1. The accused were convicted and sentenced on certain proceedings under Section 109, Criminal P.C. taken against them. The Sessions Judge sustained the conviction against the petitioners, and the present Rule has been issued on the ground that the provisions of Section 109 would have no application to the facts as found in this case ; that there was no concealment as contemplated by the section, because they gave true information to the police as to their names and addresses when questioned ; and that it could not be said they had failed to give a satisfactory account of themselves, merely because they did not give a satisfactory account of what they were doing at the time of their arrest.
2. The finding of the Sessions Judge is that the accused:
failed to give a satisfactory account of themselves and were attempting to conceal their presence within the jurisdiction of the Magistrate and that they were taking such precautions with a view to commit an offence.
3. It appears from the facts found that P.W. No. 7, then an acting Inspector of Police, met the Sub-Inspector of Police of Kaliganj, and informed the latter that he had heard there was likelihood of further dacoities in his neighbourhood. This witness also said that one Kalimuddin (P W 8) gave him information that he had been approached by one of the accused to join in a dacoity but had refused. Kalimuddin corroborated that. Then it appears that after that, on 18th May, while enquiring into a dacoity case near by, the Sub-Inspector of Kaliganj found the present accused all proceeding together towards a place called Aditmeari along the railway line. The Sub-Inspector therefore questioned them, and the evidence is that the accused or some of them, gave an account of where they were going, and for what reason, which was in some particulars at any rate demonstrated to be false, whereupon the story was changed They were then all asked their names and what village they came from, to which it appears they replied with correct information. Three others of the accused gave a confused and shifting explanation of where they were going, and others gave replies of an extremely improbable and suspicious nature. One of the accused had a bottle of kerosine oil, a piece of bamboo and some rags, and the explanation regarding these was said to be shifty, and in certain respects demonstrated to be false by the evidence.
4. On the face of the above it is difficult to maintain that the accused were 'attempting to conceal their presence within the meaning of Section 109. They were residents within the jurisdiction and gave not false but true information as to their names and addresses. Then, although the District Magistrate points out that there are certain other considerations as to the contradictions in their statements, the decisions of this Court follow the principle that Section 109(a) refers to the case of a continuous act and not the case of an isolated effort at concealment : see Rashu Kabiraj v. Emperor  22 C.W.N. 163; Piru v. Emperor : AIR1925Cal616 . The question of the accused's liability on this ground must be decided in their favour. As to the other ground, their having failed to give a satisfactory account of themselves, the facts found are undoubtedly more against the accused, but it is difficult to say that the facts are stronger than in the above case of Rashu v. Emperor  22 C.W.N. 163, where a man who was a Kabiraj and a dealer was found in association with two others at midnight and with house-breaking implements in their possession : on being discovered he fled and when arrested remained silent and the explanation he subsequently gave to the Magistrate was false. It was held that he was not within Section 109. On these grounds therefore the Rule is made absolute.