Madras High Court quashes GOs that gave judicial power to TN police; says when Khaki and judicial robes blend, result is executive anarchy

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The Madras High Court on Monday quashed two Government Orders (GOs) passed by the Tamil Nadu government in 2013 and 2014 that empowered the police to exercise powers concerning preventive jurisdiction under Sections 107 to 110 of the Criminal Procedure Code (CrPC) and consequently, impose sentences on habitual offenders who breached their bonds.

A bench of Justices N Satish Kumar and N Anand Venkatesh said the two GOs were arbitrary, in violation of the principles of separation of powers and amounted to entrusting the police with powers that had been conferred upon the judiciary, which could result in anarchy.

“In other words, the entire process of investigation, prosecution and adjudication have now been arrogated by one branch of the executive i.e., the police. When the khakhi and the judicial robes are blended and cast on one officer, the resultant picture is one of executive anarchy,” the Court said.

It breached the citizens’ fundamental rights to equality before law and to life and liberty as guaranteed under Articles 14 and 21 of the Constitution, the Court made it clear.

“We are shocked, to say the least, that such proceedings which have a bearing on the liberty of the subject are conducted in a manner that resembles a game of musical chairs within the police department. In fact, the GO’s do not contain any reason at all but merely say that this was done because the Chief Minister of the day wanted it to be so. Such an approach is, ex-facie, violative of Article 14. Consequently, the GOs cannot but be branded as suffering from the vice of manifest arbitrariness,” the High Court said.

The Court was presiding over a batch of petitions challenging several orders passed by Deputy Commissioners of Police (DCPs) in Tamil Nadu after the two GOs were enforced.

The GOs issued on September 12, 2013 and February 20, 2014 empowered the DCPs in the State to exercise the powers of executive magistrates under Sections 107 to 110 of the CrPC. The GOs empowered them to make habitual offenders execute bonds to keep peace and maintain good behaviour, and to forfeit the bond amount, issue show cause notices, and impose fines and sentences if such bonds were breached.

The Court had appointed advocate Sharath Chandran as the amicus curiae in the matter.

The Court primarily examined whether the police could be entrusted the powers of executive magistrates and whether executive magistrates themselves had the power to order arrests or impose sentences under Section 122 of the CrPC for breach of bonds executed under Sections 107 and 110 of the CrPC.

The State government argued that the sentence of imprisonment contemplated under Section 122 (1)(b) of the CrPC was not a sentence but a detention.

Advocate Chandran, however, told the Court that the Supreme Court had clearly said in past judgements that the executive magistrate had no power to punish for breach of his or her executive orders.

The Court agreed with the amicus curiae’s submissions. It said that executive magistrates themselves had no power to impose sentences for breach of bonds.

Such a sentence could be imposed only by a judicial magistrate. Therefore, there was no question of the police being granted powers contemplated under Section 122 of the CrPC, the High Court said.

“In the light of the law laid down in paragraph 24 of the three judge bench decision of the Supreme Court in Gulam Abbas v State of Uttar Pradesh (1982) 1 SCC 71, an Executive Magistrate cannot authorize imprisonment under Section 122(1)(b) for violation of a bond under Section 107 Cr.P.C. A person who has violated the bond executed before the Executive Magistrate under the said provision will have to be challaned or prosecuted before the Judicial Magistrate for inquiry and punishment under Section 122(1)(b) Cr.P.C,” it said.

The Court further said there were cases wherein some DCPs had conducted “full-fledged trials by examining witnesses,” and in one case even declared witnesses as hostile.

This, the Court, said cannot be permitted and quashed the GOs.

The Court also expressed its appreciation for the amicus curiae, advocate Sharath Chandran and the Additional Public Prosecutor E Raj Thilak.

“We were dealing with a very important issue directly touching upon the liberty of an individual under Article 21 of the Constitution of India and we could not have written this exhaustive judgment and answered the questions that were referred to us, without the able assistance of the Bar,” the Court said.

Advocate D Gopikrishnan appeared for the petitioners.

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