passed an order under section 117 (3), Cr. P. C., requiring him to execute a bond with two sureties in the sum of Rs. 5,000 with two sureties in the like amount jointly and severally responsible for keeping good behaviour for a period of 2 years. The sureties should be respectable Zamindars residing within a radius of five miles from him and paying a Land Revenue of Rs. 1,000 yearly, possessing an unencumbered and immovable property of the said value of the bond and be such as to control his activities and movements to the entire satisfaction of the Court. The applicant offered two sureties, but the learned Magistrate rejected them by his order dated 8‑9‑1958. The order reads as under:
"These persons are not likely to control the accused's activities. Application () rejected as unfit."
On behalf of the applicant, the learned counsel, in his memo of application questioned the legality of the orders passed under sections 112, 117 (3) and 122, Cr. P. C. In the course of arguments, he dropped his contention as to the legality or otherwise of the order passed under section 112, Cr, P. C. As for the orders under sections 117 (3) and 122, Cr. P. C , he contended that they cannot be maintained.
Section 117 (3) empowers a Magistrate: to call upon the suspect to furnish sureties for maintaining good behaviour until, 'the conclusion of the inquiry and may detain him in custody' until such bond is executed or, in default of execution, until the inquiry is concluded. This shows that the Magistrate can direct the applicant to furnish sureties for maintaining good behaviour' only for the period during which the inquiry is held and no more. In this case, the learned Magistrate has called upon the applicant to furnish surety for the maintenance of good behaviour for 2 years. This is beyond the powers given to the Court and therefore the order is illegal.
Section 122, Cr. P. C., which provides that the Magistrate may refuse to accept any surety offered, on the ground that such surety is an unfit person for the purpose of the bond. Proviso to section 122 (1) provides, that before so refusing to accept or reject any such surety, he shall either himself hold an inquiry on oath into the fitness of the surety, or cause such inquiry to be held e and a report to be made thereon by a Magistrate subordinate to him. In this case, admittedly, the Magistrate before refusing to accept the surety has. not held any, inquiry as to the fitness of the persons who had offered themselves as sureties for the applicant. Thus there is a violation of the mandatory provision of the proviso of section 122 (1), Cr. P. C. The order therefore is illegal.
I therefore allow the application and set aside the order passed by the S. D. M. under sections 117 (3) and 122, Cr. P. C. The applicant is in jail; he is directed to be released forthwith
S. B. Orders set aside.
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