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Misuse Of Powers By Special Executive Magistrates

Supreme Court of India issued notice to All States and Union Territories

In Aldanish Rein v Union of India, the Supreme Court bench of the Mr Chief Justice Dipak Misra and Justices A.M.Khanwilkar and D.Y.Chandrachud issued notices to the Chief Secretaries of all the States and the Union Territories, seeking their response to the petitioner’s prayer to protect the life and liberty of citizens, deprived of their constitutional rights, due to the misuse of powers by the Special Executive Magistrates, under Chapter VIII proceedings of CrPC. Chapter VIII deals with security for keeping the peace and for good behaviour.

In this case Criminal Writ petition 93/2016, the petitioner, an advocate practising in the Supreme Court, seeks issue of writ in the nature of mandamus directing all the 36 respondents (UOI, States and UTs), to endorse the directions as capitulated in the judgment of the Bombay high court in Pravin Vijayakumar Taware v Special Executive Magistrate, decided on June 18, 2009 and mentioned in Dattaraya v The State of Maharashtra, decided on October 22, 2013. Adv Rein was not present during the hearing thus the bench directed Supreme Court Registry to do the needful regarding issuance of notices.

In a case Pravin Vijaykumar Taware v The Special Executive Magistrate (SEM)( Baramati Pune District Maharashtra), decided by Justice Bilal Nazki, when he was the Judge of the Bombay High Court, on June 18, 2009, two false complaints were registered against the petitioners, who claimed to be law abiding citizens, and to have never been involved in commission of any offence. In one case, one of the petitioners was acquitted and another was discharged. In another, one of the petitioners secured anticipatory bail. The SEM issued a notice under Section 111 of the CrPC (under Chapter VIII), and passed orders under Section 116(3) of the Code without giving any opportunity of being heard, directing the petitioners to execute an interim bond for Rs.1 lakh for one year, for good behaviour on conditions. The petitioners contended that it was not possible to arrange for surety and as a consequence, one of the petitioners was sent to jail on the same day.

Justice Nazki held in that case that under section 111 of the Code, the Magistrate has no power to arrest and detain a person. His power is to require to show cause, and if necessary, start an inquiry. Even directing a person to give bond and on failure, sending him to jail cannot be done even at the interim stage unless some sort of inquiry is conducted with regard to the truth of the information, he had held. After hearing the Public Prosecutor and the SEM, Justice Bazki gave benefit of doubt to the SEM on the ground that he was not aware of the law.

Justice Nazki, however, had given directions that the State Government should immediately take steps to train its all Executive Magistrates, so that they understand as to how the provisions of Chapter VIII of the Code have to be applied. Second, all the Executive Magistrates should undergo a crash course at the police academy in the State, he had directed. Third, whenever an order is passed by the Magistrate at interim stage or at final stage, requiring a person to give a bond, he should be given sufficient time to furnish the bond and the surety. Fourth, at the stage of inquiry, the Magistrate should not ask for an interim bond pending inquiry unless he is satisfied about the truth of the information sufficient to make out a case for seeking a bond. Fifth, whenever an Executive Magistrate passes an order under sub-section (3) of Section 116 of Chapter VIII of the CrPC, directing a person to be sent to jail, a copy of the order should be sent to the Principal Sessions Judge immediately. Sixth, on receiving copy of the order, PSJ should go through it, and if he finds a case of revision, he could intervene under section 397 of the Code. Seventh, a copy of the order directing a person to be sent to jail under Chapter VIII of the CrPC should also be sent to the immediate superior of the Magistrate in his department.

The next date of hearing in the case is on January 24, 2018. To know about Adv. Rein CLICK HERE.

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