1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.632 OF 2009 Manohar Jaya Shetty .. Petitioner V/s The State of Maharashtra & Anr.. Mr.R.G.Sharma for the petitioner. Mr.D.P.Adsule, APP for the State. CORAM : P.B.MAJMUDAR & R.G.KETKAR, JJ. DATE : 24TH FEBRUARY, 2010 P.C. : 1. By way of this petition, the petitioner has prayed for a writ, order or direction, directing the State Government to invest Judicial Magistrates’ powers to exercise the functions of the Executive Magistrates in accordance with Chapter VIII of the Code of Criminal Procedure. 2. The petitioner filed this petition being aggrieved by institution of proceedings under Chapter VIII of the Cr.P.C. (Chapter proceedings) vide Show Cause Notice dated 20th August, 2008 issued by Respondent No.2 – the Assistant Commissioner of Police, Gamdevi Division, in his capacity as a Special Executive Magistrate, culminating with the direction to execute a Bond of Rs.25,000/- with one surety of the like nature and binding the petitioner for maintaining peace. 3. This petition is resisted by the State and the affidavit in reply is filed by Mr.Arun Narahari Naiknaware, Joint Secretary to the Government of Maharashtra, Home Department. Alongwith the reply, the Judgment of the Division Bench of this Court dated 7th June, 2006 is annexed, which 2 is delivered in Criminal Writ Petition No.428 of 2002 and Criminal Writ Petition 293 of 2003. Affidavit filed by Mr.R.S.Negi, Principal Secretary (Special) to the Government of Maharashtra, Home Department in Criminal Writ Petition No.428 of 2002 is also annexed. In paragraph Nos.1 and 2 of the said affidavit, Mr.R.S.Negi, Principal Secretary has stated as under:- 1. I say and submit that I have perused the petition and also “ the order dated 2.12.2002 passed by this Hon ble Court. I am filing ’ this affidavit pursuant to the directions given by this Hon ble ’ Court. I say that the Commissioner of Police, Nagpur has already filed an affidavit in this matter and crave leave to refer to rely upon the same. I say that this Hon ble Court in Criminal Writ ’ Petition No.312/99 had made observation about exercise of powers by the Executive Magistrate and the Special Executive Magistrate under Chapter-VIII of the Code of Criminal Procedure and suggested that these powers be made over to Judicial Magistrate First Class or Metropolitan Magistrate by resorting to section 478 of the Code of Criminal Procedure. I say that the judgment and order of this Hon ble Court in Criminal Writ Petition No.312/99 ’ was considered by the State Government. I say that Government is however of the opinion that considering the present scenario and the law and order situation, it may not be advisable to revert back to pre-1980 position and entrust these powers to Judicial Magistrate. I say that on behalf of the State Government an affidavit was filed in Criminal Writ Petition No.173/2002 by which the aforesaid stand of the State Government was brought to the notice of this Hon ble Court. It was stated in the affidavit filed on ’ 9.8.2002 by Shri.R.D.Shinde, Deputy Secretary, Home Department that in the opinion of the State Government it is not necessary to withdraw the functions allotted to Executive Magistrates relating to security for keeping peace and for good behaviour as provided under Chapter VIII and maintenance of public order and tranquility provided under Chapter X of the Code of Criminal Procedure. I crave leave to refer to and rely upon the said affidavit dt.9.8.2002. A copy of the affidavit is annexed and marked as Annexure R-1. 2. I say that the proceedings in the present case was initiated under Section 107 of the Cr.P.C. The object of this section is prevention and not punishment of offence. It is not intended to 3 punish persons for anything that they have done in the past, but to prevent them from doing in future something that might occasion breach of peace. This provision is a measure for the protection of the society and it is, therefore, necessary to take immediate steps with a view to maintain law and order and keeping the peace in the society. It is therefore, necessary to keep the powers with the Executive or Special Executive Magistrate.” 4. The Division Bench of this Court in its judgment dated 7th June 2006 passed in the Criminal Writ Petition Nos.428/2002 & 293/2003 has considered the affidavit filed by the Commissioner of Police dated 22nd March, 2006 stating that the office of the Special Executive Magistrate and Executive Magistrate functioned till late hours in night, and it was noted in the said affidavit that the said officer would function in accordance with the guidelines issued by the Government of Maharashtra vide Circular dated 28th April, 2003 and those instructions have been issued to all the ACPs vide Circular dated 20th March, 2006 to conduct and hold their Courts only during working hours and further to take prior permission from concerned Zonal Deputy Commissioner of Police if there is any urgent case to be dealt with after working hours. The Division Bench of this Court in the aforesaid petitions accepted the said affidavit as undertaking. 5. In view of the aforesaid aspects, we do not find substance in this writ petition. Writ petition is accordingly rejected. (R.G.KETKAR, J.) (P.B.MAJMUDAR, J.)