BUDHU AHIR Vs. EMPEROR

JUDGEMENT

(1.) THE petitioner in this case was directed under Section 118. Code of Criminal Procedure, to execute a bond for his good behaviour for a sum of Rs. 200 with one surety for a like amount. In compliance with that order, the petitioner tendered as his surety his brother-in-law, Bireswar Ahir, From the report which the Police submitted, it would appear that this brother- in-law is a substantial person. He bad, however, been convicted, how long previously we do not know, of an offence under Section 323, Indian Penal Code, and sentenced to rigorous imprisonment for two weeks. On the strength of the Police report the learned Magistrate made an order that a better surety was to be found. THE petitioner then tendered another surety, who was a Muhammadan; and this surety seems to have been rejected on the ground that he would have no control at all over the petitioner. Now while we recognize that the question whether a surety should be accepted or not is primarily a question for the discretion of the Magistrate, in this case in our opinion the learned Magistrate acted unreasonably in not accepting the petitioner s brother-in-law. We have no desire to lay down any rigid rule in such oases but the mere fact that the proposed surety had been convicted of such an offence as assault does not appear to us in the circumstances of the case before us, sufficient to justify the Magistrate in coming to the conclusion that he would not be a proper surety. In support of the view we take we may refer to the ease of Emperor v. Raghunath Singh 28 A. 189 : A.W.N. (1903) 220 where it was said by Sir John Stanley, C.J., that "the fact that a proposed surety has on one occasion offended against the law and been punished for an offence under the Indian Penal Code, does not of itself render such person for ever afterwards unfit to be surety for a party who is required to give security for good behaviour." THE Rule is accordingly made absolute and the surety tendered by the petitioner in the person of his brother-in-law will be accepted.