Lakhman Kurmi vs Emperor

Manohar Lall, J.—This is an application in revision on behalf of Lakhman Kurmi who has been ordered u/s 109 read with Section 118, Criminal P.C., to execute a bond of Rs. 100 with two sureties of the like amount to be of good behaviour for a period of one year or in default to undergo rigorous imprisonment for one year by an order passed by the first class Deputy Magistrate of Gopalgunj dated 29th June 1940, an appeal against which order was dismissed by the learned Sessions Judge of Saran on 20th January 1941.

The facts found are these. On the night of 9th March 1940, at about 2 A. M. the petitioner along with two others, untraced, were seen standing on the District Board road about 10 bighas east of village Isuapur by three chaukidars who were on their rounds. On being challenged they all ran away. The petitioner hid himself in a big sugarcane field immediately to the east of that road. The chaukidars surrounded the field and at dawn they took the help of one Feku Missir who was seen approaching with some labourers to cut sugar-cane crops from the neighbouring field. The party then entered the sugar-cane field where they found the petitioner sitting almost in the middle of the sugar-cane field under a bar tree with his face covered; a bundle of sarso, about four seers in weight, was kept by his side. The petitioner was questioned and gave his name as Sobran Kanu and resident of village Daibhata. But one of the chaukidars was able to identify him to be Lakhman Kurmi. This roused the suspicion of the party who searched the person of the petitioner and they found a big knife, a torch in working order and a bunch of keys. The petitioner was then taken to the thana and a station diary entry was lodged. Upon these facts the petitioner has been ordered to execute a bond in the terms already stated.

The petitioner''s defence was that he was in ill health, was suffering from enlarged spleen, and on that date started from his house at village Ekdarwa at about 7 or 8 A.M. in order to go to another village for treatment and that he took a bundle of sarso so that he may sell it and meet the costs of treatment. But on the way, he says, he got an attack of fever and lay down on a culvert on the District Board road where he was arrested owing to enmity. He denied that be was arrested inside the sugar-cane field.

I have read evidence and I am satisfied that the petitioner on being challenged hid himself in the sugar-cane field but I am also satisfied that the petitioner was in ill health as was testified to by the Assistant Surgeon of Gopalgunj, defence witness No. 4. The doctor stated in his evidence that the petitioner was suffering from enlarged spleen, probably kalazar, and that he was suffering from this disease from February last, that is to say from before the date of his arrest. I must say that I am not satisfied from the evidence that the petitioner was covering his face when he was discovered under the bar tree. In the Sanha entry dated 10th March 1941, while every other detail is given, the story that the petitioner was sitting with his face covered is not to be found.

Further, it must be observed that the knife was recovered from the person of the petitioner. The evidence of P.W 3 is clear that the torch and the knife of the petitioner were found in the kurta of the petitioner. The knife, therefore, although it is stated in the judgment of the Courts below to be a big knife, could not have been very big as it could easily be kept in the pocket of his shirt. Upon these facts can it be held that the petitioner was taking precautions to conceal his presence within the local limits of a Magistrate''s jurisdiction and that there is reason to believe that he was taking such precautions with a view to committing any offence as provided by Section 109(a), Criminal P.C.

It was pointed out by the learned Chief Justice, Foster J., concurring, in Rambirich Ahir and Another Vs. King-Emperor, , that Section 109(a) cannot be applied to a person who was merely found talking at night time with bad characters in a place open to the public or to one who merely shows a disinclination for the society of the police and endeavours to avoid them by running away on their approach. It was also pointed out that in order to apply Section 109(a) 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 person is present within the local limits of the Magistrate''s jurisdiction and that the clause should be applied with proper discretion. Mohammad Noor J., in a later case in Emperor v. Bishi Sahara AIR 1935 Pat. 69, took a similar view.

The only suspicious circumstance against the petitioner is that he gave a wrong name and address; but the Sub-Inspector of Police himself, who was witness 6 for the prosecution, stated in his evidence that the petitioner gave his address both as Daibhata and Ekdarwa and that enquiry from the police officers showed that the petitioner was originally a resident of Daibhata and that he had left it 12 years ago. Having regard to the entire circumstances and specially when it is a matter of common experience that a person in the position of the petitioner would ordinarily try to run away when challenged at night from the police or the Choukidars, I am not satisfied that there is sufficient evidence which would justify the inference that the petitioner has been found to be taking precautions to hide his presence, far less that he was taking such precautions in order to commit an offence.

The precaution which the petitioner has been found to have taken was not with a view to committing any offence but with a view to his avoiding being caught by the Choukidars. But the petitioner has also been found to be of no ostensible means of subsistence, and, therefore, it was argued that Section 109(b), Criminal P.C., justified the passing of the order complained against.

Now, strange as it may seem, the only evidence on this point is the evidence of Babu Chandrika Prasad Sinha, Sub-Inspector of Police, who received a slip, Ex. 1, for verification and as a result of his enquiry and on consulting the record he reported that Lakhman Kurmi was at present residing at Ekdarwa, that he was untraced, since long from Ekdarwa and that "he has no land and no ostensible means of subsistence". It is obvious that the Sub-Inspector is deposing not on his personal knowledge but as a result of some enquiries which he has made in the course of his official duties. Such evidence was wholly inadmissible.

I should also like to point out that the evidence that the petitioner was on the active picketing list of the thana and that "this list is maintained for the criminals who are suspected to be most active" is wholly inadmissible and it is unfortunate that the learned Magistrate allowed this evidence to be brought on the record. The Courts have to decide matters judicially and not upon a suspicion which led the police authorities, however correctly, to place a person upon the suspicion list. Against the hearsay evidence given by this witness the petitioner has been able to produce some witnesses to support him that he has some land and works as a labourer. D. W. 1 stated in cross-examination that the petitioner worked as a labourer for him. No suggestion is made that this statement was untrue. Similarly D.W. 2 stated in cross-examination that the petitioner sometime worked in the witness''s field.

For these reasons I am unable to hold that "there is not an iota of evidence on the record to show that the accused had any honest means of livelihood". It may be remarked that the learned trial Court gave no reason for taking that view. All that he says towards the end of his judgment at p. 13 is: "He has no means of subsistence". The learned Sessions Judge discussed the evidence of the defence witnesses in these terms:

I should add in conclusion that though the three defence witnesses are interested in the accused and though D.W. 1 spoke of money orders having been regularly remitted by the accused to his wife when he was employed in Calcutta, until some time before the occurrence, there is not an iota of evidence on the record to show that the accused had any honest means of livelihood in village Ekdarwa.

The learned Sessions Judge has not considered the statement made by these witnesses in cross-examination which I have referred to above that the petitioner works as a labourer in the fields of these witnesses. Having regard to the position of the petitioner it is difficult to see how he would be able to produce witnesses who are not interested in him. It is only those who are interested in him who will be able to show, if believed, that the petitioner is or is not a man who lives by honest means.

For these reasons I set aside the order of the learned Magistrate u/s 109, read with Section 118, Criminal P.C. The petitioner was ordered to be released on bail to the satisfaction of the District Magistrate. If he is on bail the bail bond will be discharged; if he is not on bail he must be set at liberty at once.