Don’t make prohibition law amendment matter of ego: SC to Bihar govt | Latest News India - Hindustan Times
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Don’t make prohibition law amendment matter of ego: SC to Bihar govt

Jan 24, 2023 01:16 AM IST

The SC observed that it “prima facie” agrees with the Patna high court’s view that the state cannot authorise executive magistrates to pass orders of custody and jail term, on par with a judicial magistrate.

The Supreme Court on Monday questioned the Bihar government’s amendment to prohibition law by clothing executive magistrates with judicial powers, saying it will be inclined to grant bail to all accused if the state insists making the required changes in the law a “matter of ego”.

SC bench pointed that an amendment in the 2022 Act clearly empowers an executive magistrate to send a person to jail for one month over a failure to cough up the penalty (Sanjay Sharma)
SC bench pointed that an amendment in the 2022 Act clearly empowers an executive magistrate to send a person to jail for one month over a failure to cough up the penalty (Sanjay Sharma)

A bench headed by justice Sanjay Kishan Kaul observed that it “prima facie” agrees with the Patna high court’s view that the state cannot authorise executive magistrates to pass orders of custody and jail term, on par with a judicial magistrate.

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A judicial magistrate is appointed under the supervision of a high court and is empowered to order custody and imprisonment. An executive magistrate is appointed by a state government and does not enjoy judicial powers.

“You are giving the power of sentencing to an executive magistrate...Remove that power. We have grave reservation against giving this power to an executive magistrate. Why can’t you amend the law? Is this an ego issue?” the bench, which also included justice AS Oka, asked senior counsel Ranjit Kumar.

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Kumar, representing the Bihar government, tried to convince the bench that the 2022 amendments in the Bihar Prohibition and Excise (Amendment) Act has sought to create a distinction between cases of imposition of fines and those where a person will be sentenced to a jail term.

But the bench pointed that an amendment in the 2022 Act clearly empowers an executive magistrate to send a person to jail for one month over a failure to cough up the penalty. “The section says that an executive magistrate shall exercise the powers of judicial magistrate second class. This will have ramifications. The high court thinks this provision will have to be amended in the Act. The scheme of the existing law is that whosoever is adjudicating, he has the power to send someone to jail for up to four years,” it added.

After Kumar said he would have to seek instructions whether the state government was willing to consider amending the law, the bench retorted that it is open to pass an appropriate order if the state is reluctant. “If you don’t want to pass amendment, we will pass orders. We will say everyone will get bail,” it added.

Advocate Gaurav Agrawal, who assisted the court as amicus curiae, said the state government should amend the impugned provision.

During the hearing of a case relating to a bail in a prohibition case, the bench also expressed its displeasure at the lack of infrastructure to deal with the deluge of litigation that has followed the law’s enactment in 2016.

“What steps did you take since 2016 to ensure the consequences of the new law can be managed well? Seven years hence and you are still looking at identification of the land, etc., for creation of special courts. Why should we not say everyone should get bail? Why should the court be burdened with all this when you aren’t ready to create infrastructure. If the implementation of the law is so important, you vacate your government buildings and provide them space,” the bench said.

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Kumar said that the special courts created to try prohibition cases are functional from other premises and the state government is trying to speed up construction of permanent buildings for these courts. More than one lakh cases have been decided in the last 10 months and the state has created facilities of separate detention centres for those caught violating the prohibition law so that they do not stay in regular jails with hardened criminals, he said.

The court gave the state government a week to obtain requisite instructions regarding the possibility of an amendment. “Otherwise, we will examine the aspect and pass necessary orders,” recorded the court order.

Faced with a torrent of bail petitions arising out of the Bihar Prohibition and Excise Act, the top court had last year embarked on taking stock of the judicial infrastructure in the state.

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