Rambirich Ahir and Another vs King-Emperor

Dawson-Miller, C.J.—This is an application in revision seeking to set aside an order of the Sessions Judge of Saran dismissing an appeal from the Deputy Magistrate.

The petitioners Rambirich Ahir and Mosafir were brought before the Deputy Magistrate u/s 109 of the Code of Criminal Procedure on the 24th April last and were each ordered to execute a bond of Rs. 200 with two sureties of Rs. 100 each to be of good behaviour for one year. An appeal to the Sessions Judge was dismissed on the 10th May.

Mr. Jafar Imam now appears on behalf of the petitioners and asks us to set aside the order on the ground that the facts proved do not bring the case within the provisions of Section 109. The section enables the Magistrates there enumerated to call upon persons to show cause why they should not be ordered to execute a bond with sureties for their good behaviour. The circumstances under which the Magistrate may take action are set out in Clauses (a) and (b) of the section. He may act on receiving information:

(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.

The facts proved in so far as they are material appear from the judgment of the Sessions Judge and are as follows: On the 15th March last a constable of the Ekma police-station was deputed to go round on night duty at villages Chainwa, Charwa and Rasulpur. He took two chaukidars and a daffadar with him, and at about 9-30 p.m. went to a bagicha, a short distance away from Chainwa railway station, on hearing soft voices. There they found about a dozen men armed with lathis, danta and bhalas talking to one another. On being accosted by the constable they began to run away. An alarm was raised and the men began to use their lathis. The constable and his men, however, warded off the blows and it does not appear that anybody received any injury. With the help of villagers who came upon the scene they managed to arrest four persons including the two petitioners. The petitioner Mosafir was carrying a spear and Rambirich carried a danta which, I understand, is a stick of any kind less formidable than a lathi. They gave their names but apparently not correct addresses. These, however, were supplied later.

Rambirich lives at Rasulpur within the local limits of the Magistrate''s jurisdiction. Mosafir lives at Maharajganj. Mosafir was unable to give a satisfactory account of himself and was dealt with as coming within Clause (b) of the section. So far as he is concerned the learned Counsel who appeared on his behalf was unable to suggest any valid reason why the order should be set aside and accordingly the application in his case must be dismissed.

With regard to Rambirich it was shown that he and his father had certain property at Rasulpur and that he was engaged in a law suit in connexion therewith. He stated that he was going to Chapra to get copies of certain documents in connexion with the law suit and was arrested by the constable and the chaukidars at Chainwa railway station. This was not quite accurate as the place where he was arrested, was some distance from the station. He was able, however, tot give a satisfactory account of himself and was not a person of no ostensible means of subsistence so that Clause (b) of the section was not applicable in his case. He was, however, found by the Magistrate to come within the provisions of Clause (a). Before a person can be ordered to execute a bond under Clause (a) it must be shown that he was taking precautions to conceal his presence within the local limits of the Magistrate''s jurisdiction and further, that such precautions were taken with a view to committing some offence. The offence is not definitely stated but it appears from the evidence of the Sub-Inspector that Rambirich was reported to be a bad character. It does not appear, however, that he was ever convicted of any crime. He called some witnesses who spoke to his character but apparently their evidence did not impress the Magistrate.

It was contended on behalf of Rambirich that a mere momentary effort at concealment in order to avoid detection or arrest was not sufficient to bring the case within Clause (a) of the section but that there must be some continuous course of conduct showing that the suspect was taking precautions to conceal his presence within the local limits of the Magistrate''s jurisdiction. In support of this contention the case of Reshu Kaviraj v. King-Emperor [1917] 22 c.w.n. 163 was referred to in which Samsul Huda, J., is reported to have said that in his opinion Clause (a) of Section 109 refers to a continuous act and does not therefore apply to a case where there is a momentary effort at concealment to avoid detection or arrest, and further that that clause cannot apply to the case of a person brought under arrest, for it cannot be said of such a person that he is taking precautions to conceal his presence. That case was referred to with approval in a later case of the same High Court, Sheikh Piru Vs. King-Emperor, .

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 Section 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. If it is to be held that after he is once arrested and brought before the Magistrate no action can be taken u/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 u/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 I 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 endeavours to avoid them by running away on their approach cannot be said to come within the mischief aimed at in Clause (a).

Now, apart from the fact that the petitioner and his companions endeavoured to run away from the police there is practically nothing in this case which can be said to shew that the petitioner Rambirich was taking precautions to conceal his presence. The fact that he was found at half-past nine at night talking to a number of other men, some of whom are proved to have been persons of bad character, in a bagicha close to a public railway station is, in my opinion, no evidence that he was taking precautions to conceal his presence. 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 is 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.

I am unable to find that in the circumstances proved the petitioner Rambirich was taking any precautions to conceal his presence. The orders of the Magistrate and of the Sessions Judge must be set aside and the petitioner Rambirich who has been unable to find securities and is at present in prison must be released.

Foster, J.

I agree.