JUDGMENT

Ghulam Hasan, J - Ram Lal Brahman was called upon under Section 109, Criminal P.C., to furnish two sureties and a personal bond for Rs. 300 for being of good behaviour for a period of one year, in default to undergo one year's rigorous imprisonment, along with two others, by a Magistrate of the first class, Fyzabad, and his appeal has been dismissed by the learned Sessions Judge of that place. He now files a revision application in this Court challenging the order passed against him. The facts as stated by the prosecution are that the applicant belongs to Delhi and his other two associates also belong to Delhi, that they were noticed by a constable of the Detective Staff Railway Police, Allahabad, named Kishori Lal (P.W. 2), at Ajudhia railway station at about 9 A.M. on 5th April 1941, (Ram Naumi day) when a passenger train arrived. The applicant, along with his associates, was found mixing up with passengers and feeling their waists and pockets. His conduct aroused suspicion of the constable, who pointed out the fact to one Ram Nath Singh (P.W. 3). The applicant then boarded the train proceeding in the direction of Fyzabad Junction and so did the constable. The applicant was not seen either at Fyzabad City station or at Fyzabad Junction till about 11 A.M. when the Dehradun Express arrived at Fyzabad Junction, when he was again seen, along with his associates, behaving himself in a suspicious manner. His suspicious conduct was pointed out to Mata Prasad Singh (P.W. 4). The applicant then got into a compartment of the Dehradun Express and the police constable followed him. He was questioned by Kishori Lal and it is stated that he confessed that he was a pick-pocket and was going to Ajudhia to try his luck along with his friends. He was arrested at Ajudhia railway station. I am not concerned with the case of his associates and will, therefore, deal only with the applicant's case. The learned Sessions Judge has accepted the evidence of Kishori Lal (P.W. 2), Ram Nath Singh (P.W. 3) and Mata Prasad Singh (P.W. 4) and has held that the applicant was concealing his presence with a view to committing an offence and that he had' no ostensible means of subsistence and was otherwise unable to give a satisfactory account of himself. The learned Sessions Judge has expressed the opinion that the mere movement of the applicant among the passengers and his attempt to feel their pockets does not amount to concealment of presence. He, however, adds:

But the suddenness with which they disappeared at Fyzabad Junction and the period they remained somewhere beyond the view of Kishori Lal and making their appearance just at the time of arrival of the Dehradun Express do in my opinion make out the necessary concealment.

2. He also found that the applicant was not a resident of Fyzabad, that he possessed no ticket, that he has as many as seven convictions to his credit ranging from 1930 to 1937 and that his statement that he came to Ajudhia to have a bath on the occasion of Ram Naumi, supported as it was by the solitary defence witness, Dr. Ram Bakhsh (D.W. 3) whom he produced, was false. From all these circumstances he came to the conclusion that the applicant had not been able to give a satisfactory account of himself. It has been argued before me that according to the prosecution evidence a case of attempted theft under Section 511, Penal Code, was made out against the accused and that under the circumstances when the applicant could be tried for a substantive offence under the Penal Code, proceedings under Section 109, Criminal P.C., could not have been taken against him. In support of this argument reliance has been placed on a decision of the Allahabad High Court in Emperor v. Himayatullah, AIR1927All592 . In this case it was observed that a man who is deliberately preparing to commit a burglary, and when caught by the police admits his intention, cannot be dealt with under the provisions of Section 109, Criminal P.C. This case was over