DAMODAR MAJHI Vs. STATE

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, Criminal Procedure Code 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 cognisance of the proceeding the learned Executive Magistrate directed,

(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 Section 110, Criminal Procedure Code 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. Criminal Procedure Code When the petitioner was brought before the Court in custody on 31 -5 -81, the stage under Section 116, Criminal Procedure Code 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 Section 110, Criminal Procedure Code 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 good behaviour and to prevent breach of peace is taken.

(3.) CONCEDING that Section 309 of the Code applies, there is no provision in that Section which authorises the magistrate to remand a delinquent in custody for further detention. Advisedly Parliament has used the word 'accused' in Sub -Section (2). As already indicated, a person against whom allegations have been made in a proceeding under Chapter VIII of the Code of Criminal Procedure is not an accused. Therefore, power under Sub -Section (2) of Section 309 could not be called in aid for a direction that a delinquent produced in custody could be remanded to magisterial detention as contemplated in Section 309, Criminal Procedure Code I am surprised that the learned Sessions Judge did not apply his mind to the matter and while dealing with the freedom of a citizen did not consider it proper to look into this aspect to find out whether the magisterial order of detention was valid.