Teja Singh, J. - (1.) THE question that arises for determination in this revision petition is simple though interesting. The Petitioner Mst. Bhagwan Kaur was bound down under Section 107 and was asked to burnish a personal bond for Rs. 5000/ - with one surety in the like amount "of her close relation for keeping the peace for one year. The Petitioner contends that the condition imposed by the Magistrate that the surety should be one of her close relations was illegal. Now according to the words of Section 112, Code of Criminal Procedure it was within the power of the Court to lay down a condition regarding the number, character and class of sureties and what is to be decided is whether the condition imposed by the Magistrate can come within the ambit of the words "character" and "class". Mr. Chetan Dass who appears on behalf of the State contends that taking into consideration the circumstances of the case and the fact that the Petitioner is a married woman, there was nothing unreasonable to require that her surety should be one of her close relations. He also refers me to the observations appearing in the Magistrate's order of 17 -10 -1952 in which he explained the words "close relations" as meaning brother, father, maternal uncle, husband, husband's brother etc. The Petitioner's counsel, however argues that since there was unpleasantness between the Petitioner and her relations, because she was suspected of having a liaison with a stranger, none of her relations could come forward to stand surety for her and the result of the Magistrate's order was that though she was to be released on furnishing a bond and a surety, in fact, she would have to undergo imprisonment for a year. After having given my careful consideration to the facts of the case I cannot help saying that "Mr. Tirath Singh's contention is well founded and the condition imposed by the Magistrate cannot be allowed to stand. As was rightly pointed out in Mahomed Ibrahim Muhammad Hayat v. Emperor', AIR 1914 Sind 13 (A), the object of starting proceedings under Chap. VIII, Code of Criminal Procedure cannot be maintained. It was observed by the learned Judges in the above case that an order under Section 112 must be such that if a suspect has a bona fide intention to be of good behaviour, it will be impossible for him to find sureties. Mr. Chetan Dass relied upon a Bombay decision Jivanatha v. Emperor, AIR 1914 Bom 5 (B), but Procedure is not to consign bad characters to jail but to prevent them from committing offences and to allay public apprehension. Accordingly the condition that the surety has to fulfill and which in fact cannot be complied with by the Petitioner, the perusal of the judgment would go to show that the decision instead of supporting Mr. Chetan Dass goes against him. In that case the sureties were required to fulfils two conditions. First that they should be of a land -holding class and second that they should be able to control the person for whom they were sureties. The learned Judges held that though they did not see any objection to the first condition, the second condition could not be upheld. This is what they observed: To that condition (i.e. second condition) I do see objection not a theoretical objection, be -cause it is true that underlying the idea of a surety is the idea that he should be able in some way to control the person for whom he stands surety. The objection is a practical one. If this condition is expressly described in such terms as were adopted in this case, it is likely to lead to very serious hardship, e.g., those per -sons who prima facie would most probably be able to control Anr. , are his relatives his caste fellows, and those who are closely associated with him. Yet we find the fact of being of the same caste and of being a relative is regarded as a disqualification for a surety. So that in practice this condition seems to me not only to be likely to lead to undesirable results but almost certain to do so. In this case the question of rejecting a surety has not arisen, for the simple reason that according to the condition imposed by the Magistrate only a close relation of the Petitioner could stand surety and no such relation is willing to do so. It is really unfortunate that the matters should take" this turn but when they have done so we cannot shut our eyes to them. I am inclined to think that the Magistrate must have made the order that; he did for the ultimate good of the Petitioner and! he must have thought that if one of her close relatives stood surety for her she would remain under the influence of that surety who would be in a position to wean her away from the evil ways that she was alleged to be following, but since the order is not legal and' virtually amounts to a sentence of imprisonment without giving her an opportunity of furnishing surety, to which she is entitled, I am afraid. I cannot allow it to stand. I want also to add that even if a close relation of the Petitioner stood surety for her and the was released on the strength of that it cannot be said with certainty that the object with which the Magistrate imposed the impugned condition] on the surety would be fulfilled. The reason why I take this view is that from the frame of the mind in which the Petitioner is now, it is clear that when released she would not go with the surety Will the surety have a right to insist the she should? In my opinion the answer to question must be in the negative. Of course surety will be entitled to apply to the Court ft the cancellation of his bond but this will only result in the Petitioner's re -arrest and imprison mint i.e. in producing precisely the conditions that exist at present.
(2.) FOR all these reasons I accept the petition to the extent that I set aside the condition imposed by the Magistrate that the surety should be a close relative of the Petitioner and in its place direct that the surety should be a respectable -land -holder or a house owner.;