Madras High Court Quashes GOs Allowing Police To Exercise Power Of Executive Magistrate, Make Habitual Offenders Execute Bonds

A bench of Justice N Satish Kumar and Justice Anand Venkatesh thus declared two Government Orders as unconstitutional, which gave Deputy Commissioners the powers of an Executive Magistrate while dealing with bonds for keeping peace.

GO.Ms.No.659, dated 12.09.2013 and GO.Ms.No.181, dated 20.02.2014 vesting Deputy Commissioners of Police with the powers of an Executive Magistrate for the purposes of Section 107 to 110 Cr.P.C, suffer from manifest arbitrariness and violates the principle of separation of powers under the Constitution. The GO’s are consequently violative of Articles 14, 21 and 50 of the Constitution of India and the proviso to Section 6 of the Madras District Police Act. Resultantly, we declare GO.MS.No.659, dated 12.09.2013 and GO.MS.No.181, dated 20.02.2014 as unconstitutional and ultra vires the aforesaid provisions.

The court added that if the police were allowed to continue with such powers, it would lead to anarchy as the entire process of investigation, prosecution and adjudication will be done by one branch of the executive - the police. 

In other words, the entire process of investigation, prosecution and adjudication have now been arrogated by one branch of the executive ie., the police. When the khakhi and the judicial robes are blended and cast on one officer, the resultant picture is one of executive anarchy.

The reference was made to the special bench after a conflict arose between the decisions of Justice V Parthiban and Justice P Devadass on one hand and that of Justice PN Prakash on the other side. The point that arose for consideration was whether a habitual offender who had executed a bond under Section 110(e) of CrPC could be proceeded against and imprisoned by an Executive Magistrate under Section 122(1)(b) of CrPC for breach of bond conditions.

The petitioners argued that the power under Section 110 of CrPC was judicial in nature and thus vesting that power with the Executive Magistrate was violative of separation of powers. The state, on the other hand submitted that the Government Orders were passed in exercise of powers under Section 20 (1) of CrPC which authorised the state to appoint as many Executive Magistrates as it deems fit.

The state further submitted that if the Executive Magistrate was not empowered to imprison a person under Section 122 (which deals with security for safekeeping), then the whole purpose of Chapter VIII would be defeated.

Advocate Sharath Chandran, acting as Amicus Curie in the case argued that a bond under Section 110 was not a bond for keeping peace and thus it was erroneous to treat it on par with Section 107. He also submitted that a violation of bond executed under Section 110(e) was to be dealt with under Section 446 CrPC and not under Section 122(1)(b).

The court noted that as per the Apex Court decision in Gulam Abbas v State of Uttar Pradesh, an Executive Magistrate had no power to punish for breach of their executive orders. That being the position, the court noted that it was bound by the decision. Thus, the court concluded that a violation of bond executed under Section 110 of CrPC could be dealt with only by a judicial magistrate and not by an executive magistrate.

An Executive Magistrate cannot authorize imprisonment under Section 122(1)(b) for violation of a bond under Section 107 Cr.P.C. A person who has violated the bond executed before the Executive Magistrate under the said provision will have to be challaned or prosecuted before the Judicial Magistrate for inquiry and punishment under Section 122(1)(b) Cr.P.C

The court added that the GO failed to provide a reason for vesting of powers and was passed merely because the Chief Minister of the time ordered so. Thus, the GOs suffered from the vice of arbitrariness and would not pass the muster of Article 21 of the Constitution. 

Such a procedure, by no stretch of imagination could be termed as one which is just, fair and reasonable so as to pass muster under Article 21 of the Constitution. We are shocked, to say the least, that such proceedings which have a bearing on the liberty of the subject are conducted in a manner that resembles a game of musical chairs within the police department.

The court also concluded that the Government orders were violative of Articles 14 and 50 of the Constitution along with Section 6 of the Madras District Police Act (which prohibits police authorities from possessing or exercising any judicial or revenue authority) as it suffered from manifest arbitrariness and had violated the principles of separation of powers.

Case Title: P Sathish @ Sathish Kumar v. State and another

Citation: 2023 LiveLaw (Mad) 86