P L D 1964 (W (PLP)

Respondent No. 2 absent. Date of hearing: 26th February 1964. This is a reference under section 438, Cr. P. C. by the learned First Additional Sessions Judge, Hyderabad dated the 23rd May 1963, for quashing the proceeding under section 109 (b), Cr. P. C. The facts giving rise to the reference are these :‑ Abdul Hakim and others were arrested by police party while trying to conceal their presence and when arrested they were found to have muffled their faces and were found in possession of weapons ostensibly with an intention to commit an offence. On interrogation by the police party they were not able "to give satisfactory account of their presence at the place where they were found".

2. The learned S. D. M. passed order dated the 7th July 1962 under section 112, Cr. P. C. against the three persons. The persons were ordered to execute a bond for their good behaviour for a period of 12 months in the sum of Rs. 2,000 each with two sureties in the like amount. The sureties were required to be respectable persons who could keep control over them to the satisfaction of the S. D. M. The applicants went in revision before the learned Additional Sessions Judge challenging the order passed under section 112, Cr. P. C. by the learned S. D. M. on the ground that it was onerous. The learned First Additional Sessions Judge, Hyderabad, has made this reference on the ground that the expression in clause (b) of section 109, Cr. P. C. i.e. "who cannot give satisfactory account of himself " does not refer to the explanation of the momentary behaviour (the account of himself is not the same thing as an account of the presence at a particular moment).

3. Mr. Shaikh Hyder, the learned Advocate for the State, supports the reference. He has relied on a Full Bench decision of five Judges of the Allahabad High Court, namely, Emperor v. Phuchai and another (A I R 1929 All. 33). Of the five Judges three took the view which would support the reference, while the two Judges took a contrary view. I respectfully accept the majority view. If the words "give a satisfactory account of himself" are given the mean ing "explained what he was doing" or "explained his conduct" at any particular time or place it would make the scope of section 109(6) too wide. On such an extended interpretation of the expression a man could be bound over merely because he does not discharge the burden of satisfying a Magistrate as to his conduct at a particular time or place. It means failure to explain one's course of conduct as distinguished from failure to explain a momentary behaviour.

4. The provision of section 109 is of a penal nature and if there are two reasonable and possible interpretations of "who cannot give a satisfactory account of himself" the one which is more favorable to the accused should be accepted. To my mind the interpretation put by the majority of the Judges of the Allah abad High Court is more favorable to an accused person. It should be given preference to restricted interpretation of the said phrase.

5. It is not necessary to pass any order on the reference made by the learned Additional Sessions Judge as the period of one year for which the learned S. D. M. on 7th July 1962 ordered the accused persons to furnish security has now elapsed. There is nothing before me to show that any further action had been taken by the Magistrate against the accused persons. No one is present on behalf of the accused persons.

6. Mr. Hyder Shaikh, the learned Advocate for the State, points out that Abdul Hakim respondent No. 1 is in jail. It would be surprising if Abdul Hakim continues to be in jail for non compliance of the order passed by the learned S. D. M. on 7th July 1962. Let a copy of this order be sent to the S. D. M. Shah Bunder, Sujawal, to explain the circumstances under which Abdul Hakim continues to be in jail. He should report within three weeks. Let Abdul Hakim be set free if he is not detained for any other offence except in pursuance of order dated 7th July 1962 under section 112, Cr. P. C. K B. A. Reference accepted