ASHOK KUMAR Vs. STATE OF H.P.

JUDGEMENT

(1.) Pursuant to the order dated 20th April, 2005, a fresh affidavit has been filed by Respondent No. 2 which is affirmed on 6th May, 2005. In this affidavit Respondent No. 2 has stated that the impugned order dated 15th February, 2005 was passed by him without any mala fide intention. It has also been stated in this affidavit that if this Court comes to the conclusion that the impugned order dated 15th February, 2005 is bad in the eyes of law, Respondent No. 2 is tendering unconditional apology with an undertaking that in future he would be more careful while exercising the powers vesting in him under law.

(2.) Mr. Rajiv Sharma, learned Senior Counsel appearing for Respondent No. 2 has taken me through various Sections forming part of Chapter VIII of the Code of Criminal Procedure and has very fairly and frankly submitted that indeed Respondent No. 2 did not have any power to order the judicial custody of the Petitioner as he has done vide the aforesaid impugned order. The entire Scheme of Chapter VIII of the Code of Criminal Procedure indeed revolves around the jurisdiction and power of an Executive Magistrate (which Respondent No. 2 undoubtedly is) requiring a person covered by various Sections in Chapter VIII, including Section 107, to show cause why he should not be ordered to execute a bond and ultimately to pass an order (Section 117) to in fact execute the bond. The entire Scheme of Chapter VIII and all other related provisions else where in the Code only prescribe the manner in which such an order requiring such a person to execute the bond has to be passed. None of these provisions clothes an Executive Magistrate with a power or jurisdiction to order that the person against whom such an order is required to be passed can be sent to judicial custody by the said Executive Magistrate. Undoubtedly such a power does not vest in the Executive Magistrate while exercising his jurisdiction under Chapter VIII of the Code. The order dated 15th February, 2005, therefore, was wholly without jurisdiction and is hereby thus declared to be bad in law.

(3.) This case first came up for consideration in this Court on 22nd February, 2005. First reply on behalf of the Respondents was filed on 9th March, 2005 which was supported by the affidavit of Respondent No. 2 affirmed on 3rd March, 2005. Along with this reply, number of documents were filed by the Respondents with a view to informing this Court about the nature of allegations against the Petitioner and as to how, why and under what circumstances was the Petitioner detained and as to why and how were proceedings against the Petitioner under Section 107 of the Code of Criminal Procedure lodged. Thereafter Respondent No. 2 in compliance with the order passed by this Court on 30th March, 2005 filed his individual, separate affidavit on 8th April, 2005. The third affidavit of Respondent No. 2 was filed on 7th May, 2005 which was affirmed on 6th May, 2005, notice whereof has been taken in the opening part of this judgment. I am referring to the aforesaid three separate replies successively filed by the Respondents to show that perhaps the passing of the impugned order dated 15th February, 2005 by Respondent No. 2 was not actuated with any mala fide intention. Apparently, even though the order dated 15th February, 2005 was wholly without jurisdiction, and has been declared now to be bad in law by me, Respondent No. 2 seems to have been moved and influenced into passing of the aforesaid order because he genuinely and bona fide believed that the activities of the Petitioner were such that the interests of the State had to be protected. I, therefore, have no hesitation in holding that Respondent No. 2 did not act with any mala fide intention. The passing of the impugned order dated 15th February, 2005 by Respondent No. 2 may have, in all probabilities, been based on his misunderstanding and/or mis-interpretation of the legal provisions, but it cannot be said that this order was passed by him with any malicious or mala fide or extraneous considerations or intentions.