Executive Magistrates - Their Functions and Powers Under the Code of Criminal Procedure

Readings in Law

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Readings in Law

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2000-2002 cSp

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I.A.S. Professional Course

2000-2002 Batch

(Phase-I)

Volume-II

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Lal Bahadur Shastri

National Academy of Administration,

Mussoorie-248 179.

READINGS IN LAW

IAS PROFESSIONAL COURSE (PHASE-I)

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Technical Support

Sunil Kumar Negi

B.N. Dabral

Circulated by:

Faculty of Law,

Lal Bahadur Shastri National Academy of Administration,

Mussoorie-248 179

Contents

Criminal procedure Code

(1-156)

1. Executive Magistrates -Their Functions & Powers

under the Cr. P.C. 1973- A brief outline 1

D. Banerjea …………………………………………………………………………

2.  Powers of Executive Magistrate under Cr. P.C. 1973

(Act-II of 1974) to deal with "Law & Order" Problems 11

D. Banerjea ………………………………………………………………………….

3.  Power of Executive Magistrate under Cr. P.C. at a glance 19

D. Banerjea ………………………………………………………………………….

4.  Code of Criminal Procedure - Introductory Concepts 47

D. Banerjea

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5.  Police Investigation - an outline 58

D. Banerjea

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6.  Bail 66

D. Banerjea

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7.  Test Identification Parade 78

D. Banerjea

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8.  Police Report 83

D. Banerjea

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9.  Inquest - Principles & Procedures 88

D. Banerjea …………………………………………………………………………......

10. Inquest Report u/s 176 Cr. P.C. - a proforma 99

containing broad guidelines

D. Banerjea

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11.  Inquest - Skill Oriented Task Exercise 104

D. Banerjea

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12.  Procedure relating to Criminal Trials 106

D. Banerjea

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13. Stages of Security Proceedings 112

D. Banerjea

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14.  Public Nuisance- Power of Executive Magistrates to deal 115

with them under the Code of Criminal Procedure

D. Banerjea

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15.  Urgent cases of Nuisance or apprehended danger- 124

Section- 144 Cr. P.C.

D. Banerjea

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16.  Problem Solving Exercise 137

D. Banerjea

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17.  Order U/s 133 Cr. P.C. 138

D. Banerjea

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18.  Order u/s 144 Cr. P.C. - A specimen form 141

D. Banerjea

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19.  Order u/s 144 Cr. P.C. 142

D. Banerjea

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20.  Order u/s 145 Cr. P.C. 147

D. Banerjea

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21.  Civil Suit and Proceeding u/s 145 Cr. P.C. - their interface 148

D. Banerjea

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22.  Search- an outline 152

D. Banerjea

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B. Law of Evidence

(157-227)

1.  The Indian Evidence Act, 1872- An introduction 157

(a compilation) - Part-I

D. Banerjea

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2.  Examination of Witnesses 171

D. Banerjea

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3.  Burden of Proof 179

D. Banerjea

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4.  Claim of Privilege 183

D. Banerjea

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5.  Admission and Confession 188

D. Banerjea

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6.  Dying Declaration 194

D. Banerjea

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7.  Appreciation of Evidence- an outline 207

D. Banerjea

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8.  Evidence Part-II 213

D. Banerjea

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9.  Affidavit 217

D. Banerjea

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10.  Presumptions- at a glance 223

D. Banerjea

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EXECUTIVE MAGISTRATES - THEIR FUNCTIONS AND POWERS UNDER THE CODE OF CRIMINAL PROCEDURE, 1973 -

A BRIEF OUTLINE

I. Scheme of 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.

II. Broad Division of the Magisterial Functions

Judicial Magistrates are under the control of the High Court and Executive Magistrates are under the control of the State Government.

Broadly speaking, such functions of a Magistrate, as are essentially judicial in nature have been entrusted to the Judicial Magistrates while functions which are executive or administrative in nature have been allotted to the Executive Magistrates.

III. Revised set-up of Criminal Courts

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 does not do so in the capacity of a Criminal Court.

IV. 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).

V. Absence of gradation amongst the Executive Magistrates

Unlike the Judicial Magistrates, the Executive Magistrates have not been graded as Executive Magistrate, First Class and Executive Magistrates, Second Class.

VI. Division of Executive Magistrates

The Executive Magistrates may, however, be divided under the following five heads:-

(1) District Magistrates - Sec. 20(1).

(2) Additional District Magistrate - Sec. 20(2).

(3) Sub-Divisional Magistrates - Sec. 20(4).

(4) Subordinate Executive Magistrates - Sec.20(1).

(5) Special Executive Magistrates - Sec. 21.

VII. Subordination of Executive Magistrates

(a) All Executive Magistrates, other than Additional District Magistrates, employed in a district, are subordinate to the District Magistrate.

(b) All Executive Magistrates attached to a Sub-Division are subordinate to the Sub-Divisional Magistrate.

(c) Additional District Magistrates are not subordinate to the District Magistrate. The ADM is, however, an officer below the rank of DM.

REFERENCE: SEC.23(1)

VIII. Territorial Jurisdiction of the Executive Magistrates

Their jurisdiction extends throughout the district unless it is restricted. Such restriction may be imposed by the District Magistrate by defining the local limits of each Executive Magistrate. This authority of the District Magistrate is, however, subject to the control of the State Government vide Sec.22(1) read with Sec. 22(2) Cr. P.C.

IX. Distribution and Allocation of Business

District Magistrate is empowered to distribute business among the Executive Magistrates subordinate to him and also to allocate business to the Additional District Magistrates vide Sec. 23(2).

In this context, it may be remembered that all or any of the powers of a District Magistrate under the Code may be conferred upon the Additional District Magistrate by the State Government vide Sec. 20(2).

X. 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.

XI. Endorsement of Warrant by the Executive Magistrate

Warrants to be executed outside the local limits of the court issuing it should ordinarily be taken to an Executive Magistrate or to a Police Officer not below the rank of O/C of a Police Station, within the local limits of whose jurisdiction the warrant is to be executed, for endorsement vide Sec. 79.

XII. Production of persons arrested on warrants issued by the court, outside the jurisdiction before the Executive Magistrate of the area wherefrom arrest has been made

May be produced before the Executive Magistrate vide Sec. 80.

XIII. Procedure to be followed by the Executive Magistrate when any person arrested on a warrant issued by an outside court is produced before him

(a) The Executive Magistrate should check up whether the person arrested appears to be the person intended by the court issuing the warrant.

(b) When he is so satisfied, he is bound to direct the removal of the arrested person in custody to the Court which issued the warrant, unless the offence involved is bailable.

(c) If the offence is bailable, he shall enlarge the person under arrest on bail provided the person concerned furnishes security to his satisfaction. He shall then forward the bail bond to the court which issued the warrant.

REFERENCE : SECTION 81

XIV. Powers of the District Magistrate and the Sub-Divisional Magistrate to issue search-warrants or to make orders

(a) U/S 94 Cr.P.C. for search of places suspected to contain stolen property, forged documents etc.

(b) U/S 97 Cr.P.C. for search of persons wrongfully confined.

(c) U/S 98 Cr.P.C. for restoration of abducted females.

NOTE: 93(1) Cr.P.C. authorises a court to issue search warrant for document or thing.An Executive Magistrate, while acting as court may also issue search-warrant U/S 93(1) Cr.P.C. in appropriate cases after due enquiry and upon proper material.

XV Powers of any Executive Magistrate

(i) to require search to be made for letters and telegrams in the custody of the postal or telegraph authority, pending the order of the District Magistrate vide Sec. 92(2).

(ii) to authorise police officer not below the rank of Sub-Inspector to search and seize certain publications forfeited under the order of the State Government vide Sec. 95.

XVI. Power to direct search in his presence

An Executive Magistrate, if and when he is competent to issue a search warrant may, instead of issuing a search warrant, direct a search to be made in his presence vide Sec. 103.

XVII. Security for keeping peace and for good behaviour

An Executive Magistrate is competent to demand security as indicated below:-

(a) for keeping peace in cases otherwise than on conviction vide Section 107.

(b) for good behaviour from persons disseminating seditious matters vide Section 108.

(c) for good behaviour from suspected persons vide Section 109.

(d) for good behaviour from habitual offenders vide Section 110.

Sections 111 to 124 lay down the procedure to be followed for the exercise of such magisterial jurisdiction. Section 116 provides for the inquiry to be held.

XII(A) Power to disperse assembly by use of force

(a) Any Executive Magistrate is competent to command an unlawful assembly, actual or potential, to disperse vide Section 129(1).

(b) Any Executive Magistrate, may disperse such assembly by use of Civil Force vide Section 129(2).

(c) If such assembly cannot be dispersed otherwise, the Executive Magistrate of the highest rank present may cause it to be dispersed by armed forces vide Sec.130.

XVIII. Power to deal with public nuisances

A District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government is competent to:-

(a) pass a conditional order for removal of nuisance vide Section 133.

(b) make an inquiry as to the existence of public right when it is denied vide Section 137.

(c) hold an inquiry with a view to determining whether conditional order should be confirmed or modified or further proceeding dropped vide Section 138.

(d) such Magistrate may issue injunction, pending inquiry, to prevent imminent danger or injury of a serious kind to the public vide Section 142, read with Section 133.

(e) such Magistrate may prohibit repetition or continuance of public nuisance vide Section 143.

XIX. Power to issue order in urgent cases of nuisance or apprehended danger

A District Magistrate, a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government may, in the circumstances set forth in Section 144 Cr.P.C., direct any person either to abstain from a certain act or to take certain order with regard to certain property in his possession or under his management.

Such direction may be given to prevent

(i) obstruction, annoyance or injury to any person lawfully employed. or (ii) danger to human life, health or safety or (ii) disturbance of public tranquillity, or a riot or any affray.

REFERENCE: SECTION 144 Cr.P.C.

XX. Power to intervene and tackle a dispute concerning land or water which is likely to cause breach of peace

An Executive Magistrate, if satisfied about the existence of a dispute of the aforesaid nature, must pass a preliminary order U/S 145 (1) and afterwards make an inquiry U/S 145(2).

The inquiry should be limited to the question as to who was in possession in fact on the date of the preliminary order, irrespective of the question as to the rights of the parties.

The object of Section 145 is (a) to prevent the breach of the public peace, (b) to provide a summary and speedy remedy, (c) ascertain which party was in actual possession and(d) to maintain status quo until the rights of the parties are decided by a competent court.

The power to attach the subject of dispute and to appoint Receiver have also been conferred upon such Magistrate U/S 146. The proceedings U/S 146 are in continuation of those U/S 145.

XXI. Power to deal with disputes about the right to a particular use of land or water

This has reference to Section 147. Section 147 has the same object as Section 145 but the nature of dispute U/S 145 is different from the one U/S 147.Section 145 applies to disputes about the possession of the land or water itself while Section 147 relates to disputes regarding rights of user of land or water. The following two examples will make the position clear:

Section 145

Section 147

(ii) Where the subject matter of dispute is a ferry including the land and water upon which the right to ferry is exercised, the case comes properly u/s 145.

The dispute over the right to ply a ferry is one u/s 147.

The mode of inquiry U/S 147 is same as U/S 145.

Section 145 (6) enjoins that the Executive Magistrate shall make an order declaring possession. Section 147(3) on the other hand, provides that the Executive Magistrate may make an order prohibiting any interference with the exercise of the right of actual user claimed, provided that it appeared to exist.

Section 145(6) enjoins that the Executive Magistrate shall make an order declaring possession. Section 147(3), on the other hand, provides that the Executive Magistrate may make an order prohibiting any interference with the exercise of the right of actual user claimed, provided that it appeared to exist.

There may be attachment in a proceeding u/s 145 but the question of attachment does not arise in a case u/s 147.

XXII. Power of remand for a term not exceeding seven days

When a Judicial Magistrate is not available, an accused may be forwarded by the police u/s 167 Cr.P.C., to the nearest Executive Magistrate, on whom powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred. Such Executive Magistrate may authorise the detention of the accused for a term not exceeding seven days vide sub-section 2A of Section 167, which was inserted by the Code of Criminal Procedure (Amendment) Act, 1978.