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Allahabad High Court
Mahadeo And Ors. vs Emperor on 12 February, 1909
Equivalent citations: 2 Ind Cas 219 a
Author: Richards
Bench: Richards


Richards, J.

1. Applicants were ordered under the provisions of Section 109 of the Code of Criminal Procedure to give a bond and sureties for good conduct and in default to undergo rigorous imprisonment for a period of one year. Section 109 enables a Magistrate to make an order of this kind against, (a) a person who is taking precautions to con-coal his presence when the Magistrate believes that such precautions are being taken with a view to committing an offence, and (6) when there is a person within the limits of a Magistrate’s jurisdiction, who has no ostensible means of subsistence or who cannot give a satisfactory account of himself. I think the evidence quite fails to show that the applicants were taking precautions to conceal their presence with a view to committing any offence. They apparently belong to a gang who go about frequenting melas and markets. They carry on or pretend to carry on a game played with rings. Whether this is or is not a legal game appears to be somewhat doubtful. One Magistrate granted a license, thinking that the game was quite legal. Another Magistrate thought it was illegal and refused the license. A certified copy of the judgment of the High Court of Calcutta has been produced in which a Bench of that Court decided that the game was legal and set aside a conviction under the Gambling Act. I dare say it depends very much on the way in which the game is played. However this may be, it is clear that the case of the applicants did not come within Clause (a) of Section 109. Clause (b) is certainly very wide and I cannot say that on the evidence the Magistrate acted illegally in holding that the applicants had “no ostensible means of subsistence” or the account they gave of themselves was not satisfactory.” The learned vakil, who appears for them, ways that they have now been in jail since the 17th October 1908, and that they are willing to leave Benares. I think under the circumstances I may modify the order by directing that the period for which the accused should give security should be four months and that the period of rigorous imprisonment in default of giving the security should also be the period of four months. The effect of this modification of the order will be that the applicants will be set at liberty as soon as possible.

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