Case Note & Summary
The judgment pertains to two criminal writ petitions filed before the Bombay High Court, Nagpur Bench, challenging the practice and procedure followed by Police Officers acting as Special Executive Magistrates in proceedings under Chapter VIII of the Code of Criminal Procedure, 1973 (CrPC). The first petition (Cri.W.P. No.428/2002) was filed by Rajesh Suryabhan Nayak, an Advocate, who alleged that respondent no.3, Shri S.U. Nandanwar, the Assistant Commissioner of Police and Special Executive Magistrate, misbehaved, insulted, and humiliated him while he was appearing for his client Khobaib Raja in proceedings under Section 107 CrPC initiated by Police Station Lakadganj. The second petition (Cri.W.P. No.293/2003) was filed by eight individuals from Kamunja, Walgaon, Amravati, challenging the proceedings initiated against them under Section 107 CrPC by the Special Executive Magistrate, Amravati. The main legal issues considered were whether the procedure adopted by Police Officers acting as Special Executive Magistrates complies with the CrPC, and whether the conduct of respondent no.3 was proper. The court analyzed the provisions of Sections 107, 111, 112, 116, 117, and 122 of the CrPC and held that the procedure must strictly follow the Code, including issuance of notice under Section 111, inquiry under Section 116, and order under Section 117. The court deprecated the practice of detaining persons without proper inquiry and directed that all Special Executive Magistrates must follow the procedure laid down in the Code. The court also held that the conduct of respondent no.3 was unbecoming and directed that all Executive Magistrates must respect the right of advocates to appear. The court allowed the petitions in part and issued directions for strict compliance with the CrPC.
Headnote
A) Criminal Procedure - Executive Magistrate - Powers under Chapter VIII CrPC - Sections 107, 111, 112, 116, 117, 122 - The court examined the practice and procedure followed by Police Officers vested with powers of Executive Magistrate for conducting proceedings under Chapter VIII of the Code of Criminal Procedure, 1973. The court held that the procedure adopted must strictly comply with the provisions of the Code, including issuance of notice under Section 111, inquiry under Section 116, and order under Section 117. The court deprecated the practice of detaining persons without proper inquiry and directed that all Special Executive Magistrates must follow the procedure laid down in the Code. (Paras 1-10) B) Criminal Procedure - Misconduct by Executive Magistrate - Right to Counsel - Section 107 CrPC - The court considered the grievance of the petitioner in Criminal Writ Petition No.428/2002, an Advocate, who alleged that respondent no.3, the Special Executive Magistrate, misbehaved, insulted, and humiliated him while he was appearing for his client. The court held that such conduct is unbecoming of a judicial officer and directed that all Executive Magistrates must respect the right of advocates to appear and represent their clients. (Paras 2-5) C) Criminal Procedure - Detention without Inquiry - Section 122 CrPC - The court noted that in many cases, persons were being detained under Section 122 without proper inquiry under Section 116. The court held that detention under Section 122 can only be ordered after a proper inquiry and satisfaction that the person is likely to commit a breach of peace. The court directed that no person shall be detained without following the procedure under Sections 111, 116, and 117. (Paras 6-8)
Issue of Consideration
Whether the procedure adopted by Police Officers acting as Special Executive Magistrates in proceedings under Chapter VIII of the Code of Criminal Procedure, 1973 is legal and proper, and whether the conduct of respondent no.3 in Criminal Writ Petition No.428/2002 was unbecoming of his office.
Final Decision
The court allowed the petitions in part and issued directions that all Special Executive Magistrates must strictly follow the procedure under Chapter VIII of the Code of Criminal Procedure, 1973, including issuance of notice under Section 111, inquiry under Section 116, and order under Section 117. The court also directed that no person shall be detained under Section 122 without proper inquiry. The court further held that the conduct of respondent no.3 was unbecoming and directed that all Executive Magistrates must respect the right of advocates to appear and represent their clients.
Law Points
- Executive Magistrate must follow procedure under Chapter VIII CrPC
- Police officers acting as Special Executive Magistrates must not misuse power
- Proceedings under Section 107 CrPC require proper notice under Section 111
- Inquiry under Section 116 mandatory before passing order under Section 117
- Detention under Section 122 only after proper inquiry
- Right to counsel must be respected
- Misconduct by Magistrate is actionable
