HIGH COURT OF ALLAHABAD
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James, J. -
(1.) THIS Revision raises a question of some importance to the police and the magistracy in dealing with suspicious characters moving about crowded places like railway platforms, bus -stands, cinema booking -offices, etc. with the intention of committing theft: Can such a person be proceeded against under Clause (a) of Section 109, Code of Criminal Procedure?
(2.) THE facts as found by the Courts below are that the applicant was seen on a railway platform moving about the passengers and touching their pockets; he was kept under continuous observation by a police constable and also by two other persons summoned by the latter for this purpose; when arrested he was found to be in possession of a razor blade, an instrument which can facilitate the commission of the offence of picking pockets. Both the Courts below agreed in binding him over under Clause (a) of Section 109, Code of Criminal Procedure. His Learned Counsel contends that the facts as found by them do not amount to "taking precautions to conceal his presence", and he goes on to argue that since no attempt has been made by them to apply Clause (b) the order demanding security cannot stand. After giving due consideration to these contentions I am inclined to accept them. The fundamental factor for attracting the operation of Clause (a) is concealment of presence, and I find it difficult to appreciate how a person can conceal his presence in a crowd, more so when he is kept under continuous observation. It is well settled that it is not necessary to prove a continuous course of conduct in taking precautions for the concealment of presence, and that, even if the attempt at concealment was confined to a solitary instance it would be deemed sufficient. Besides, as pointed out in Abdul Ghafoor v. Emperor : A.I.R. 1943 All. 367, the phrase "concealment of presence" is wide enough to cover the case when a man wears a mask or covers up his face or disguises himself by a uniform or in some other manner. What seems essential is that he should indicate a desire on his part to hide the fact of his presence. But, according to the evidence, the present applicant merely kept moving about the crowd on the railway platform; he made no attempt to disguise himself by putting on a mask or burqa, nor did he disappear from view even temporarily, e.g., by entering the lavatory of a railway carriage. Besides, he had remained under the continuous observation of several persons, and it would be a manifest contradiction in terms for a man to conceal his presence and yet simultaneously remain within the view of witnesses. I agree that there are indications that his intention was to commit pick pocketing, but I cannot persuade myself to believe that he concealed his presence in any manner. It follows that Clause (a) of Section 109, Code of Criminal Procedure cannot apply to him.
(3.) THE learned Sessions Judge who heard the appeal from the Magistrate's order has based his judgment on the decision of the late Mr. Justice Ghulam Hasan in Ram Lal v. Emperor, 1942 A.W.R. (C.C.) 34 and has construed it as laying down that when the Defendant was found mixing with the crowd at a railway station and was attempting to feel their pockets he should be deemed to be concealing his presence. I have gone through his Lordship's judgment but do not find it laying down any such proposition. There was an additional factor of vital importance against Ram Lal , namely, that he appeared originally at 9 a.m. and suddenly disappeared for two hours and reappeared at 11 a.m., and it was this fact that left no room for doubt in his Lordship's mind that he was trying to conceal his presence.;
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