CJP leaders Saurav Das and Ashutosh Ranka will remain in judicial custody for at least two more days after a Special Executive Magistrate extended their detention. Their lawyers allege due process violations over the rejection of multiple sureties and plan to challenge the order, citing Supreme Court precedents on preventive detention.
CJP leaders Saurav Das and Ashutosh Ranka will now remain in judicial custody for at least two more days, as their custody has been extended by an order of the Special Executive Magistrate (SEM) Court in New Delhi on Monday.
The lawyers appearing for the CJP leaders have questioned this detention and said that the order will be challenged before the appropriate court.
The CJP has also claimed that the SEM refused to accept the persons who had appeared to act as sureties for the two CJP leaders, questioning the bona fides of the police action so far.
Lawyers appearing for the CJP told India Today that the order was a “clear violation of the law and precedents set by the Supreme Court regarding due process and sureties.”
The lawyers also claimed that the SEM had rejected eight different persons as sureties over the last four days.
The issue goes to the heart of the powers of the Executive Magistrate under Chapter 9 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which is similar to Chapter 8 of the Code of Criminal Procedure (CrPC). The latter lays down the procedure by which an Executive Magistrate can consider the issue of “keeping the peace” and impose a requirement for a surety to maintain peace.
Section 130 of the BNSS says: “When a Magistrate acting under section 126, section 127, section 128 or section 129, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force and the number of sureties, after considering the sufficiency and fitness of sureties.”
As far back as 1970, in the Madhu Limaye case, the Supreme Court had clarified that “The provisions of Chapter VIII of the Code are merely preventive in nature and are not to be used as a vehicle for punishment. Moreover, the object of furnishing security and/or executing a bond under Chapter VIII of the Code is not to augment the state exchequer but to avoid any possible breach of peace for maintaining public peace and tranquillity.”
The apex court had also observed that the Executive Magistrate, while passing the order for inquiry, must apply their mind and that the reasoning must be part of the order passed and given to the detainee.
“It may not repeat the information bodily but it must give proper notice of what has moved the Magistrate to take the action. This order is the foundation of the jurisdiction and the word 'substance' means the essence of the most important parts of the information,” the court noted.
Speaking to India Today, Senior Advocate Rebecca John called the current proceedings “unconscionable.”
“This is unconscionable. A police officer as the SEM has taken a decision. They have weaponised 106/151. They have kept people in jail for over five days, claiming that the sureties are not sound. I saw from the statement of Ratna Singh today that the SEM interacted with the sureties who went there today and has again said the sureties are not sound -- this is not what the court can do,” John said.
Several verdicts of the Supreme Court have also noted that a preliminary order under Section 111 of the CrPC -- which is pari materia to a Section 130 order under the BNSS -- is a “condition precedent for taking further steps; no final order in proceeding can be passed without giving an opportunity to such person to show cause.”
While Section 141 does give the Magistrate the power to order the arrest and detention of a person for breach of the bond, it requires the hearing and inquiry procedure to have been completed and a detailed order to be passed after recording the grounds for the “proof of any such breach of the bond”.
In the case of Das and Ranka, the October 14 order has not recorded any such proceedings but has passed directions for the detention of the two CJP leaders for “failing to submit surety.”
On Monday, a similar order regarding the rejection of the sureties was passed.
The CJP legal team has now said it would challenge this order before the appropriate court, though its members declined to comment on whether a plea for bail would be filed before the District Magistrate or a writ petition would be moved before the Delhi High Court.
- Ends