Anjali vs State of Haryana

P.K. Jain, J.

Miss Anjali has invoked inherent jurisdiction of this court under Seetion 482 of the Code of Criminal Procedure for quashing the proceedings for good behaviour initiated against her and one Ajay Singh by filing a Kalandra under Section 41(2)/109 of the Code by P.S. Jagadhri.

The allegations against the petitioner and Ajay Singh as contained in the said Kalandra read as under :

"The main facts in this Kalandra are that today Sh. Rup Chand, A.S.I. along with the Constable Gurmail Singh No. 775, Constable Maya Ram No. 752 were present in the Durga Garden area of Jagadhri on patrol duty, where they were informed by some respectable persons that one boy Ajay Singh and Smt. Anjali have been roaming in this area since yesterday evening and on their complaint, Sh. Rup Chand, A.S.I. overpowered both and interrogated them and found that Ajay Singh son of Raju, caste Rajput was resident of 100/453 Karnalganj, Kanpur (U.P) who had gone to Rajasthan, Banar Sinri about 10 days back, where he had met the girl Smt. Anjali daughter of Gulab Chand. The people belonging to this caste use their daughters and married women for doing the unlawful activities and on this pretext, Ajay Singh had gone to their locality and there, he had a talk with Smt. Anjali and brought her with him to Jagadhri on the pretext of marrying with her and yesterday, at 9.00 a.m. also, they were roaming about in suspicious circumstances in the city of Jagadhri and finding them in these circumstances, Shri Rup Chand A.S.I. arrested them under Section 41(1) Cr.P.C. and on interrogation by the A.S.I. Ajay Singh and Sint. Anjali told that they both had fallen in love and wanted to marry and she wants to spend her life alongwith him. But, they did not disclose any special reason for coming to Jagadhri and continued talking nonsense. Since, they were roaming about in suspicious circumstances, they were arrested under Section 41(2)/109 Cr.P.C. and accordingly, the Kalandra was prepared to produce the same in the Court. On search of Anjali, Rs. 200/, one lady wrist watch and a pair of silver ornaments were found which were handed over to Guard."

On the above allegations, it is to be seen as to whether the petitioner could be proceeded against for good behaviour under Section 109 of the Code. The said section reads as under :

"When (an Executive Magistrate) 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 hereinafter 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."

The object of this section apparently is to check and control the persons who are likely to commit offences. The provisions being restrictive of the liberty of the subject are to be strictly construed. These are so stringent that the same may be made an engine of oppression unless care is taken to prevent its abuse.

To invoke and initiate the proceedings under Section 109 of the Code, there are two essential conditions which may be stated as follows :

(i) The concerned person must be taking precaution to conceal his presence.

(ii) There must be reasons to believe that the said person was doing so with a view to commit some cognizable offence.

Thus, it must be shown that the persons proceeded against had taken some active steps to conceal their presence in a certain place or done something to show that they did not wish it to be known that they were present at the place and that such steps were taken with a view to commit a cognizable offence. If may also be pointed out that the powers of the police under Section 41 of the Code are strictly defined, and being an encroachment on the liberty of the subject an arrest purported to be under the said section would be illegal, unless the circumstances specified in any of the various clauses of the said section exist.

Turning to the case in hand it is pertinent to note that there is no allegation in the Kalandra Annexure P1 that the petitioner or Ajay Singh were concealing their presence in any manner at any place. According to the Kalandra itself, none of them gave false information regarding themselves. Both of them gave their correct names, their parentage and the residential addresses. They also disclosed their object as to why they had turned up to Jagadhri. The time of apprehending them was about 9 a.m. These allegations do not meet any of the two requirements of Section 109 of the Code as stated above. It is correct that it is the discretion of the Magistrate to proceed or not to proceed against a person under Section 109 of the Code. However, in exercise its discretion care would have to be taken to see that the stringent provisions of the Section are not abused and made an engine of oppression. In the present case it appears that the Magistrate did not apply his judicial mind to the averments/allegations contained in the Kalandra.

After going through the Kalandra Annexure P.1, I have no hesitation in holding that the arrest of the petitioner and Ajay Singh and initiation of the proceedings under Section 41(2)/109 of the Code against them are illegal and contrary to the said provisions. Consequently, the petition is accepted and the proceedings in respect of the Kalendra filed under Section 41(2)/109 of the Code of Criminal Procedure by Police Station City Jagadhri against the petitioner as well as Ajay Singh pending in the court of S.D.M., Jagadhri are hereby quashed. The bail bonds/surety bonds, if any, executed by the petitioner or Ajay Singh are hereby cancelled and they stand discharged from their bonds.

JUDGMENT accordingly.