Jaswant Singh, J.
1. This criminal second appeal which is directed against the order of the Sessions Judge, Anantnag, dated 30-12-1967 upholding the order of the Assistant Commissioner Magistrate 1st Class, Anantnag, whereby he ordered Samad Bhat to execute a bond for Rs. 1,000/- with one surety of the like amount to be of good behaviour for a period of six months under Section 109, Cr. P.C. read with Section 118 of Cr. P. C or in default to undergo simple imprisonment for the said period, shall be treated as a revision application, as no second appeal lies under law in a case of this nature,
2. The applicant, who is a resident of Kral Pora, was, it appears, proceeded against by the police Pampore under Section 109, Cr. P.C. with the allegations that on the evening of 30th July, 1966, he along with Sultan Khan was found attempting to conceal his presence in Mohalta Drangbal, Pampore, with a view to commit an offence, that both he and his companion on being challenged by the police took to their heals but on being chased they were caught at a short distance, that they did not give any satisfactory explanation as to their presence in Pampore, and that on search of the person of the applicant a battery and a house breaking implement were recovered.
3. A notice as required by Section 112 of the Code of Criminal Procedure was given to the applicant and after complying with the necessary formalities the trial Magistrate proceeded to inquire into the truth of the information against the applicant and examined Ghulam Nabi, Suraj Ram, Qabli Rathar, Dwarika Nath Constable and Habib Ullah Constable, who were cited and produced by the police.
4. After the close of the prosecution evidence, the applicant was given an opportunity of leading evidence in his defence but he did not avail of the same. On conclusion of the inquiry the trial Magistrate being of opinion that it was necessary that the applicant should furnish security for maintaining good behaviour for a period of 6 months made the order as stated above.
5. I have gone through the evidence adduced in the case by the police but I am distressed to find that neither the trial Court nor the lower Appellate Court has cared to scan the evidence. The allegations of the police that the applicant tried to conceal his presence and that an implement of house breaking was recovered from his person, is not at all borne out from the evidence led by the police.
6. Ghulam Nabi P. W. in his statement dated 5-8-1966 has stated that while he was sitting at his shop in Pampore, at about 8 P. M. on Saturday he heard the cries of 'thief thief' and saw a number of people running. He further states that he saw some police constables running after the applicant and his companion Sultan Khan and trying to apprehend them. The witness further states that after questioning the applicant and his companion as to wherefrom they hailed, the police handcuffed them and searched their person, that from the search of the applicant's person a battery was recovered which was in a working order and that from the search of the person of Sultan Khan an implement of house breaking was recovered, and that these articles were duly seized by the police.
7. Suraj Ram A. S. I. states that he was on patrol along with two other constables Dwarika Nath and Habib Ullah, that when they reached Mohalla Drangbal Pampore, they saw the applicant and his companion Sultan Khan trying to conceal their presence with a view to commit an offence of house breaking, that he challenged these persons i.e., the applicant and his companion whereupon they ran away, but were given a chase and apprehended and that on search of the person of the applicant a torch Ex. P-1 was recovered. The witness had admitted in his cross-examination that the National Highway runs through Pampore, on which all sorts of people are seen walking....
8. Qabli Rather P. W. who is a butcher has stated that while he was sitting at his shop on the 30th July, 1966, at 7 P. M. he saw the applicant and Sultan Khan being chased by the police and after a while apprehended near Khadar Bhandar and that on search of the person of the applicant a torch was recovered.
9. Dwarika Nath constable has stated that on 30-8-1966 he accompanied the Thanedar and Habib Ullah, another constable on a round, that when they reached Drangbal, he saw the applicant and his companion, Sultan Khan in the lane, that on being asked to halt, they i.e. the applicant and Sultan Khan ran away, whereupon they were given a chase and apprehended with the help of Ghulam Nabi, and Qabli Rather, who were coming from the opposite direction, that on being questioned the applicant and his companion did not give a satisfactory account of themselves and some time gave their place of residence as Kulgam, some time as Kokarnag, and some time as Pul-wama and that on the search of the person of the applicant a battery was recovered. In his cross-examination the witness has stated that the incident happened at 6/7 P. M.
10. Habibullah constable supports Dwari-ka Nath P. W. constable. He has also given the date of occurrence as 30th August, 1966,
11. The allegation that the applicant was trying to conceal his presence with a view to commit some offence is not at all borne out by the evidence which has been set out above. Neither Qabli Rathar nor Dwarika Nath constable, nor Habib Ullah constable have said a word about it. All that the prosecution has tried to establish is that on seeing the police the accused tried to run away. The mere fact that a person runs away on being challenged by the police does not lead to the only conclusion that he is a thief or a house breaker or that he is trying to avoid the police with a view to commit an offence. His attitude may be quite compatible with his innocence. The applicant has not been shown to be a previous convict or a bad character and even on the search of his person nothing suspicious was recovered. In the circumstances, this was not at all a case in which the machinery of law under Section 109, Cr. P.C. could or should have been put into operation.
12. In AIR 1935 Pat 69, it was held that simply avoiding police or taking unfrequented route is by itself no ground for action under Section 109, Cr. P.C.
13. This view also receives support from a ruling of this Court reported in AIR 1955 J. & K, 28, wherein it has been held as under:--
There is no presumption in law or common sense that a person who runs away when he sees a police does so, 'with a view to commit an offence'. Where, therefore, the evidence only shows that a person, alleged to be previously convicted, merely tried to run away to avoid observation by police officers at 11 O'clock at night, it does not mean that he was trying to conceal his presence with a view to commit an offence.
In this connection, the following observations made by Rankin, C.J., in Gagan Chandra De v. Emperor AIR 1929 Cal 775 may also be referred to with advantage:
Looking at it (Section 109, Cr. P.C.) 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 some one may be taking precaution to conceal himself within the local limits of Magistrate's jurisdiction, not to conceal himself as one who hides from a police but to conceal the fact of his infesting the Magistrate's jurisdiction.
The further allegation against the applicant that he did not give a satisfactory account of himself is also not established. As held in AIR 1955 J & K 28, (Supra) it has to be borne in mind that ''giving satisfactory account of himself' is entirely different from being unable to give a satisfactory explanation of his conduct on a particular occasion. A person walking on a public highway though somewhat late in the evening, cannot be called upon to furnish an explanation for his remaining out unless it would be shown that his conduct was unnatural or suspicious as would justify seeking explanation.
14. Again in AIR 1935 Pat 69, while discussing the import of the words 'a satisfactory account of himself' it was pointed out that the words did not mean that he should give his correct name and address or even the object of his being present at night but that he should satisfy the authorities by explaining the suspicious circumstances appearing against him.
15. Again in AIR 1951 Punj 422, it was held that the words 'give a satisfactory account of himself' cannot be given the meaning of 'explain what he was doing or explain his conduct at any particular time of place and that the failure on the part of the person to explain his presence does not bring his case within the ambit of Section 109, Cr. P.C.
16. In the light of the aforesaid rulings and the evidence produced in the case, it cannot be said that the applicant failed to give a satisfactory account of himself,
17. The order under revision also suffers from another flaw in that the trial Magistrate directed that in default of furnishing security for six months, Samad Bhat, would be detained in the Central Jail, Srinagar, and suffer simple imprisonment for the said period. In doing so, the learned Magistrate over-looked the provisions of Section 123 of the Code of Criminal Procedure, which lays down that the order should state that the person proceeded against would be committed to and remain in prison until the period for which he was required to give security expires or until within such period he furnished the required security.
18. Reference in this connection may be made with advantage to a ruling of the Nagpur High Court, reported in AIR 1936 Nag 265, wherein it has been held as follows:--
Any order which specifies a period of imprisonment in default is to that extent illegal. The penalty for a failure to furnish security is given in Section 123(1) Criminal Procedure Code. The non-applicant must then be committed to prison until the period for which he was required to give security expires or until within such period he furnishes the necessary security....
It is evident from this that no person committed to prison in this way can be detained there if he furnishes the security required of him after his commitment. Consequently an order stating that he should suffer a period of imprisonment in default is illegal.
The view taken by the Madras High Court about this matter is to be found in Ibraya Rowthan v. Emperor AIR 1927 Mad 976, where Wallace, J., observed as follows:--
The order under Section 123, Cr. P.C. directing that the petitioner should in default of giving security for one year suffer imprisonment for that period cannot be upheld since the person proceeded against is entitled to be released from custody the moment he furnishes the security.
The order of the trial Magistrate, therefore, directing that in default of furnishing security for six months, the applicant would suffer imprisonment for the said period without the additional words 'or until such date within that period of six months as the required security is furnished,' is bad.
19. For the foregoing reasons, I find myself unable to uphold the orders of the lower Courts.
20. The revision application is accordingly accepted and the order calling upon the applicant to furnish security is set aside. The applicant, if in custody, shall be set at liberty forthwith unless wanted, in connection with some other charge.