K. RAMASWAMY, J.

( 1 ) THIS writ petition raises a question of considerable constitutional importance, viz, whether the "handmaid" of law and order could be an adjudicator as well? If it is answered in favour of the executive, it portends to sow poisonous seeds to rock off the edifice of the rule of law to its bottom chilling the public confidence in its efficacy. An attempt in futility has been made to impede this court to angulate into that question by putting forth locus standi as its blockade. But suffice it to need hardly remind mr. S K. Vyas, the second respondent-Superintendent of Police Urban Police district, Vijayawada, the deponent of the counter affidavit that it is too late in the day that since the "steadfast adherence of standing" hitherto held its fortress has been swept off its shore root and branch by the activist and pragmatic fidal waves, blown from the prevailing oceanic conditions of the Indian society, by their Lordships of the Supreme Court, in particular, Bhagwatt, J (as he then was) leaving only a solid small island, viz, judicial discretion to the Court to consider each case in the light of its facts as an exception.

( 2 ) FOR elaboration thereof, it is necessary to set out few material facts. The petitioner is a resident of Vijaya- wada. The first respondent, in exercise of the power under, Section 21 of the code of Criminal Procedure, 1973, for short "the Code", appointed the deponant as "special Executive magistrate" for the Vijayawada Urban police District conferring on him to exercise the powers under Sections 107, 108,110,133, 143, 144 and 145 of the code. The petitioner is assailing the jurisdiction of the first respondent in the conferment of the said powers on the second respondent by seeking a declaration that the exercise thereof is unconstitutional, arbitrary, malafide and issuance of a writ of mandamus to restrain the second respondent from exercising those powers. The respondents have taken the stand that Section 21 of the Code empowers the Governor to confer powers on the Special Executive magistrate. The powers under the aforesaid sections are not judicial in nature. It is intra vires of the constitutional scheme. The independence of judiciary is not eroded. The petitioner has no locus standi to file the writ petition as he is neither an aggrieved person nor his legal rights have been infringed.

( 3 ) THE contention of Mr. Jagannadharao, learned counsel for the petitioner is that the power to be exercised under the aforesaid sections is a judicial power. Article 50 of the constitution demands separation of the judicial power from the executive. The conferment of power on the second respondent is in transgression of Article 50. He relied upon Harish Chandra v. Trilok Singh (1) A I R 1957 SC 444. and Qurabali v Govt. of Rajasthan (2) a I R 1960 Rajasthan 152 and a passage from Basu s Silver Jubilee Edition on the constitution of India, at page 129. He also further stated that in construing the provisions of Section 21 of the Code, the Court has to keep in view the directive principles under Article 50 and in support thereof, he relied on U. P S E board v Hari Shanker (3) AIR 1979 s C 65. He further contended that the order is vitiated by malafides by the chief Minister for the reasons set out in the affidavit.

( 4 ) THE learned Additional advocate-General has contended that section 20 (5) and Section 21 of the code empower the Government to appoint any person "as Executive Magistrate or Special Executive Magistrate. The powers exercisable by them are not judicial. They are in the nature of administrate actions to prevent recurrence of law and order problem. The Superintendent of Police having jurisdiction, is the best person to know who are the persons prone to disturb public peace and law and order. He is the better person to deal with the same effectively. There is no prohibition under the Code in the conferment of the power on the second respondent. Vijayawada Urban police District was specially constituted similar to the one at Visakhapatnam. The Government felt it expedient to appoint the Superintendent of Police to be the Special Executive Magistrate to deal with effectively the law and order problem of his district. The Commissioner of the City Police is entitled under law, to deal with the same. When the r D O and the Tahsildar of the inferior cadre in the Revenue Department to that of the District authority, viz. , the District collector, are empowered to exercise the powers under the Code, there is no prohibition to confer such powers on a superior District Police Officer viz. , the superintendent of Police. If the orders passed under the aforesaid provisions are found to be not legal, there is a remedy open to the aggrieved party to have them correct by laying a revision before this court. The separation of the judiciary from the executive is for the purpose of appointment as contemplated under article 50 and it has nothing to do with the conferment of the power under the code Even under the Constitution, there is no rigid separation of powers between the Legislature, judiciary and Executive. Therefore the order appointing the second respondent as Special Executive Magistrate is in consonance with Sec. 21 of the Code. In support thereof, he relied on Smt. Indira Nehru Gandhi v Raj Narain (4) a I R 1975 SC 2299. Jayantilal Sodhan v. F N. Rana (5) AIR 1964 S C 648. S K B. Mikhtear v State (6) A I R 1973 calcutta 148 and Chandra Mohan v state of U P (7) AIR 196,6 SC 1989.

( 5 ) THOUGH the allegations of mala fides against the Chief Minister, the third respondent for the exercise of the power under Sec. 21 as a political motivation and the second respondent was posted and invested with power to gain political control, have been made in the affidavit, no acceptable material has been placed to adjudicate in that regard. Therefore it being a disputed question of fact based on no material, we have no hesitation to hedge at the inception that the allegations of malafides have not been proved.

( 6 ) THE respective contentions raise first, the question of locus standi of the petitioner ; and the material question is whether the Superintendent of Police could adjudicate his own cause: whether his appointment as Special Executive magistrate is in consonance with the rule of law : and whether the State Government out-stepped its limits of power conferred under Sec. 21 of the Code ? before considering them on merits to clear pur way, it is necessary to deal with, in the first instance, the question of locus standi raised by the respondents. Despite the learned counsel for the petitioner not citing any authority to resist the contention of the respondents, since the raze of standing has by now been received quietous by the latest decision of the larger Bench of Seven Judges in s P Gupta and Others v. Union of India and others (8) AIR 1982 SC 149 popularly known as Judges case and also the latest speeches of the learned Law Lords in Inland Revenue Commissioners vs. National Federation of Self-employed and Small Business Ltd. (9) 1982 Appeal cases 617 it is tretite to undertake resurvey the same once over. But suffice to cull out the principles laid down therein. The traditional rule in regard to "standing is that judicial redress is available only to a person who has suffered a legal injury by reason of violation of his legal rights or legally protected interest by the impugned action of the State or a public authority or other person or who is likely to suffer a legal injury by reason of threatened violation of his legal right or legally protected interest by any such action. This is a rule of ancient vintage and it arose during an era when private law dominated the legal scene and public law had not vet been born. But with the advent of the public law and the steep march of administrative law, has given way to activist re-thinking in that regard, in tune with the change in the social structure and statutory rights conferred on the general public and their deep impact on the exercise of those rights by a citizen. The constitutional rights conferred on citizens in the written Constitution, the grinding poverty under which the majority of the public are reeling from as a disabling factor to seek redressal of the injury they suffered from, have made the judiciary to have a re-thinking on the traditional approach to give redress to the persons interested or persons aggrieved, etc. Bhagwati, J. (as he then was) in Gupta s case (8 supra) and agreed to by majority in paragraph 17, at page 188 has explained the class-actions and the consequences thereof thus :"it may therefore now be taken as well established that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or legal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Art. 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this Court under Art. 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons. Where weaker sections of the community are concerned, such as undertrial prisoners languishing in jails without a trial inmates of the Protective Home in Agra or Harijan workers engaged in road construction in the Ajmer District, who are living in poverty and destitution, who are barely eking out a miserable existence with their sweat and toil, who are helpless victims of an exploitative society and who do not have easy access to justice, this Court will not insist on a regular writ petition to be filed by the public spirited individual espousing their cause and seeking relief for them. This Court will readily respond even to a letter addressed by such individual acting pro bono publico. It is true that there are rules made by this Court prescribing the procedure for moving this Court for relief under Art. 32 and they require various formalities to be gone through by a person seeking to approach this court. But it must not be forgotten that procedure is but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities. The Court would therefore unhesitatingly and without the slightest qualms of conscience cast aside the technical rules of procedure in the exercise of its dispensing power and treat the letter of the public minded individual as a writ petition and act upon it. Today a vast revolution is taking place in the judicial process; the theatre of the law is fast changing and the problems of the poor are coming to the forefront. The Court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning. The only way in which this can be done is by entertaining writ petitions and even from public spirited individuals seeking judicial redress for the benefit of persons who have suffered a legal wrong or a legal injury or whose constitutional or legal right has been violated but who by reason of their poverty or socially or economically disadvantaged position are unable to approach the Court for relief. It is in this spirit that the Court has been entertaining letters for judicial redress and treating them as writ petitions and we hope and trust that the High Courts of the country will also adopt this pro-active goal-oriented approach. But we must hasten to make it clear that the individual who moves the Court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration the Court should not allow itself to be activised at the instance of such person and must reject his application at the threshold, whether it be in the form of a letter addressed to the Court or even in the form of a regular writ petition filed in Court. We may also point out that as a matter of prudence and not as a rule of law, the Court may confine this strategic exercise of jurisdiction to cases where legal wrong or legal injury is caused to a determinate class or group of persons or the constitutional or legal right of such determinate class or group of persons is violated and as far as possible, not entertain cases of individual wrong or injury at the instance of a third party, where there is an effective legal aid organisation which can take care of such cases. "it is further held that it is essential to the maintenance of the rule of law that every organ of the State must act within the limits of its power and carry outthe duty imposed upon it by the Constitution or the law If the State-its instrumentalities or any public authority acts beyond the scope of its power and thereby causes a specific legal injury to a person or to a determinate class or group of persons, it would be a case of public injury actionable at the instance of any member of the public. In the event of its failure by the stale or authority to discharge a statutory duty there is a corresponding right in a person or determinate class or group of persons entitling to maintain an action for judicial redress. If no one can maintain an action for redress of such public wrong or public injury, it would be disasterous for the rule of law, for it would be open to the State or a public authority to act with impunity beyond the scope of its power or in breach of a public duty owed by it. The Courts cannot countenance such a situation where the observance of the law is left to the sweet will of the authority bound by it without any redress if the law is contravened. Any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such public injury. Restrictive rules about standing are in general inimical to a healthy system of administrative law. If a person with a good case is turned away merely because he is not sufficiently affected personally, that means that some government agency is left free to violate the law, and that is contrary to the public interest. It cannot be possible to say that any specific legal injury is caused to an individual or to a determinate class or group of individuals. But when it is implemented, if it results in public injury, the act or acts complained of cannot necessarily be shown to affect the rights of determinate class or group of persons but public injury would result in. Therefore it is an injury to a determinate class of persons. In those cases the duty which is breached giving rise to the injury is owned by the state or a public authority not to any specific or determinate class or group of persons, but to the general public. Such a duty is not correlative to any individual right. But if such a breach of public duty were allowed to go unredressed because there is no one who has received a specific legal injury or who was entitled to participate in the proceedings pertaining to the decision relating to such public duty, the failure to perform such public duty would go unchecked and it would promote disrespect for the rule of law. What is sufficient interest to give standing to a member of the public would have to be determined by the Court in each individual case. It is not possible for the Court to lay down any hard and fast rule or any strait-jacket formula for the purpose of defining or delimiting sufficient interest. It has necessarily to be left to the discretion of the Court. The reason is that in a modern complex society which is seeking to bring about transformation of its social and economic structure and trying to reach social justice to the vulnerable sections of the people by creating new social, collective diffuse rights and interests and imposing new public duties on the State, its instrumentalities or other public authorities infinite number of situations are bound to raise which cannot be imprisoned in a rigid mould or a Procrustean formula. The judge who has the correct social perspective and who is on the same wavelength as the Constitution will be able to decide, without any difficulty and in consonance with the constitutional objectives, whether a member of the public moving the court in a particular case has interest to initiate the action. It was held in gupta s case (8) (supra), that the members of the bar are really interesttd to maintain the action for judicial redress in the matter of appointment of additional judges, for short tenures and the intermittant extension of their tenure, etc.

( 7 ) RATLAM Municipality v. Vardhi chand (10) AIR 1980 SC 1622 is a case nearer home to the facts in this case. When the inaction of the Municipality under Sec. 133 of the Code was assailed, the question of locus standi was raised. While considering that question, Krishna iyer, J. held at page 1623-1624 thus :"the truth is that a few profound issues on processual jurisprudence of great strategic significance to our legal system face us and we must zero in on them as they involve problems of access to justice for the people beyond the blinkered rules of standing of British indian vintage If the centre of gravity of injustice is to shift, as the preamble to the Constitution mandates, from the traditional individualism of locus standi to the community orientation of public interest litigation, these issues must be considered. "in that case, Standing was accorded and mandamus was issued commanding the municipality to discharge the statutory duty beneficial to the community at large.

( 8 ) LORD Denning, in his "the discipline of Law" at page 127, while considering the topic on Standing vis-avis the Blackburn cases, has stated that the remedies-of certiorari, mandamus and prohibition are available against government departments or any person or body set up by statutory authority affecting the rights of individuals and that any responsible citizen has a sufficient interest has entitled him to be heard, if he complains that the law is not being enforced as it should be. (Emphasis supplied ).

( 9 ) IN Inland Revenue Commissioners v. National Federation of self employed and Small Business Ltd. (9) (supra ). During the course of his speech, lord Diplock stated that the Rules of court are concerned with procedure and practice only and they cannot alter substantive law, nor can they extend the jurisdiction of the Court. But in thefield of public law where the Court has a discretion whether or not to make an order prevent into conduct by a public officer or authority that has been shown to be ultra vires or unlawful, the question of what qualifications an applicant must show before the Court will entertain his application for a particular kind of order against a particular class of public officer or authority seems to be one of practice rather than of jurisdiction. Lord Scarman said at page 652 that :"the Courts have a role, long established, in the public law. They are available to the citizen who has a genuine grievance if he can show that it is one in respect of which prerogative relief is appropriate. I would not be a party to the retreat of the courts from this field of public law merely because duties imposed upon the revenue are complex and call for management decisions in which discretion must play a significant role. " (Emphasis supplied) in that case, after the new rules under order 53 of the Rules of Supreme Court were made, it was held that a private citizen has locus stand to seek a writ of certiorari or mandamus.

( 10 ) IT is true that in Magnabhai v union of India (11) AIR 1979 SC 23 a Constitution Bench of Five Judges, ing through Hidayatullah, C J held that a writ of mandamus to enforce fundamental rights at the instance of a private person who has no special interest will not lie. But in view of the march of law made in this field culminated in Gupta s case (8) (supra) the earlier view on "standing" holds no water any longer. We have, therefore, no hesitation to hold that in these days when the Government or public authorities or instrumentalities of the state have great power and influence, when their acts or actions impinge a person, class or group of persons, any member of the public bona fide interested to assail the same may bring it to the notice of the Court. The doctrine of "standing" has thus acquired a wider perception and dimension. The intervention of the Court is a most important constitutional safeguard to an ordinary citizen under Article 226 and it is the duty of the court to see that those powers and influences are exercised in accordance with law. The person may not have sufficient or special interest but he must not be a busy-body and it must not be a pretext to wreak private vengeance or gain. Court would examine each case on its own merits. The public interest required to accord "standing" to any public spirited citizen acting in good faith for the public law remedies of mandamus and Certiorari.

( 11 ) THE question is whether the petitioner in a mere pro bono publico, whether he has initiated the action with any oblique motive or whether there is any real threat to public injury. The exercise of the power from time to time by the second respondent impinges upon the fundamental right to freedom of movement, liberty of person and right to reputation of a citizen or a class or group of citizens of Vijayawada Urban police District. While dealing with the main issue we elaborate the reasons and the conclusions we reached But suffice at this stage to state that if the impugned action is allowed to subsist, it would expose many a citizen in Vijayawada urban Police District to impede the exercise of their fundamental right to freedom of movement, right to liberty of person and dignity and reputation of the person. That apart, the allegations made in the counter-affidavit themselves confer standing to the petitioner to assail the correctness of the impugned action. It is stated in the counter-affidavit that the petitioner is a rowdi; several criminal actions are pending against him; he is an unsocial element indulges in violant activities; he designed to step into the leadership of his deceased brother to commit these acts; he organised a gang of desparades and goondas who has specialised in goodaism; collection of rowdi mamools and gangsterism by eliminating those who do not fall in line with his activities or with his school of thought to the detriment of public order. Several criminal actions initiated against him under various provisions of the penal Code are set out in paragraph 4 of the counter-affidavit. Those allegations themselves confer standing on the petitioner. Therefore, we have no hesitation to hold that the petitioner not only as a member of the public, but also as an individual, has locus standi to file the writ petition The first point of the learned Addl. Advocate-General is devoid of substance and is rejected.

( 12 ) DESPITE our indicating that the case raises questions of constitutional importance having far-reaching consequences and the arguments addressed are at the periphery and needs in depth investigation, we received no assistance leaving it to the lot of the Court to investigate and answer them. The first question is whether the appointment of the second respondent-Superintendent of police, Vijayawada Urban Police District as Special Executive Magistrate, is constitutionally valid or legally tenable? it cannot be disputed that the Government is empowered under Sections 20 and 21 of the Code to appoint Executive magistrates in the District and Special executive Magistrates for a particular area or for the performance of specified functions when the power on the top executive is conferred, it is well settled that it cannot be assumed that they would abuse the exercise of the power. That short course affords no solution to the problem posed. It is the case of the petitioner that this power exercised by the respondents under Section 21 is not in consonance with the constitutional scheme. To answer the question satisfactorily, it is necessary to travel into the constitutional contours to find the nature of the rights conferred on a citizen and the deep dent they receive by the exercise of the powers by the Special executive Magistrate under the aforesaid provisions of the Code. Article 19 (1) (d) and (e) of the Constitution gives to all citizens the right to move freely throughout the territory of India and to reside and settle down in any part of the territory of India, subject to the right of the State from making any law under clause (5) thereof imposing reasonable restrictions on the exercise of any of the aforesaid rights in the interests of the general public or the operation of any existing law. Art. 3 of the Universal Declaration of Human Rights, 1948 declares that every one has the right to life, liberty and security of the person and Article 9 thereof provides that no one shall be subject to arbitrary arrest and Clause (1) declares that every one is entitled to full equality to a fair and public hearing by an independent and impartial tribunal in the determination of his rights and obligations and of any criminal charge against him. These declarations found their acceptance in Articles 19 to 22 of the Constitution. The covenant on civil and political rights of U N Convention of 1966 assures that every one has right to liberty and security of person. . . No one shall be subject to arbitrary arrest or detention and no one shall be deprived of his liberty except on such ground and in accordance with such procedure as are established by law. The European convention of Human Rights, 1950, also declares similar rights. Article 51a (j) of the Constitution imposes a duty on every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. Thus, a citizen has been provided with freedom of movement, settlement, personal liberty and dignity of his person and reputation which are most cherished and prized possessions of him in the civilised society. The constitution thereby accepts the individual as focal point recognises and upholds his dignity and regards his material, moral and spiritual development as the prime concern. In the language of Bhagwati, J (as he then was) in Bachan Singh v State of Punjab (12) AIR 1982 SC 1325 (minority view) that :"it (State) does not treat the individual as a cog in the mighty all powerful machine of the State but places him at the centre of the constitutional scheme and focusses on the fullest development of his personality. "

( 13 ) THE fundamental rights represent basic values cherished by the people They are calculated to protect the dignity of the individual and to create conditions in which every person can develop his personality to the fullest extent. They weave a pattern of guarantees on the basic structure of human rights and impose negative obligations on the State not to encroach on individual liberty in its various dimentions. (Vide maneka Gandhi v. Union of India (13) air 1978 SC 597. per Bhagwati,j (as he then was ).

( 14 ) THE right to personal liberty as stated by A V Diecy in his "the Law of Constitution," 9th Edition, at page 208 under the Chapter "the Rule of Law" is that in substance, a person s right not to be subjected to imprisonment, arrest or other physical coercion in any manner that docs not admit of legal justification. That anybody should suffer physical restraint is in England, prima facie, illegal and can be justified (speaking in very general terms) on two grounds only, that is to say, accused of an offence and brought before the Court or duly convicted for an offence. But as seen under Article 19 (5 ). . . the liberty under Art. 19 (1) (d) and (e) is a liberty conferred but controlled by law. In the words of Burke, it is a regulated freedom under Art. 19 (5) and not an abstract or absolute freedom.

( 15 ) BUT either the law or executive action taken pursuant thereto, or the exercise of the power thereunder should stand to the test of reasonableness under article 14 and should not be arbitrary. Art 21 guarantees that no person shall be deprived of his life and personal liberty except according to procedur established by law.

( 16 ) THOUGH the learned Counsel for the petitioner conteds that Article 50 envisages to separate the judiciary from the executive, it is needless to go into that question as rightly contended by the learned Addl. Advocate General that there is no absolute dichotomy in the separation of powers between the legislature, executive and judiciary, but suffice it to state that it is not a mere theoretical or philosophic concept. It is a practical work a day principle. The legislature, the executive and the judiciary are not three water tight compartments. There may be overlapping in the exercise of th3ir respective powers. For the purpose of this case, we need not dilate on this question, because Section 20 of the Code itself demarcates and delineates the powers of the magistracy-judicial and executive. We may mention that in the original 1973 Code, the powers under Secs. 108, 109, 110 were invested in the Judicial Magistrates of first Class but later on, it was amended through Sec. 29 of the Code of Criminal procedure (Amendment) Act 63 of 1980 and they are taken out from them and conferred on executive Magistrates.

( 17 ) BASU in his Silver Jubilee edition of the Commentary on the constitution of India, Volume e of 1981 edition at pages 128-129 has elaborated the history of the fusion of executive and magisterial functions in the executive and the exercise thereof under the Code of Criminal Procedure, 1898; after the advent of independance the mandate under Article 50 of the Constitution and states thus :"the Code of Criminal Procedure, 1973 was accordingly enacted to embody this Directive in a systematic manner. . . . . . It may be stated, broadly, that the separation has been effected by the Code of 1973 by vesting in the Judicial Magistrates those functions which are essentially judicial in nature while functions which are administrative in nature or are related to the maintenance of law and order have been vested in the executive Magistrates. "in Chapter II of the Code, under Section 6, Clauses (i) to (Hi) deal with the constitution of Courts of Session, Judicial. Magistrates of First Class and second Class and Clause (iv) deals with executive Magistrates. Section 20 is material for the purpose of this case and it states under sub-section (1) thereof that in every district and in every metropolitan area, the State Government may appoint as many "persons" as it thinks fit to ba Executive Magistrates. . . . . . . . . . . . Section 21 empowers the State Government to appoint Special Executive Magistrates for a particular area or for the performance of particular functions and confer on them such of the powers conferable under the Code, on Executive magistrates, In exercise thereof, the second respondent came to be appointed as special Executive Magistrate and was conferred with the powers under Sections 107,108,110, 133, 143, 144 and 145 of the Code to be exereisable with in vijayawada Urban Police District. The heart of the controversy is whether the exercise of the power by the first respondent in appointing the second respondent as a Special Executive Magistrate receives constitutional consonance. It is already seen that the citizen has a fundamental right to personal liberty, of movement throughout the territory of india and right to dignity of person and good reputation. These are the cherished rights and prized possessions of every citizen. When such rights are sought to be affected by the exercise of the power by the Special Executive Magistrate, we have to see what are the nature of powers with which the Special Executive magistrate are conferred with.

( 18 ) AS the Code itself demarcated the functions of the judicial magistrates and executive magistrates it cannot be seriously disputed that the Executive magistrates or the Special Executive magistrates, in the strict sense, are not the judicial officers. It is common knowledge that they are generally drawn from the executive branch of the state services or even in appropriate cases, private citizens (such as retired officials or otherwise) are appointed to discharge the powers of the Executive Magistrates, we have to consider whether the powers conferred on the Special Executive magistrate impinge upon the fundamental rights of a citizen and if so, to what extent and if the answer is in the positive, then what are the types of persons the state Government should appoint as executive or Special Executive Magistrates to discharge those functions.

( 19 ) CHAPTER VIII of the Code be.- gins with the heading, "security for keeping the peace and for good behaviour". Section 107 empowers executive magistrate to take action against any person who is likely to commit breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility by ordering to execute a bond to keep peace for a period not exceeding one year. Section 108 empowers to take bonds with or without sureties to desist from intentioally disseminating or attempting to disseminate or abets the dessimination of seditious matters and for his good behaviour for a period not exceeding one year, and under Section 109 to take similar bonds from Suspected persons. Similarly, Section 110 gives power to take security for good behaviour from habitual offenders for various offences referred to thereunder. Section 133 under chapter X, undercaption, "maintenance of Public order and tranquility", empowers the Magistrate on receiving the report of a "police Officer" or "other information. . . . . . to pass orders requiring to remove from any public place, etc. any unlawful obstructions or nuisance, etc. and in appropriate cases, to pass interim orders thereof. Under Section 143, they are empowered to prohibit repetition or continuation of public nuisance and under Sec. 144, they are empowered to issue orders in urgent cases of nuisance or apprehended danger for immediate removing or a speedy remedy as is desirable in the opinion of the Maoistrate. Section 146 empowers to adjudicate upon the receipt of any report of a dispute relating to water or land which dispute is likely to endanger public peace. The action under these provisions require an enquiry to be made after giving an opportunity to the person to be affected. The orders passed there under are final and for violation of some, they are empowered to impose penality under Section 188 I. P. C. either by sentencing him to imprisonment for a period of one month orto a fine of Rupees two hundred in the case of first offence and in case of recurrance to impose a fine unto Rupees two thousand in default to undergo imprisonment. Special Executive magistrate is to hold investigation within the meaning of Section 2 (i) or to conduct an enquiry as contemplated under the Code. They answer all the trappings of the Court.

( 20 ) S. A. de Smith, in his "judicial review of Administrative Action", 4th Edition, at page 77, has stated that a judicial decision made is binding and conclusive in so far as it cannot be impeached in collateral proceedings; and it cannot, in general, be rescinded by the tribunal itself.

( 25 ) UNDOUBTEDLY, the exercise of power under Section 20 (1) read with section 21 is discretionary. The exercise of discretion must be structurally based and guided by sound executive policy based on principles conformable to the statutory animation and constitutional goals. Unguided exercise of discretion is an abnigation to rule of law. As held in Maneka Gandhi v. Union of India (13 supra) that equality is antithetical to arbitrariness. In fact, equality and arbitrariness are sworn enemies. One belongs to the rule of law while the other to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14. Therefore, where discretion is conferred on an authority by the statute, the Court always strains to find in the statute the policy or principle laid down by the legislation for the purpose of guiding the exercise of such discretion. S A de Smith in his "judicial Review of Administrative action", 4th Edition at pages 322-323, has stated that if the source of authority relied upon is statutory, the Courts begin by determining whether the power has been exercised in conformity with the express words of the statute and may then go on to determine whether it has been exercised in a manner compatible with certain implied legal requirements. In some contexts they have confined themselves to the questions whether the competent authority has kept within the four corners of the Act and whether it has acted in good faith. At page 330, it is stated thus:"did the impugned act substantially fulfil the express or implied purpose for which the power was conferred? If it did not, the exercise of power may have to be pronounced invalid, irrespective of the actor's motive. "the content and effect of the order is to be the determinate factor. It is true, as contended by the learned Addl. Advocate general that the Superintendent of police is the person well posted with the local factual situations of the persons who have proclivity to involve in offences of disturbing public peace, law and order or committing crimes, etc and that he is charged with the duty to keep safety and security to the society. They are indisputable. But the question is, in exercising the power under Section 20 (1) and Sec. 21 of the Code, though discretionary, can the Government appoint "any person" whomsoever it likes or whether the exercise of the power should be in conformity with statute viz, the designated class of persons or officers. True normally it is an acknowledged fact that the officials from the execu live revenue branch ie. , District Collector, r D O or Tahsildar or Deputy Tahsildar having local jurisdiction are being appointed as Executive Magistrates and have been exercising the powers under the sections referred to earlier. But the question is whether the Superintendent of Police, the handmaid of law and order could be invested with the power to adjudicate upon the same. At the cost of repetition, it is to be remembered that years of ceaseless struggle with the sacrifice of precious lives of countless patriots we have attained independence and sovereignly with a Constitution of ours assuring to every citizen justice, liberty and equality with dignity to his person. Therefore the precious personal liberty, freedom of movement, etc. are prized possessions of every citizen to develop his full personality and to secure dignity to him in the society. The exercise thereof could be denied only in the larger interests of the society. So every apparently innocuous or imperceptable attempt on the part of the executive on the pretext of expedience to deny to the citizen of the right to exercis those rights needs to be carefully examined and when bear seeds of extraneous or irrelevant considerations or except in exceptional circumstances in the larger interest of the society, it shall not be allowed to be prevailed. It is to be remembered that many a citizen from common strata of the society, the poor, the underprivileged and disadvantaged would normally, if not invariably, be caught in the operational net of the quoted provisions of the Code. Poverty social and environmental conditions, emotional upsurge or misguidance by the kingpins operating from behind the scene are motivational factors to entrap them in the gamut. The animation of a jealous officer to put down the rate of crime or recurrance of out-break of law and order or disturbance to public tranquility or a possible tendency to earn appreciation of service from the higher ups to have accleration of pramotional chances in service, may operate as inducing factors to resort to stringent, if not repressive steps or measures against the alleged 'pests of civil society' 'suspects' lick-spittles of law' and as a part thereof, as an adjudicator, may indulge in imposing unbearable or insecurable excessive bonds etc. This possibility or lurking suspicion on the efficacy of adjudication cannot be ruled out. Thereby the citizen/citizens is/are not only not denied of the exercise of fundamental right to freedom of movement, liberty of person and reputation, but also render those rights meaningless to them and thereby cripple their very living and livelihood, which is abnoxious to Art. 51-A (j ).

( 26 ) IN Liyange v The Queen (16) 1967 Appeal Cases 259 at 291 (PC) lord Pearce has stated thus : ''it (Government) was be set with a grave situation and it took grave measure to deal within, thinking, one must presume that it had power to do so and was acting rightly. But that consideration is irrelevant and gives no validity to acts which infringe the constitution. What is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution. In that case, the Parliament of Cylon made the Criminal Law (Special Provisions) act No. 1 of 1962, empowering to appoint non-judicial Judges nominated by Minister of justice to try the designated offence. Its constitutional validity was challenged and in considering that question it was held that the absence of an express provision in the constitution is not material; the Constitutional silence to the vesting of judicial power is consistent with its remaining provisions where the judiciary has laid for more than a century in the hands of the judicature. It is not consistent with any intention that henceforth it should pass to or be shared by executive or legislature. Therefore it was declared that the exercise of the power was ultra vires of the Constitution.

( 27 ) IN Liversidge v. Sir John anderson (17) 1942 Appeal Cases 206 at 245 Lord Atkin, in his celebrated speech, has stated :"amidst clash of arms, the laws are not silent. They may be changed but they speak the same language in war as in peace. It has always been one of the pillars of freedom one of the principles of liberty for which on recent authority we are now fighting that Judges are no respecters of persons and stand between the subject and any attempted encroachment in his (subject's) liberty by the executive, alert to see that no coercive action is justified in law. "an the Government exercises power, is an implied prohibition under section 20 (1) that a person appointed should be of the cadre or character such as from the executive branch of State service or independent person like retired judicial officials or persons of the locality having good reputation. It cannot appoint any person of its choice, That implied prohibition is apparent when we glean through the demarcation of the powers under Sections 20 and 21 of the code. The statute laid down the policy and the standard for the guidance of the government. The question is whether the appointment of the Superintendent of Police is in tune with the policy laid down under the Code and the latter could legally and legitimately fill in the position of an Executive or Special executive Magistrate? Under Section 36 of the Code, indisputably the second respondent is a superior officer. He is empowered to exercise all the powers of a Station House Officer throughout his district. He himself could initiate action as Station House Officer. Now by virtue of the appointment as Special Executive magistrate, he can direct his subordinates to lay information before him. It is axiomatic to state that it is his primary duty to maintain law and order to keep peace and public tranquility of the area. So he is a person genuinely interested to see that they are" maintained. In the language of the Addl Advocate General, it is for the very same purpose the second respondent was invested with those powers. In such a situation, the immediate question is whether the Government would be justified to appoint him as the special Executive Magistrate to exercise the powers referred to ?

( 28 ) IN Union of India vs. Sankalchand (18) AIR 1977 SC 2328 Bhagwati j. (as he then was) held that :". . . . . . THE independence of the judiciary is a fighting faith of our Constitution. Fearless justice is a cardinal creed of our founding document. It is indeed a part of our ancient tradition. "independence to judiciary is an assurance to an upright Judge who would assert his right to rise in proud consciousnesd that justice is administered, in the words of Lord Bowen, "immaculate, unspottes and unsuspected. " In view of the fact that the Code itself has separated the judicial functions and executive functions of the magistracy, it is needness to call upon the persons performing the functions of the Executive Magistrate or Special executive Magistrate to maintain the same standard or rigourthough it is highly salutory and desirable, but he cannot be a suspect of his bonafides or integrity in passing the orders under the above sections. One of us (K. Ramaswamy, J.) in Narindi Nageswara Rao and Others v. the Sub Divisional Magistrate. Vijayawada and others (19) 1984 (2) APLJ 14 (NRC)= W. P. No. 6806/84 dated July 18, 1984. In the context of the enquiry by an executive magistrate under Section 18 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 and the need for a fair procedure, held :"the faith of the people is the savour and succour of justice. Any weakening link would rip apart the edifice of law. The principle of justice is ingrained in our conscience and though ours is a nascent democracy it has now taken deep roots in our ethos of adjudication, judicial process-be it judicial, quasi-judicial or administrative, is hallmark. "respect for law is one of the essential principles for an effective operation of popular Government. Mr. Justice Arthur t. Venderbilt in his "the Change of Law reform 1955" at pages 4-5, stated this fastening principle thus :". . . . . . IT is in the Courts and not in the legislature that our citizens primarily feel the keen, the cutting edge of the law. If they have respect for the work of their courts, their respect for law will survive the short comings of every other branch of the Government; but if they lost their respect for the work of the courts, their respect for the law and order will vanish with it to the great detriment of society. " (Vide The Judicial Process by H. J. Abraham, page 3 ). The quality justice depends more on the quality of the men who administer law than on the content of the law they administer. (Vide The selection and Tenure of Judges, by Even hayness, 1s44 Edition, page 5 ). Judges must be free and fair and fearless in performance of functions be they on higher judiciary or the last in the rung. "in the modern democratic society, the Judge must steer his way between the scylla of subservience to Government and the charybdis ot remoteness from constantly changing social pressures and economic needs. (Vide Law in the Changing society, by W. Friedmann ).

( 29 ) IN the Bribery Commissioner v. Fedrick Ranasinghe (20) 1965 a. c. 172 (P. C.) the constitutional validity of bribary (Amendment) Act of 1958 was assailed. One of the arguments therein was that the Act empowers to appoint various tribunals of lesser importance as special officers of tribunals constituted under that Act and it gives power to the government to appoint any member other than judicial officer and the appointment of an officer from a panel of non-judicial officers is valid. While repelling that contention, Lord Pearce has held thus :"if that argument wers sound, it might be open to the Executive to appoint whom they chose to sit on any number of newly created tribunals which might deal with various aspects of the jurisdiction of the ordinary courts and then, by eroding court's jurisdiction, render Section 55 valueless. "

( 30 ) A. V. Diecy in his "law of the Constitution', 9th Edition, at page 202 has stated that :"the Rule of Law means in the first place, the absolute supremacy of predominence of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. "bhagwati, J. (as he then was) in Bachan singh v. State of Punjab (12) (supra.) (minority view), at paragraph 10 states that the rule of law excludes arbitrariness; its postulate is "intelligence without passion" and "reason freed from desire" (Emphasis supplied ). Arbitrariness or unreasonableness is a fact of denial of rule of law. Every action taken even pursuant to a statutory provision must be conformable to rule of law. Fundamental right is a protective armour to an individual against arbitrary or unreasonable executive action. Courts cannot blithely afford to abdicate its constitutional vigil to the supposed expedience and be a passive spectator to the trampling of personal freedoms. Even though the Governmental purpose may be legitimate and, substantial, that purpose cannot be pursued by means that broadly stiffles fundamental personal liberty when the end can be more achieved by pursuing the normal channel through revenue officials, etc.

( 31 ) NO instance of appointing an officer or person charged with the duty to maintain law and order was ever invested either under the predecessor Code. of 1898 or under the new Code of 1973, with power to be a Judge also is brought to our notice. It is true that revenue officials of the State service were/are invested power of executive Magistrates. But their primary function is revenue collections and the exercise of the power of executive Magistrate is only incidental. As held by Subba Rao, C. J. speaking for the Court in Chandra Mohan v. State of Uttar Pradesh (21) relied on by the learned Addl. Advocate General itself makes clear that for fortuitous exercise of judicial power cannot make the executive officials to be Judges to become eligible for selection as District Judges. The conferment of power under Section 20 (5) of the Code on the Commissioner of Police the powers of the Executive magistratas under any law (Police Acts) for the time being in force, though is unnecessary for the purpose of this case to pursue its legality, it is suffice to state that they are in the nature of executive orders but not deciding as a adjudicator of quasi criminal offences. Therefore reliance on Sec. 20 (5) by the respondents is misconceived. We cannot lose sight of the grave practical implications arising from the exercise of judicial powers under Section 107, etc. conferred on the Executive or Special Executive magistrates. They would be fraught with grave consequences to a citizen as well as to the institution of justice. Lessons of experience would tell us that if the exercise of powers are allowed to be done in a small way it would be limitless to confer power on anybody of the choice of the State Government. The consequences are perilous and disasterous.

( 32 ) CONSIDERED from the above perspective, though the executive has wide power under Section 20 (1) and section 21 of the Code to appoint "any person" as Executive or Special executive Magistrate, there is an implied prohibition thereunder that the exercise of the discretion must be circumspect attune to the statutory standard and constitutional goals. A person appointed as Executive or Special Executive magistrate, should be of the cadre or specified class of officers belonging to the executive service of the Government, like District Collector R D O. , etc hither to being appointed or in a given case a retired judicial official or person, a person of good reputation of the locality but he should not have any interest in the subject matter of the enquiry. Therefore we are inclined to hold that the parliament never intended to invest the state Government with an authority to appoint any person of its choice but should be of a person referred to above. Thus, the exercise of powers by the state Government must be declared to be arbitrary and unreasonable, violating article 14 of the Constitution. It outstepped its limits prescribed by the Code and thereby it is ultra vires of its power.

( 33 ) THE action can also be tested on the touchstone of Article 21 of the constitution which provides that no person shall be deprived of his life and personal liberty except according to procedure established by law. The question that immediately springs is whether the appointment of the second respondent as Special Executive magistrate is in accordance with the "procedure established" by the Code?

( 34 ) BEFORE considering the question, it is important to note that the code like all procedural laws is designed to further the ends or justice and not to frustrate them. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well understood lines that accord with our notions of natural justice. Certain things are regarded as vital and disregard thereof is fatal to the trial and at once invalidates the conviction unless they are curable irregularities untouched of vital veins of essential procedural steps. When rights are infringed or invaded, the aggrieved party can go and commence an action before an ordinary Court or Tribunal constituted under a statute. They are the instrumentalities of the State and they are invested with judicial or quasi-judicial functions of the State and their authority is derived either from the Constitution or from a statute under which they are constituted. A designated body of persons are appointed to decide such controversies. It is undoubtedly one of the attributes of the State and is aptly called the "judicial power of the State".

( 35 ) LOPES, L J in Royal acquarium and Summer and Water garden Society v. Parkinson (22) 1892 (1) Q B 413 at 452 held thus :"the word 'judicial' has two meanings. It may refer to the discharge of duties exercisable by a Judge or by justices in Courts or to administrative duties which need not be performed in courts, but in respect of which it is necessary to bring to bear a judicial mind. That is a mind to determine what is fair and just in respect of matters under consideration. "it is already noted in the words of Lord atkin that "criminal Law" means the criminal law in its widest sense" which connotes only the quality of such acts or omissions as are prohibited under appropriate penal provisions by authority of State. The exercise of the power by the Executive Magistrates are derived under the Code and the Code is designed to prevent breach of peace and dissemination of seditious matters-disturbance of public tranquility and in appropriate cases for recurrence thereof, etc. In other words, it is preventive, yet sanction of punishment and levy of penalty have been prescribed. The word "procedure" in Article 21 is wide enough to cover the entire process by which deprivation is effected and that it would include every facet of law which deptives a person of his life or personal liberty and would therefore have to stand the test of reasonableness, fairness and justness in order to be outside the inhibition of Art. 21. (Vide Francis Coralie v. Delhi administration (23) AIR 1981 SC 746 at 750. The word "law" means enacted by statute or standard prescribed to itself pursuant to the Statute, by the government to exercise its executive power. The Word "established" means to fix, settled, instituted or issued by a statute or by executive instructions binding on the Government. The word "proceeding" means the form and manner of conducting judicial business before a Court or judicial officer (Vide black's Law Dictionary, page 1368 ). "criminal Proceeding" is a proceeding instituted or conducted for the purpose either of preventing the commission of crime or for fixing the guilt of a crime already committed and punishing the offender. (Black's Law Dictionary, 1368 ). The word "proceeding" ordinarily relates to forms of law, to be made in which transaction of judicial business is conducted. It is a comprehensive term and means a prescribed course of action for enforcing legal rights and hence it necessarily embraces the requisite steps by which a judicial action is involved. (Vide venkataramaiah's Law Lexicon, Volume 2, page 1247 ). The word ''judicial power" means the power which every sovereign authority must of necessity have to decide controversies between its subjects or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision is called upon to take action. (Vide griffith, C J in Huddart Parker and Co. vs. Moorehead (24) 1909 8 C L R. 300 at 357 and it was approved by the Privy council in Shall Co. of Australia v. Federal Commissioner of Taxes (25) 1931 A C. 257 at 296.

( 36 ) IN Maneka Gandhi's case (13) (supra) Chandrachud J. (as ho then was) held that the procedure prescribed by law has to be fair, just, and reasonable not faneiful oppressive or arbitrary.

( 37 ) SECTION 6 (iv) of the Code empowers to constitute a Court of Executive magistrate and Section 20 (1) gives power to confer powers exercisable by them under the Code. Sec. 21 empowers the State Government to appoint and confer power under the Code on the special Executive Magistrate for a particular area or for the performance of particular functions thereunder. Therefore the apoointment of a Special Executive magistrate is an essential step in the procedure.

( 38 ) THE question therefore is whether the appointment of the second respondent is according to the procedure under Article 21 of the Constitution and whether it is fair, just and reasonable ? the Superintendent of Police and his subordinates are handmaids of the law and order. The people look to them for protection. They are also charged with duty to protect the society by preserving peace and public tranquility and to maintain law and order. It is already held that the Superintendent of Police has thereby got personal interest in the discharge of his duties as head of the district. When he is called upon to be the adjudicator in respect of the very same offences, the question is whether his exercising powers as Special Executive magistrate could enthuse confidence in the accused or suspect that the orders passed by him are as a result of impartiality or sobriety after dispassionate consideration of rival claims ? Even if he makes a sincere attempt in that regard, does not his sincerity or bonafides become suspect ? Is it not classed as "unfair or unjust" ? We have no hesitation to answer "yes". Procedural fairness and regularity are of the indispensable essence of liberty and fairness. The requirement of fair procedure is not a fair weather or a limited assurance. It must be respected in spirits of calm and in times of trouble. The zeal in tracking down crime is not in itself an assurance of soberness of judgment. Disinterestedness in law enforcement does not alone prevent disregard of cherished liberties. Experience has therefore counselled that safeguards must be provided against the dangers of the over-zealous as well as arbitrary procedure. Observance of procedural fairness is part of the constitutional scheme of Article 21 the effective administration of criminal justice hardly requires disregard of fair procedures imposed by law. The same was the view expressed by one ot us (K. Ramsswamy. J.) in Nageswara Rao's case (19) (supra) we have, therefore, no hesitation to hold that the word 'procedure' under Article 21 of the Constitution would encompass within its ambit of the procedure for the appointment of a Special Executive Magistrate under Sec. 21 of the Code. Therefore the appointment must be based on relevant considerations but not of expediency. He should adopt procedural fairness, objective assessment of the respective claims and justness in the result. These should also stand to the test of Article 21 of the Constitution. The appointment of the second respondent as Special Executive Magistrate is therefore, unjust, unfair and unreasonable and is oppressive. Therefore it is smacked off its validity violating Article 21 of the constitution.

( 39 ) THE question cen also be angulated from the annuls of administrative jurisprudence. It is already seen that under Section 36 of the Code, being the superior officer the second respondent has co-extensive power with the Station house Officers within his jurisdiction to track down the crime or to keep peace and public tranquility and to prevent recurrence of outbreak of law and order. It is already held that he is an interested person in this regard. Central Act 63 of 1980 took out from Judicial Magistrate, of powers under Secs. 107 to 110 of the code and conferred them on the Executive magistrate. The immediate question is whether such a person should be a judge of his own cause. Sir C K Allen, q C in his "the Hamlyn Lectures", Fifth series, "queen's peace" has stated at pages 109-110 that the primary aim of the police must be to prevent rather than avenge crime, and second, that they must be the friends and not the enemies of the public. The police are purely executive officers whose duty must be kept regidly distinct from judicial functions. He states at page 119-120 thus :"this principle is so firmly embedded that I do not think the public today would tolerate the smallest departure from it, not even to the extent of ''on-the-spot" police fines, which are common in some countries, for triffling infractions, such as traffic offences. "he stated at page 148 that at one time justice of peace is a Judge administrator, a C. I. D. and director of prosecution But the Criminal Justices Act 1948 and the successor Acts have changed this position and he no longer be appointed to discharge judicial functions. It is already seen that the Superintendent of Police and his subordinates are the handmaids of law and order. They are the protectors of the society and they are expected not to use their authority and power for suppressing innocent people.

( 40 ) IN In Re H K Infant (26) (1967) (2) Q. B. 617 Lord Parker, C. J. has held that a good administration and an honest or bonafide decision must require not merely impartiality nor merely bringing one's mind to bear on the problem but to act fairly. In A K Kraipak v. Union of India (27) AIR 1970 S C 150 it was held that a candidate for a selection to a post of forest official became disqualified to sit as a member of the selection committee. The entire section was declared void since one of the selected candidates happened to be a member of the selection committee.

( 41 ) IN Maneka Gandhi's case (13) (supra) Bhagwati, J. (as he then was) held that duty to act judicially need not be super added, but it may be spelt out from the nature of the power conferred, the manner of exercising it and its impact on the rights of the person affected and where it is found to exist, the rules of natural justice would be attracted. S. A de Smith, in his "judicial Review of administrative Action," 4th Edition at page 270, has stated that a person having likelihood of bias is disqualified to he a judge. Disqualification for bias may exist where a member of a tribunal has an interest in the issue. . . . . . . . . . . . or has otherwise indicated partisonship in relation to the issue. . . . . . . . . Where an adjudicator is associated with a body that instituted or defends the proceedings. He is disqualified if he has personally taken an active part in instituting the proceeding. In R. v. Gaisford (28) (1892) 1 q. B. 381 it was held that a justice who had participated in the proceedings was disqualified as a Judge as he set the proceedings in motion, for he is then in substance both a judge and a party.

( 42 ) H W R Wade in his "administrative law" 4th Edition has stated that nemo judex in re sua-a Judge is disqualified from determining any case in which he may be, or may fairly be suspected to be biased, and he pleaded that it is the most salutory influence. It is a facet of natural justice. It is now well settled that justice should not only be done but should manifestly and undcubtedly be seem to be done. (Vide Sharqer v. Basin Dighton Ltd. (29) (1924) 1 q B. 274. per Atkin, L. J. Wade, in the same Edition at page 402 has stated that:"it was natural for the rule against bias to be applied generally to the functions of justice of the peace whether judicial or administrative, and in this way the rule was readily adapted to administrative action. "s. A. De Smith in his ''judicial Review of administrative Action", 4th Edition, at page 250-251 has stated that :"in order that public confidence in the administration of justice may be fully maintained, no man who is himself a patty to the proceeding? or who has any direct pecuniary interest in the result is disqualified at common law to adjudicate in those proceedings. "the veil of expediency to try the cases by the person acquainted with the facts and the problem posed, as confessed by the learned Addl Advocate General, for tracking down the crime or suppression thereof, cannot be regarded as a valid ground to give primacy to the arbitrary, irrational and ultra vires action taken by the first respondent in appointing the second respondent as Special executive Magistrate n or the right of revision by this Court is a solace. In this sensitive area the appearance of justice is part of the substance of justice, it is a common knowledge that many a poor citizen cannot afford to approach this Court. Article 39-A it self recognises this indigency as an inhibiting factor for the poor to approach the Court and legal aid scheme is the urgent need of the day. In a given case, the possibility of calling upon the "pest's of civil society, u/ss 107, 108 and 133 or suspects or habitual offender in a proceeding under Section 109 and 110 of the Code to furnish excessive bond so as to see that the citizen (indigent) cannot make avail of the right to be free, cannot be ruled out and as a result he has to anguish behind the bars losing his legitimate fundament slpersonal liberty affecting his reputation. Thereby, it not only sullies the stream of justice at its source but also chills the confidence of the general public and is detrimental to rule of law, and an erosion to; the efficacy thereof. Therefore, a person having an interest in the outcome of the action shall not be made a Judge.

( 43 ) CONSIDERED from this perspective, we have no hesitation to hold that the Superintendent of Police becomes disqualified to be the Special executive Magistrate. There is no need for the petitioner to convert his writ petition to one of certiorari to quash the relevant orders. The decision cited by mr. Jagannadha Rao, learned counsel for the petitioner render little assistance to the points discussed and therefore it is unnecessary to consider them. Equally, the decisions relied on by the learned addl. Advocate General are not of much relevance to the real issues and hence they too require no consideration. We, accordingly, declare that the impugned action is arbitrary, ultra vires, violative of the principles of natural justice and the State Government has out-stepped its limits of power under Section 20 (1) read with Section 21 of the Code in appointing the second respondent as special Executive Magistrate and conferment of power under various G. Os issued from time to time under Sections 107, 108, 110, 133 and 143 to 145 of the Code as stated in the counter affidavit and are declared to be null and void and are of no effect and they are hereby quashed. The writ petitition is accordingly allowed, but in the circumstances, without costs.