EMPEROR Vs. BHAIRON

JUDGEMENT

(1.) This is a Government revision from a decision of the Sessions Judge of Allahabad, reversing an order made by the Magistrate of Allahabad under Section 109, Criminal P.C., directing the persons prosecuted to execute bonds with sureties to be of good behaviour. At the hearing before the Magistrate there was a contest on the facts, but the question comes before us as a question of law, and of the true interpretation of the section. The facts are clearly established. The, three persons in question are Pasis by caste but are not registered members of a criminal tribe. They are residents of a neighbouring village to that in which the incident occurred. They were found together in the dark, late in the evening, outside a house, where they were probably lurking with the intention of committing house trespass. Matches and a house-breaking implement were found upon one of them. When they were challenged by the police they ran away, and when they were caught they are alleged to have given false names. Whether the latter is true, or not is immaterial for our purposes, because the allegation by the police is sufficient to show that the police were not acquainted with their true names.

(2.) The Magistrate made the order complained of under the section, and summed up his finding by holding that they were about to commit burglary, and when arrested could not give a satisfactory account of themselves.

(3.) That latter expression is one under Sub-section (b) of Section 109. That being the case it is not surprising and to our minds not a matter of criticism of the judgment of the learned Sessions Judge, that he should have overruled the Magistrate upon Clause (b) and referred to authorities which bear upon that clause; and it is somewhat surprising that the Government should have chosen this case is an appropriate one for revision on the ground that the facts justified a conviction under Clause (a), and complaining that the rulings relied upon by the Sessions Judge referred to Clause (b) and not to Clause (a). Applying to the Government the same rule that we apply to every litigant, we should be bound to bold that inasmuch as the Sessions Judge had quashed the order of the Magistrate on the ground that it did not come within Sub-clause (b), which was the only decision at which the Magistrate arrived, and that he had, therefore, acted strictly within his jurisdiction, there was no ground for interference in revision at all, but we are not content to dispose of the revision on that ground alone, because we recognize that the Government attach importance to the question and desire to get a ruling upon the interpretation of the section.