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Abdul Ghafoor and anr. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1943All367
AppellantAbdul Ghafoor and anr.
RespondentEmperor
Excerpt:
- - 1. the applicants have been bound down on 22nd january 1943 to be of good behaviour for one year. it would have been better if the legislature in 1923 had added the words 'conceals or disguises his presence' because there have been a large number of rulings in many high courts which are not consistent with this interpretation. ' a man may be financially well off but he may still be unable to give a satisfactory account of himself, e......them liable to give security under section 109, criminal p. c., and i was referred to a pull bench ruling of this court, emperor v. bishambhar : air1928all476 , where the facts are similar in this respect that the accused was also attempting to escape, but there is this great difference that in the present case the accused were caught in the middle of the night with lathis and house-breaking implements in a city, whereas in the other case, the accused was arrested coming out of a sugarcane field. it is difficult to prove that a man had taken refuge in a sugarcane field with a view to committing an offence. it is true that there is a ruling of this court, emperor v. bhairon : air1927all50 , according to which the present order would have to be set aside, but that ruling was shortly.....
Judgment:
ORDER

Plowden, J.

1. The applicants have been bound down on 22nd January 1943 to be of good behaviour for one year. The order is not a severe one. It is argued that the arrest of the applicants attempting to escape from a police raid in a mohalla does not render them liable to give security under Section 109, Criminal P. C., and I was referred to a Pull Bench ruling of this Court, Emperor v. Bishambhar : AIR1928All476 , where the facts are similar in this respect that the accused was also attempting to escape, but there is this great difference that in the present case the accused were caught in the middle of the night with lathis and house-breaking implements in a city, whereas in the other case, the accused was arrested coming out of a sugarcane field. It is difficult to prove that a man had taken refuge in a sugarcane field with a view to committing an offence. It is true that there is a ruling of this Court, Emperor v. Bhairon : AIR1927All50 , according to which the present order would have to be set aside, but that ruling was shortly afterwards overruled in Emperor v. Phuchai : AIR1929All33 . The Magistrate has undoubtedly made use of Section 109(b) which has nothing to do with the present case. He should not have referred to the social or financial position of the applicants. But the facts are sufficient to prove that the applicants had taken precautions to conceal their presence in a mohalla which is within the local limits of the Magistrate's jurisdiction and there was reason to believe that they had taken such precautions with a view to committing an offence -- in this case the offence of dacoity. The words 'concealing presence' are very wide. They are sufficient to cover the concealment of bodily presence in a house or grove or under a bridge, etc., but they also are sufficient to cover the case when a man conceals his appearance, e. g., by wearing a mask or covering his face or disguising himself by a uniform or in some other manner. It would have been better if the Legislature in 1923 had added the words 'conceals or disguises his presence' because there have been a large number of rulings in many High Courts which are not consistent with this interpretation. But as far as this province is concern-ed, the matter has been decided by the Pull Bench decision (Emperor v. Phuchai : AIR1929All33 of 1928 to which I have already referred. The learned Judge does not seem to have a clear grasp of the section because he refers in his appellate judgment to the means of subsistence of the accused. This is irrelevant. The accused have been ordered to give security because of their suspicious conduct on a particular occasion. If it was considered necessary to make them give security because of their low financial status or general unsatisfactory behaviour, a separate order under Section 112, Criminal P. C., should have been drafted and read out to them. No order under Sections 109(b) was made by the Magistrate. These two sub-sections correspond to different charges and it is impossible to switch from Section 109(a) to Section 109(b); if both charges are framed the evidence must be examined separately. I might add that it is by no means necessary for the accused to be about to commit an offence of theft or dacoity or for them to be men of low financial status. A gang of ruffians might collect in order to commit the offence of murder or rape and their financial status might be extremely high. Action could then be taken against them under Section 109(a) but obviously not under Section 109(b). The first part of Section 109(b) refers to ordinary beggars and vagrants but to the words 'satisfactory account of himself' should have been added 'in general.' A man may be financially well off but he may still be unable to give a satisfactory account of himself, e. g., he may be engaged in cocaine traffic. Evidence that the accused's general way of life is unsatisfactory cannot be admitted in a Section 109(a) case. The application is dismissed.


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