1. Zorawar was ordered by a Deputy Magistrate of the Muttra District to furnish security for good behaviour under Section 118 of the Cr PC. Two persons offered themselves as sureties. The Deputy Magistrate called for a report from the Tahsildar as to the sufficiency of the security offered, and also as to the fitness of these persons to act as sureties. The Tahsildar recorded the evidence of six witnesses who all stated that these two persons were men of position and respectability and were in every way fit to act as sureties and he also found that the security offered by them was sufficient. The Deputy Magistrate also called for a report from the Sub-Inspector of the Police circle in which Zorawar lives. The Sub-Inspector reported that one of the persons was a nephew of Zorawar and that the other appeared to be associated with Zorawar in his criminal practices.
2. The Deputy Magistrate thereupon, ignoring the report of the Tahsildar and accepting the report of the Sub-Inspector, passed an order declining to accept the security offered. It is clear that the procedure of the Deputy Magistrate was illegal. He should not have come to a decision as to the fitness or unfitness of the persons to act as sureties merely on a one sided report of the Sab-Inspector, which was not evidence. It was for the Magistrate himself to make enquiries as to their fitness. The Magistrate appears to be unaware of the ruling of the Allahabad High Court, Emperor v. Pirthipal Singh (1), which was followed in the cases of Emperor v. Tota (2) and Emperor v. Balwant (3).
JUDGMENT
3. In so far as the Magistrate's order refusing to accept the sureties is concerned, that order must be set aside. It is so obviously based upon the report of the Police, which is no evidence in the matter. In the evidence on the record there is no reason whatsoever to be discovered why the sureties should not be accepted. If any information was derived, from the Police report, it was the duty of the Magistrate to have taken evidence as to what was the basis of that report and he should have come to a decision thereon himself. I, therefore, accept the reference. I set aside the order of the Magistrate and direct that the sureties offered be accepted, the necessary bond be taken and Zorawar released from prison. In regard to what the learned Sessions Judge has sad in reference to alterations in the record of the case, I express no opinion, nor is it necessary for me to do so.
4. Order set aside.