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Criminal Revision No. 476 of 1960, decided on 12th August 1960.
‑Contemplates continuous act of concealment‑Does not apply to momentary effort to avoid detention or arrest.
Emperor v. Bhiron and others 49 I L R 249 and Reshu Kaviraj v. King‑Emperor 22 C W N 163 fol.
A. T. Sadi for Ahmed Sobhan for Petitioner.
Nemo for the State.
This revision is directed against the judgment and order of Mr. A. S. Chowdhury, Sessions Judge, Bakarganj dated the 7th March 1960, dismissing the appeal of the petitioner Abdul Aziz Lahari against the judgment and order of Mr. A. Rahman, Magistrate, First Class, Perojpur dated the 22nd December 1959, convicting the petitioner under section 10) of the Criminal Procedure Code and ordering him to execute a bond of Rs. 500 with two local sureties of the like amount to keep good behaviour for a period of one year by 30‑12‑59.
2. The prosecution case was that on the 29th August 1959, P. W. 1, A. S. I. of Bhandaria Police Station was on patrol duty with the Officer‑in‑charge and others. At about 1 a.m. they espied a boat passing with two men and challenged them and as those two men started plying the boat as speedily as they could without halting or giving any reply, the patrol party raised an alarm and threatened the inmates of the boat with rifles. The petitioner and his companion jumped into the water and swam ashore but they were chased and arrested. The companion Abdul Majid was discharged because another case was pending against him. The two persons could not give any satisfactory explanation of themselves and of their presence there at that dead hour of night. One ramdao Exh. 1, a torchlight Exh. 2, and a dagger, Exh. 3 were found in the boat. The Officer‑in‑charge after inquiry submitted prose cution report against the petitioner under section 109 of Criminal Procedure Code.
3. Defence was that the petitioner and the others were engaged in play cards in the boat and they were arrested and sent up falsely.
4. 5 P. Ws. were examined for the prosecution.
On those facts, the petitioner was convicted and sentenced as above and the appeal was unsuccessful as stated above.
Mr. A. T. Sadi, the learned Advocate on behalf of Mr. Ahmed Sobhan for the petitioner has placed grounds Nos. 1, 2 and 3 of the petition which are as follows
(1) "For that the Court of appeal below misconceived and misconstrued the provisions of section 109 of the Criminal Procedure Code.
(2) For that in view of the evidence on record the Courts below ought to have held that the petitioner has not com mitted any offence which can bring him within provision of either clause (s) or (h) of section 109, Cr. P. C.
(3) For that even assuming but not conceding the prosecu tion case is true the conviction of petitioner under section 109, Cr. P. C. is illegal."
6. Mr. Sadi contended that "concealment" in the manner as disclosed is not the type of concealment as envisaged by section 109‑(a). He has relied upon the decision in Emperor v. Bhiron and others (49 1 L R All, 249), in which it was held as follows:
"It is an entire mistake to read clause (a) of section 109 of the Code of Criminal Procedure 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. The offence contemplated is that a person, probably though not necessarily, coming from outside the jurisdiction into the Magistrate's jurisdic tion, for nefarious purpose, and taking prosecution to conceal the fact that he is present in that jurisdiction."
Mr. Sadi has contended that in this case there is nothing to indicate that he came from another jurisdiction into the present Magistrate's jurisdiction and was concealing the fact of his presence in that jurisdiction. All that the evidence shows, according to him, is that the petitioner on being faced with rifle jumped into the river. In other words according to Mr. Sadi, this kind of concealment is not the concealment contemplated by section 109 of the Criminal Procedure Code.
7. Mr. Sadi has also cited the decision in Reshu Kaviraj v. The King Emperor (22 C W N 163), wherein the petitioner a Kabiraj by profession and a dealer in cocoons was found at midnight in association. with two others who had in their possession house breaking implements. On being discovered he fled. and when arrested remained silent and the explanation he subsequently gave to the Magistrate of his presence at the time and place in question was false.
8. It was held on those facts that the petitioner did not come within section 109 of the Code.
Shamsul Huda, J. in that decision opined that clause (a) of section 109 Criminal Procedure Code referred to a continuous ac and did not, therefore, apply to a case where there was a momen tary effort of concealment to avoid detention or arrest.
9. I have no reason to differ from the decisions cited on the point and it seems that in the light of these two decisions the contentions of the learned Advocate are sound. There is no continuity and also there is nothing to indicate that the petitioner was taking precautions to conceal that he was present in the jurisdiction. It is interesting to find that the other accused against whom there is still section 110 Criminal Pro cedure Code case pending has been discharged. The test of continuity is lacking in the present case, the hiding being a momentary affair.
The relevant portion of the charge is as follows : -‑
(1) Abdul Aziz son of Shonamuddin (2) Mozibur Rahman son of Menojuddin . . . . .
"whereas it appears to me from the report dated 3‑9‑59 submitted by O. C. Bhandaria P. S. that on 29‑8‑59 the above named persons were taking precaution to conceal their presence with a view to commit an offence within the local limits of the Perojpur Sub‑divisions and that they had no ostensible means of subsistence, and could not give satisfactory account of themselves, I do hereby direct them to show cause . . . . .
10. The first part, namely taking precaution to conceal fails iii the light of the decisions cited. So far as the second part, namely, having no ostensible means of subsistence, that also fails because there is no finding of his guilt on that head. The third, namely that of failure to give satisfactory account of themselves, that point is also covered by the Calcutta decision cited above. In that case also the Kabiraj was found with ‑house breaking implement with him.
11. It appears also that the Courts below have not stated clearly as to whether the petitioner's case fell within section 109 (a) or 109 (b) or both.
12. The position being as above, the charge under section 109 Criminal Procedure Code has not been driven home to the petitioner.
In the result, the order calling upon the petitioner to execute a bond of Rs. 500 with two local sureties is hereby set aside.
The rule is made absolute on those terms.
S. B./A. H.
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