Devi vs Executive Magistrate-cum-Deputy Commissioner of Police, St. Thomas Mount District

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2020 Supreme(Mad) 1962

IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.N. PRAKASH, J.
Devi – Petitioner
Versus
The Executive Magistrate-cum-Deputy Commissioner of Police, St. Thomas Mount District and Another – Respondents
Crl. R.C. No. 78 of 2020, Crl. M.P. No. 464 of 2020
Decided On : 25-09-2020

Advocates:
Advocate Appeared:
For the Petitioner: K.S. Kaviarasu.
For the Respondents: P. Kritika Kamal, Sharath Chandran.

Headnote:(A) Criminal Procedure Code, 1973 - Sections 107, 110, 122(1)(b) - The legality of appointing Deputy Commissioners of Police as Executive Magistrates to exercise judicial powers was challenged. Court found that the Government Orders enabling this were ultra-vires the provisions of the District Police Act, 1859, violating the separation of powers entrenched in the Constitution. (Paras 6, 32, 41)

(B) Judicial Powers - The court elaborated on the historical context of judicial powers once held by Executive Magistrates and emphasized that such powers should not be exercised by police personnel as they undermine judicial independence and civil liberties. (Paras 19, 20, 31, 41)

Facts of the case:
Petitioner Devi, with multiple previous offenses, was ordered to jail by the Deputy Commissioner of Police for breaching a good behavior bond under Section 110 Cr.P.C. Court held that the procedural requirements were not fulfilled and that the Deputy Commissioner lacked the authority under law.

Findings of Court:
The impugned detention order was set aside due to lack of lawful authority and procedural safeguards.

Issues: The court addressed whether the Deputy Commissioner of Police could serve as an Executive Magistrate and the validity of the detention order under the existing statutes.

Ratio Decidendi: The court concluded that the appointment of the Deputy Commissioners as Executive Magistrates violated the separation of powers, resulting in the impugned order being declared illegal.

Result: The detention order was quashed, and the petitioner ordered to be released.

Table of Content
1. detention under section 110 cr.p.c. (Para 1 , 2)
2. historical context of judicial and executive powers (Para 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15)
3. analysis of section 122(1)(b) cr.p.c. (Para 18 , 19 , 22 , 24 , 29 , 39)
4. judicial nature of cr.p.c. proceedings (Para 26 , 30 , 34 , 36 , 37 , 41 , 42 , 43)
5. conclusion on legality of detention order (Para 40 , 44 , 45)

JUDGMENT :

P.N. PRAKASH, J.

Prayer: Criminal Revision filed under Sections 397 and 401 Cr.P.C. seeking to set aside and revise the order dated 03.01.2020 passed by the first respondent in Na. Ka. No. 564/Exe/Mag.DC.St.T.M.2019 in S-11 Tambaram P.S. Cr. No. 82 of 2019 under Section 110 Cr.P.C.

1. This criminal revision, seeking to set aside the order dated 03.01.2020 passed by the first respondent in Na. Ka. No. 564/Exe/Mag.DC.St.T.M.2019 in S-11 Tambaram P.S. Cr. No. 82 of 2019 under Section 110 Cr.P.C. raises a legal conundrum that touches upon the power of the khaki-clad officers to wear the cloak of an Executive Magistrate to exercise judicial powers for incarcerating ordinary citizens.

2. Facts of the case:

2.2 While that being so, she was found suspiciously moving around the Tambaram area on 04.11.2019, which was spotted by a police party led by the Inspector of Police, S.11 Tambaram Police Station. She was apprehended and brought to the police station. Thereafter, what transpired deserves to be stated in the words of the Inspector of Police himself set out in the counter affidavit sworn to by him:

“3. I submit that on 04.11.2019 when I along with police party was on patrol duty, I spotted her behind GRT, West Tambaram. On seeing us, she attempted to escape. I submit that when I questioned her, she gave contradictory answers and it came to light that she was involved in a case in S-11, Tambaram P.S. Cr. No. 76/2019 u/s. 8(c), 20(b) (ii)(B) NDPS Act. Hence, I brought her to police station with the help of Woman Sub-Inspector of Police Koshya and entered her particulars in Good Behaviour Register of S-11, Tambaram P.S. vide S. No. 82/S11PS(L&O)/BO/2019 u/s. 110 Cr.P.C. I submit that I informed Devi orally that on receipt of summons from the Executive Magistrate/Deputy Commissioner of Police, she must appear before him for enquiry.

4. I submit that on 09.12.2019, I submitted a requisition to the Executive Magistrate/ Deputy Commissioner stating the above particulars and requesting initiation of action under S. 110 Cr.P.C. against the Petitioner Devi. On 09.12.2019, a show cause order U/s 111 Cr.P.C. issued by the Executive Magistrate/Deputy Commissioner was served on her to appear for enquiry on 16.12.2019 and her signature was obtained as proof of service.

5. I submit that on 16.12.2019, the petitioner Devi appeared for enquiry before the Executive Magistrate. In compliance with S. 112 Cr.P.C. the gist of the enquiry was read over and explained to her and a proceeding was drawn up served on the petitioner and her signature was obtained after explaining the contents of the proceeding. On 16.12.2019, the petitioner Devi was directed to execute a bond for good behaviour for a period of one year under Section 110 Cr.P.C. with two sureties by the first respond

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2020 Supreme(Mad) 1962

IN THE HIGH COURT OF JUDICATURE AT MADRASP.N. PRAKASH, J.Devi – PetitionerVersusThe Executive Magistrate-cum-Deputy Commissioner of Police, St. Thomas Mount District and Another – RespondentsCrl. R.C. No. 78 of 2020, Crl. M.P. No. 464 of 2020Decided On : 25-09-2020

Cases Referred (9)

IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.N. PRAKASH, J.
Devi – Petitioner
Versus
The Executive Magistrate-cum-Deputy Commissioner of Police, St. Thomas Mount District and Another – Respondents
Crl. R.C. No. 78 of 2020, Crl. M.P. No. 464 of 2020
Decided On : 25-09-2020