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Empowering Executive Magistrate for better law and order in Society

India is fast emerging as a major global power. A good law and order situation is first criteria of rapid development of a nation. India is a socialistic society. India has many religions, castes, and racial groups which together consist a population as big as 1.25 billion which lives over 3.3 million square km of area across 29 states and 7 union territories.

Naturally, this entire group of large area and population results in many issues and problems which give birth to the ways of law and order. Again, nature of crimes also varies from crimes to crimes, crime against state, crime against humanity, etc.

Political and social issues also lead to create problem for law and order. Police is the principal agency to maintain the Law and Order; however, specific areas are required to meet the situation as per the nature of problem.

Thus, in India, alike most of the modern countries have different agencies which meet the challenges of various kinds day and night, throughout the year. There work varies to maintaining peace, investigation, counter terrorism, espionage and even relief and rehabilitation programes4. This article is an attempt to examine the Law-and-Order situation in India and its mechanism to maintain the system in Indian state.

The judiciary's point of view to maintain good relation to better administer justice which 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 enforces on good relation between the functions of an executive magistrate and those of the Judicial Magistrates.

The Judicial Magistrates have the power to give punishments or penalty or detention and go through the evidence in the process of investigation while matters regarding granting, suspension and cancellation of licenses which comes under the coverage of the role of an executive magistrate. Therefore, 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 in the society.

Defining the Role of an Executive Magistrate

The Executive Magistrates focus mainly on the Law and Order and focuses on the police and administrative functions with little or no concern at all about the judicial perspective of the process. Wherein, they play a very crucial 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. 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 Sec.116 of the CrPC in connection with maintaining peace and order under Sec.107 of the CrPC. But this role is winded up 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, Sometimes it has been noticed with the role of the Executive Magistrates in the context of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 wherein, they were embedded 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 dual posts, 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[1]. 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 framed 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 act of violence has the capability to leave an incredible mark in the minds of the affected. It would have a further devastating effect by fueling another course of violence amongst the society. 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 section. Due to this characteristic of this section, it comes within the jurisdiction of Executive Magistrates.

This section and the powers described within, provides 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 Sec 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.

In the case of Madhu Limaye v. Sub-Divisional Magistrate[2], it was observed that this section had the powers mentioned, provides 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[3], it was observed 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 [4]., 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

Sec.129 of the Criminal Procedure Code empowers the magistrate to vanish 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 Sec.144 of the Criminal Procedure Code.

Magistrates or the officers in charge of a police station are provided with powers to disperse the unlawful assemblies, wherein there are situations where there is lack of availability of police officers in a particular area to order a dispersal. It is important at that point to have another person with the same authority to bring in effect the same and the importance of the role of an executive magistrate.

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 Sec.130 and are protected by the provisions in Sec.132 which requires these actions to be done in good faith. Their actions of maintaining peace in the society is thus statutorily protected.

In these 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 Gopal ji Prasad vs. State of Sikkim[5], 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 U.P. Sec.154 of the CrPC provides that the information provided by the complainant should be put down in writing by the officer in charge of the station and a further additional provision under Sec.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.

Sec.190 provides the magistrate to take cognizance based on a complaint or a police report. The magistrate is provided with the power to direct an investigation and even lodge an FIR. It is therefore clear from the scheme of the CrPC that the code provides not to allow the executive magistrate to lodge an FIR based on a private complaint raised before him. It has also been laid down that the executive magistrate does not exercise powers under Sec.156(3) of the code to be able to direct an investigation.

This further indicates 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. Based on 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 states one of the Directive Principles of State Policy 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. The administration of criminal justice, where a categorization has been made between the Executive and the Judicial Magistrates with the former focus on the administrative functions relating to the maintenance of peace and order while it plays a crucial, role in the process of investigation.

The powers granted in an Executive Magistrate under Section 107 is to prevent breach of peace is urgent in nature and is unto the discretion of the Executive Magistrate to decide whether proceedings is to be initiated or not to be initiated. The subjective opinion 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 Sec.144 is judicially 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." However, it has been stressed that there should be minimal interference from the courts in the dispensing of justice under Sec.107 or Sec.111 which leads to a spread of violence and other offences. 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 are further scrutiny as in the case of Sec.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 stating the disparity in their functioning and the exercise of power.

  • Code of Criminal Procedure, 1973
  • 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.
Written By: Sneha Shah, BALLB 5th Year - Ajeenkya Dy patil University, Pune.

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