The independence of judiciary is a basic structure of the Constitution and any law that merges judicial function in the executive is ultra vires Article 21 of the Constitution.

PREM CHAND JAIN, J.

1. The petitioners have challenged through this petition the constitutional validity and the legality of the Code of Criminal Procedure (Punjab Amendment) Act, 1983 (hereinafter called the Amendment Act). This Act received the assent of the President of India on 3rd November,1983, and was published in the Gazette of Government of Punjab on 24th November, 1983, Earlier to the enactment of the Amendment Act, the State of Punjab had promulgated Ordinance No.3 of 1983 on 27th June, 1983. The provisions of the Amendment Act have come into force with effect from the date the Ordinance was promulgated.

2. In this petition, the main attack is on Sections 4 and 11 of the Amendment Act, which read as under:-

"4. Notwithstanding anything contained in the Code - (a) an Executive Magistrate shall, to the exclusion of any other Magistrate, have power to take cognizance of and to try and dispose of cases relating to specified offences:

(b) the Executive Magistrate shall, to the exclusion of any other Magistrate exercise powers of remand under S. 167 of the Code in relation to the specified offences and for that purpose the said S. 167 shall be so read as if the words Executive Magistrate were substituted for the words Judicial Magistrate or Magistrate and the words District Magistrate were substituted for the words Chief Judicial Magistrate,

11. After Section 439 of the Code the following section shall be inserted. namely, 439 A, Notwithstanding anything contained in this Code, no person - (a) who, being accused or suspected of committing an offence under any of the following sections, namely, sections 120B, 121, 121A, 122, 123, 124A, 153A, 302, 304, 307, 326, 333, 363, 364, 365, 367, 368, 392, 394, 395, 396, 399, 412, 431, 436, 449 and 450 of the Indian Penal Code, 1860, Ss. 3, 4, 5 and 6 of the Explosive Substances Act, 1905 and Ss. 25.26. 27,28.29,30 and 31 of the Arms Act, 1959, is arrested or appears or is brought before a Court; or

(b) who, having any reason to believe that he may be arrested on accusation of committing an offence as specified in clause (a), has applied to the High Court or the Court of Session for a direction for his release on bail in the event of his arrest. shall be released on bail. or as the case may be, directed to be released on bail, except on one or more of the following grounds, namely, i) that the Court including the High Court or the Court of Session for reasons to be recorded in writing is satisfied that there are reasonable grounds for believing that such person is not guilty of any offence specified in clause (a);

(ii) that such person is under the age of sixteen years or a woman or a sick or an infirm person;

(iii) that the court including the High Court or the Court of Session for reasons to be recorded in writing is satisfied that there are exceptional and sufficient grounds to release or direct the release of the accused on bail...

3. Before I deal with the contentions, the purpose as described in the preamble of the Act, which necessitated the enactment of the Amendment Act may be noticed:-

"Whereas the circumstances prevailing in the State of Punjab are such that in order to ensure maintenance of Public Order and Tranquility in the State, it is considered expedient to confer certain powers under the Code of Criminal Procedure, 1973, on the Executive Magistrates in the State for a temporary period and to amend certain provisions of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) in its application to the State of Punjab."

4. Before us, Mr. G. S. Grewal, Senior Advocate, arguing the case on behalf of the petitioners, first challenged the legality of the provisions of S. 11, which have been reproduced above. The main contention of the learned counsel was that by introducing S. 11 the Government has nullified or, in other words, has completely taken away the right of bail to the accused with regard to offences mentioned therein and this provision is hit by Art.