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Report No. 37

Appendix 8

Note on Section 109(a)

Section 109(a) of the Code of Criminal Procedure runs as follows:-

"109. Security for good behaviour from vagrants and suspected persons.-Whenever a Presidency Magistrate, Sub-divisional Magistrate or Magistrate of the first class receives 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 such Magistrate may, in manner, hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not exceeding one year, as the Magistrate thinks fit to fix."

Now, the one point on which there is a conflict of decisions is, whether the words "taking precautions to conceal his presence within the local limits of such Magistrate's jurisdiction" mean-

(a) that what is sought to be concealed is "presence within the local limits", or whether they mean-

(b) that what is sought to be concealed is "presence" (simpliciter).

If (b) is to be codified, the sentence should read,-"any person within the local limits of such Magistrate's jurisdiction is concealing his presence and

If (a) is to be codified, the sentence should read, "any person is taking precautions to conceal the fact of his presence within."

Difference between (a) and (b) above may be illustrated. The facts in a Calcutta case1 were these:-

Two men were found not very far from their home in a place outside a village, and there was evidence to show that they were bent upon committing burglary at night. One man was found in possession of a "sindh-kati" and a pair of tin-cutters, and the other of a bunch of keys; and there was little doubt that these people were outside the village in which they lived for the purpose of committing burglary. They were seen to be approaching a certain house, and at the barking of a dog they lay quiet; and sometime afterwards they attempted to approach again.

In these circumstances, they were arrested, and they were charged as being people who were "taking precautions lo conceal their presence within the local limits of the Magistrate's jurisdiction" and that there was reason to believe that they were taking such precautions with a view to commit an offence. It appeared, that they were trying to conceal themselves from persons in the house and from anybody who might come to pass that way, and there was no doubt that they were taking such precautions with a view to committing an offence. They were bound down under section 109.

The High Court set aside the order. The scope of section 109(a) was thus explained 2-"The idea is that someone may be taking precaution to conceal himself within the local limits of the Magistrate's jurisdiction not to conceal himself as one who hides from a policeman but to conceal the fact of his infesting the Magistrate's jurisdiction, and in that class of case if there is reason to believe that this is a precaution taken with a view to commit an offence, the Magistrate can require him to give security Authority on this point has been cited to us in the cases of Reshu v. Emp., (1918) 22 CWN 1963: 41 IC 649.; Piru v. Emp., AIR 1925 Cal 616. and Emp. v. Khairon, ILR 49 All 240: AIR 1927 All 50 (FB).

The exposition of the law given in the latter case is the correct exposition of the meaning of clause 1. It is quite true that clause 1, section 109, is not likely to come into operation every day. That is no reason why it should be applied to fill up any gap that there may be in the criminal law, or in a case in which it does not apply. The learned Judges of the Allahabad High Court say: "In our view it is an entire mistake to read that clause as applying to any person who takes steps to conceal himself, in the sense of concealing his presence in the way in which a criminal conceals his presence when he goes in the dark or by a deserted road, or by some other secret means to commit a crime in his own neighbourhood."

"I agree with that proposition and that is sufficient to decide this case."

With this case, we may contrast the facts in an Allahabad case.3 The police received information that a number of persons were hiding themselves on a dark night at about midnight, in a mango grove outside the abadi of a village with a view to committing some offence. When the police went to the grove, they found four persons sitting there, who, on being challenged, tried to run away. They were chased and two of them, (the accused), were captured. They had house-breaking instruments (jemmies) with them.

When caught, they first gave wrong names and addresses, and then later on disclosed their real identities. They were residents of the same sub-division. They were called upon to show cause under section 109, Criminal Procedure Code. The Magistrate came to the conclusion that the case fell under section 109, sub-clause (a), and demanded security. The Sessions Judge held that that sub-section was inapplicable. The Government filed a revision from that order.

The High Court accepted the revision. The conclusion of the majority, as explained by Sulaiman Ag. C.J., was4- "I think that if a man is taking precautions anywhere in order to conceal his presence, and that concealing is to be effected within the jurisdiction of a Magistrate who receives the information, such Magistrate has power to demand security even though the residence of the person informed against within the jurisdiction is well-known."

The observation of Dawson Miller C.J. in a Patna case5 ("there must be a desire to hide the fact that the accused is present within the local limits of the Magistrate's jurisdiction") support the Calcutta view. The judgment of Muhammad Noor J. in later Patna case6 agree with the Allahabad view.

According to the Nagpur view,7 concealment at a particular spot is sufficient even if residence within the local limits is well-known. This is the Oudh view also.8

The conflict of decisions requires to be resolved. On the existing language, the Calcutta view is plausible.9 But it would narrow down the practical utility of the section.

Similar amendment in section 55 would be desirable.10 It was stated by Knox J.,11 "there is little doubt that section 55 was intended for the suppression of habitual bad characters whom an officer-in-charge of a police station suddenly finds within his circle or about whom he has good cause to fear that they will commit serious harm before there is time to apply to the nearest Magistrate empowered to deal with the case under section 112.

1. Gagan Chandra v. Emp., ILR 56 Cal 949: AIR 1929 Cal 775: 34 CWN 194 (Rankin C.J. and Patterson J.).

2. Gagan Chandra v. Emp., ILR 56 Cal 949: 34 CWN 194: AIR 1929 Cal 775 (776) (Rankin C.J. and Patterson J.).

3. Emp. v. Phuchai, ILR 50 All 909: AIR 1929 All 33 (34, 36) (FB) (majority judgment) (Boys and L.M. Bnnerjee JJ. contra) (Over-ruling Emp. v. Bhairon, ILR 49 All 240).

4. Emp. v. Plumchai, AIR 50 All 909: AIR 1929 All 33 (36) (FB); followed in Red. v. Ram Dayal, AIR 1950 All 134 (138) para. 18 (Seth J.).

5. Rampirich v. Emp., ILR 6 Pat 177: AIR 1926 Pat 569 (571).

6. Emp. v. Bishi Sahara, AIR 1935 Pat 69 (72) (Reviews cases).

7. Ganapati (in re:), AIR 1938 Nag 465 (Gruer J.).

8. Chhutai v. Emp., AIR 1941 Oudh 509 (510).

9. See the note in (1926-27) 31 CWN 110, approving the earlier Allahabad case of Emp. v. Bhairon.

10. To be considered under section 55.

11. Daulat Singh, 1891 ILR 14 All 45 (46).

Code of Criminal Procedure, 1898 (Sections 1-176) Back

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