Madras High Court quashes government orders empowering police to exercise powers of executive magistrates

Justices N. Sathish Kumar and N. Anand Venkatesh say once upon a time, Judicial Magistrates sat in the canopy of justice, which was subsequently occupied by Executive Magistrates, till the police snuggled in like the proverbial camel   

March 13, 2023 12:49 pm | Updated 07:47 pm IST - CHENNAI

File photograph used for representational purposes only

File photograph used for representational purposes only

The Madras High Court on Monday declared unconstitutional two Government Orders (G.O.s) issued in 2013 and 2014, authorising 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 maintain good behaviour.

Delivering an exhaustive verdict, running to 120 pages, on a huge batch of petitions challenging the individual orders passed by Deputy Commissioners of Police, a special Division Bench of Justices N. Sathish Kumar and N. Anand Venkatesh held that the G.O.s issued on September 12, 2013 and February 20, 2014 suffered from “manifest arbitrariness and violate the principle of separation of powers under the Constitution”.

The Bench ruled that the two G.O.s violated Articles 14 (equality before law), 21 (protection of life and personal liberty) 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, and therefore, they had to be declared unconstitutional and ultra vires the legal provisions.

In view of such a declaration nullifying the two G.O.s, the court ordered status quo ante as it prevailed before their issuance in 2013 and 2014, and said such a status would get restored forthwith. The Bench made it clear that the violation of a bond executed under Section 110 of the CrPC could be dealt with only by Judicial Magistrates under Section 446, and not by 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 executed under Section 107. A person who has violated a bond executed before an Executive Magistrate under the said provision will have to be challaned or prosecuted only before a Judicial Magistrate for inquiry and punishment under Section 122(1)(b) of CrPC,” the verdict, authored jointly by the judges, read.

In the prelude to their judgment, the judges wrote: “Once upon a time under the canopy of justice sat the judicial magistrate who exercised preventive jurisdiction under the CrPC to ensure that law and order prevailed in areas under his jurisdiction. Docket explosion, delay and other allied reasons necessitated the statutory transfer of this canopy to an Executive Magistrate, a revenue official who exercised jurisdiction upon information being laid by the police.”

They went on to state: “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, further, said: “Preventive detention is a necessary evil but an evil nonetheless. Our Constitution tolerates it by hedging it with procedural safeguards under Article 22 of the Constitution. But since those procedural safeguards impose exacting requirements on the police and the Government, it appears that the police wing of the executive has hit upon an ingenious alternative to invest its officers with powers under Section 107 to 110 Cr.P.C., and thereby give unto themselves the power to play the investigator, prosecutor and the judge and send people to jail. “

They also wrote: “Ergo, such procedure reduces the fundamental constitutional principles of the rule of law and impartial adjudication into a mere charade. We are of the considered view that this is a textbook case of violation of separation of powers, where the police administration has nakedly arrogated unto itself the powers of adjudication under Chapter VIII thereby violating the overarching principles under Articles 14, 21 and 50 of the Constitution.”

The judges recorded their appreciation for amicus curiae Sharath Chandran, Additional Public Prosecutor E. Raj Thilak 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 a crucial subject related to the personal liberty of individuals.

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