Full Judgment
1. This Rule is directed against the order of the Fourth Presidency Magistrate, Calcutta, declining to accept as surety for the good behaviour of the present petitioner a certain Mr. Ahamad. Mr. Ahamad, we are informed, is a Pleader practising in the Police Court in Calcutta. It appears that, under the provisions of Sections 118, 123, Criminal Procedure Code, the petitioner has been required to give security for his good behaviour for a period of three years. From the proceedings taken against him, we learn that it has been found that he is a member of a large gang of swindlers carrying on Operations on a large scale in Chitpore, Cossipore and other parts of Calcutta. It also appears that he is an upcountryman. The reason for refusing the profferred security has been said by the Presidency Magistrate in his order to be the inability of the proposed surety to control the petitioner.
2. Before us it has been contended that the inability to control the person required to furnish security is not sufficient reason for an order rejecting the profferred surety, and that the only matter to be considered is the said surety's pecuniary sufficiency. In support of this proposition we have been referred to a certain number of decisions of this Court, namely, those reported as Ram Pershad v. King-Emperor 6 C.W.N. 593, Adam Sheikh v Emperor 35 C. 400 ; 7 Cr. L.J. 439 and Rayan Khan v. Emperor 38 Ind. Cas. 968 ; 43 C. 1024 ; 24 C.L.J. 51 ; 20 C.W.N. 1133. No doubt in those cases support for the contention that has been urged before us is to be found. But in another series of cases decided in this Court, for instance, in the cases reported as Jalil v. Emperor 4 Ind. Cas. 560 ; 13 C.W.N. 80 ; 8 C.L.J. 243 ; 8 Cr. L.J. 388, Jafar Ali Howladar v. Emperor 6 Ind. Cas. 668 ; 37 C. 446 ; 14 C.W.N. 666 ; 11 Cr. L.J. 392 and Asiraddi Mandal v. Emperor 22 Ind. Cas. 745 ; 41 C. 764 ; 15 Cr. L.J. 169, it has been laid down, as indeed the law itself seems to say, that the question in every case is one of discretion, and what the Court has to look to is whether under the circumstances of each particular case the order rejecting the surety is a reasonable and proper order. In the case reported as Rayan Khan v. Emperor 38 Ind. Cas. 968 ; 43 C. 1024 ; 24 C.L.J. 51 ; 20 C.W.N. 1133, which was one not argued at the Bar, we observe that no reference has been made either to the case reported as Jalil v. Emperor 4 Ind. Cas. 560 ; 13 C.W.N. 80 ; 8 C.L.J. 243 ; 8 Cr. L.J. 388 or to th case reported as Asiraddi Mandal v. Emperor 22 Ind. Cas. 745 ; 41 C. 764 ; 15 Cr. L.J. 169. With the series of cases beginning with that reported as Jalil v. Emperor 4 Ind. Cas. 560 ; 13 C.W.N. 80 ; 8 C.L.J. 243 ; 8 Cr. L.J. 388 we are in entire agreement, and, therefore, the only thing we have to consider is whether in the circumstances of this particular case the order rejecting the profferred surety, Mr. Ahamad, a Pleader practising in the Calcutta Police Court, is a reasonable and proper order, and without going further into the matter we are of opinion that the order rejecting the profferred surety was in this case reasonable and proper. True it has been argued before us that the petitioner has entered into an agreement by which he undertakes to serve the profferred surety in a personal capacity for the period of three years. But that obviously is a contract which cannot be specifically enforced, and we are unable to say how the petitioner is to serve at the surety's house, which we are informed is near College Square, and also be in attendance upon him at the Police Court where he practises.
3. This Rule is, therefore, discharged.