ORDER
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1. 3./13.8.1984. We have heard 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 has contended that there must be subjective satisfaction of the Subdivision Magistrate before a warrant is issued against any person in a proceeding of this matter 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, Cr.P.C, 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.”
4. As has been submitted on behalf of the petitioner, the satisfaction of the Magistrate before recourse is taken to this Proviso should be based on some materials. In the instant case, however, it would not be appropriate to say that the impugned order directing issue of a warrant of arrest is based on no material. In one of the station diary entries, it has been stated that the petitioner is one of the many persons who are repotted to be vigorously moving in the city and contacting some notorious and anti-social elements in order to mobilise them to threaten the shop-keepers to close their shops on the 14th August, 1984 to observe the Orissa Bandit. While exercising its extraordinary jurisdiction, this Court is not to substitute its own view with regard to the apprehension of serious breach of the peace for which the impugned order has been passed and as we have said, it cannot be said, as has been submitted on behalf of the petitioner, that the impugned order has been passed without any materials. It cannot be said that the impugned order has been passed illegally or that the learned Sub divisional Magistrate has no jurisdiction to make such an order.
5. On these facts and in these circumstances, we find no case for interference. The writ application is accordingly, dismissed.
The learned counsel far both the sides be informed forthwith.
