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1981 Supreme(Ori) 52
ORISSA HIGH COURT
R. N. MISRA, C.J.
DAMODAR MAJHI
VERSUS
STATE
Criminal Revn. No. 238 of 1981,
Decided on : 2 -7 -1981.
Section 309, Cr. P.C. does not apply to an enquiry under Chapter VIII of the Code and a delinquent against whom allegations have been made in a proceeding under Chapter VIII is not an accused person. Therefore, the magistrate had no authority to remand the petitioner to custody.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 110 - SECTION 309 - DETENTION OF DELINQUENT - POWER OF MAGISTRATE - INTERPRETATION - APPLICABILITY OF SECTION 309 TO ENQUIRY UNDER CHAPTER VIII - DISTINCTION BETWEEN ACCUSED AND DELINQUENT - VALIDITY OF REMAND ORDER - SCOPE OF JUDICIAL REVIEW.
Fact of the Case:
The petitioner, a political worker involved in pending criminal cases, was taken into custody in a proceeding under Section 110, Cr. P.C. for being a habitual thief and law-breaker. The magistrate directed the petitioner to execute a bond for good behavior and issued a non-bailable warrant for his arrest when he failed to appear in court. The petitioner was arrested and remanded to custody till the next hearing. He challenged the remand order, arguing that it was illegal as there was no provision in law authorizing the magistrate to remand a delinquent in custody.
Finding of the Court:
The court held that the magistrate's order remanding the petitioner to custody was illegal. The court found that Section 309, Cr. P.C., which authorizes the magistrate to remand an accused person in custody, does not apply to an enquiry under Chapter VIII of the Code, which deals with preventive action against habitual offenders. The court also noted that the petitioner was not an accused person, but a delinquent against whom allegations had been made in a proceeding under Chapter VIII. Therefore, the magistrate had no authority to remand the petitioner to custody.
Issues: 1. Whether Section 309, Cr. P.C. applies to an enquiry under Chapter VIII of the Code? 2. Whether a delinquent against whom allegations have been made in a proceeding under Chapter VIII is an accused person? 3. Whether the magistrate had the authority to remand the petitioner to custody?
Ratio Decidendi: 1. Section 309, Cr. P.C. does not apply to an enquiry under Chapter VIII of the Code because the word 'accused' used in Sub-Section (2) of Section 309 does not include a delinquent against whom allegations have been made in a proceeding under Chapter VIII. 2. A delinquent against whom allegations have been made in a proceeding under Chapter VIII is not an accused person. 3. The magistrate had no authority to remand the petitioner to custody because there is no provision in law authorizing the magistrate to remand a delinquent in custody.
Final Decision: The court quashed the magistrate's order remanding the petitioner to custody and directed that the petitioner be set at liberty forthwith. The court also directed the Executive Magistrate to report under what provision of law he had directed the detention of the petitioner.
JUDGEMENT
1. The petitioner claims to be a political worker and seems to be involved in some pending criminal cases. He was in custody in some other case when a proceeding under Section 110, Cr. P.C. being Misc. I. No. 136 of 1981 came to be instituted on police report in Baliapal F.I.R. No. 15 of 1981 on 8-5-81. On that day while taking cognizance of the proceeding the learned Executive Magistrate directed,
"The delinquent is universally suspected in many cases and he is also B.C. of Baliapal P.S. and a habitual thief and law-breaker having no ostensible means of livelihood and is hazardous to the society.
Therefore there is reason to believe that the delinquent by habit a robber house-breaker, thief under S.110 of Cr. P.C. and is so desparate and dangerous so as to render him being at large without security hazardous to the community under S.110(a), (e) and (g) of the Cr. P.C.
I do hereby require the delinquent be show cause why he should not be ordered to execute bond for Rs. 3000/- with one local surety for the like amount for his good behaviour for a period of 3 years." Later, the following order was also made on the same day :-
"Since the delinquent is in jail custody in Baliapal P.S. cases Nos. 26 and 27 of 1981 under Sections 147/148/149/307 and under Sections 147/148/149/436/307/354/36/337/324/326/120-B of the I.P.C, issue production warrant for production of the delinquent fixing 11-5-81."
On 11-5-81, the S.D.M. passed the following order :-
"The Superintendent of Jail Balasore has returned the P.W. with the intimation that the delinquent was detained in the jail from 4-5-1981 and has been released on bail on 8-5-81 as per order of the S.D.J. M. Balasore.
On perusal of the police report dated 5-5-81, there is reason to believe that the delinquent will avoid to appear in the Court and hence issue warrant of arrest against the delinquent directing the O.I.C., Baliapal P.S. to produce him by 19-5-81, Issue notice to show cause also."
On 31-5-81, the following order was made :-
"Accused Damodar Majhi, son of Nalu Majhi of Remu, P.S. Baliapal, Dt. Balasore, produced in custody (T) escort party being arrested by O.I.C. Baliapal P.S. by virtue of warrant of arrest issued from the Court of S.D.M., Sadar, Balasore on 11-5-81. He complains no ill-treatment by the police. No bail is moved.
He is remanded to jail custody till 13-6-81."
On 1-6-81, bail was moved for the petitioner and the prayer was seriously opposed by the Assistant Public Prosecutor. When no orders were passed on the bail application, the petitioner moved the Sessions Judge at Balasore. After hearing the parties the learned Sessions Judge, by order dated 4-6-81, rejected the prayer. Hence this revision application.
2. There is material in support of the allegation that the petitioner is a bad character. There is, however, no proof of it as yet. Allegations by themselves are not sufficient for detaining a citizen unless law authorises such detention. Admittedly, the petitioner is at the most a delinquent in a proceeding under Sec. 110, Cr. P.C. There may have been justification for directing issue of a non-bailable warrant of arrest when notice to show cause was ordered to issue. It is possible that such a direction would be covered under the proviso to Section 113. Cr. P.C. When the petitioner was brought before the Court in custody on 31-5-81, the stage under Section 116, Cr. P.C. had come and the magistrate was obliged to follow the procedure indicated by law. As already pointed out, a person against whom there is a proceeding under Sec. 110, Cr. P.C. is not an accused. Action under Chapter VIII of the Code of Criminal Procedure is preventive in character. The status of a person under Chapter VIII is different from that of an accused. When some offence has already been committed the person committing the offence is tried for the offence. When preventive action is proposed, before any offence is committed, keeping the conduct of the person in view security for maintaining
