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Rajendra Prasad Sahoo Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revision No. 471 of 1982
Judge
Reported in60(1985)CLT83; 1985(I)OLR448
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 110
AppellantRajendra Prasad Sahoo
RespondentState of Orissa
Appellant AdvocateAshok Mohanty, Adv.
Respondent AdvocateAddl .Govt. Adv.
Cases ReferredGopalanachari v. State of Kerala
Excerpt:
.....the perpose of security future good behaviour. the show-cause notice which has been issued by the learned magistrate and which has been appended to this revision petition and the order of the learned magistrate dated 21.7.1982 clearly indicate that the learned magistrate has merely used the language found in the different clauses of section 110 of the code. the power under section 110 of the code having conferred discretion on the magistrate to exercise the same only when the pre-conditions contained in clauses (a) to (g) are satisfied, the magistrate should scrutinized the informations received by him thoroughly and should be satisfied as to the existence of those materials, at least prima facie and should not pass an order mechanically merely quoting the language of any of the clauses..........community, should be bound down under section 110 of the code. on perusal of the said report, the learned magistrate was also satisfied as to the existence of the pre-conditions for initiating & proceeding under sec 110 of the code and, therefore, directed the petitioner to show cause as to why he should not be bound down for a sum of rs. 1,000/- to maintain good behaviour for a period of one year. in this revision, the petitioner challenges the said order of the learned magistrate.3. mr. mohanty, the learned counsel for the petitioner, submits that a magistrate should not mechanically pass an order under section 110 of the code unless he is satisfied on the basis of informations received that any of the clauses of section 110 are really satisfied. according to the learned counsel the.....
Judgment:

G.B. Pattnaik, J.

1. The petitioner bas prayed for quashing the proceedings initiated under Section 110 of the Code of Criminal Procedure (hereinafter referred to asthe 'Code') by the Sub-Divisional Magistrate Dharamgarh.

2. The Officer-in-charge, Junagarh Police Station, submitted a report under Non-F. I. R. No. 36 of 1982 against the petitioner alleging that he was a 'Goonda' and rowdy element and his movement in public at large was dangerous to the community and he being desperate and hazardous element of the, community, should be bound down under Section 110 of the Code. On perusal of the said report, the learned Magistrate was also satisfied as to the existence of the pre-conditions for initiating & proceeding under Sec 110 of the Code and, therefore, directed the petitioner to show cause as to why he should not be bound down for a sum of Rs. 1,000/- to maintain good behaviour for a period of one year. In this revision, the petitioner challenges the said order of the learned Magistrate.

3. Mr. Mohanty, the learned counsel for the petitioner, submits that a Magistrate should not mechanically pass an order under Section 110 of the Code unless he is satisfied on the basis of informations received that any of the clauses of Section 110 are really satisfied. According to the learned counsel the allegation made in the police report has no better footing than a mere allegation and on that basis no Magistrate could have derived his satisfaction as to the existence of any of the pre-conditions contained in clauses (a) to (g) of Section 110 of the Code and as such the order of the the Magistrate initiating the proceeding is vitiated Mr. Parigrahi, the learned Additional Government Advocate, on the other hand, submits that the Magistrate has merely issued a notice to show cause and the delinquent should appear before the Magistrate and show cause and at this stags the High Court should not exerciser its extraordinary jurisdiction to interfere with the order.

4. The provision contained in Section. 110 of the code is one of the preventive measure and the Magistrate is required to take recourse to the said provision to afford protection to the public against repetition of crimes in which the safety of property is menaced as well as the security of person is jeopardised It authorises the Magistrate to take sufficient security for good behaviour of the deliquent only for the perpose of security future good behaviour. This provision is not intended to afford the police as a means of keeping the suspected person under detention unit they are able to work out a case against Section 110 is intended to deal with person who cannot readily be brought under. The ordinary law of the land and who for some special reasons. cannot be convicted Wider the Penal Code in respect of the offences said to have been committed by him There cannot be any manner of doubt that the power given, by the said section should be exercised sparingly and' with much care and caution by the Magistrate and only in those cases where the evidence is very clear and precise. The Magistrate should be cautious in making sure that the provisions intended for securing the peace of the community are not utilised for taking private vengeance. No prudent Magistrate would consider to take action under Section. 110 of the Code unless sufficient informations are there before him which would give 'substantial detail's about the person concerned. The Magistrate's satisfaction must be based on specific informations and not on the language used in the police report quoting the provisions of the different clauses of Section 110 of the Code. The show-cause notice which has been issued by the learned Magistrate and which has been appended to this revision petition and the order of the learned Magistrate dated 21.7.1982 clearly indicate that the learned Magistrate has merely used the language found in the different clauses of Section 110 of the Code. Some of the allegations made in the F. I. R. do hot really relate to any of the clauses mentioned in Section 110. of the Code, e.g. the allegations in paragraph 1 to the effect that the delinquent became a vagabond without any work and turned to a 'Dada' of the town and has sufficient money to spend luxuriously without any work and though he has got some engagement on contract business, he does not case for the profession are all irrelevant materials for the purpose of taking action under Section. 110 of the Code. Similarly, the assertion in paragraph 2 of the F I. R. to the effect that be secretly used to drink foreign liquor with his associate Ganeshram Sharma and others, cannot be construed to be an ingredient satisfying any of the clauses of Section. 110 of the Code. In paragraphs of the F. I. R certain instances of some criminal cases against the petitioner have been enumerated, but it is stated that in none of, cases the petitioner has been enumerated, but it is Mr. Mohanty appearing for the petitioner submits that in one of those cases, the petitioner has been already acquitted.

The substratum of the allegations made in the F. I. R. is that the petitioner is of rowdy nature arid moves about in the town as a 'Dada' These allegation in my opinion, would not attract the provisions of Section 110 of the Code. The learned Magistrate has obviously come to the opinion that clause (g) of Section 110 is attracted, inasmuch as in the impugned order he has observed.

'...His movement in the public at large is dangerous to the community. That the delinquent is desperate and hazardous to the community. ...'

This is nothing but quoting the provisions of clause (g) of Section 110 of the Code and there no materials to support the aforesaid conclusion. The power under Section 110 of the Code having conferred discretion on the Magistrate to exercise the same only when the pre-conditions contained in clauses (a) to (g) are satisfied, the Magistrate should scrutinized the informations received by him thoroughly and should be satisfied as to the existence of those materials, at least prima facie and should not pass an order mechanically merely quoting the language of any of the clauses of Section 110.

5. A similar matter came up for consideration before this Court in the case of L. Ramgopal Rao v. State of Orissa; 59 ,(1985) CLT 236, where Dr. Justice B. N. Misra held that mere assertions in the police report that the petitioner is of dangerous character of criminal tendency or is suspected of having committed offences are insufficient for initiation of a proceeding under Sec HO of the Code. In that case also, the police report against the delinquent was in relation to his activities covering a period of five years in about sixteen instances. The Supreme Court had the occasion to deal with the provision in the case of Gopalanachari v. State of Kerala; A.I.R. 1981 S. C. 674. The anxiety of the learned Judges while dealing with a case under Section 110 of the Code is apparent from the observations made by their Lordships to the effect :

' A closer look at Section 110 of the Code in the setting of peril to personal liberty thus becomes a necessity in this case. Counsel for the State, Shri Francis, amicus curiae Shri Abdul Kader and Senior Advocate Shri Tarkunde, agreed that unless the preventive power under Section 110 were prevented from pervasive misuse by zealous judicial vigilance and interpretative strictness, many a poor man may be cast into prison by sticking the label of 'habitual' or by using such frightening expressions as 'desperate', 'dangerous' and 'hazardous' to the community'. Law is what the law does, even as freedom is what freedom does, Going by that test, Section 110 cannot be permitted in our free Republic to pick up the homeless and the have-nots as it did when under British subjection because today to be poor is not a crime in this country. George Bernard Shaw, though ignorant of Section 110, did sardonically comment that 'the greatest of evils and the worst of crimes is poverty.'

At another place of the same judgment, their Lordships observed

' The constitutional survival of Section 110 certainly depends on its obedience to Article 21, as this court has expounded. Words of wide import, vague amplitude and far too generalised to be safe in the hands of the police cannot be constitutionalised in the context of Article 21 unless read down to be as a fair and reasonable legislation with reverence for human rights. A glance at Section. 110 shows that only a narrow signification can be attached to the words in clauses (a) to (g), by habit a robber...', by habit a receiver' of stolen property ...', 'habitually protects or harbours thieves ......', 'habitually commits or attempts to commit of abets the commission of ......', 'is so desperate and dangerous as to render his being at large without security hazardous to the community'. These expressions, when they become part of the preventive chapter with potential for deprivation of man's personal freedom upto a period of three years, must be scrutinised by the Court closely and anxiously. The poor are picked up or brought up, habitual witnesses swear away their freedom and Courts ritualistically commit them to prison and Article 21 is for them a freedom under total eclipse in practice. Courts arc guardians of human rights. The common man looks upon the trial Court as the protector. The poor and illiterate, who have hardly the capability to defend themselves, are nevertheless not 'non-persons', the trial judges must remember.......'

The learned Judges further observed :

' ...We have not the slightest doubt that expressions like by habit', 'habitual', 'desperate', 'dangerous' hazardous cannot be flung in the face of a man with laxity of semantics. The Court must insist on specificity of facts and be satisfied that one swallow does not make a summer and a consistent course of conduct convincing enough to draw the rigorous inference that by confirmed habit, which is second nature, the counter-petitioner is sure to commit the offences mentioned if he is not kept captive. Preventive sections privative of freedom, if incautiously proved by indclent judicial processes, may do deeper injury. They will have the effect of detention of one who has not been held guilty of a crime and carry with it the judicial imprimatur, to boot. To call a man dangerous is itself dangerous; to call a man desperate is to affix a desperate adjective to stigmatise a person as hazardous to the community is itself a judicial hazard unless compulsive testimony carrying credence is abundantly available. A sociologist may pardonably take the view that it is the poor man, the man without political clout, the person without economic stamina, whose practice pets caught in the coils of Section 110 of the Code, although, we as Court, cannot subscribe to any such proposition on mere assertion without copious substantiation. Even so, the Court cannot be unmindful of social realities and be careful to require strict proof when personal liberty may possibly be the casuality. After all the judicial process must not fail functionally as the protector of personal liberty. '

Keeping in mind the aforesaid caution and observations of the Supreme Court and examining the records of the instant case, I am firmly of the opinion that the learned Magistrate committed an error in initiating a proceeding under Section 110 of the Code.

6. The impugned order of the Magistrate was in the year 1982 and to my query Mr. Mohanty appearing for the petitioner categorically states that there has been no further allegation against the petitioner within this interval. Taking into consideration the facts and circumstances of the case, I am of the opinion that continuance of the proceeding under Section 110 of the Code would be an abuse of the process of Court. Accordingly I allow this application and quash the proceeding initiated under Section 110 of the Code against the petitioner by the Sub-Divisional Magistrate, Dharamgarh in Misc. Case No. 72 of 1982 for the ends of justice.


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