Pontifex, J.@mdashWe agree with the Sessions Judge in this case that the order passed by the Magistrate, requiring the accused persons to deposit cash in lieu of taking a bond for good behaviour, ought to be set aside as bad.
No doubt, defendant No. 5 is, on his admission, as stated by the Magistrate, but which really is not borne out by the record, a by no means reputable character. But in my opinion Section 505 is not intended to apply to a person of such character and reputation, and the Magistrate had no jurisdiction to deal with him under that section. And, speaking generally, the order passed by the Magistrate seems to me preposterous. The seven defendants are each required to find two sureties to the amount of Rs. 500 each; three of the defendants are required to deposit in cash Rs. 1,000 each; two of them Rs. 500 each; and the remaining two Rs. 250 each, and in default to have rigorous-imprisonment for one year.
3. [16] With respect to the deposit, we agree with the Judge that the order is illegal.
4. With respect to the sureties it is prohibitive, for it is scarcely likely, that fourteen sureties in Rs. 500 each would be forthcoming in a place like Bhaokalty. My own experience in Calcutta has shown me that respectable people in Calcutta, who have to provide sureties upon grant of letters of administration, have to pay heavy sums to the sureties; and I can only suppose that it would be greatly more expensive for reputed budmashes to provide sureties for their good behaviour. So that it comes to this, that the requirement of two sureties to the amount of Rs. 500 each for each of the defendants will in effect be inflicting a heavy pecuniary fine upon them in a case only of suspicion and reputation.
5. Moreover, if these cases are to be approached in the spirit with which the present has been decided, to become surety for a budmash will of itself be sufficient evidence to convict the surety of being himself a budmash.
Surely the putting in force of these very stringent sections should be exercised only with extreme discretion. In the present case the Magistrate points out incidentally the far more proper means of prevention. In the village in question he says: "So bad indeed, a few months back, had things become, that it was considered necessary to station two constables, who still remain there. . . . . The accused are well known to have been in the habit of moving about the khals at night in long canoes driven by paddles, whilst thefts were of frequent occurrence. This of course was before the arrival of the Police, whose removal would simply be the signal for a return to the old state of things."
6. We quash the order of the Magistrate directing the defendants to deposit cash and to provide sureties, and in lieu thereof we direct the defendants Nos. 1, 2, 3, 4, 6, and 7, but not defendant No. 5, to enter into bonds for their good behaviourin the amounts which they were directed to deposit in cash. All the defendants will be immediately released from the rigorous imprisonment which, it appears, they are now undergoing for default in providing sureties and depositing cash.
