SACHAR ( 1 ) THE proceeding in this case were initiatedon receipt of an application from jail pointing out-that a largenumber of persons are unjustiflably arrested by the Policeapparently under Section 107 Criminal Procedure Code without complying withthe provisions of law and that they are kept in jail without beingoffered the facility of being released on bail. It was also statedthat none of these persons were supplied the reasons for whichapparently the proceedings were being taken against them. Wethen issued notice to the Delhi Administration. ( 2 ) IN the reply filed the stand taken was that the procedurelaid down under Section 111 and 114 Criminal Procedure Code was being followed. It was denied that any arrest was being made by procedure other than that permitted by law. ( 3 ) A further affidavit was filed by the applicant dated 2 5/11/1983 in which another objection was taken that theprisoners who are committed to jail custody under Section 114cr. PC are not supplied the reasons and the warrants whichaccompanied them are in blank form which is theviolation of the statute. Further affidavit were filed by persons who were in jail taking the stand that they were not guiltyand that they have been wrongly picked up by the police andremanded to judicial custody, that they do not have knowledgeof the bail order having been passed in their favour and in anycase could not have furnished bail because they have no resources nor any friends who could do so. We, therefore, directedby order dated 6/02/1984 to have the full record andtiles of some of the cases which have been mentioned in theapplication C. M. 2119183 filed by the petitioner. Some of thesefiles were produced on the next date. It was found hat someof the cases by them had been discharged. In that view thecourt did not see any useful purpose being served by going intothose matters and that is why we directed on 5/04/1984that the file of the case of Balbir Singh to be produced. We hadalso directed a further affidavit to be filed by the respondent. explaining the procedure followed by it in such like cases. Afurther affidavit dated 13-9-84 Has been filed by Krishan Gopal,assistant Commissioner of Police/ Special Executive Magistratewho was dealing with the said case. The records shows that Balbir Singh was proceeded against and arrested under Section. We hadalso directed a further affidavit to be filed by the respondent. explaining the procedure followed by it in such like cases. Afurther affidavit dated 13-9-84 Has been filed by Krishan Gopal,assistant Commissioner of Police/ Special Executive Magistratewho was dealing with the said case. The records shows that Balbir Singh was proceeded against and arrested under Section. 1071151 on 9/10/1983 at 7-15 P. M. He was producedbefore the Special Executive Magistrate, Haus Khas on 10thoctober, 1983 when a notice under Section 111 Criminal Procedure Code wasserved on him and he was also ordered to furnish a securitybond for his appearance as well as to keep peace till the conclusion of enquiry under Section 116 (3) Criminal Procedure Code. He remainedin judicial custody till 16/11/1983 when he was released on security being furnished. It may be noted that thoughbaibir was present on 27-12-1983, he was absent on, all thenext dates. As a matter of fact even bailable and non-bailablewarrant were issued for his presence ultimately he was discharged in his absence on 9-5-1984, as proceedings had become time barred under Section 116 (6) Criminal Procedure Code. ( 4 ) SECTION 107 Criminal Procedure Code empowers the Executive Magistrateto require a person to show cause for keeping peace for suchperiod not exceeding one year as the Magistrate thinks lit. Section 111 requires such a Magistrate that when he requires anyperson to show cause he shall make an order in writing stating forthwith the statement of information received, the amountof bond to beexecuted, the term for which it is to be enforcedand the number and the class of sureties. If the person io respect of whom such an order is made is present it shall be readover to him. If such a person is not present the Magistrateshall issue a summon requiring him to appear vide Section 113cr. PC. If the person io respect of whom such an order is made is present it shall be readover to him. If such a person is not present the Magistrateshall issue a summon requiring him to appear vide Section 113cr. PC. Every summon or warrant issued under Section 113shall be accompanied by a copy of the order made under Section 111 and such copy shall bs delivered by the officer requiring or executing such summons cr warrants to the personserved with or arrested under the same vide Section 114, Section 116 (3) empowers the Magistrate if he considers that immediate measures are necessary for the prevention of breach ofpeace that he may for reasons to be recorded in writing directthe person in respect of whom the order under Section 1 hasbeen made to execute a bond for keeping peace until the nonconclusion of the equity and may detain him in custody untilsuch bond is executed. ( 5 ) IT will be seen that Legislature has provided a fairlydetailed reasonable mode to see that the liberty of a citizen isnot unnecessarily or unduly curtailed. Procedurally the Codedees provide for the protection of a citizeu by requiring thereasons for proceeding against him to be supplied to him undersection 111 read with Section 114 Criminal Procedure Code and also for reasonsto be recorded by the Magistrate if he requires the person toexecute a bond in terms of Section 116 (3 ). The unfortunate aspect however, is that most of the time the procedure which isprovided in the Code is observed more in the breach. Also unfortunately quote sometime the power under Section 107 are invoked quite rashly thus causing great deal of avoidable suffering. The- Executive Magistrates are also police officers and bytheir very nature and training find it difficult to demarcatetheir dual functions as the custodians of law and order and asa protector of the human liberty. That executive and judicialfunctions should be merged in one functionary is a sad commentary 34 years after the Constitution came into force considering that Article 50 In the Chapter of Directive Principles ofthe Constitution has directed that the State shall take steps toseparate judiciary from the executive in the public services ofthe State. That executive and judicialfunctions should be merged in one functionary is a sad commentary 34 years after the Constitution came into force considering that Article 50 In the Chapter of Directive Principles ofthe Constitution has directed that the State shall take steps toseparate judiciary from the executive in the public services ofthe State. ( 6 ) UNFORTUNATELY, however, the responsibility for vestingthe powers under Section 107 exclusively in the Executivemagistrate is to be laid at the doors of the Law Commissionwhich in its 41st Report published in 1969 recommended thatthe functions in this section should be assigned to the Executive Magistrate and that it is not necessary to invest the Judicial Magistrates with the concurrent powers. How one littlegate-way which destroys the concept of separation of executiveand judiciary can result in wider power being snatched by theexecutive is clear from the history of legislation of Sections108 to 110 of the Criminal Procedure Code. In that very report (41st) the Law Commission had noted that as power undersections 108 to 110 affects the liberty of the person againstwhom the proceedings are instituted, it is desirable to vestthose powers exclusively in judicial magistrates. The Law Commission also did not think that the powers under these sectionsneed be vested concurrently in both the judicial and executive magistrates although this was the position in some Statesat present. According to the Law Commission under a statutory scheme of separation, such a system is likely to create confusion and even otherwise has nothing to commend it. Thelaw Commission, however, did not realise that having providedan opening that the proceedings under Section 107 which alsodeal with liberty of citizens, may vest in the Executive Magistrates, this argument had lost its punch. Though in the unamended Code of Criminal Procedure 1973 Sections 108 to110 require proceedings to be taken before a judicial magistrate of the first class the said part was amended by Act No. 63180 by substituting the word "executive Magistrate" for a"judicial Magistrate". It is indeed ironical that though the legislature may seek to justify the provision of a "executive Magistrate" in Section 107 by seeking aid from the report of thelaw Commission, yet at the same time it should have overturned it when amending the Code in 1980 and thus actingagainst the specific recommendation of theLaw Commissionwith regard to Sections 108 to 110 Criminal Procedure Code. The position indelhi, however, is even worse. The position indelhi, however, is even worse. In the other States where theoffice of Police Commissioner does not exist, the exercise ofpower under Section 107 is atleast exercised by the Executivemagistrate who belong to administrative service and is notconcerned with day to day maintenance of law and order, andmay therefore, make an attempt to bring an objective approach tothe problem. But in Delhi we are governed by the Delhipolice Act, 1978 which is in force since 1-7-78. Section 70 ofthe said Act authorises the Central Government to empowerthe Commissioner or any other subordinate to the Commissioner of Police not below the rank of an Assistant Commissioner of Police to exercise and perform in relation to Sucharea in Delhi as may be specified in the notification, thepowers and duties of an Executive Magistrate under such ofthe provisions of the said code us may be specified in thenotification. . In exercise of the said powers the Government of india issued a notification No. SO 422 published in thegazette of India, Extraordinary Part II, dated 20-11-1978 empowering every Additional Commissioner of Police, Depurty Commissioner of Police, Additional Deputy Commissioner of Policeand Assistant Commissioner of Police to exercise and perform inrelation to all area in the Union Territory of Delhi the powersand duties of an executive magistrate under Sections 107, 111. 113. 115, 116, 117, 118 and 121. Thus in Delhi the capital ofrepublic of India procedings which have serious repurcussions concerning the liberties of the citizens of India are tobe controlled by police officers exercising the powers of executive magistrates. A more serious in-road on the concept ofseparation of powers between instrumentalities States, namelythe judiciary and executive is hard to imagine thouah unfortunately the ancestry for then situation may be traced back topeculiar recommendation of law commision report. But whatever the source, the seriousness of the situation is not lessned. Need one be surprised at the consequences which must inevitably flow from such a retrogressive step. ( 7 ) THE record of Balbir Singh which has been producedwas commented upon by the applicant and the counsel Mrs. Kumar who at our request was appearing amicus curie to havebeen tailored since the last time the file was produced. We donot feel the necessity to go into this aspect especially now thathe has since been discharged though we must comment thatthe papers produced as they do not produce a happyimpression on our mind. Kumar who at our request was appearing amicus curie to havebeen tailored since the last time the file was produced. We donot feel the necessity to go into this aspect especially now thathe has since been discharged though we must comment thatthe papers produced as they do not produce a happyimpression on our mind. Apparently, the notice under Sections 107 and 111 does give the detail of a quarrel by the saidbalbir as the reason for proceeding against him. This order isdated 10/10/1983 and is allegedly served on Balbiron the same day when he was stated to be in custody ofthe police. It appears that most of the time resort isalso simultaneously made to Section 151 Criminal Procedure Code. whichempowers the police officer to arrest a person withoutwarrant if it apears to such officer that such pesronhas a design to commit any cognizable offence. Apparentlythe police arrest a person under Section 151 Criminal Procedure Code then toproduce him before the Magistrate who on the said reportpurports to give him a notice under Section 111 and also atthe same time calls upon him to execute a bond under Section 116 (3 ). The file of Balbir Singh shows that on that datei. e. 10/10/1983 he was asked whether he had receivedthe order under Section 111 and whether he has understoodthe order and to both of them the answer is yes. The pecularity and the surprising feature of this record is that the wholeperforma is cyclostyled. Even the answers whether the noticeunder Section 111 has been served on him is already cyclostyled with only one answer namely yes . It is rather curiousbecause this would seem to show that the cyclostyled formshave already put the answers of the persons arrested as yes . This does show the unsatisfactory manner in which the proceedings are taking place. One could understand a cyclostyledform containing questions, especially as possibly a number ofpersons may have to be examined. But then proceedingsmust show that the Executive Magistrate has applied his mind. There should alteast be a column containing answers bothyes and no because it is the answers of persons which hasto be put there and it cannot always be assumed that the answer is yes in all the cases as seems to be the practice as indicated in the cyclostyled form. There should alteast be a column containing answers bothyes and no because it is the answers of persons which hasto be put there and it cannot always be assumed that the answer is yes in all the cases as seems to be the practice as indicated in the cyclostyled form. Moreover, the form is in English and the person arrested Balbir Singh apparently wastotally illiterate because his thumb impression is there meaningthat he could not ever write any of the Indian languages. Thequestions posed by the applicant cannot be brushed aside a,to what kind of a proper procedure was being followed by theexecutive Magistrate when disposing of the matter like this. We then have on the record the statement allegedly made bythe police officer as So how and why he arrested Balbir Singhand a notoing that opportunity for cross examination was givenbut none was aviled of. This gain is a strange phenomennon. A person brought in police custody could not have been ina position to engage a counsel. And to expect him to cross. examine himself would be to make a mockery of his rights tohave a fair trial. The record also discloses that proceedingsare initiated without any seriousness it appears the purpose isto arrest on a particular day. the immediate purpose havingbeen served the case is forgotten and in the course of time boththe police and the Magistrate loss sight of him and ultimately, as is clear from the record of this ease the proceedingsare terminated without any proceedings having taken place. One can well imagine the harassment and the inconvenienceand the loss of liberty that is occasioned to the person concerned. This aspect needs to be looked into seriously. Butthen all this aspect is related to there being no separation ofexecutive and judicial functions. In our view, it is necessarythat when the person is produced before the Magistrate beshould be supplied thereasons why the Magistrate wants a"bond to be executed. Tn our view it is also absolutely necessary that when a person is sent to jail on his inability to paythe surety, the warrant that is sent must be accompanied by acopy of the order made under Section 111. The Superintendent of Jail should sec to it that when any warrant is receivedit must contain the reasons as required by Section 111 Cr. PC as is the requirement of Section 114 Cr PC. The Superintendent of Jail should sec to it that when any warrant is receivedit must contain the reasons as required by Section 111 Cr. PC as is the requirement of Section 114 Cr PC. The Superintendent of Jail and his staff should satisfy themselves that thisrequirement is satisfied because if it is not then it is a mootquestion whether such a custody would be legal at all. Weneed not in these proceedings go any further because as altthe applicants who had applied and whose names had beengiven are no longer now being proceeded against and therefore, no directions are necessary. But we are very anxious, tosee that the various lacunae and procedural violations must stopat once. We hope immediate appropriate steps will be takenby the appropriate authorities. Let A copy of this order besent to the Delhi Administration and to the Commissioner ofpolice, Delhi so that proper directions and remedial measuresare taken by the authorities concerned at the earliest. ( 8 ) THE District Judge, Delhi as a part of his nurmal funetions, is expected to. . tihar jail regularly. We hope that inhis normal visits to Jail he would keep in his view the observations made in the judgement and see that the violation oflaw and statute are not permitted to continue. A copy of thisjudgement should also be sent to him. ( 9 ) WE also give our thanks to Mrs. Kumar who appearedas amicus curiae to assist the court. With these observations the petition is disposed of.