1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1407 OF 2008 Tejindersingh Manmohansingh Bindra. ..... ..... Petitioner. Versus Special Executive Magistrate, Shri S. M. Gunjal & Anr. ..... ..... Respondents. Mr. S. S. Kulkarni for the Petitioner. Mr. Ravi Kadam, Advocate General with Mrs. A. S. Pai, APP for the Respondents. CORAM : BILAL NAZKI and ANOOP V. MOHTA, JJ. DATED : 21ST JANUARY, 2009. P.C.: Heard learned Counsel for the petitioner as well as the learned Advocate General appearing for the respondents. 2. The main order challenged in this writ petition is an order purported to have been passed under Section 110(e) of the Criminal Procedure Code by the Executive Magistrate, who is respondent No.1. He is an Assistant Commissioner of Police and has been conferred with the powers of the Magistrate for the purpose of Chapter III proceedings under the Criminal Procedure Code. 3. The affidavit has been filed by respondent No.1. The order is clearly 2 abuse of the process of law and without jurisdiction. Without having recourse of any Sections other than Section 110 of the Criminal Procedure Code, respondent No.1, without even issuing show cause notice to the petitioner, referred to certain incidents in the report given to him by his own subordinates and also made reference to a case registered against the petitioner in the year 1999, passed an order which makes a very unfortunate reading. Although he terms this order as a show cause notice, but he issued a show cause notice to the petitioner to offer a chance to the petitioner to prove his good conduct and behaviour. He also asked the petitioner to show his valid source of livelihood. In following words, he asked the petitioner to give a bond of Rs.10,000/-: "....... hereby give you Show cause Notice that, enabling you to prove your good conduct and behaviour and to show your another valid source of livelihood why we should not take from you bond of Rs.10,000/- for a period of 1 year with 2 sureties.” Nowhere under Section 110 of the Criminal Procedure Code a person can be bound down for the reasons given by respondent No.1 and there was no use of issuing show cause notice when already the Magistrate had decided to bound down the petitioner with a bond of Rs.10,000/- with two sureties. In furnishing sureties of two persons also he restricted chance of the petitioner in the following words: 3 "Further, it is hereby mentioned that these two persons who will give surety they should be among of prestigious citizens and one person should of officer in the Regional Transport Division so that they would be able to keep control on you.” It appears that there was a dispute between the petitioner and Regional Transport Division and respondent No.1 wanted the petitioner to give a surety from an Officer from the Regional Transport Division, which he knew, would not be possible for the petitioner. 4. This order was passed in the presence of the petitioner when he was in the police station. No time was given to him even to produce a bond and surety and another order was passed by which he was taken into custody. It has been admitted in the counter affidavit by respondent No.1 that the petitioner remained in magisterial custody for three days, though for some of the period he was hospitalised, but in magisterial custody. This order has been passed only with a view to keep the petitioner in custody and satisfy the requirements of those who were against the petitioner. We are not sure whether the order was passed by the Magistrate because of the lack of knowledge of the law or for any ulterior motives. But the fact remains that because of this order the petitioner was put to harassment and illegal confinement. Most surprising aspect of this case is that this order passed by the Magistrate was challenged before the Sessions Judge, who without applying mind approved the absurd illegal order of the Magistrate. We do not 4 expect that the Sessions Judge would pass such an order as he does know the law as we can expect from the Police Officer. 5. Therefore, let respondent No.1 explain as to why the prosecution be not ordered against him for wrongfully confining the petitioner and the learned Sessions Judge shall also file an explanation as to how the order was passed by him without applying his mind to the facts of the case. However, before we pass any order for action, it will be in the fitness of things to hear their point of view. Both shall file their respective explanations in this case within two weeks from today. 6. However, the impugned order passed by the Magistrate and the Sessions Judge are quashed and set aside. 7. List this petition for further orders on 4th February, 2009. Sd/- (BILAL NAZKI, J.) Sd/- (ANOOP V. MOHTA, J.)