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by sayum
04 February 2026 9:30 AM
“Chapter proceedings under Section 107 are preventive, not punitive – Executive Magistrate had no authority to remand the petitioner to custody; detention without legal sanction amounts to a direct assault on personal liberty.” , In a scathing indictment of the misuse of preventive detention powers, the Bombay High Court on November 20, 2025, ruled that the seven-day judicial custody of a man under Chapter VIII proceedings of the Code of Criminal Procedure (CrPC) was entirely illegal, amounted to a flagrant violation of Article 21, and mandated constitutional compensation. The Division Bench comprising Justice Vaishali Patil–Jadhav and Justice Nitin B. Suryawanshi held that an Executive Magistrate cannot remand a person to custody under Section 107 CrPC, and that such misuse of authority invites personal liability.
Allowing Criminal Writ Petition, the Court directed the State of Maharashtra to pay ₹1,00,000 as compensation for the petitioner’s illegal detention and gave the State liberty to recover the same from the erring Tahsildar, who was functioning as Executive Magistrate. The Court decisively held that the protection under Section 3 of the Judges (Protection) Act, 1985 was not available as the act in question was executive, not judicial or quasi-judicial.
“An Executive Act Disguised as a Judicial One Cannot Enjoy Statutory Immunity”: Court Rejects Magistrate’s Claim of Protection Under Judges (Protection) Act
“The remand order was not only without jurisdiction—it was an unconstitutional deprivation of liberty. Such executive excess cannot be shielded under the pretext of judicial protection.”
The case arose after the petitioner was illegally detained from 25.05.2021 to 31.05.2021 by an order passed by the Tahsildar-cum-Executive Magistrate in a proceeding under Section 107 CrPC, which deals with preventive action against breach of peace. The Magistrate ordered Magisterial Custody Remand (MCR) without issuing a show cause notice, without directing execution of bond with or without surety, and without following the statutory procedure under Sections 111 and 116 of the CrPC.
The Court was categorical in holding that:
“An Executive Magistrate exercising powers under Section 107 CrPC performs an administrative function, not a judicial or quasi-judicial one. The Judges (Protection) Act does not immunize such executive acts carried out without jurisdiction.”
Quoting extensively from Gulam Abbas v. State of Uttar Pradesh and Madhu Limaye v. SDM Monghyr, the Court observed that the 1973 CrPC draws a clear line between judicial and executive functions, and the power under Section 107 CrPC belongs squarely to the executive domain.
“Preventive Jurisdiction Cannot Be Misused to Punish Citizens”: Court Holds Arrest Without Statutory Compliance as a Breach of Article 21
The petitioner, a farmer who had objected to effluent discharge from a sugar factory into his fields, had previously been booked in two NCRs under Sections 504, 506, and 507 IPC. Acting on these, police submitted a Chapter Case Report under Section 107 CrPC, which resulted in the petitioner being remanded to custody by the Executive Magistrate.
Rejecting the justification offered by the Magistrate for the remand, the High Court stated:
“The entire proceeding lacked the foundational elements required under Section 107—no notice, no bond, no enquiry. The remand order was passed in clear breach of statutory safeguards and was wholly without jurisdiction.”
The Bench referred to the judgment in Rajesh Suryabhan Nayak v. State of Maharashtra, where it was earlier held that detention for failure to furnish interim bond in Section 107 proceedings is unlawful, and any such action invites constitutional compensation.
In this case, the Court noted with concern:
“The petitioner’s liberty was curtailed not through legal process but through executive fiat. This was a direct violation of Article 21—the right to life and personal liberty—enshrined as a cornerstone of constitutional governance.”
“State Must Compensate for Constitutional Wrongs, and Recover From the Offender”: Compensation Ordered for Violation of Fundamental Right
While recognizing that the Executive Magistrate may not have acted with malice, the Court underscored that intention is irrelevant when constitutional rights are breached. The focus, it held, must be on the consequence of the unlawful action, not the mindset behind it.
Invoking the constitutional remedy under Article 226, the Court declared:
“Compensation is not a matter of grace—it is a public law remedy for enforcing fundamental rights. When illegal detention results from executive excess, monetary recompense must follow, even absent malice.”
The final operative order reads:
“Power Must Bow to the Constitution”: High Court Cautions Against Routine Abuse of Preventive Detention Powers
This judgment adds to a growing jurisprudence where courts are confronting the routine misuse of Chapter VIII proceedings under CrPC to effect arbitrary detentions. The High Court cautioned against the systemic practice of Executive Magistrates exceeding their limited preventive role, observing:
“Chapter proceedings under Section 107 are not penal mechanisms. They are meant to preserve public peace, not to punish individuals or incarcerate them unlawfully.”
By holding the State accountable and opening the door for personal liability of officers, the Court sent a strong signal that constitutional rights cannot be curtailed by procedural shortcuts or administrative overreach.
The Bombay High Court’s judgment is a vital affirmation of the fundamental right to personal liberty under Article 21. By declaring that executive overreach under preventive jurisdiction invites constitutional consequences, and by ordering compensation along with personal accountability, the Court emphasized that no authority is above the Constitution.
The judgment not only secures justice for the petitioner but also lays down clear boundaries for the exercise of preventive powers, ensuring that detention cannot occur outside the strict framework of law.
Date of Decision: November 20, 2025
