Daljeet Singh vs State of Punjab through Sub Divisional Magistrate, Muktsar

K.S. Kumaran, J. (Oral)

Heard counsel.

On 30.5.1996, ASI Havel Singh of Police Station City Muktsar presented a calendra before the Sub Divisional Magistrate Muktsar, alleging that Daljeet Singh, the petitioner herein, along with Chander Bhan, Raj Rani and Mayawanti were found in a car bearing registration No. PUU 7888 on the Kacha Thande Wala Road where the police party was on patrol duty. According to the calendra, Chander Bhan was sitting in the driving seat while Raj Rani was sitting on the right side of the back seat and Mayawanti was sitting on the left side, whereas Daljeet Singh, petitioner, was sitting in between them and was making a fun with these women, though he was found to have been afflicted with paralysis. It has also been mentioned that when the police party questioned them, they gave fictitious name. Since these persons were sitting in a car at about 7.00 p.m. to have good time and had given fictitious names, they were taken into custody on the allegation that they had committed an offence under Sections 41(1) and 109, Cr.P.C. On the basis of this calendra, the Sub Divisional Judicial Magistrate Muktsar issued a notice under Section 111, Cr.P.C., to the petitioner herein and others vide Annexure P2 dated 31.5.1996. In that notice it has been stated as follows :

"You were arrested by the Police City Muktsar when you were about to prepare yourself for indecent activities and tried to breach of peace. Show cause why you should not be bound down on bail bond of Rs. 10,000/ for one year. Upon asked by police, you did not tell your correct name and thus you tried to conceal yourself. You have breached peace and are guilty for an offence Under section 41(2)/109 Cr.P.C. Notice under Section 111 has been heard and is made understand."

It is to quash this calendra and the consequential proceedings that the petitioner Daljeet Singh has approached this Court under Section 482 Cr.P.C.

In reply it has been alleged by the State that there was reason to believe that the petitioner Daljeet Singh along with ladies was going to commit a cognizable offence and as such the notice was issued to the petitioner and others. According to the State the petitioner Daljeet Singh was found in the company of ladies during the night and an inference could be drawn that he was about to commit a cognizable offence to have a good time in the company of the ladies.

I have heard the counsel for both the sides. The learned counsel for the petitioner contends that in the calendra there is no mention that they were about to commit a cognizable offence though in the show cause notice (Annexure P2) it has been vaguely stated that the petitioner was about to prepare himself for indecent activities and tried to commit breach of peace. He further contends that only in the reply it has been stated that the petitioner was about to commit a cognizable offence i.e. to have a good time with the ladies which should be inferred from the fact that he was in the company of ladies during the night in a car.

The counsel for the petitioner contends that even on the face of the allegations on the calendra it will be evident that no case under Section 109, Cr.P.C. is made out. According to him, to attract the provisions of Section 109, the person not only should make attempt to conceal himself but should also be shown to have done so in order to commit a cognizable offence, but in this case the respondentState has not been able to show as to what cognizable offence the petitioner was about to commit or was preparing to commit. The learned counsel for the petiitoner also contends that this Court in Indu Bala v. State of Haryana, 1995(1) RCR 421 held that, where the petitioner in that case was found indulging in sexual intercourse with another with consent, proceedings under Section 109, Cr.P.C., were not called for. He also relied upon the decision of this Court Jai Narain and another v. State of Haryana, 1994(1) RCR 128. That was a case where a man and a woman who had taken liquor and wanted to have mutual entertainment were arrested and proceedings under Sections 41(2) and 109, Cr.P.C. were initiated. It was held by this Court that the mere fact that the said persons were indiscreet in the matter of their enjoyment cannot make their action as one of preparation for commission of an offence. This Court observed, "this Section was incorporated to be utilised as a preventive measure against persons who are found at a place where they do not have their normal abode and a suspicion arises of their concealing their presence for commission of an offence. The use of this section to arrest a man and woman who had taken liquor and wanted to have some mutual entertainment was probably not even warranted."

Another decision relied upon by the learned counsel for the petitioner is also of this Court in Mahant Ram Nath and others v. State of Haryana, 1982(2) CLR 649 wherein it was held that the mere fact that certain persons were taking precaution to conceal their presence was not sufficient to initiate action against them under Section 109, Cr.P.C. It was even alleged that they had been doing so with a view to commit the offence of adultery, but this Court held that this offence being a noncognizable offence, the proceedings under Section 109, Cr.P.C., are incompetent and illegal and, therefore, quashed the same.

In the present case on hand too, it has been stated that the petitioner was in the company of certain ladies and was making fun with them and that the petitioner and others had not given their real names. It has been merely stated that they had come there to have a good time, which cannot be termed to be a cognizable offence. Therefore, I am of the view of the allegations in the calendra do not disclose that they were concealing themselves for the purpose of commission of a cognizable offence. In these circumstances, the proceedings under Section 109, Cr.P.C. are incompetent and illegal and have, therefore, to be quashed.

Accordingly this petition is allowed, quashing the calendra Annexure P1 and all the consequential proceedings initiated thereunder by the Sub Divisional Magistrate concerned.