Madras HC questions validity of deeming Deputy Commissioners of Police in TN as "Executive Magistrate", giving them judicial, jailing power

Can deputy commissioners of police be appointed as "Executive Magistrates" under the CrPC, which contains provisions allowing Executive Magistrates to exercise certain judicial powers, when there is a statutory bar on policemen from exercising "judicial" powers under the District Police Act, 1859? .Justice PN Prakash of the Madras High Court recently deliberated on this question, recounting in some detail the history of the law and its intent, before opining that deputy commissioners of police cannot be permitted to act as Executive Magistrates under the Code of Criminal Procedure (CrPC)..However, given a contrary ruling by another coordinate Bench of the Madras High Court in Balamurugan vs. State, Justice Prakash has now placed the matter for an authoritative pronouncement by a larger Bench..How Executive Magistrates are conferred powers to imprison persons in certain cases.Sections 107 to 110 of the CrPC concern the execution of security bonds either to keep the peace (Section 107) or for maintaining good conduct (Section 110). .Executive Magistrates, after following the due procedure outlined in Sections 111-119, CrPC, can issue orders for persons to execute these bonds with or without securities, depending on the reason for executing the bond. .Notably, Section 122 (1) (b), CrPC allows Executive Magistrates to order the imprisonment of persons who breach the conditions of a bond executed for keeping the peace and without sureties. .In question now are Government Orders passed by the Tamil Nadu Government in 2013 and 2014, whereby Deputy Commissioners of Police in Tamil Nadu were vested with the power to act as Executive Magistrates under the CrPC in various districts of the State. .How this came to be?.The Commissioner of Police, Madras were earlier acting as the Presidency Magistrate even before the enactment of the CrPC. .Whereas the office of Presidency Magistrate was abolished later on, a GO issued by the State in 1974 (after the enactment of the CrPC, 1973) appointed Commissioners of Police as Executive Magistrates under the CrPC. .The GO was passed relying on Section 20 (5) of the CrPC, 1973, which permitted the State to confer, under any law for the time being in force, the powers of the Executive Magistrate on a Commissioner of Police in relation to a metropolitan area. The law in force, as referred to in the provision, was the City Police Act of 1988. .Notably, Section 7 of the City Police Act, as amended, stated that the Commissioner of Police shall be an Executive Magistrate by virtue of his office.."Now, the question is, at what stage, did the Deputy Commissioners of Police become Executive Magistrates in the State of Tamil Nadu."the Court queried..The Court went on to recount that the State first passed a GO in September 2013 appointing Deputy Commissioners of Police at Chennai as Executive Magistrates. Further, "since the constitutional validity of this Government Order was not challenged by anyone, the Government was emboldened to extend it to other Commissionerates, viz., Madurai, Tirunelveli, Coimbatore, Trichy, etc.".Thus, the Court narrated, the Deputy Commissioners of Police of all the Commissionerates were now "Executive Magistrates", allowed to exercise powers under Sections 107 to 110 and 122, CrPC. .However, Justice Prakash has now expressed reservations over whether such "power of the khaki-clad officers to wear the cloak of an Executive Magistrate to exercise judicial powers for incarcerating ordinary citizens", is valid..Why the extending of Executive Magistrate powers to Deputy Commissioners of Police is being questioned.On the one hand, Justice Prakash has pointed out that there is a general bar under the Centrally enacted District Police Act, 1859 which prohibts police officers from exercising judicial powers. .This bar is found in the proviso to Section 6 (Powers of Police etc.) of the District Police Act, which reads "Provided always that no police functionary so appointed shall possess or exercise any judicial or revenue authority.”.The Court further pointed out in cases such as Yeluchuri Venkatachennaya and Others vs. Emperor and Bibhuti Bhusan Chatterjee vs. State of Bihar, it has been laid down these proceedings under Section 107, CrPC are judicial in nature..The Court added that in Aldanish Rein vs. State of NCT of Delhi and another and P Sathish vs. State it has been laid down that the State Legal Services Authority should provide free legal aid to a person facing Section 107 CrPC proceedings..Therefore, the Court held,."When the proceedings under Sections 107 to 110 Cr.P.C. are judicial in nature, the bar under the proviso to Section 6 of the District Police Act, 1859, follows suit, thereby disentitling the khaki personnel from exercising judicial powers."Justice PN Prakash, Madras High Court.The Court went on to opine that while the Commissioner of Police is an Executive Magistrate ex officio under Section 7 of the City Police Act, he cannot delegate his powers to the Deputy Commissioners of Police. .The Judge added,"Of course, the Commissioner has not done this delegation in Tamil Nadu and it is only the Government, which has, by G.O.Ms.No.659 and G.O.Ms.No.181, appointed all Deputy Commissioners of Police as Executive Magistrates. These appointments are clearly in violation of the proviso to Section 6 of the District Police Act, 1859.".In this view of the matter, Justice Prakash also expressed disagreement with the findings of another Madras High Court single judge in Balamurugan's case, where the validity of the extension of Executive Magistrate status to Deputy Commissioners was upheld. .Justice Prakash opined "Seemingly, the provisions of Section 6 of the District Police Act, 1859, were not noticed by the learned single judge in Balamurugan (supra).".Justice Prakash added that the reliance made on the Supreme Court's ruling in Suresh Sham Singh's case by the judge in Balamurgan's case was misplaced "as that case arose from Maharashtra where the Maharashtra Police Act, 1951 does not contain any in pari materia provision like Section 6 of the District Police Act 1859. That the Code will not prevail over the provisions of the District Police Act, 1859, is fairly evident from Section 5 Cr.P.C."."When there exists a limitation under the substantive law, i.e., Section 6 of the District Police Act, 1859, which incidentally is also a Central enactment, it would be wholly impermissible to clothe police personnel with judicial powers by an executive fiat under Section 20 Cr.P.C., particularly in the light of the saving clause contained in Section 5 of the Code."the Court concluded. .Section 122 (1) (b), CrPC does not allow imprisonment for breach of a bond executed for "good behaviour".Justice Prakash has also expressed disagreement with the ruling passed by Justice V Parthiban in Vadivel @ Mettai Vadivel, wherein it was held that under Section 122 (1)(b), CrPC, Executive Magistrates can order the imprisonment of persons who breach bonds executed for good behaviour under Section 110(e), CrPC. .Under Section 110, CrPCExecutive Magistrates can order habitual or dangerous offendors to execute bonds with sureties to maintain good behaviour. .Justice Prakash has now opined that Section 122 (1) (b), CrPC would only apply to bonds executed under Section 107, CrPC, which deals with bond executed to keep the peace, with or without sureties. .Justice Prakash expressed that, "textually and contextually, a bond for good behaviour can, by no stretch of imagination, be telescoped into Section 122(1)(b) Cr.P.C.".He pointed out that in Anoop Singh vs. State of Punjab, a Single Judge has already held that imprisonment under Section 122(1)(b) CrPC was not contemplated for the breach of a good behaviour bond under Section 110, CrPC..Justice Prakash further reasoned, ."If a good behaviour bond is included in Section 122(1)(b) Cr.P.C., there is every likelihood of the person being imprisoned twice, viz., one for breach of the bond and the other for the commission or the attempt to commit the substantive offence. Supposing such a person is imprisoned for the breach of bond, but is acquitted for the criminal act which gave rise to the breach of bond, the imprisonment suffered by him cannot be compensated. That is why, the Legislature had thought it fit to mulct a person who commits breach of good behaviour bond only with civil liability, viz., forfeiture of the bond amount and not imprisonment.".He added, that since "good behaviour" is not mentioned in Section 122(1)(b), CrPC, the principle of casus omissus cannot be applied either to read the application of these proceedings to Section 110(e), CrPC given that,"in a criminal statute which seeks to impinge on the liberty of a citizen guaranteed by Article 21 of the Constitution of India, the principle of casus omissus cannot be ordinarily invoked.".In this view of the matter as well, the Court proceeded to quash the imprisonment order passed by a Deputy Commissioner of Police under Section 122, CrPC against a woman who was viewed as a habitual offender and who had breached a bond executed for good behaviour under Section 110, CrPC. .The case before the Court, which also triggered the larger discussion, is Devi v. Executive Magistrate-cum-Deputy Commissioner of Police and anr..What is the justification offered by the police to exercise the powers under Section 110 CrPC? Court asks.Justice Prakash also questioned whether the resort of the police to CrPC provisions for the extraction of bonds and imprisonment persons upon breach of the bond would have any lasting impact on maintaining law and order. .Public cooperation is essential for effective policing, the Court said. Justice Prakash went on to express concern that the police would lose this too if they keep resorting to Section 122 (1)(b), CrPC. As noted in the order, ."The police will lose them too because Section 122(1)(b) Cr.P.C. is mostly clamped on the marginalized and not on the mainstream gang lords. Going to prison for the first time alone will be a matter of shame and thereafter, a matter of pride. As our society metamorphoses into a middle class one, which is inevitable, anachronistic methods will be frowned upon by the public."Madras High Court.The Court added that there are umpteen other ways to boost the maintenance of law and order, including the following:Following the guidelines given by the Supreme Court in Prakash Singh & others vs. Union of India & others by repealing the colonial Police Acts and enacting new Police Acts to make the police force thoroughly professional and independent. Several Police Commissions have recommended that the Crime Investigating Wing should be separated from the Law and Order Wing and they should be given a free hand to detect offences and bring criminals to book. The State can appoint competent and apolitical persons as Prosecutors in Courts instead of doling out such assignments as political patronage. If the State is of the view that bails are being granted by the Courts liberally to notorious criminals, Prosecutors can be directed to file their counter in each case and despite opposition, if bail is granted, they can take up the matter to the superior Court. The police can inform the victims in Sessions Cases about the bail application hearings so that they can intervene and articulate their sufferings better. The recent amendment to the Code recognises the rights of victims of a crime. The police can also invoke Section 229-A IPC to prosecute persons who have jumped bail. Application for cancellation of bail can also be filed against a repeat offender. ."With all these avenues available to them, they cannot be heard to say that resort to Section 122(1)(b) Cr.P.C. is the only panacea for maintaining law and order in the State. Section 107 Cr.P.C. proceedings were grossly misused during the British times to stifle the voice of freedom fighters."Madras High Court.Referring to how the such powers were misused during the British rule, Justice Prakash added, "History repeats itself with more vigour 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, Inspectors, et al. That this has been done in blissful ignorance of the provisions of Section 6 of the District Police Act, 1859, only compounds the error.".The questions now raised for consideration by a larger Bench of the Court are:The applicability of Section 122(1)(b) CrPC to a good behaviour bond under Section 110(e), CrPC;Whether G.O.Ms.No.659, Home (Cts. VIA) Department dated 12.09.2013 and G.O. Ms.No.181, Home (Cts.VIA) Department dated 20.02.2014 violate the scheme of separation of powers and are ultra vires the proviso to Section 6 of the Tamil Nadu District Police Act, 1859 (Central Act XXIV of 1859)?.Read the Order: