S N HAZARIKA Vs. P SARMA BARUA

JUDGEMENT

(1.) The power to grant bail is judicial in nature, and because of this the Code of Criminal Procedure, 1973, herein after, the Central Act, has conferred the power of granting bail on the Judicial Magistrates. In this proceeding we are, however concerned with the power of Judicial Magistrate to deal with an accused who is produced for the first time in the Court. The Central Act has vested this power on the Judicial Magistrates. The Central Act, however, came to be amended by the Assam Ordinance No.3 of 1983 and in course of time by the Assam Act III of 1984, namely, the Code of Criminal Procedure (Assam Amendment) Act, 1983. This Act received the assent of the President in January, 1984. Section 3(1) of this Act reads as below: 3. Conferment of temporary powers on Executive Magistrates:- (1) Notwithstanding anything to the contrary contained in the Code, the Executive Magistrate may in addition to the Judicial Magistrates, exercise powers of remand under section 167 of the Code. xx xx xx (Emphasis supplied). The aforesaid statutory provision leaves nothing to doubt that the power of the Executive Magistrate was in addition to that which was exercised by the Judicial Magistrates. It however, seems that the Executive Magistrates of the State thought that they alone had the power to deal with the accused when be was tint produced in the Court and an unhappy situation developed in the State. This is apparent from two eases before us; one is from Dhubri and the other from Jorhat.

(2.) In the Dhubri case what had happened was that a bail petition was filed before the learned Chief Judicial Magistrate on 17.8.83 and he directed the Prosecuting Inspector to submit the case records. The Prosecuting Inspector reported back that he had been asked by the Additional District Magistrate not to send case records. The learned Chief Judicial Magistrate felt aggrieved and helpless at the non-production of the record and he also thought that the act had caused obstruction in the course of administration of justice. He, therefore, issued a show cause notice on the Prosecuting Inspector with the copy to the Additional District Magistrate (Executive). The Prosecuting Inspector duly submitted his reply stating that he might be excused for any emission or commission, which was completely due to inadvertence and was unintentional. The learned Additional District Magistrate took a different stand and he, in turn wrote that the action of the learned Chief Judicial Magistrate had undermined his status and authority and he asked the learned Chief Judicial Magistrate to show cause as to why the matter should not be referred to this Court. This led the learned Chief Judicial Magistrate to approach this Court to draw up a contempt proceeding against the Additional District Magistrate (Executive).

(3.) In the Jorhat case the then District Magistrate passed an order on 5.6.85 to the effect that the law then in force required that the first remand in respect of all accused persons involved in criminal cases on their production before the Executive Magistrate shall be within the jurisdiction of the Executive Magistrates only. As the learned District Magistrate had passed this order which further stated that the relevant police papers cannot be called for by any Judicial Magistrate for consideration of bail matters, a situation developed which did not permit Judicial Magistrates to take up bail petitions filed on behalf of the accused persons. The learned Chief Judicial Magistrate, Jorhat, therefore took up the matter with the learned District Judge who, in his turn, addressed a communication to this Court seeking clarification in the matter.