Decided on May 27,1991

JAGAT RAM Appellant


Kamlesh Sharma, J. - (1.) By this petition under Section 482Cr.P.C., the petitioner Sh. Jagat Ram, has prayed for quashing of the proceedings under Section 109 Cr.P.C. initiated against him by the Sub Divisional Magistrate, Ghumarwin, vide his order dated 27-7-1990.
(2.) The facts stated in the petition are that the petitioner is a resident of village Ghatasu, Tehsil Jubbal, District Shimla. He is an agriculturist. In July 1990, he had gone to Nadaun to visit his wife, Smt. Brinda, who was a typist in the office of the Block Development Officer, Nadaun. On 6-7- 1990, he was traveling in a bus to come to Shimla. According to him, the Station House Officer, Nadaun, was also traveling that bus. On seeing the petitioner, he started making queries from him that why Delhi Police is after the petitioner and on this there was a tiff between them. Thereafter, the Station House Officer, Nadaun, got the petitioner arrested by the Police of Police Station, Bha ra ri.
(3.) On the other hand, in the reply, filed on behalf of the respondents, it is stated that on seeing the Station House officer, Nadaun, in uniform, the petitioner tried to get down from the bus at Ladror. It is admitted that he was arrested by the Police at Police-Station, Bharari but a different version has been given for his arrest. According to the respondents, the petitioner who was carrying handbag tried to conceal himself behind the bus stand the Police present at Bharari bus-stand. At this, the Police became suspicious and asked the petitioner his name and address which he gave wrongly as Jagan Nath resident of village Nadaun. The Station House Officer, Police Station Nadaun, informed the Police that on seeing him the petitioner had earlier tried to alight from the bus at Ladror. On further asking, the petitioner did disclose his correct identity. From this, it was presumed that the petitioner had alighted from the bus at Bus stand, Bharari, and concealed his presence in order to commit burglary. It has further been alleged in the reply that as per information received from Delhi Police, the petitioner is a professional burglar and has been arrested by them 24 times. He has also been declared a proclaimed offender in case F.I.R. No. 126 of 1989 under Sections 454/380 I.P.C. by the Court of Metropolitan Magistrate, Patiala House, New Delhi. He has been declared as a bad character by the Delhi Police. It is further stated that as per information received from the Station House Officer, Police Station Jubbal, he is wanted by Delhi Police in F.I.R. No. 116 of 1990 under Sections 454 and 380 I.P.C. He has already been convicted in another case F.I.R. No. 232 of 1976 under Sections 454 and 380 I.P.C. by the Metropolitan Magistrate, New Delhi. On search, the Police of Police-Station, Bharari, had recovered three bunches of keys from the petitioner. 3. Section 109 Cr.P.C. reads as under: Security for good behaviour from suspected persons: When a Judicial Magistrate of the first class receives information that there is within his local jurisdiction a person taking precautions to conceal his presence and that there is reason to believe that he is doing so with a view to committing a cognizable offence, the Magistrate, may, in the manner herein after provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for his good behaviour for such period, not exceeding one year, as the Magistrate thinks fit. A mere reading of this Section makes it clear that in order to initiate proceedings under Section 109 Cr.P.C., two conditions precedent must co-exist. These are: i) the person concerned must be taking precautions to conceal his presence; ii) there is reason to believe that such person is taking such precuations with a view to committing offence. If one of these pre-requisites is absent, no action can be taken under Section 109 Cr.P.C. The next question which arises is, what do the words conceal his presenceT mean. In Ganga Ram v. The State1, the then Judicial Commissioner, Sh. Ramabhadran, has given meaning to these words as concealment of person and not of identity and held that it is ridiculous to suggest that the accused in that case tried to conceal himself in broad day light and at bazaar where other persons were also present. I am in respectful disagreement with this meaning. The word presence cannot mean only physical and bodily presence. When a person tries to impersonate another person, he, undoubtedly, conceals his own identity and tries to make the people believe that he is some other person. Therefore, by concealing his identity, he is certainly concealing his presence as well. But such pseudonym or disguise is require to be with a purpose of commission of offence in contemplation. Therefore, the test is whether the bodily and physical concealment or of identity is for some purpose directly connected with the intended offence. Mere concealment would not amount to concealment of presence within the meaning of this-Section. For holding his view, I am supported by Sheetal Baksh Singh and others v. Rex2, Kashi Nath v. Emperor3 Prahlad Sahni and another v. The State4 and Samad Bhat v. State5.;

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