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File photograph used for representational purposes only
The Madras High Court on Monday, held as unconstitutional, two Government Orders (GOs) issued in 2013 and 2014 empowering Deputy Commissioners of Police to exercise the powers of Executive Magistrates under Sections 107 to 110 of the Code of Criminal Procedure (CrPC) for the purpose of making habitual offenders execute bonds to keep peace and maintaining good behaviour.
Disposing of a huge batch of petitions challenging the orders passed by Deputy Commissioners of Police, a special Division Bench of Justices N. Sathish Kumar and N. Anand Venkatesh held that the GOs, issued on September 12, 2013 and February 20, 2014 suffer from “manifest arbitrariness and violate the principle of separation of powers under the Constitution.”
Further, ruling that the GOs violate Articles 14 (equality before law) and 50 (separation of judiciary and executive) of the Constitution as well as the proviso to Section 6 (no police functionary to exercise judicial or revenue authority) of the Madras District Police Act of 1859, the Bench declared them to be unconstitutional and ultra vires the legal provisions.
The Court ordered status quo ante as it prevailed before the issuance of the two GOs, and held that such a status would get restored forthwith. The Bench further made it clear that violation of a bond executed under Section 110 of CrPC could be dealt with only by judicial magistrates under Section 446 and not by the executive magistrates under Section 122(1)(b) of the Code.
“An Executive Magistrate cannot authorise imprisonment under Section 122(1)(b) of the Code for violation of the bond under Section 107. A person who has violated a bond executed before an Executive Magistrate under the said provision would have to be prosecuted before a judicial magistrate for inquiry and punishment under Section 122(1)(b) of CrPC,” the verdict read.
In the prelude to their exhaustive verdict on the huge batch of cases argued by a battery of lawyers for days together, the judges wrote: “Once upon a time under the canopy of justice sat the judicial magistrate who exercised preventive jurisdiction under the Code of Criminal Procedure to ensure that law and order prevailed in the areas under his jurisdiction.”
However, “docket explosion, delay and other allied reasons in the regular courts necessitated the statutory transfer of this canopy to an Executive Magistrate, a revenue official who exercised jurisdiction upon information being laid by the police. The canopy rested uneasily over the head of the revenue official as well.
“The police like the proverbial camel in the tent occasionally got their noses into the canopy but were stopped in the tracks by the courts. Then, in 2013, the camel in its entirety snuggled itself in and the revenue official, Executive Magistrate, was ousted from the canopy and left in the cold… Now we have ousted the camel and put the canopy of justice to where it belongs.”
The judges recorded their appreciation for amicus curiae Sarath Chandran, the Additional Public Prosecutor and advocates Janarthanan, Vivekanandan and M. Santhanaraman for having assisted the court in setting right an illegality that had been in practice for the last 10 years touching upon the personal liberty of individuals.
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