Mahant Ram Nath and Others vs The State of Haryana

M.M. Punchhi, J.—This is a petition u/s 482 of the Code of Criminal Procedure for quashing proceedings u/s 109 of the said Code pending in the Court of Sub-Divisional Magistrate, Ballabgarh, against the Petitioners on the basis of a report submitted by the S.H.O., Police Station, Saddar, Ballabgarh.

The allegations against the Petitioners, briefly stated, are to the effect that they (three of whom are males and one female) were found having parked their car on the G.T. Road leading from Delhi to Palwal at a point near the link road of Shahpur Khurd. All the four were standing outside when the police patrolling party reached near them. They were asked to disclose their names and each of them told his/her name wrongly as also his residence to be of village Sikri. Incidentally, Sukhi Ram, Sarpanch of village Sikri, was with the police and he refuted the assertion of the Petitioners that they belonged to village Sikri. Thereupon, the Petitioners came out with their correct names when asked as to why they were present at the dead of the night at that place, they told that all the four had come from Kalka Mandir, Delhi, searching for a place to have a good time. On account of the Petitioners'' explanation that they were present at that hour at the G.T. Road searching for a place to have a good time, they were arrested under Sections 41(2) and 109 of the Code of Criminal Procedure. The personal search of the Petitioners led to recovery of articles which are mentioned in the report, but those particulars are not relevant for the purposes of disposal of this petition.

Section 109 of the Code of Criminal Procedure reads as under:

Security for good behaviour from suspected persons.--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.

Learned councel for the Petitioners contends, and rightly, that the act of the Petitioners in concealing their names in the first instance could be spelled out that they were taking precautions to conceal their presence. But he says that this fact alone would not attract the provisions of Section 109 of the Code of Criminal Procedure, unless, additionally, there was material on which the Executive Magistrate could acquire reason to believe that the Petitioners were doing so with a view to committing a cognizable offence. Learned Counsel further contends that in the instant case, the explanation of the Petitioners that they had come to the spot at that odd hour in order to have a good time was accepted by the police and projected forth in the report before the Magistrate as the purpose for concealment of their presence. He says that to have a good time is no offence, much less a cognizable one. and on that score, the second ingredient of Section 109 of the Code of Criminal Procedure being missing, it is pleaded that the proceedings before the learned Magistrate were without jurisdiction. To meet the argument, Mr. Jai Vir Yadav, Learned Counsel for the State, has staged that the lady was a married woman (though this fact is disputed by the Learned Counsel) and as such the offence of adultery was in view to be committed. But that offence would not be cognizable for a complaint needs to be filed by the husband aggrieved of the offence. Besides the said offence, Learned Counsel for the State has not been able to suggest any other offence which was in view to be committed and for which purpose the Petitioners are to have taken the precautions to conceal their presence. In this view of matter, it is to be held that the requirements of Section 109 of the Code of Criminal Procedure are not satisfied on the bare reading of the report. and if that is so, this Court would be well within its right to interfere at the initial stages to prevent the abuse of the process of the Court as also in the interest of justice u/s 482 of the Code of Criminal Procedure.

For the foregoing reasons, this petition is allowed and the proceedings against the Petitioners are hereby quashed.