Mahaboob Batcha Sir (SOCO Trust) -- மகபூப்பாட்சா அவர்களுக்கு -- கண்ணீர்அஞ்சலி -- - By R. Karunanidhi, Advocate

A CRITICAL ANALYSIS OF EXERCISING JUDICIAL POWERS BY THE REVENUE OFFICIALS AND POLICE OFFICIALS - R. KARUNANIDHI, Advocate

Madurai Bench of the Madras High Court Published in CTC Journal on 22 Dec 2022 https://www.ctclibrary.com/blogpage/?id=MTI1NDA1 INTRODUCTION My endeavor in this article is to discuss the contemporary events in the exercising of judicial powers by the Revenue Officials and Police Officials in terms of their powers given under the Criminal Procedure Code with the purpose of maintaining law and order and preventing the crimes. Article 50 of the India Constitution insists that the State shall take steps to separate the judiciary from the executive in the public services of the State. Recently, a person was sentenced to imprisonment by a Revenue Divisional Officer / Sub Divisional Executive Magistrate, for conducting an indoor meeting,in exercise of thepowers under the chapter VIII of the Code of Criminal Procedure Code (Cr.P.C.). The High Court, however, set aside the order of the Executive Magistrate on the ground that the examination of witnesses was done in the absence of the Petitioner and he was not given any opportunity to cross- examine the other witnesses. The protection of life and personal liberty has been enshrined as Fundamental Rights in our Constitution under Article 21, which guaranteesthat no person shall be deprived of his life or personal liberty except according to the procedure established by law. It causes serious complications when an Executive Magistrate violates the fundamental rights of a citizen by using his powers without following due procedures while exercising judicial powers. JUDICIAL POWERS OFREVENUE OFFICER AND POLICE OFFICER Chapter VIII of Cr.P.C. deals with the powers of the Executive Magistrates relating to security for keeping thepeace and for good behavior. Security for keeping the peace on conviction is dealt within only one Section i.e. Section 106. Further sections 107 to 110 and 112 to 119, which apply to cases other than those mentioned in Section 106. Section 118 relates to the proceedings. Section 120 fixes the terminus qua, the period for which the security is required. Section 121 gives the contents of the bond and the conditions under which there is breach of bond. Section 120 empowers the Magistrate to reject sureties but only after inquiry and recording the evidence and the reasons for suchrejection. Section 123 gives powers to commit a person to prison or to be detained in prison, if already there, for the duration mentioned in the bond. Under the Criminal Procedure Code and various other statutes, the functions of a Magistrate is “police” in nature, like, the handling of unlawful assemblies, etc.; administrative character like issue of licenses for firearms and all,functions are essentially judicial, during the trial of criminal cases. In these circumstances, in the year 2013, the Deputy Commissioners of Police in the city of Chennai heading the various police districts were appointed as Executive Magistrates by virtue of the Government Order in G.O.Ms.No.659, Home Department dated 12.09.2013. Subsequently, it has been extended to other Commissionerates, viz., Madurai, Tirunelveli, Coimbatore, Trichy, etc., by issuing G.O.Ms.No.181, dated 20.02.2014. Thus, the Deputy Commissioners of Police of all the Commissionerates are now Executive Magistrates and are exercising powers under Sections 107 to 110 and 122 Cr.P.C. INTERVENTION BY HIGHER JUDICIARY The constitutional validity of this Chapter VIII of Cr.P.C. was questioned and the same stands adjudicated upon by the Constitutional Bench of the Supreme Court in MadhuLimaye and another Versus Sub Divisional Magistrate, Monghyr and others, 1970 (3) SCC 746, where the Hon'ble Supreme Court, while upholding the same, observed that the gist of the Chapter is the prevention of crimes, disturbances of public tranquility and breaches of peace. The Madras High Court has formulated several legal principles in the case of P.Sathish @ Sathish Kumar Vs. State rep. by the Inspector of Police and another reported in 2019 (2) MWN (Criminal) 136. The guidelines consist of issuing notice to be sent to the person by the Executive Magistrate to show cause as to why action under Section 122(1)(b) of Cr.P.C should not be taken for breach of the bond executed under Section 117Cr.P.C on a date fixed;at the enquiry, the Executive Magistrate should furnish the person with materials sought to be relied upon, including statements of witnesses, if any, in the vernacular (if the person is not knowing the language other than his mother tongue);if the person wishes to engage an Advocate to represent him at the enquiry, an opportunity to have a counsel of his choice should be provided to him; the Executive Magistrate shall inform the person about his right to have the assistance of a lawyer for defending him in the enquiry;the enquiry shall be conducted by the Executive Magistrate on the notified date or such other date as may be fixed and the person should be allowed to participate in the same;at the enquiry, an opportunity should be given to the person to :(i) Cross-examine the official witnesses, if any and (ii) produce documents and witnesses, if any, in support of his case and other directions. Yet, even subsequent to this judgment, legal principles are seldom followed by the Executive Magistrates in our State. Most of the cases are quashed on the ground that they have not followed the legal principles laid down by theCourt and also in terms of violation of the basic principles of natural justice. In one case, the Executive Magistrate, after conducting enquiry, without passing any order, issued a warrant of detention on breach of bond for maintaining good behavior alone and therefore, theCourt set aside the order and the matter was remanded back to the Executive Magistrate to conduct an enquiry afresh and pass orders in accordance with law. In a recent case, while dealing elaborately with the powers of the Executive Magistrate, his lordship Justice K.Murali Shankar observed that it was shocking to notice that the Executive Magistrates have been passing orders under Section 122(1)(b) of Cr.P.C, detaining the accused for a period between six months to one year, in a very casual manner and more importantly, affecting the personal liberty, which is guaranteed under Article 21 of the Constitution of India. He further notes in the order that it is the right time for the Government to take appropriate steps to conduct Training or Refresher courses to the newly appointed or promoted Executive Magistrates (Collectors, Revenue Divisional Officers, and Tahsildars)on the basic concepts of criminal law, how to conduct enquiry and how to pass reasoned orders, etc.The Madurai Bench of the Hon’bleMadras High Court set aside the conviction on the ground that the person was not given legal assistance in the case of IyappanKutty @ Kuttiyam –Vs- Executive Magistrate cum Deputy Commissioner of Police (2022 (2) MLJ (Crl) 236).The Madras High Court while dealing the “History Sheet”issue granted certain direction in opening of History Sheet where cases are registered in connection with a citizen participating in any peacefulprotests, agitations, or demonstrations or the like, history sheet should not be openedunless an order is passed by the Executive Magistrate under Sec.107 or 110 Cr.P.C.(Madasamy -Vs- The Superintendent of Police (W.P.(MD).No . 7546 of 2019). The Hon’blePunjab and Haryana High Court held that imprisonment under Section 122(1)(b) of Cr.P.C., was not contemplated for the breach of a good behaviour bond under Section 110of Cr.P.C and observed that if the detention has been found to be illegal and being in violation of Article 21 of the Constitution of India and there are no disputed questions of fact, the petitioner is held entitled to compensation for infringement/violation of his fundamental right of life and liberty. Since the petitioner was under illegal detention in Central Jail, Amritsar, it was observed that he was held entitled to compensation amounting to five lakhs, which shall be paid by the State of Punjab. (Anoop Singh vs State Of Punjabin CWP No.7832 of 2015 dated 29.05.2015) REVISITING OF JUDICIAL POWERS GIVEN TO THE EXECUTIVE MAGISTRATE AND POLICE In several cases, experience shows that the Police officials, by using their powers, obtain signatures and get the bond at the Police Station, without even issuing summons. Immediately after registration of a subsequent case, the breach of bond occurs and conviction is given by the Executive Magistrate in a routine manner. This is seems to bemore dangerous than Preventive Detention Laws and it is against the Protection of Life and Liberty which is guaranteed under the Article 21 of the Indian Constitution. The jurisdictional Criminal Court awards punishment if the prosecution proves the criminal case against a person who is charged under Indian Penal Code and other provisions of statutes, but if the person is convicted under the Chapter VIII of the Cr.P.C. as well it amounts to double jeopardy. In the financial year 2021–22, the National Human Rights Commission of India reported 2,152 deaths in judicial custody and 155 deaths in police custody. It is, therefore, not acceptable to grant judicial powers to the police officials while such numbers of deaths take place under thepolice custody. Article 50 of the Indian Constitution insists that the State shall take steps to separate the judiciary from the executive. But our present system is granting powers to the Executive Officers and Police Officers to convict a person under the chapter VIII of Cr.P.C. The term 'personal liberty' is used in Article 21 as a compendious term to include within itself all the varieties of rights which go to make up the 'personal liberties' of a person.The recent judgment in the case of Sunithavs Additional Chief Secretary to Government (2022(3) MWN(Criminal) 430), the Madras High Court slapped preventive detention laws in a manner as to shock the conscience of the ordinary citizen and also imposed cost by taking into account of the personal liberty against the State. His lordship Justice P.N. Prakash, while differing from Justice V. Parthiban on the issue of applicability of Section 122(1)(b) of Cr.P.C. to a good behaviour bond under Section 110(e) of Cr.P.C., directed the High Court Registry to place the matter before the Hon’ble Chief Justice for appropriate orders on constitution of appropriate bench to decide the issue (Devi vs. ExecutiveMagistrate (Mad HC) 2020 SCC online Mad 2706). Justice P.N. Prakash strongly noted in his judgment that History repeats itself with more vigor now. India should never become a police State. Today, the Government has empowered the Deputy Commissioners of Police and tomorrow, it could be the Assistant Commissioners, Inspectorsand so on. Therefore it is very important to revisitthe judicial powers granted to the Revenue Officers and more particularly, the Police Officers. The liberties of a people never were, nor ever will be, secure, in the absence of any transparency in in the businesses of the government without there being proper checks and balances between its various organs.