PRESENTATION
AT MCSA
WORKSHOP ON
ROLE &
POWERS OF
THE
EXECUTIVE
MAGISTRATE
FOR MCS
OFFICERS HELD
ON 4 JULY
2014
KUNAL, IAS
GOVT OF NCT, DELHI
Sec 6 of CrPC :Besides the High Courts and the Courts constituted under
any law, other than this Code, there shall be, in every
State, the following classes of Criminal Courts, namely:(i) Courts of Session;
(ii) Judicial Magistrates of the first class and, in any
metropolitan area, Metropolitan Magistrates;
(iii) Judicial Magistrates of the second class; and
(iv) Executive Magistrates.
By virtue of Sec 397,398 all criminal courts are inferior to
Sessions Court.


Most important as the legal meaning of the words are
different than casual/dictionary meaning
Sec 3(4) Where, under any law, other than this code, the
functions exercisable by a magistrate relate to mattersa) 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, 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.
A Civil Service Officer when posted in districts wear different
hats: District Magistrate/ADM/SDM/EM
 Collector/Assistant Collector (Revenue Officer)
 District Election Officer/ERO/RO/AERO/ARO
 District Program Coordinator/DPO/ADPO/PO
 Chairman/Member of various bodies/committees
Can all the functions termed as Criminal Court?
No
Instances have been noticed that appeal against other
court functions have been filed with Sessions Court. Only
Criminal court cases can be appealed in Sessions Court.
e.g. quashing of u/s144 CrPC by Civil Judge in Saiha
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
State Govt can appoint
as many persons it may
deem fit as Executive
Magistrate (EM) and
shall appoint one of
them to be District
Magistrate (DM)
One of the Executive
Magistrate to be Addl
District
Magistrate
(ADM)
One EM in charge of sub
division designated as
Sub
Divisional
Magistrate (SDM)
Hierarchy (Sec 23)
DM
SDM
EM
 Sec
21:Appointment of Special Executive
Magistrates
 Sec 22: Defining local areas of EM/SEM. In
general jurisdiction of each EM extends
throughout the district
 Sec 23: Subordination of EMs except ADM to
DM in a District. Subordination of EM to SDM
in a sub-division
 Sec24(4),(5):
Appointment
of
Public
Prosecutor by State from a panel prepared by
DM in consultation with Sessions Judge
“Police officers superior in rank to an officer in
charge of a police station may exercise the same
powers, throughout the local area to which they
are appointed, as may be exercised by such
officer within the limits of his station.”
CrPC only talks about SI/SHO/IG. So by virtue of
this section, the senior-most officer available on
the spot may exercise the power of SHO

Every person is bound to assist a Magistrate or
police officer reasonably demanding his aida) in the taking or preventing the escape of
any other person whom such magistrate or
police officer is authorized to arrest; or
b) in the prevention or suppression of a
breach of the peace; or
c) in the prevention of any injury attempted
to be committed to any railway, canal,
telegraph or public property.
(1)
Every officer employed in connection with the affairs of a
village and every person residing in a village shall forthwith
communicate to the nearest Magistrate or to the officer in
charge of the nearest police station, whichever is nearer, any
information which he may posses respecting :(a)-(e) relates to crime
(f)
any matter likely to affect the maintenance of order of the
prevention of crime or the safety of person or property
respecting which the District Magistrate by general or
special order made with the previous sanction of the State
Government, has directed him to communicate information.
(2)
(iii) the words “officer employed in connection with the affairs
of the village” means a member of the panchayat of the
village and includes the headman and every officer or other
person appointed to perform any function connected with the
administration of the village.
Sec 41(1) deals with certain kinds of crime and
cases
Sec 41(2) Any officer in charge of a police
station may, in like manner, arrest or cause
to be arrested any person, belonging to one
or more of the categories of person specified
in section 109 or section 110
1)
2)
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.
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.
Wide powers to arrest. Police can arrest only
for cognizable offence
“Officers in charge of police stations shall
report to the District Magistrate, or, if he so
directs, to the Sub-divisional Magistrate, the
cases of all persons arrested without
warrant, within the limits of their respective
stations, whether such persons have been
admitted to bail or otherwise.”
Important from human rights point of view
and to ensure police should not misuse
their wide powers
A court may, in any case in which it is empowered by this
Code to issue a summons for the appearance of any
person, issue, after recording its reasons in writing, a
warrant for his arresta) if either before the issue of summons, or after the
issue of the same but before time fixed for his
appearance, the court sees reason to believe that he
has absconded or will not obey the summons; or
b) if, at such time he fails to appear and the summons is
proved to have been duly served in time to admit of
his appearing in accordance therewith and no
reasonable excuse is offered for such failure.
An EM can issue Warrant under the abovementioned cases. In
such cases all powers u/s 70,77,82,83 can be utilised by
EMs.
 Sec
70: Issuance of Warrant and its force
throughout India
 Sec 77: Execution of Warrant anywhere in
India
 Sec 82: Proclamation of absconder
 Sec 83: Attachment of movable/immovable
property of proclaimed absconder
 Sec
94: Power of DM/SDM to order search a
place which he believes after inquiry that is
used for deposit/sale of stolen properties,
objectionable articles- counterfeit coins,
currency, stamps, forged documents, false
seals, obscene objects
 Sec 97: DM/SDM to order search if any person
is reported to be confined.
 Sec 98: DM/SDM to restore liberty of woman
in case of complaint of abduction/unlawful
detention
 One
of the core works of Executive
Magistracy
 Preventive action to prevent any offence or
mischief or breach of peace
 Sec 107: To prevent breach of peace.
Execution of bond with or without surety
from any person for such period not
exceeding one year. Components of show
cause:


Receiving information
Likelihood of a person to commit breach of peace
Wrongful act which may lead to breach of peace
Any EM may show cause for execution of a bond for good behaviour
with or without surety if he has information that any person is
(i) either orally or in writing or in any other manner intentionally
disseminates or attempts to disseminate or abets the
dissemination of-
(a) any matter the publication of’ which is punishable under
section 124A or section 153A or section 153B or section 295A
of’ the Indian Penal Code (45 of’ 1860), or
(b) any matter concerning a Judge acting or purporting to act
in the discharge of his official duties which amounts to
criminal intimidation or defamation under the Indian Penal
Code
(ii) makes Produces, Publishes or keeps for sale, imports, exports,
conveys, sells, lets to hire, distributes, publicly exhibits or in any
other manner puts into circulation any obscene matter such as is
referred to in section 292 of the Indian Penal Code.
When an Executive Magistrate receive information that
there is within his local jurisdiction a person taking
precautions to conceal his presence and that there is
reason to believe that he is doing so with a view to
committing a cognizable offence, the Magistrate may, in
the manner hereinafter provided, require such person to
show cause why he should not be ordered to execute a
bond, with or without sureties, for his good behaviour for
such period, not exceeding, one year, as the Magistrate
thinks fit.
When an Executive Magistrate receives information that there is
within his local jurisdiction a person who(a) is by habit a robber, house-breaker, thief, or forger, or
(b) is by habit a receiver of stolen property knowing the same to
have been stolen, or
(c) habitually protects or harbours thieves, or aids in the
concealment of disposal of stolen property, or
(d) habitually commits, or attempts to commit, or abets the
Commission of, the offence of kidnapping, abduction,
extortion, cheating or mischief, or any offence punishable
under Chapter XII of the Indian Penal Code (45 of 1860), or
under section 489A, section 489B, section 489C or section
489D of that Code, or
(e) habitually commits, or attempts to commit, or abets the
Commission of, offences, involving, a breach of the peace, or
(f) habitually commits, or attempts to commit, or abets the
commission of offences under certain Acts
 Procedures
must be followed as per the Act
 Immense power wherein a person can be
arrested either as preventive measure or in
default of surety or in breach of bond (eg.
Anna Hazare during 2012 movement)
 Magistrate has the jurisdiction to decide on
type and class of surety and amount of bond
 Sec
129: Dispersal of unlawful assembly of 5
or more person by civil force which is likely
to cause a disturbance to the public peace.
 Sec 130: Disbursal of such unlawful assembly
by armed forces
 Sec 132: No prosecution against officers for
acting u/s 129,130 without permission of
State/Central Govt
Sec 133: Magistrate’s power to order removal of
public nuisance in 6 categories:





Any unlawful obstruction or nuisance from public
place or from any way, river channel etc which is
lawfully used by public
Conduct of any trade which is injurious to health
Construction of building or disposal of any substance
may result in conflagration or explosion
Any building, tent or structure likely to fall
Any tank, well or excavation likely to create danger
Any dangerous animal which should be destroyed,
confined or disposed off
 Sec
134-143 procedures for implementation
of orders u/s 133
 Sec 136: penalty u/s 188 of IPC for nonfollowing of final orders u/s 138
 Sec 137: inquiry in denial of public right of
way
 Sec 141: power of Magistrate to perform the
directions issued u/s138 and recover the cost
 Sec 142: pending trial, Magistrate can issue
injunction
 Sec 143: EM may order any person not to
repeat any public nuisance as defined in IPC
Sec 144: Power of EM to direct any person to
abstain from certain act or to take certain order
with respect to certain property in his possession
if such Magistrate considers that such direction
will prevent

Obstruction, annoyance or injury to any person lawfully
employed or
Danger to
 Human life
 Health or safety
 Disturbance of the public tranquility
 Riot
 Affray
Can be passed ex-parte
Sec 145: EM can decide possession if a dispute
likely to cause breach of public peace
concerning any land or water
 If a party is dispossesed within two months
then that party can be treated in possession
Sec 146: Attachment of property in case issue
of possession cant be decided until a
competent court decides the rights of parties
Sec 147: disputer over right of user of any land
or water. (right needs to be exercised at
least 3 months before information to EM)
Sec 148: Power of local inquiry for matters
u/145,146,147
Sec 174(1): OC of a police station on receving
information on unnatural death shall give
information to DM/SDM/EM and then go on spot
to enquire into the matter
Sec 176: Magistrate to conduct inquiry if:Case involves suicide by a woman within 7 years of
her marriage
 Case related to death of a woman within 7 years of
her marriage raising suspicion
 Case related to death of a woman within 7 years of
her marriage and any relative make a request in this
behalf


Power of Magistrate to disinter the body
Sec 195: No court can take coginzance of any
contempt of lawful authority of a public servant
unless the complaint to the court has been given
in writing by public servant or his superior for
offences or their abetment or their conspiracy
which are punishable u/s188 of IPC
 Sec 340: Power of Court to in case violation of its
lawful authority to




Conduct enquiry
Make complaint thereof
Take security for appearance of such accused to the
Magistrate
Bind over the person to appear and give evidence before
Magistrate

Sec 345: Procedure in certain cases of contempt.
When any such offence as is described in section 175, section 178, section
179, section 180 or section 228 of the Indian Penal Code (45 of 1860 ), is
committed in the view or presence of any Civil, Criminal or Revenue
Court, the Court may cause

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the offender to be detained in custody and may, at any time before the rising of
the Court on the same day,
take cognizance of the offence and, after giving the offender a reasonable
opportunity of showing cause why he should not be punished under this section,
sentence the offender to fine not exceeding two hundred rupees, and,
in default of payment of fine, to simple imprisonment for a term which may
extend to one month, unless such fine be sooner paid.
In every such case the Court shall record the facts constituting the
offence, with the statement (if any) made by the offender, as well as the
finding and sentence.
If the offence is under section 228 of the Indian Penal Code (45 of 1860 ),
the record shall show the nature and stage of the judicial proceeding in
which the Court interrupted or insulted was sitting, and the nature of the
interruption or insult.
Is it a real loss for the Civil Service Officers?????
 A Big NO….


EMs/SDMs/DMs do not read Code of Criminal
Pocedure to see what they can do with the
powers given to them. CrPC to an EM in Mizoram
means power to issue prohibitory orders u/s 144
of CrPC
Is provisions under CrPC, 1973 for EMs limited to
Sec 144 only??????
 Please read CrPC, 1973 carefully and use it for
general
welfare
of
the
people.

 Taking
Security for Maintenance of Public
Peace. (Sec 107-110)
 Power to disperse assembly by force (Sec
129,130)
 Power to deal with public nuisance (Sec 133)
 Power to issue order in urgent cases of
nuisance or apprehended danger (Sec 144)
 Power to intervene
on dispute concerning
land or water which may disturb public
peace (Sec 145,146,147)
 Inquest (Sec 174, 176)

Overuse of Provisions of Sec 144 of CrPC. Mizoram
Law Commission in its latest report criticized these
practices. Overuse reduces the impact and shows
lack of knowledge of magistrate issuing it. Eg.:
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Banning broadcast of Korean/Myanmarese channel. The
provisions of Cable TV Act can be used.
Banning wearing of uniforms looking similar to Indian
Army, BRTF etc. Already a provision exist in IPC
Banning Pan, Gutkha, Cigarette etc. Provisions already
exist in Food Adulteration Act, COTPA etc
Banning Mining. Already Minor Minerals Act exist.
Hardly any use of other provisions of CrPC.
Executive Magistracy is an dynamic concept. It can
sort out major problems which the society is facing if
used properly.
Law relating to drug abuse is very lenient. CrPC
110 can be used against the habitual drug
peddlers. Those can be ordered to give surety of
any amount on discretion of EM.
 Removal of Public Nuisance provisions hardly
used. It can be effectively used in :
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Cases like digging of earth for house construction
without proper covering/retaining wall which can
endanger the neighbouring structure.
Bad Roads (??)
Parking Problem
Encroachments
Clearing Water Bodies and Water Sources from private
occupations
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Magisterial Provisions are provided for maintenance of
public peace and speedy action. No other provisions give
this much powers at discretion of a single authority
Important for ensuring human rights of the people and
protecting their rights and interests suo moto.
Fits into overall impression of DC/DM being the Mai-Baap
(Father & Mother) of the District.
Judicious use can help avert major crises and increase
efficiency.
An ever evolving concept. Use depends on situation. No
predetermined criteria can be given.
Procedures provided under CrPC should be followed
without fail otherwise orders can be quashed by the
superior courts.
These provisions made the popular saying that “Whatever
DM says is a Law”
Thank You