Case Note & Summary
The judgment pertains to two criminal writ petitions filed before the Bombay High Court, Nagpur Bench, challenging the practice and procedure adopted by Police Officers vested with the powers of Executive Magistrate under Chapter VIII of the Code of Criminal Procedure, 1973. In Criminal Writ Petition No.428/2002, the petitioner, an advocate named Rajesh Suryabhan Nayak, was engaged by one Khobaib Raja to represent him in proceedings under Section 107 of the CrPC initiated at the behest of Police Station Lakadganj, before the Special Executive Magistrate, who was also the Assistant Commissioner of Police of Kotwali Division, Nagpur (respondent no.3). The petitioner alleged that respondent no.3 misbehaved, insulted, and humiliated him, used unparliamentary language, and threatened him while he was appearing for his client. The petitioner also highlighted various illegalities and irregularities in the proceedings. In Criminal Writ Petition No.293/2003, eight petitioners from Kamunja, Walgaon, Amravati, challenged similar practices by the Special Executive Magistrate in Amravati. The court examined the issues and held that Police Officers acting as Special Executive Magistrates must strictly follow the procedure under the CrPC, including conducting proper inquiries under Section 107. The court deprecated the conduct of respondent no.3 and directed that all Executive Magistrates must respect the rights of advocates and litigants. The court also issued directions to ensure fair proceedings under Chapter VIII CrPC.
Headnote
A) Criminal Procedure - Executive Magistrate - Powers under Chapter VIII CrPC - Police officers acting as Special Executive Magistrates must follow the procedure prescribed under the Code of Criminal Procedure, 1973, including proper inquiry under Section 107, and cannot act arbitrarily or in a high-handed manner. The court held that the conduct of respondent no.3, who misbehaved and insulted an advocate appearing for a client, was unbecoming and deprecated such behavior. (Paras 1-4) B) Criminal Procedure - Right of Advocate - Right to appear in proceedings under Section 107 CrPC - An advocate has a right to represent his client in proceedings before an Executive Magistrate, and the Magistrate cannot obstruct or humiliate the advocate. The court directed that all Executive Magistrates must respect the rights of advocates and litigants. (Paras 2-4) C) Criminal Procedure - Section 107 CrPC - Inquiry - Requirement of proper inquiry before passing order - The court emphasized that before initiating proceedings under Section 107, the Magistrate must conduct a proper inquiry and cannot act merely on police report. (Para 1)
Issue of Consideration
Whether the practice and procedure followed by Police Officers vested with powers of Executive Magistrate under Chapter VIII of the Code of Criminal Procedure, 1973 are legal and proper, and whether the conduct of respondent no.3 as Special Executive Magistrate was unbecoming of his office.
Final Decision
The court allowed the petitions and deprecated the conduct of respondent no.3. The court directed that all Executive Magistrates must follow the procedure under Chapter VIII CrPC strictly and respect the rights of advocates and litigants.
Law Points
- Executive Magistrate must act judicially
- Police officers as Special Executive Magistrates must follow CrPC procedure
- Section 107 CrPC proceedings require proper inquiry
- Right of advocate to appear
- Misconduct by Magistrate is actionable
