Supreme Court says, Police officer can’t act as executive magistrate

Recently, a petition challenging the arbitrary detention powers exercised by an executive magistrate under Chapter VII of Code of Criminal Procedure, 1973 was filed in the Supreme Court. The petition also challenged sections 107, 111 and 116 where the executive magistrate arbitrarily rejects bonds given by persons, involved in cases relating to public tranquillity or breach of peace, promising to keep the peace.

The petition filed by Aldanish Rein referred to an instance from Delhi where an executive magistrate refused to accept the bond given by a person in a case relating to public breach of peace was sent in judicial custody. The petitioner contends that the rejection of bond in such cases violate the right to life under Article 21 of Constitution of India as people are sent behind the bars without any remedy.

The bench headed by Chief Justice Dipak Misra hearing the petition said: “Can police officers act as an executive magistrate? Certainly not.”

Additional solicitor general Maninder Singh appointed amicus curiae submitted a detailed study on this subject and said the provisions under Chapter VII of Code of Criminal Procedure were in the form of promoting ‘preventive justice’. However, he also explained that before detaining a person under such offences, the executive magistrate must record a concrete reason based on information collected.

The amicus curiae emphasized and said, “But, in most instances, the exercise of detention power is arbitrary by the acting executive magistrate.”

Additional solicitor general Maninder Singh in his study also submitted that High Court’s have also discouraged the demeanor in which police officers act as executive magistrates. He also pointed out that most of these police officers have had no training of how to conduct judicial proceedings. The High Courts have recommended for imparting training to such executive magistrates.


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