DEBU ALIAS DEBASHIS ALIAS DEBABRATA TRIPATHY Vs. STATE

JUDGEMENT

(1.) Petitioner calls in question legality of proceeding initiated by Executive Magistrate, Anandapur, in purported exercise of power under S. 110 of Code of Criminal Procedure, 1973 (in short, 'Code'). According to him, mandatory requirements were not observed and he has been erroneously directed to furnish bond and thereafter because of non-furnishing of bond, has been remanded to custody. Learned counsel for the State supports the action.

(2.) Background facts as stated by petitioner are essentially as follow. Petitioner was produced in custody by Officer-in-charge, Anandapur Police Station through Court Sub-Inspector, Anandapur before Executive Magistrate. Order dated 6-5-1994 shows that charges were read over and explained to the petitioner and since he did not plead guilty and wanted to be tried, he was directed to furnish bond of Rs. 10,000.00 with two local sureties for the said amount. It was stipulated that in case of failure to furnish bond, he was to be remanded to custody. Direction was given to put up the matter before Sub-Divisional Magistrate, Anandapur. Later that day, on account of petitioner's failure to furnish bond, custody warrant was issued fixing 19-5-1994. On 7-5-1994 a petition was filed by petitioner to take up the matter, as a prayer for bail was made. The motion was objected to by learned counsel for State on the ground that petitioner's previous conduct and present activities caused serious threat to local peace and tranquillity. The matter was adjourned to 19-5-1994 for consideration of bail. Since on 19-5-1994, Sub-Divisional Magistrate was on tour, petitioner was remanded to custody till 1-6-1994 by Executive Magistrate. The course adopted, according to petitioner, is not sanctioned in law. Petitioner moved this Court, and by order dated 25-5-1994, he was directed to be released on bail on Rs. 2000.00 with one surety for the like amount. Learned counsel for State on the other band submitted that statutory requirements were complied with.

(3.) Section 110 of the Code appears in Chapter VIII relating to security for keeping peace and for good behaviour. As the heading the Chapter itself indicates, it contemplates two kinds of securities. Sections 106 and 107 relate to security for keeping peace, while Sections 108, 109 and 110 relate to security for good behaviour. Proceedings for security under Sections 107, 108, 109 and 110 are started on information. On receipt of information, Magistrate concerned shall, if he deems it necessary to require any person to show cause why he should not be ordered to furnish security, pass a preliminary order to show cause in terms of Section 111. If the person is present in Court order shall be read over and if necessary, explained to him as required under Section 112. If he is not so present, a copy of the order has to be served on him along with summons or warrant requiring him to appear before Court. Necessary procedure is laid down in Sections 113 and 114. When order under Section 113 has been read over or explained to the person present in Court or when he appears or is brought before Court in compliance with, or in execution of, a summons or warrant, issued under Section 113, Magistrate shall proceed to enquire into truth of the information upon which action has been taken. That is the requirement of Section 116. If on such enquiry it is not proved that it is necessary to require security, the person informed against shall be discharged as prescribed in Section 113. If, on the other hand, it is proved that it is necessary for keeping peace or maintaining good behaviour that the person should be required to give security, he shall be ordered in terms of Section 117 to do so. Sections appearing in Chapter VIII are preventive Sections which are not intended to be used to punish accused persons for offences that have been committed but to prevent them from committing offences which they are by their nature or habit likely to commit. Power contained in Section 110 is a preventive power and not a punitive one; therefore in its exercise, it is not confined to cases in which positive evidence of commission of offences is forthcoming against a person charged. A person proceeded against under the preventive Sections of the Code is not as accused of an offence, nor is he prosecuted. The proceedings against him do not, therefore, end in his 'acquittal' or 'conviction. These two words are appropriately applied to the result of a criminal trial. They are quite out of place when the result in the proceedings under the preventive Sections has to be described. The word 'trial' as used in the Code seems to presuppose the idea of an offence - a word defined in Section 2(n) of the Code. No offence is involved in an enquiry under Chapter VIII of the Code. Therefore, enquiries under the Chapter are not trials.