Harnam Singh, J.
1. Hazura Singh, Basant Kaur, Ram Piari & Kartar Kaur were proceeded against under Section 109, Cr. P.C. It is stated that the said Hazura Singh is a badmash, which no ostensible means of subsistence & lives by trafficking in woman. Kartar Kaur is not in any way related to the said Hazura Singh & was found in the house of Hazur Singh on 30-11-1947.
2. On 12-12 1947, Hazura Singh, Basant Kaur, Kartar Kaur & Ram Piari appeared in the Ct. of Mr. K. C. Grover, Mag., 1st Class, at Amritsar who on that date passed a joint preliminary order under Section 112, Cr. P.C. In this order all that was stated was that Hazura Singh aforesaid had no ostensible means of subsistence. There was no allegation in the preliminary order against Kartar Kaur within, the meaning of Section 109 (a) Cr (b), Cr. P.C. 1898.
3. The Mag., however, accepted the testimony of Man Singh, P. W. 3 & Amar Singh P. W. 4 that Kartar Kaur was in the house of Hazura Singh for being sold to a customer who was expected to reach that house on that day, Man Singh & Amar Singh, however, stated that it was Hazura Singh who had told them that Kartar Kaur was in his house for being sold & they had no personal knowledge about the matter.
4. Now, Section 109, Cr.P.C , reads:
Whenever a Mag, of the first class receives information:
(a) that any person is taking precaution to conceal his presence within the local limits of such Mag.'s jurisdiction, & 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, such Mag, 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 behaviour for such period, not exceeding one year, as the Hag. thinks fit to fix.
5. The learned Advocate General has frankly conceded that the case against Kartar Kaur is not covered by Section 109 (a), Cr. P.C. He, however, contends, that the case of Sh. Kartar Kaur comes within S 109 (b) of the Code.
6. In the first place there was no allegation in the preliminary order that Kartar Kuar had no ostensible means of livelihood or that she could not give a satisfactory account of herself.
7. In the second place when questioned on the conclusion of the prosecution evidence she stated:
I own land in village Tangra & two of my sons were recruited in the army & they ware killed in War. I had come to Amritsar to make an appln. for pension. I found the Police beating Teja Singh son of Sh. Basant Kaur, I intervened & asked the police people not to beat Teja Singh & for that reason I have been proceeded against.
She produced Bela Singh, her husband, in her defence.
8. Bela Singh, Gian Singh & Sohan Singh have supported the case of Sh. Kartar Kaur. Bela Singh stated at the trial that he owned 25 bighas of land in Tangra & that Sh. Kartar Kaur was his wife. He testified to her character & deposed that Sh. Kartar Kanr & two sons from him, namely, Nazir Singh & Pritam Singh, who were killed in the last war. He further stated that he was in receipt of Rs. 16 p. m. as pension & likewise Sh. Kartar Kaur was in receipt of pension in the like amount. He added that they had last received pension in the month of July 1943 & that thereafter no pension was paid to them & that on 30-11-1947 they had come to Amritsar to make an appln. for the payment of pension. At Amritsar they got these applns. typed & sent to the officers concerned. He produced a copy of the appln. which was Ex. D-A, at the trial. After having put in the appln. they were going to the house of one Gian Singh situate between Chowk Munna Singh & Chowk Praga Dass. On the way they visited Darbar Sahib & during his absence his wife Sh. Kartar Kaur had been taken away by the police. Gian Singh D. W. 3 testified to the good character of Sh. Kartar Kaur & to the status in life of Bela Singh & states that they had come to Amritsar in connection with the pension dispute. Sohan Singh D. W. 6 Lambardar of village Tangra supported Bela Singh D, W. It may be mentioned that none of the witnesses produced in defence was cross-examined at all by the prosecution.
9. That being so, the case of Sh. Kartar Kaur does not fall within the ambit of Section 109 (a), Cr. P.C. & it cannot be said that she had no ostensible means of subsistence or could not give satisfactory account of herself.
10. In this connection reference may be made to Emperor v. Phuchai A.I.R. (16) 1929 ALL. 33: 30 Cr. L.J. 145 F.B.. In this case Sulaiman C.J. said:
If the words 'give a satisfactory account of himself are given the meaning 'explain what he was doing' or 'explain his conduct' at any particular time or place, it would make the scope of Section 109 (b) too wide. On such an extended interpretation of the expression a man could be bound over merely because he does not discharge the burden of satisfying a Mag. as to his conduct at a particular time or place. The Legislature did not contemplate such an extension of its scope. The expression is somewhat akin to the other expression used in the same clause, namely 'who has no ostensible means of subsistence,' If a man is unable to explain his course of conduct, as distinct from failure to explain a momentary behaviour he may very well come under the clause, but a man's failure to explain his presence does not bring him within the section.
Kendall & Wir J.I. concurred with the opinion expressed by Sulaiman C.J. (Boys & Banerji JJ., dissenting).
11. The facts of this case attract the application of the rule laid down by the F.B. of the Allahabad H. C. cited above.
12. I am aware of the fact that the words 'Such Mag. may' in Section 109 show that it is in the discretion of the Mag. to proceed or not to proceed against a person under this section, but in exercising 8uch discretion care should be taken to see that the stringent provisions of the section are not abused & made an engine of oppression.
13. For the reasons given above, I find that there was no sufficient ground for proceeding against Sh. Kartar Kaur under Section 109, Cr. P.C. The result is that I allow the petn. & set aside the order of the Mag. requiring Sh. Kartar Kaur to furnish security under Section 109, Cr. P.C., in a sum of Rs. 1000 for a period of one year.
14. Sh. Kartar Kant petnr. is discharged from her bail bond.