DAMODAR ROUT Vs. STATE OF ORISSA

JUDGEMENT

(1.) We have beard Mr. R. Mohanty, the learned counsel for the petitioner and Mr. B. Ray, the learned Government Advocate. We have also perused the record of Criminal Misc. Case No. 265 of 1984 which is a proceeding under section 107 of the Code of Criminal Procedure. Mr. Mohanty for the petitioner bas contended that there must be subjective satisfaction of the Subdivisional Magistrate before a warrant is issued against any person in a proceeding of this nature and the impugned order is based on no material and therefore, this Court should direct the release of the petitioner forthwith. The learned Government Advocate has, however, invited our attention to the impugned order based on the police report and the station diary entries enclosed thereto.

(2.) The operative part of the order passed by the learned Sub-divisional Magistrate has been recorded thus: I am also satisfied on perusal of the S.D. Es. and the police report that the breach of peace cannot be prevented otherwise than by immediate arrest of the delinquents. It is therefore ordered that N.B.W. be issued against the delinquents for their detention in custody so as to obviate the commission of breach of peace under Section 113 Criminal Procedure Code as prayed for in the police report and it is further ordered that the delinquents be produced before this court after their apprehension so as to enable this court to enquire into the truth of the information and allow them a chance to show cause. It has been submitted before us that the petitioner has been arrested in execution of the warrant issued against him.

(3.) The proviso to section 113 of the Code of Criminal-Procedure reads: Provided that whenever it appears to such Magistrate, upon the report of a police officer or upon other information (the substance of which report or information shall be recorded by the Magistrate), that there is reason to fear the commission of a breach of the peace, and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of such person, the Magistrate may at any time issue a warrant for his arrest.