SUPERINTENDENT AND REMEMBRANCER OF LEGAL AFFAIRS Vs. ISABALI

JUDGEMENT

(1.) This rule was issued on the opposite party calling upon him to show why the order under Section 119, Criminal P.C. discharging him should not be vacated and an order under Section 109 (b), Criminal P.C. passed binding him over for good behaviour for a period not exceeding one year or such other order or further orders made as to this Court may seem fit and proper. The order which was drawn up against the accused opposite party is as follows: Whereas I am satisfied from the report of the Officer-in-charge, Munshigunj Police Station that the person noted in the margin (the opposite party) was taking precautions to conceal his presence within the local limits of my jurisdiction and that there were reasons to believe that he was taking such precautions with a view to commit crimes and that he has no ostensible means of subsistence nor can he give any satisfactory account of himself, it is hereby ordered that the said marginally noted person (the opposite party) do show cause on 3 May 1.937 why he should not be ordered to execute a bond of Rs. 100 with two sureties of like amount each for being of good behaviour for a period of one year.

(2.) The circumstances under which the accused was produced before the Magistrate are as follows: At about 10 P. M. on 16 April 1937, when two ladies of the house of Narendra Chandra Nandi of village Panchasher were engaged in cleansing utensils at the ghat of their tank, some one directed a torchlight on them from the eastern bank of the tank. The ladies thereupon retired to the house and informed Narendra and their servant Jagannath. Jagannath and Naren at once ran to the place with lights. Finding no one there, they proceeded towards a deserted hut in an orchard near the tank and, after a chase, arrested the opposite party who ran out of the hut as they approached. When questioned he said he was going from Nateswar to Munshigunj and, immediately after correcting himself, said that he was going from Munshigunj to Nateswar and had entered the hut to take rest. He further admitted that he had come there with two other per-sons for the purpose of committing theft and that his two companions had gone away to select a house for the purpose, leaving him in the hut. He denied that he had any torch with him but admitted that his companions had directed a torchlight from the eastern bank of the tank. When the hut was searched, a Sindh cutter and a gunny bag were found there. The opposite party was thereupon produced at the Munshigunj Police Station. The Sub-Inspector made an enquiry and subsequently produced him before the Magistrate who drew up proceedings under Section 109, Criminal P.C. On taking evidence under Section 117, the Magistrate held that neither Clause (a) nor Clause (b) of Section 109 was applicable to the circumstances of the case. As regards Clause (a) he held that the word "concealing" in Section 109, Criminal P.C. does not bear the crude meaning of hiding but really refers to one who is not revealing his identity, and that Clause (a) refers to continuous behaviour and not to an isolated act of concealment. He finds authority for this view in Reshu Kaviraj V/s. Emperor (1918) 5 AIR Cal 887 and Sheikh Piru V/s. Emperor . Accordingly, purporting to follow the principles enunciated in this Court from time to time he finds that Clause (a) of Section 109, Criminal P.C. does not apply to the accused. He also finds that Clause (b) of Section 109 is not applicable as he holds that the accused gave a satisfactory account of himself on his apprehension by witnesses Nos. 1 and 2 for the prosecution, and that this is not a case of lack of ostensible means of subsistence.

(3.) The grounds on which this Rule was issued are that the learned Magistrate erred in law in holding (1) that Clause (a) of Section 109, Criminal P.C. did not apply to the facts of the present case and (2) that the word concealing does not bear the crude meaning of hiding in its use in Section 109, Criminal P.C. but refers only to one who is not revealing his identity and that clause (a) refers to continuous concealment and not to an isolated act, and (3) that the opposite party had given a satisfactory account of himself within the meaning of Clause (b) of Section 109, Criminal P.C.