ORDER

Seth, J. - This is an application in revision by the Provincial Government against an order of the City Magistrate of Agra, declining to call upon the opposite party to furnish security for good behaviour u/s 109, Criminal P. C.

2. The case against the opposite party was that, in the very early hours of the morning of 8th May 1946, at about 1 o'clock, he was found in the city of Agra, concealing his presence with a view to commit an offence, that on being arrested and searched by constable Tota Ram, a jemmy, a lathi and a match box were recovered from his possession, that on being questioned about his name and address, he gave different names and different addresses, and that he had no ostensible means of livelihood. He was thus proceeded against on all the three grounds mentioned in Section 109, Criminal P. C., namely, (1) concealment of presence, (2) want of ostensible means of livelihood and (3) failure to give a satisfactory account of himself.

3. The opposite party denied the truth of these allegations and pleaded that he was a vegetable seller, that he used to sell cucumbers in mohalla Rawatpara, that constable Tota Ram used to take a cucumber from him every day, that he refused to give a cucumber to Tota Ram on 7th May 1946, whereupon Tota Bam took him to the Kotwali and shut him there. He denied that he was arrested in the night or that the aforesaid articles were recovered from his possession. He suggested that the proceedings were started against him due to his enmity with Tota Ram.

4. The learned Magistrate found that he was illegally arrested and illegally prosecuted, that Section 109, Criminal P. C. applies generally to person coming from outside the jurisdiction of the Magistrate, who takes precautions and that it relates to continuous conduct stretched over a period of time and not to an individual and isolated, short-lived temporary act. He also found that a case under the section should be established by evidence of general conduct studied and watched over a continous period of time. He concluded that these conditions were not satisfied in the present case and consequently the case was outside the scope of the section. The order of discharge is thus based on three grounds, namely, that the opposite party was illegally arrested, that he was illegally prosecuted and that the case against him does not fulfil the requirements of Section 109, Criminal P. C. All these findings have been attacked by the learned Additional Government Advocate.

5. This application is liable to dismissal on the preliminary ground that it has become in-fructuous. The opposite party was called upon, on 12th July 1946, to show cause why he should not be bound over for a period of one year. He was discharged on 17th December 1946. If the Magistrate had decided to bind him over instead of discharging him, he could not have been bound over for a period extending beyond 17th December 1947. Nothing has been said to satisfy me that necessity exists even now to take any preventive action against him. It is thus evident, whether the order of the Magistrate be right or wrong, that no further action is called for in the case and that the application has become infructuous.

6. Notwithstanding all this, I have been induced to enter into the merits of the case, as I am informed by Mr. Kanhaiya Lal Misra, the learned Additional Government Advocate, that considerable importance is attached to this application by the Provincial Government, because of the propositions of law formulated and followed by the Magistrate, which, in the submission of that Government, are not sound and which are likely to hamper proper administration of Section 109, Criminal P. C. It has been stated before me that the object of this application is not so much to secure an order against the opposite party, as to obtain a ruling of this Court on the disputed points of law for the guidance of the magistracy of these provinces.

7. Mr. Misra contends that the opposite party was neither