Observing that India should never become a police state, Justice PN Prakash of the Madras High Court has questioned the validity of deeming Deputy Commissioners (DC) of Police as Executive Magistrate, which gives them judicial jailing power, and whether such “power of the khaki-clad officers to wear the cloak of an Executive Magistrate to exercise judicial powers for incarcerating ordinary citizens”, was valid. 

Pointing out that the proceedings under Sections 107 to 110 of the Criminal Procedure Code (CrPC) were judicial and the bar under the proviso to Section 6 of the District Police Act, 1859, disentitled police officials from exercising judicial powers, Justice Prakash sought Chief Justice AP Sahi to constitute a bench for an authoritative pronouncement on the section that provides police with judicial powers while dealing with breach of a good behaviour bond by convicts. 

Criticising the State government for passing GOs in 2013 appointing all DCs as Executive Magistrates, Justice Prakash said, “Tomorrow, it could be the Assistant Commissioners, inspectors, et al. That this has been done in blissful ignorance of the provisions of Section 6 of the District Police Act, 1859, only compounds the error.” 

Justice Prakash made the reference while setting aside the detention order passed by a DC against a woman history-sheeter for defying the good behaviour bond she had executed. 

“If a good behaviour bond is included in Section 122(1)(b) CrPC, there is every likelihood of the person being imprisoned twice – one for breach of the bond and the other for the commission or the attempt to commit the substantive offence. 

“Supposing such a person is imprisoned for the breach of bond, but is acquitted for the criminal act which gave rise to the breach of bond, the imprisonment suffered by him cannot be compensated. That is why the Legislature had thought it fit to mulct a person who commits a breach of good behaviour bond only with civil liability,” he noted. Noting that Section 122(1)(b) was mostly used against the marginalised, the judge said the police would lose public cooperation if they keep resorting to this section. 

“Going to prison for the first time alone will be a matter of shame and thereafter, a matter of pride. As our society metamorphoses into a middle class one, which is inevitable, anachronistic methods will be frowned upon by the public.” 

There were several other ways to improve the maintenance of law and order, including enacting new Police Acts, separating crime investigation wing from Law and Order wing, appointing competent, apolitical persons as prosecutors instead of doling them out as political patronage, he said.