The discretionary power of the specified court or magistrate to exercise such power in specified circumstances, subject to judicial scrutiny by superior courts of Revision and superintendence.

J. N. PATEL, J.

( 1 ) THESE two writ petitions had been filed by the petitioners raising several key issues in reference to the practice and procedure followed by the Police Officers, who are vested with the powers of executive Magistrate for conducting proceedings under Chapter viii of the Code of Criminal Procedure, 1973 (hereinafter referred to as code for short ).

( 2 ) IN Criminal Writ Petition No. 428/2002 the petitioner is an Advocate, who was required to invoke the extraordinary jurisdiction of this court, as one person by name Khobaib Raja engaged him to represent his case before the Special Executive magistrate, Tahsil Division, city of Nagpur, in the proceedings initiated under Section 107 of the Code at the behest of Police station Lakadganj, and has highlighted the various illegalities and irregularities being priced in the court of Special Executive magistrate, who also happens to be the Assistant Commissioner of police of Kotwali Division, and has been joined in person as respondent no. 3. The main grievance of the petitioner is that in addition to the procedure adopted by respondent no. 3 and the officials working under him, respondent no. 3s behaviour is unbecoming of holding the said post, as he misbehaved, insulted and humiliated the petitioner, who is an Advocate and was appearing for his client, by giving threat and used unparliamentary words, and that inspite of the petitioner having made complaints to the Superior Officers of respondent no. 3, no action in the matter was taken. It is further contended that the person, whom the petitioner was representing, was reprimanded for engaging the petitioner and was threatened with detention in jail by respondent no. 3 through his Clerk Shri Karade, in event of his failure to pay sum of Rs. 2000/- as bribe. Therefore, according to the petitioner, the respondent no. 3 has violated the majesty and dignity of the court of Special Executive Magistrate and solemn office of executive Magistrate held by him and in connivance with his staff has been extorting money from persons against whom proceedings under Chapter VIII of the Code are initiated in his court under duress of detaining them in jail, if their demands are not fulfilled and by discouraging such persons to engage an Advocate of their own choice by insisting upon engaging Advocate who are patronised by his office and, therefore, such conduct of the respondent no. 3 and his staff is violative of Article 21 and 22 of the constitution of India, as it deprives personal liberty of a citizen without following the procedure established by law, which should be reasonable, fair and just. Further, their conduct in denying a person to be defended by legal practitioner of his choice is violative of his rights under Article 21 and 22 of Constitution of India.

( 3 ) IN so far as Criminal Writ Petition No. 293 of 2003 is concerned, it is filed by the petitioners contending that they were called upon to execute a bond of Rs. 25000/- in a proceedings initiated by Walgaon Police under Section 151 read with Section 107, 116 (3) of the Code, by insisting upon executing the bond for the sum of Rs. 25000/- with one cross-surety in the like amount belonging to rival group, as interim order passed under Section 116 (3) of the Code without following provisions of law and sent the petitioners in jail thereby curtailing their personal liberty contrary to the procedure established by law.

( 4 ) THIS court in both the matters has passed various interim orders including an enquiry into the allegations made by the petitioner Advocate Shri R. S. Nayak in Criminal Writ Petition no. 428 of 2002 against respondent no. 3 and the staff working with him by senior Police Officer and also obtained record and proceedings of the cases in the two petitions. By its order dated 23/9/2003 in Criminal Writ Petition No. 498 of 2002 this court thought it proper that both the petitions can be heard together and that is how we proposed to dispose of bo