This article is written by Philip Ashok Alex, from National Law University, Delhi.
Table of Contents
The judiciary’s vision to maintain autonomy to better administer justice has been voiced and well represented in the Code of Criminal Procedure as well in its classification of magistrates into two types – the Executive Magistrates and the Judicial Magistrates. Section 3(4) of the CrPC draws a line of demarcation between the functions of an executive magistrate and those of the Judicial Magistrates. The Judicial Magistrates are to give verdicts pronouncing punishments or penalty or detention and go through the evidence in the process of investigation while matters regarding granting, suspension and cancellation of licenses come under the purview of the role of an executive magistrate. Hence, we can understand that the scope of the functions of an executive magistrate is mainly limited to administrative matters, taking preventive measures and issues relating to maintenance of law and order.
An attempt has been made in this article to characterise the relevance of the role played by the executive magistrate by virtue of the various powers vested in them. There have been several questions raised regarding the relevance of the role of the executive magistrate since there has been an overlap noticed in the functions of the Executive Magistrates with that of the judicial magistrate. The resultant redundancy of this role emphasises on the need to revisit the same in different contexts and analyse the significance in those different realms.
Defining the Role of an Executive Magistrate
The Executive Magistrates focus mainly on the police and administrative functions with little or no concern about the judicial aspect of the process. However, they play a very significant role in the maintenance of law and order within the framework of just and reasonable procedure trying to ensure that the personal liberties of the citizens are not infringed or blatantly disregarded. There have been provisions made allowing the functions of the Executive Magistrate to be discharged by the Judicial Magistrate in consultation with the legislative assembly of that state. Executive Magistrates sometimes act as courts when they take up functions that are judicial in nature while conducting an inquiry under S.116 of the CrPC in connection with maintaining peace and order under S.107 of the CrPC. But this role is subsumed when he takes up his duties that are purely administrative in nature and hence it can be said that the executive magistrate often plays a dual role in their functioning.
The Judicial Magistrates are to give verdicts pronouncing punishments or penalty or detention and go through the evidence in the process of investigation. On the other hand, the role of the Executive Magistrates is largely administrative in nature. They deal predominantly with general law and order issues and preventive measures that were to be taken in a particular locality. They are the officers of the executive branch and not that of the judicial branch and it is undisputed that they primarily deal with matters that are either executive or administrative in nature. They are empowered to obtain bonds or security for keeping peace or maintaining good behaviour under Sections 107, 108, 109 and 110 of the CrPC and also to initiate the dispersal of unlawful assemblies in addition to dealing with public nuisances and issues that can cause apprehended danger to public tranquillity under Sections 133 and 144.
However, an incongruity that was noticed with the role of the Executive Magistrates was in the context of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (see here) wherein they were vested with the powers to imprison; an act of authority that was to lie with the Judicial Magistrates as specified in the division. This mixture led to blurred lines being drawn between the functions of Executive Magistrates and Judicial Magistrates which was found to be not instrumental in the smooth functioning of the Executive and the Judicial machinery.
Police Vested with the Authority of an Executive Magistrate
In the metropolitan areas of certain states, the Commissioners of Police of those states are given a dual designation, being conferred with the duties and functions of an executive magistrate. This came into being after a combined reading of sub-sections (1), (2) and (3) of Section 20 of the CrPC, a personification of which was seen in the case of A.N. Roy v Suresh Sham Singh (see here). The commissioner of Birhan, Mumbai was empowered with magisterial powers of the executive nature and was further elevated to the post of an additional district magistrate, giving them the same powers as that of the district magistrate. It was argued in the favour of these appointments that this was a well – structured mechanism that facilitated a better-functioning framework of authorised local laws, allowed to be continued by virtue of Section 20(5) of the Criminal Procedure Code.
They were empowered to maintain law and order in addition to being entrusted with the responsibility to ensure peace in the society. This plea has in it an example where a police officer in the role of an executive magistrate, refused to accept the bond given by a person in the case of public nuisance and was sent to judicial custody. It was contested that the whole procedure was done rather arbitrarily, thereby challenging the powers granted to the Executive Magistrates, under Section 107, 111 and 116, in a bid to keep peace in the society.
Functions of an Executive Magistrate
Power of Maintaining Peace and Looking into Impending Threats to Law and Order
Every riot or an act of violence has the potential to leave an indelible mark in the minds of the affected. It would have a further cascading effect by fuelling another course of violence and animosity. Section 107 is effectively concerned with ensuring security in order to maintain peace under all circumstances and for this purpose, there has been a sense of urgency attached to this particular section. Due to that very virtue and characteristic of this section, it comes within the jurisdiction of Executive Magistrates. This section and the powers described within, purports to ensure preventive justice not allowing any potential threats to public tranquillity, to grow and bloom into something more dangerous than it already might be. Proceedings can be initiated under S.107 by the Executive Magistrates either in cases where the breach of peace is within his jurisdiction or even when it is outside his jurisdiction but when there is reasonable apprehension that such a breach might happen.
In the case of Madhu Limaye v. Sub-Divisional Magistrate (see here), it was identified that this section and the powers described within, purports to ensure preventive justice to curb any potential threats to public tranquillity, to grow and bloom into something more dangerous than it already might be. In the Madras High Court judgment of M. Krishnamurthy v Sub-divisional magistrate (see here), it was opined that it was necessary that a subjective opinion was formed by the magistrate based on the information received by him and the truth value was not be checked since alacrity was said to be the need of the hour. In the case of Medha Patkar v State of M.P. (see here), it was ruled that this section, aimed to be preventive over being punitive, confers the Executive Magistrates with enormous powers in order to take prompt action in case of an emergency, but in a way as strictly prescribed by law. This is equally important so as not to barge in on the liberty of the person who has been accused.
Power to Dispose Unlawful or Potentially Unlawful Assemblies
S.129 of the Criminal Procedure Code empowers the magistrate to disperse unlawful assemblies by the application of civil force. They have also vested in them to disperse other assemblies which could be potential threats leading to the disruption of peace. However, this is merely an extension of the primary power to disperse unlawful assemblies as defined in S.144 of the Criminal Procedure Code.
Magistrates or the officers in charge of a police station are empowered to disperse the unlawful assemblies but more often than not, there are situations where there is lack of availability of police officers in an area to order such a dispersal. It is crucial at that point to have another rational person with authority to effectuate the same and the importance of the role of an executive magistrate is magnified then. This is under a fair presumption that any delay in obtaining the order from the concerned authorities causing undue delay might push the situation beyond unimaginable circumstances. They are also permitted to disperse such unlawful assemblies with the aid of the armed forces under S.130 and are protected by the provisions in S.132 which requires these actions to be done in good faith. Their actions of maintaining peace in the society is thus statutorily protected.
In dire cases of nuisance or apprehended threats, the executive magistrate is empowered to issue orders to the effect of controlling or curbing those. There should be sufficient grounds for initiating the procedure under this section for instantaneous prevention or immediate relief. The section is primarily aimed at controlling harmful occurrences in the society and the graveness and the suddenness of the situation is seen by the absolute power in issuing the order and does not even provide the opportunity to the other part to show cause However, a need to maintain checks on such powers was found in the case of Gopalji Prasad v State of Sikkim (see here), where it was ruled that the magistrate was required to record his reasons in writing and should have applied his mind and should not be arbitrary. It does not come within the purview of a normal administrative order but requires judicial scrutiny in order to test its efficiency and extent of application. The power entrusted is neither absolute nor supreme but is subjected to scrutiny by the higher courts.
Power to File an FIR under Section 154 of the CrPC
The question of whether an executive magistrate is competent to file an FIR was discussed in the 2018 judgment of Naman Singh v State of UP (see here). S.154 of the CrPC provides that the information provided by the complainant ought to be put down in writing by the officer in charge of the station and a further additional provision under S.154(3) allows the complainant to approach the Superintendent of Police in case there is any refusal by the officer in charge to record such an information.
S.190 allows the magistrate to take cognisance on the basis of either a complaint or a police report. The magistrate is also then given the power to direct an investigation and even lodge an FIR. It is therefore clear from the scheme of the CrPC that the code purports not to allow the executive magistrate to lodge an FIR on the basis of a private complaint raised before him. It has also been laid down that the executive magistrate does not exercise powers under S.156(3) of the code to be able to direct an investigation.
This further is indicative of the administrative nature of the role of an executive magistrate and the various limitations attached to the designation of an executive magistrate. For the purposes of all functions under the CrPC where the word “magistrate” has been mentioned, it has been interpreted to mean the Judicial Magistrates and not the Executive Magistrates, unless and until, it is specified otherwise. The role of the Executive Magistrates comes in handy merely in times where the judicial magistrate requires backing from the executive. On the basis of the discussion conducted above, it is clear that the role of the executive magistrate is to fill the gaps in the duties of the judicial magistrate and is hence supplementary in nature and not complementary.
Article 50 which talks about one of the Directive Principles of State Policy as enshrined in Part IV of the constitution mandates that effective steps ought to be taken in order to separate the functioning of the Judiciary from that of the Executive. This is most relevant in the administration of criminal justice where a classification has been made between the Executive and the Judicial Magistrates with the former focussing on the administrative functions relating to the maintenance of peace and order while the latter plays a crucial, inseparable role in the process of investigation.
The powers vested in an Executive Magistrate under Section 107 so as to prevent breach of peace is urgent in nature and is upto the discretion of the Executive Magistrate so as to decide whether proceedings are to be initiated or not. The subjective opinion ought to be formed after the analysis of the evidence and the procedure, if not followed religiously, vitiates the rest of the process. It has been noted that the same applies to Sections 129, 133 and 144 which vests powers on the executive magistrate aimed at maintaining peace and keeping checks on any apprehended danger or threat, are subject to numerous checks and balances and various limitations especially in the case where the orders under S.144 is judicially scrutinised before the actions actually take place or the final order is issued.
The provisions granting power to the Executive Magistrates have been built along the lines of – “Prevention is better than cure”. This is indicative of how the role of an executive magistrate is pertinent to the functioning of the justice system in whatever capacity that they work in. However, it has been stressed that there should be minimal interference from the courts in the dispensing of justice under S.107 or S.111 which would otherwise lead to a spree of animosity and other violent actions. It can therefore be concluded that the powers granted to the executive magistrate are limited and are mainly administrative in nature. Even in the limited powers that are granted to the Executive Magistrates, there is further scrutiny as in the case of S.167 where they are allowed to order detention for not more than 7 days as opposed to the Judicial Magistrates who can order up to the mandated 15 days highlighting the disparity in their functioning and the exercise of power.
- Code of Criminal Procedure, 1973.
- Madhu Limaye v. Sub-Divisional Magistrate, 3 SCC 746.
- Mahadevaswamy v. State of Karnataka, 1989 Cri LJ 765 (Kant).
- Brij Gopal Chaturvedi v State of M.P., 1997 SCC 569.
- Aldanish Rein v State of Delhi.
- Hari Chand, AIR 1969 SC 483, 487.
- Manohari v The District Superintendent of Police.
- B.A. Mahalingam v State of Tamil Nadu, Crl. O.P. No. 28941 of 2013.
- Sanaul Haque v State of UP, 2008 Cri LJ 747 (750) (Del).
- Chaganti Satyanaryan v State of Andhra Pradesh & Others, 1986 SCR (2) 1128.
- Medha Patkar v State of MP, 2008 Cri LJ 47 (MP).
- Jagdishwaranand v. Police Commissioner, 1983 Cri LJ 1872 (Cal).
- Pradyot Kumar v Bank of India 1973 Cri LJ 1361 (Cal).
- M. Krishnamurthy v Sub-Divisional Magistrate Crl OP No. 17684 of 2015.
- K.N. Chandrasekharan Pillai, R.V. Kelkar’s Criminal Procedure. (Eastern Book Company) 2015.
- Sudipto Sarkar and V R Manohar, eds. S.C. Sarkar’s The Code of Criminal Procedure, Vol I. (Nagpur: Lexis Nexis Butterworth’s Wadhwa) 2012.
- Press Trust of India, ‘How Police Officers can act as Executive Magistrates, asks SC’ (Business Standard, 5 April 2018) New Delhi < https://www.business-standard.com/article/pti-stories/how-police-officers-can-act-as-executive-magistrates-asks-sc-118040501165_1.html>
- Press Trust of India, ‘Executive Magistrate on private complaints cannot direct cops to lodge FIR: SC’ Business Standard (19 Dec 2018) New Delhi https://www.business-standard.com/article/pti-stories/executive-magistrate-on-private-complaint-cannot-direct-cops-to-lodge-fir-sc-118121900638_1.html
Law Commission Reports
- Law Commission of India, On reforms of judicial administration (Law Commission No. 14, 1948) p 850.
- Law Commission of India, The Code of Criminal Procedure, 1989 (Law Commission No. 37, 1967) p 13.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: