Emperor vs Bishi Sahara and others

Mohammad Noor, J.—This is a reference made by the Deputy Commissioner of Sambalpur under S. 438, Criminal P.C., recommending that the order of the Sub-divisional Officer of Bargarh discharging Bishi Sahara, Dileshwar Binjhal. Manjhi Gauda, Bhikari Sahu and Banshi Gauda from a proceeding under S. 109, Criminal P.C., be set aside and further inquiry ordered.

The facts as stated by the learned Deputy Commissioner and disclosed from the judgment of the learned Sub-divisional Officer are these. The officer in charge of the Bargarh police station got information at 6.30 p.m., of 21st June 1934, that some persons of suspected character of village Khuntpali about 6 to 7 miles off were about to commit burglary in the town of Bargarh on that night. The officer with several men picketed a place by the side of a temple near a tank in the outskirt of the town of Bargarh. At about 11 p.m., they noticed some persons inside the compound of the temple. On being challenged these persons began to run away after scaling the wall of the compound of the tem plc. The police officer chased them, and eventually three persons were arrested at a distance of about 15 paces from the place. There was a scuffle in which two other persons, who had run away, also joined. They arc said to have received lathi injuries from the constable. The police also found house-breaking instrument called sendhkati, a bottle of liquor and two lathis on a platform inside the compound of the temple. The three arrested persons were taken to the police station, and on some information supplied by them accused Bhikari Sahu and Banshi Ganda were also arrested. It is said that they had marks of lathi upon their person which were bleeding. These five persons, namely, the three persons who were arrested on the spot and the two who were arrested later on were proceeded against under S. 109, Criminal P.C. After completing the inquiry the learned Sub-divisional Magistrate discharged them, as in his opinion the circumstances disclosed did not warrant the accused persons being bound down under S. 109. Criminal P.C., The learned Sub-divisional Magistrate has relied upon the following decisions:

Emperor v. Himayatullah, 1927 All 592 = 102 IC 503 = 28 Cr LJ 567 = 49 All 844, Reshu Kabiraj v. Emperor, 1918 Cal 887 = 41 IC 619 = 18 Cr LJ 825, Cobra Badia v. Emperor, 1929 Cal 729 = 1920 Cr C 365 = 122 IC 295, Gagan Chandra De v. Emperor, 1929 Cal 775 = 1929 Cr C 519 = 123 IC 747 and Emperor v. Bhairon 1927 All 50 = 97 IC 428 = 27 Cr LJ 1116 = 49 All 240. In my opinion the view taken by the learned Sub-divisional Officer is not correct. The two Allahabad cases relied upon by him, namely, Emperor v. Himayatullah, 1927 All 592 = 102 IC 503 = 28 Cr LJ 567 = 49 All 844 and Emperor v. Bhairon 1927 All 50 = 97 IC 428 = 27 Cr LJ 1116 = 49 All 240, were overruled by a Full Bench of that Court in Emperor v. Phuchai, 1929 All 33 = 113 IC 417 = 30 Cr LJ 145 = 50 All. 909 (FB). This was not brought to the notice of the learned Sub-divisional Officer. I shall come to this case in a moment, but before I do so I wish to examine the three Calcutta cases relied upon by him. The first is that of Reshu Kabiraj v. Emperor, 1918 Cal 887 = 41 IC 619 = 18 Cr LJ 825. In this case the fact that Reshu Kabiraj who was a dealer in cocaine was found at about midnight in a lane in the town of Raghunathganj in association with two others who had in their possession house-breaking implements; that on being discovered he tied and that when arrested he remained silent and that the explanation offered to the Magistrate of his presence at the time and place in question was found to be false. It was urged on his behalf that sub-Cl. (a), S. 109, Criminal P.C., did not apply as the accused''s presence or residence within the jurisdiction of the Magistrate was well-known and that there was no attempt on his part to conceal the same and that the petitioner''s attempt to conceal his presence at a particular spot and at a particular time even if it were with the object of assisting in the commission of housebreaking did not bring him within the mischicl of the clause. It was also urged that sub-Cl. (b) also did not apply as the accused''s name, address and profession were known and his possession of means has been found. It must therefore be taken that the gave a satisfactory account of himself within the meaning of Cl. (b). It was further urged that the accused having been charged only under sub-S. (a), sub-S. (b), could not be invoked to bind him down. Unfortunately there is no discussion in the judgment of their Lordships of the points taken before them. Teunon, J., only said:

On the whole though speaking for myself with some hesitation we have arrived at the conclusion that the facts found do not bring the petitioner within either clause of S. 109 of the Code.

Shamsul Hoda, J., agreed and added that the Cl. (a), S. 109 refers to a continuous act of concealment. He was also of opinion that the provisions of S. 109 (a) could not apply to the case of a person brought under arrest, as it cannot be said of such a person that he is taking precautions to conceal his presence. This case was also expressly dissented from in the Full Bench case of Allahabad referred to above and also in this Court. Another ease referred to by the learned Magistrate is Cobra Badia v. Emperor, 1929 Cal 729 = 1920 Cr C 365 = 122 IC 295. Two points seem to have been decided in it. One is that if a man gives his correct name and address when questioned by the police the mere fact that he did not give a satisfactory account of what he was doing at the time of his arrest cannot justify an action under S. 109, Criminal P.C. The second point is the same which was decided in the two earlier cases of the Calcutta High Court, namely, that of Reshu Kabiraj v. Emperor, 1918 Cal 887 = 41 IC 619 = 18 Cr LJ 825 and Piru v. Emperor, 1925 Cal 616 = 86 IC 666 = 26 Cr LJ 842. The next case is that of Gagan Chandra De v. Emperor, 1929 Cal 775 = 1929 Cr C 519 = 123 IC 747, there also following the cases of Reshu Kabiraj v. Emperor, 1918 Cal 887 = 41 IC 619 = 18 Cr LJ 825, it was held that in order to bring a man within the purview of Cl. (a), S. 109, Criminal P.C., there must be a continuous act of concealment by him.

Now, from the cases relied upon by the learned Sub-divisional Magistrate the following propositions may be deduced. (1) That Cl. (a), S. 109, Criminal P.C., only applies when a map takes precautions to conceal the fact of his being present within the jurisdiction of the Magistrate, and not when he takes precautions only to conceal himself and the act of concealment takes place within the jurisdiction of the Magistrate. (2) That the act of concealment must be continuous. (3) That. Cl. (a) does not apply when a man is brought under arrest as he is not taking precaution to conceal his presence. (4) That Cl. (b) does not apply when a man gives his correct name and address, but is unable to explain the reason of his being present at a particular time and place. The second and third propositions have been dissented from in this Court and all of them by the majority of the Judges in the Full Bench case of the Allahabad High Court. In Rambirich Ahir v. Emperor, 1926 Pat 569 = 97 IC 648 = 27 Cr LJ 1128, Sir Dawson Miller, C.J., after referring to the case of Reshu Kabiraj v. Emperor, 1918 Cal 887 = 41 IC 619 = 18 Cr LJ 825, and the case of Piru v. Emperor, 1925 Cal 616 = 86 IC 666 = 26 Cr LJ 842, which followed it, observed:

I am not prepared to go so far as to limit the application of the clause to cases where a person has not been brought under arrest. A reference to S. 55 of the Act shows that an officer in charge of a police-station may arrest any person found taking precautions to conceal his presence within the local limits of such station under circumstances which afford reason to believe that he is taking such precautions with a view to committing a cognizable offence, or any person who has no ostensible means of subsistence, or who cannot give a satisfactory account of himself. It it is to be held that after he is once arrested and brought before the Magistrate no action can be taken under S. 109 (a) on the ground that the arrested person is no longer taking precautions to conceal his presence, there would appear to be little object in allowing him to be arrested at all, for the only manner in which he can be dealt with is under S. 109, and a large proportion of the cases dealt with under that section are cases where the person has already been arrested. Nor am prepared to say that it must in all such cases be proved that the accused has followed a continuous course of conduct in taking precautions to conceal his presence. I consider however that a person, whether he be of good or bad character, who merely shows a disinclination for the society of the police and endeavors to avoid them by running away on their approach cannot be said to come within the mischief aimed at in Cl. (a).......It is perhaps impossible, it is certainly undesirable, to lay down any general principles as to the conditions which would bring a case within the purview of the clause, for the circumstances which may arise are so multiple and various ; but I think it may be said that there must be some definite attempt at concealment by taking precautions with that object in view, whether it be by disguise, or otherwise, indicating a desire to hide the fact that the accused if present within the local limits of the Magistrate''s jurisdiction. The clause is one which should be used with proper discretion and was never intended to apply to a person merely found talking at night time with bad characters in a place which is open to the public.

This case also, which has been referred to by the learned Deputy Commissioner, docs not seem to have been brought to the notice of the learned Sub-divisional Officer. It was followed by James, J., in Sukhan (sic) v. Emperor, 1930 Pat 497 = 193 Cr C 925 = 126 IC 855 = 31 Cr LJ 1125, and it was held that a continuous act of concealment is not necessary.

I now take up the Full Bench case of Emperor v. Phuchai, 1929 All 33 = 113 IC 417 = 30 Cr LJ 145 = 50 All. 909 (FB). The facts of that case were almost exactly similar to the facts before me. Unfortunately the learned Judges were sharply divided. Banerji, J., who was a party to the decision in Emperor v. Himayatullah, 1927 All 592 = 102 IC 503 = 28 Cr LJ 567 = 49 All 844, adhered to his former view. Sulaiman, A.C.J., was of opinion that Cl. (a) applied, and not Cl. (b). Boys, J., was of opinion that Cl. (b) was applicable, and not Cl. (a). Kendall, J., was of opinion that both clauses of S. 109 were applicable, while Weir. J., was of opinion that Cl. (a) undoubtedly applied, but perhaps Cl. (b) was also applicable. I do not propose to discuss the grounds of the learned Judges for holding the different views they expressed. It is sufficient to say that I adopt the view of Sulaiman A.C.J., and Kendall and Weir, JJ., and I am of opinion that Cl. (a) is applicable to the facts as disclosed in this case. I also agree with Boys and Kendall, JJ., and hold that Cl. (b) will also apply to the circumstances as disclosed in this case. S. 109 authorizes a Presidency Magistrate, District Magistrate and Sub-divisional Magistrate to take action when he is informed:

(a) that any person is taking precautions to conceal his presence within the local limits of such Magistrate''s jurisdiction, and that there is reason to believe that such person is taking such precautions with a view to committing any offence, or (b) that there is within such limits a person who has no ostensible means of subsistence or who cannot give a satisfactory account, of himself.

Sulaiman, A.C.J., has pointed out, with which I entirely agree, that Cl. (a) docs not mean that the man is taking precautions to conceal the fact of his being present within the local limits of such Magistrate; but it means that he is taking precautions to conceal his presence and that the concealment is to be within the local limits of such Magistrate. He has pointed out that the ordinary rule of grammar is that an adverb of place should refer to the nearest verb and not to the one more remote. He observes:

To say that the expression within the local limits of such Magistrate''s jurisdiction'' is a part of the predicate to conceal his presence'' is, I would say with great respect, using ambiguous language, inasmuch as it does not clearly bring out the point which causes a difference of opinion, namely, whether the expression is an adjectival clause qualifying the noun ''presence,'' or an adverb of place modifying the verb ''to conceal.'' If it is the former it would mean concealing the fact of his being present inside the jurisdiction, while if it is the latter, it would mean that the set of concealing his presence must be within the jurisdiction. The former construction narrows considerably the scope of the sub-section, for which there seems to be no justification. In ordinary grammar an expression indicating a place is treated as an adverb of place of modifying the nearest verb in the sentence, and not as an adjective qualifying a substantive noun.

He has also pointed out that the words "is taking" in the clause though unhappy mean "has taken" or "has been taking," as Sir Dawson Miller, C.J., in Rambirich Ahir v. Emperor, 1926 Pat 569 = 97 IC 648 = 27 Cr LJ 1128, has pointed out, otherwise no action can be taken against a man after he has been arrested, and the arrest itself will become futile. Coming to Cl. (b) can it be held that if a man be found by the police with implements of house-breaking lurking near the house of a wealthy man thereby indicating that he is about to commit burglary there and when challenged by the police he admits the object of his being there, no action can be taken against him. S. 55 of the Code, also uses almost the same language as S. 109 and if the fatter section is not applicable in order to bind him down, the former is also not applicable to authorize the police to arrest him. Assuming however that he can be arrested under S. 54, Cl. (b) for being in possession of house-breaking implement, there is no law under which he can be dealt with after the arrest. No section of the Penal Code is applicable to him. The result will be that though the legislature provided for the arrest of such a man, no provision has been made for dealing with him after such arrest. I fail to understand how the police can prevent such a person from repeating the act night after night. It will lead to this situation that if a man is timid and does not tell his real object or his correct name or address he is liable to be dealt with under S. 109; but if he be audacious and tells that he is a thief and was there to commit burglary he should be left off free to peruse his design with impunity. All these points of law have been considered by the several learned Judges of the Allahabad High Court, and I respectfully agree with their conclusions. In my opinion such a man is liable to be dealt with under. S. 109 and he comes under both the clauses. "A satisfactory account of himself" docs not necessarily mean that he should give his correct name and address or even the object of his being present at night, but that he should satisfy the authorities by explaining the suspicious circumstances appearing against him. I agree with those learned Judges who have held that simply avoiding the police by a bad character or taking an unfrequented route is by itself no ground for action under S. 109, Criminal P.C. It may be that in some cases simply not giving an explanation may not be enough, for instance, an apparently respectable person returning from the house of his mistress very late at night is using unfrequented streets and avoiding being seen. He cannot come under S. 109, Criminal P.C. Each case must be decided on its own facts.

The result is that I accept the reference, set aside the order of the learner Sub-divisional Magistrate of Bargarh and direct that the proceeding against the accused under S. 109 be revived and disposed of according to law on on merits. The learned Sub-divisional Magistrate has expressed doubts about the truth of the evidence of some of the witnesses and has also said that evidence against two of the accused is weak. I have not considered the evidence. No doubt, the learned Magistrate will consider this at the time of the passing of the order. If the learned Magistrate, who has passed the order, is still the Sub-divisional Officer at Bargarh, ire will dispose of the case after such hearing as may he necessary, otherwise the case will be reheard by his successor. As some interval will elapse between the incident which is the basis of the proceeding and the final disposal of the case, it will be for the Magistrate in case he orders the furnishing of security to decide what should be the period for which it should be required.