Judgment

HIDAYATULLAH, C.J.I. :- Having heard the arguments in the case of Mr. Madhu Limaye, we are of opinion that his custody from August 9, 1970 was illegal and he was therefore entitled to be released. As he is no longer in custody, no order for his release is necessary. As regards his arrest under Section 151 of the Code of Criminal Procedure, we shall express our opinion in our judgment to be delivered after the decision of the constitutional questions raised by him. Our reasons for this order will also appear then.

2. The same order is made in the case of Mr. Ram Adhar Giri who is copetitioner with Mr. Madhu Limaye in this petition.

ORDER (D/- 28-10-1970)

3. This is a combined petition by Madhu Limaye, M. P. a leader of the Samyukta Socialist Party of India and Ram Adhar Giri, Secretary of the same party in the District of Varanasi. This petition was heard along with Writ Petition No. 77 of 1970, filed earlier by Madhu Limaye, because both these petitions challenge the constitutionality of Section 144 and Chapter VIII of the Code of Criminal Procedure. By an Order passed unanimously by a Special Bench of 7 Judges (of which we were also members) on that part of the arguments, the petitioners stand concluded on the constitutional points raised by them. The Special Bench holds that Section 144 and the provisions of Chapter VIII of the Code of Criminal. Procedure, when properly construed, are constitutional and valid. Applying the construction which is elaborately indicated in that Order we proceed to examine this petition.

4. The case of the petitioner is that on August 9, 1970 one of them (Madhu Limaye) arrived at Varanasi Airport from Calcutta and Ram Adhar Giri and others went there to receive him. The two petitioners named here and one Narendra Shastri, were arrested by the Police at a level crossing when they were proceeding by car to the city. According to the petitioners they were not told the grounds of their arrest but were taken to Varanasi Police Station and afterwards to the City Magistrate s Court. On the way the Police Officers showed them the report made by the Police to the Magistrate for taking action under Sections 107/117 and 151 of the Criminal Procedure Code. When they appeared before the Magistrate he read out a notice under Section l12 of the Code calling upon them to furnish security in the sum of Rupees 5,000/- with two sureties in the like amount for keeping the peace. Narendra Shastri was however discharged as it was not proved that he was the right person. The petitioners refused to accept the notice and the Magistrate thereupon adjourned the case to the following day and remanded them to Jail when the petitioners declined to offer bail.

5. On the following day (August 10, 1970) the case was again adjourned to August 17, 1970. Since then the case has stood adjourned as the petition in this Court was pending and the petitioners were in the custody of this Court. As the remand, was not extended by the Magistrate, the petitioners became free from custody and we declared them to be so. After the arguments concluded we held by an Order that detention of the petitioners from August 9,1970 was illegal and they were entitled to be free. Since they were not any longer in detention, We were not required to make an order, we now give our reasons for the Order we made.

6. The petitioners were arrested by the Police without a warrant under Section 151, Criminal Procedure Code for purposes of taking them before a Magistrate to be bound over under Section 107 of the Code of Criminal Procedure. The arrest of the petitioners being one for action under Section 107 of the Code, the provisions of Chapter VIII applied. The Special Bench has analyses those provisions critically and we need refer to them only briefly here. The first sub-section of the section arms certain Magistrates of specified classes with the power to require a person, who is likely to commit a breach of the peace or to disturb the public tranquillity or