“India should never become a police State,” Justice P.N. Prakash of the Madras High Court has said and disagreed with powers conferred by the State government on police officers to imprison those who breach bonds executed under Section 117 of the Code of Criminal Procedure (Cr.P.C.) to keep peace and maintain good behaviour.
The judge held that two Government Orders (GOs) issued in 2013 and 2014 authorising Deputy Commissioners of Police across the State to perform the functions of an Executive Magistrate under the Cr.P.C., were illegal since they were directly in violation of Section 6 of the District Police Act enacted during the colonial rule in 1859.
Pointing out that even the British Raj had made confessions made to the police as irrelevant and inadmissible, save only for proving the discovery of a fact, and that the Colonial rulers were against conferring judicial powers on the police, the judge said: “What the Raj loathed to do, the Indian State now does with the least compunction.”
Justice Prakash stated that the police could not be heard to say that it would become impossible to maintain law order in the State without it being given the power to obtain bonds of good behaviour from habitual offenders and to send them to prison in case of a breach. “Rule of law cannot be sacrificed at the altar of expediency,” he observed.
He said Tamil Nadu was by and large a peaceful State compared to others and it could be inferred from data published by National Crime Records Bureau. The reasons for it was the people of the State were inherently peaceful and law abiding and that we have an efficient police machinery which handled law and order effectively even during a pandemic.
The judge went on to state: “Public cooperation is essential for effective policing. If the police resort to sharp practices, they will get alienated from the citizens. Now, at least, the fruit vendor and street hawker and the likes of them are obliging the police by offering to stand as seizure witnesses in criminal cases.
“The police will lose them too because Section 122(1)(b) Cr.P.C. (which provides for imprisonment for breach of bond to maintain peace and good behaviour) is mostly clamped on the marginalized and not on the mainstream gang lords. 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. To quote Abraham Lincoln, you can fool all the people some of the time and some of the people all the time, but you cannot fool all the people all the time. There are umpteen means to maintain law and order within the framework of the law.”
The judge also suggested that the State government could follow the detailed guidelines issued by the Supreme Court in the famous Prakash Singh’s case in 2006. He impressed upon the need to repeal all the colonial police laws in vogue and replace them with new enactments aimed at making the State police force thoroughly professional and independent.
The State could appoint competent and apolitical persons as prosecutors in courts instead of doling out such assignments as political patronage. If the State was of the view that bails were being granted by the courts liberally to notorious criminals, prosecutors could be directed to file their counter in each case and take those bail orders on appeal.
“The police can also inform the victims in criminal cases about the bail application hearings so that they can intervene and articulate their sufferings better. The recent amendment to the Cr.P.C., recognises the rights of victims of a crime,” the judge added. He also referred his decision to a Division Bench for an authoritative pronouncement.
