R.N. Misra, C.J.
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 Section 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 Section 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 147/148/149/436/307/354/336/337/324/326/120-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 6rder 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 Section 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 Section 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 maintining good behaviour and to prevent breach of peace is taken.
3. I called upon learned Additional Govt. Advocate yesterday, when this application was heard, to point out the provision under the Code of Criminal Procedure which authorised the magistrate to remand such a delinquent to custody. Learned Additional Government Advocate places his finger on Section 309, Cr.P.C. in answer to the question. That section, as far as relevant, reads thus:-
(1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.
(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may from time to time,' for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody.
Learned Additional Government Advocate relies upon an Allahabad decision in Vasu Deo v. State of U.P. : AIR1953All578 in support of his submission that Section 309, Cr. P. C, is applicable to an enquiry under Chap. VIII of the Code of Criminal Procedure. From the language used in Section 309 of the Code, he submits, there is no reason to take a different view, 'Trial' and 'inquiry' have been used in the section and undoubtedly what is contemplated under Chapter VIII of the Code is an enquiry. The Allahabad view may not be dissented from though I express no final opinion as to whether Section 309 of the Code would really be applicable to an enquiry under Chapter VIII.
4. 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, Cr.P.C. 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.
5. I entirely agree that it it the duty of every citizen to behave properly so that peace and security may thrive in society and those who do not contribute to peaceful existence in society by their overt acts are liable to be punished in the manner law authorises. An erring citizen against the social code is, however, not liable to be arbitrarily dealt with, since law prescribes the mode in which such persons can be treated and dealt with. In the absence of authority of lave the learned magistrate was not entitled to direct detention of the petitioner when he was produced before him by the police in custody on 31-5-81. The order remanding him to further custody is quashed as being contrary to law. The petitioner shall be set at liberty forthwith. The proceeding under Section 110, Cr, P. C. shall, however, continue.
6. The Executive Magistrate be called upon to report under what provision of law he had directed detention of the petitioner.