1. In this case the accused men have been bound down under Section 109, Criminal P. C, and they have been ordered rigorous imprisonment in default of their giving security. It appears that these two men were found not very far from their home in a place outside a village and there is evidence to show that they were bent upon committing burglary at night, one man was found in possession of a sindhkati and a pair of tin-cutters and the other of a bunch of keys and there can be little doubt 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 and in these circumstances they were arrested and they were charged as being people who were taking precautions to 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 appears that they were trying to conceal themselves from persons in the house and from anybody who might come to pass that way, and there is no doubt that they were taking such precautions with a view to commit an offence. But has this anything to do with the meaning of Section 109 In my opinion, it has nothing whatsoever to do with the meaning of Section 109. The first thing to be noticed is that this is not a section which constitutes certain conduct a crime. It is not a section which gives authority to arrest somebody who otherwise could not have been arrested. The section says that where a Magistrate receives information of certain kind he may require the person to show cause why he should not give security. Looking at it from that point of view the Magistrate is supposed to have had an information that there were persons who were taking precautions to conceal the fact that they were present within the local limits of the Magistrate's jurisdiction. 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. It is reasonable in that view that Clauses (a) and (b) should be found together, treating a man who has no ostensible means of subsistence and cannot give satisfactory account of himself as a person of the same kind as a person trying to escape notice and to inhabit the locality without his presence in the locality becoming known, and doing this for the purpose of committing an offence. Authority on this point has been cited to us in the case of Reshu v. Emperor  22 C.W.N. 163, Piru v. Emperor : AIR1925Cal616 and Emperor v Bhairon : AIR1927All50 . 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 CI. 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.
2. I agree with that proposition and that is sufficient to decide this case.
3. In the circumstances the order made by the Magistrate must be set aside and the petitioners are discharged from the obligation of giving any security. If the prisoners are in custody they must be forthwith released.
3. I agree.