Published on April 12, 2014
EXECUTIVE MAGISTRATES – THEIR FUNCTIONS AND POWERS UNDER THE CODE OF CRIMINAL PROCEDURE, 1973 - A BRIEF OUTLINE
Separation of the Judiciary from the EXECUTIVE In pursuance of the scheme of separation, two categories of Magistrates have been created. They are - (i) Judicial Magistrates. (ii) Executive Magistrates.
The Magisterial Functions of JM and EM Judicial Magistrates are under the control of the High Court and Executive Magistrates are under the control of the State Government.
Cr.P.C 3(4) Where, under any law, other than this Code, the functions exercisable by a Magistrate relate to matters— (a) which involve the appreciation or shifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any Court, they shall, subject to the provisions of this Code, be exercisable by a Judicial Magistrate; or (b) which are administrative or executive in nature, such as, the granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution, they shall, subject as aforesaid, be exercisable by an Executive Magistrate
THE WORD MAGISTRATE USED IN THE CR.P.C. DOES NOT MEAN TO BOTH JM AND EM. THE CODE IS SPECIFIC IN, SECTION 3 ,THAT ANY REFERENCE WITHOUT QUALIFYIING WORDS TO MAGISTRATES ONLY MEAN JM
ENDORSEMENT 79. Warrant directed to police officer for execution outside jurisdiction - (1) When a warrant directed to a police officer is to be executed beyond the local jurisdiction of the Court issuing the same, he shall ordinarily take it for endorsement either to an Executive Magistrate or to a police officer not below the rank of an officer in charge of a police station, within the local limits of whose jurisdiction the warrant is to be executed.
Executive Magistrates are Criminal Courts within the meaning of the Code vide Sec. 6 (iv) Cr.P.C. When an Executive Magistrate acts judicially, say for instance, when he holds an inquiry u/s 116 Cr. P.C. in connection with a security proceeding u/s 107 Cr.P.C. he functions as a court but when he does something purely administrative or executive in nature, he does not perform the role of a court. When an executive Magistrate, in exercise of the power vested in him u/s 129 Cr.P.C. commands an unlawful assembly to disperse,he is acting as an officer having administrative power not under a judicial power.
DISTRICT MAGISTRATE ADDITIONAL DISTRICT MAGISTRATE SUBDIVISIONAL MAGISTRATE
Appointment of Executive Magistrates Executive Magistrates are to be appointed by the State Government u/s 20 (1) Cr. P.C. Executive Magistrates may be appointed not only for every district but also for every metropolitan area vide Sec.20(1).
Cr.P.C 20. Executive Magistrates (1) In every district and in every metropolitan area The State Government may appoint as many persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be the District Magistrate (2) The State Government may appoint any Executive Magistrate to be an Additional District Magistrate, and such Magistrate shall have such of the powers of a District Magistrate under this Code or under any other law for the time being in force as may be directed by the State Government
Cr.P.C 20 (3) Whenever, in consequence of the office of a District Magistrate becoming Vacant, any officer succeeds temporarily to the executive administration of the district, such officer shall, pending the orders of the State Government, exercise all the powers and perform all the duties respectively conferred and imposed by this Code on the District Magistrate (4) The State Government may place an Executive Magistrate in charge of a sub-division and may relieve him of the charge as occasion requires; and the Magistrate so placed in charge of a sub-division shall be called the Sub-divisional Magistrate
21. Special Executive Magistrates The State Government may appoint, for such term as it may think fit, Executive Magistrates, to be known as Special Executive Magistrates for particular areas or for the performance of particular functions and confer on such Special Executive Magistrates such of the powers as are conferrable under this Code on Executive Magistrate, as it may deem fit Comments Special Executive Magistrate is entitled to exercise any of powers of the Executive Magistrate conferred by the Code the same way as other EMs, State of Maharashtra v Mohammad Salim Khan, (1991)1 Crimes 120 (SC)
Court Confirmations • State Govt. can appoint Tahsildars and Deputy Tahsildars as the Special Executive Magistrates • State of Tamil Nadu Vs. R.Gandhi,1995 Cr.L.J.3129(Mad)
22. Local Jurisdiction of Executive Magistrates (1) Subject to the control of the State Government, the District Magistrate may, from time to time, define the local limits of the areas within which the Executive Magistrates may exercise all or any of the powers with which they may be invested under this Code (2) Except as otherwise provided by such definition, the jurisdiction and powers of every such Magistrate shall extend throughout the district
23. Subordination of Executive Magistrates (1) All Executive Magistrates, other than the Additional District Magistrate, shall be subordinate to the District Magistrate, and every Executive Magistrate (other than the Sub-divisional Magistrate) exercising powers in a sub-division shall also be subordinate to the Sub-divisional Magistrate, subject, however, to the general control of the District Magistrate (2) The District Magistrate may, from time to time, make rules or give special orders, consistent with this Code, as to the distribution of business among the Executive Magistrates subordinate to him and as to the allocation of business to an Additional District Magistrate
Power of Arrest An Executive Magistrate, within his local jurisdiction, may himself arrest or get arrested in his presence, under any of the two circumstances specified in sub- section (1) and (2) of Section 44.
44. Arrest by Magistrate (1) When any offence is committed in the presence of a Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody (2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant
EXECUTIVE MAGISTRATE DO NOT DIRECTLY EXERCISE THESE POWERS, BUT THROUGH THE AGENCY OF POLICE.
THE SPECIAL POWERS OF THE EXECUTIVE MAGISTRATES 1.TO PASS INJUCTIONS 2.TO STOP PUBLIC NUISANCE 3.TO PREVENT UNLAWFULASSEMBLY 4.TO PREVENT DISORDER OR APPREHENSION OF DANGER OR BREACH OF PEACE,WHEN A DISPUTE CONCERNING LAND AND WATER 5.TO ATTACH SUCH SUBJECT OF DISPUTE AND TO APPOINT RECEIVER, 6. TO ISSUE SEARCH WARRANT 7. TO HOLD INQUEST OF UNNATURAL OR SUSPICIOUS DEATH 8. TO TAKE DYING DECLARATION 9.MAKE ENQUIRY ON CUSTODIAL DEATH 10. JUSTIFICATION OF POLICE FIRING
The Constitution of India • Article 22 (1) No person who is arrested shall be detained in custody without being informed, as soon as may be ,of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by ,a legal practioner of his choice.
The Constitution of India • Article 22 (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hrs of such arrest excluding the time necessary for the journey from the place of arrest to court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
• W.P.Crl No.368/09 34 • 39. In the result, • a) This writ petition is allowed. • b) The impugned order is set aside on the ground • that the 3rd respondent who is only a District Magistrate • temporarily in charge has no legal competence to exercise • delegated authority under Section 3(2) of the KAAPA.
• Secondly, it was an arrangement made by means • of administrative instructions in a conference convened by the Chief • Judicial Magistrate (District Magistrate (Judicial) of Trivandrum, for • expeditious disposal of "petty offences" by the Magistrates in • Trivandrum District only. Thirdly, such executive instructions which • are contrary to the provisions of law cannot legalise the procedure • given thereunder. The above Circular was issued by the Police • Department at a time when Executive Magistrates were invested • with judicial powers as well. But under the present Code there is a • clear separation of the Judiciary from the Executive.
any police officer arrogate to himself the said power which is exclusively vested in the Magistrate. In Ajay Kumar Bhuyan v. State of Orissa - 2003 (1) SCC 707 the Apex Court repelled a plea urged on behalf of the State of Orissa that administrative instructions issued by the State Government under the Orissa Police Manual, 1940 were having statutory force. It was held that they were only authoritative guides for the officers of the Police Department and could not be termed as statutory rules constituting "existing law" within the meaning of
• Article 313 of the Constitution of India. In Punjab Water Supply • Crl.M.C. Nos. 2125 of 2010 -:8:- • and Sewerage Board v. Ranjodh Singh - AIR 2007 SC 1082 the • Supreme Court observed as follows:- • "Any departmental letter or executive instruction • cannot prevail over statutory rule and • constitutional provisions
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