Examining Criminal Procedure Code

The law relating to criminal procedure applicable to all criminal proceedings in India is contained in the Code of Criminal Procedure, 1998. The Code has been amended from time to time by various Acts of the Central and State Legislatures.

In 1969 law commission report which talks about one of the main recommendations of the Commission is to provide for the separation of the Judiciary from the Executive on all India basis in order to achieve the uniformity in this matter. [1] Now in CrPC there is an allocation of magisterial functions between two categories of Magistrates, “Judicial” under the control of High Court and “Executive” under the control of State Government.

In every district and in every metropolitan area, the State Govt. may appoint as many persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be the District Magistrate. The State Govt. may appoint any Executive Magistrate to be an Additional District Magistrate, and such Magistrate shall have of the powers of a Distt. Magistrate under this Code or under any other law for the time being in force as may be directed by the State Govt. Whenever, in consequence of the office of a Distt. 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 [2] .

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. Nothing in this section shall preclude the State Government from conferring, under any law for the time being in force, on a Commissioner of Police, all or any of the powers of an Executive magistrate in relation to a metropolitan area.

Under the Criminal Procedure Code wide powers have been conferred on an Executive Magistrate to deal with emergent situations. One such provision deals with the Magistrates powers to impose restrictions on the personal liberties of individuals, whether in a specific locality or in a town itself, where the situation has the potential to cause unrest or danger to peace and tranquility  in such an area, due to certain disputes.

The function exercisable by the executive magistrates under the code may be executive , administrative or judicial but when acting under any law other than Crpc they can exercise only executive or administrative function [3] . The functions exercisable by the executive magistrate under the code of criminal procedure 1973 are judicial or executive / administrative in nature. They are vested with judicial function as for example, they have under section 133 crpc the power to order removal of nuisance, under section 145 crpc to determine dispute concerning land and water, if such dispute is likely to cause breach of peace. [4]

In this project the researcher discuss executive magistrate role in criminal court and its judicial power and also analyze scope of sec 144 in CrPC which related to the executive magistrate power.

executive magistrate in criminal procedure code

In criminal procedure code

Sec 20 -44 deals with power and function of executive magistrate

Sec 94 – 98 talks about search warrants

Sec 107 – 124 deals with security for keeping peace and for good behaviour

Sec 129 -131 deals with unlawful assemblies and

Sec 133-141 talks about public nuisance

ANALYSIS OF IMPORTANT SECTIONS

In every District, the following Officers are appointed by virtue of the offices held by them as Executive Mmagistrates by the Government under the sec 20 of Cr.P.C. [5]

Security in keeping peace and tranquillity – Section 107: The main objective of the Section is preventive and not punitive. It enables the Executive Magistrate to take measures with a view to prevent commission of offences involving breach of peace or disturbance to public tranquillity.

Breach of peace and disturbance to public tranquillity arises due to [6] :

Religious Processions

Festivals,

Elections,

Political Movements,

Supremacy in the Village

Disputes due to factions,

GroupRivalry

When an Executive Magistrate receives information (FIR) or from the public that any person is likely to commit a breach of the peace or disturb the public tranquility and if is of the opinion that there are sufficient grounds, he should initiate action under Section 107 Cr.P.C.

On satisfaction, he shall make an order in writing under Section 111 setting for the substance of the information received, the amount of the bond to be executed and directing the respondents to show-cause as to why they should not be ordered to execute a bond for Rs. ………. with or without sureties.

On appointed date and time when all the respondents present the contents of the Section 111 are explained under Section 112 duly questioning the admission or denial of the offence and enquiry commences under Section 116(1). [7]

When the Executive Magistrate considers that immediate measures are necessary for the prevention of the breach of peace, directs the respondents to execute interim bonds for the amount with sureties as indicated in Section 111 till the completion of enquiry.

After conducting enquiry if it is proved that it is necessary for keeping the peace or maintaining good behaviour, the Executive Magistrate shall make an order in writing under Section 117 directing the respondents to executive bonds. [8]

If the allegations are not proved, the Executive Magistrate shall discharge the respondents.

The order should be pronounced in open Court.

The Enquiry shall be completed within a period of 6 months from the date of its commencement and expiry of the said period, the proceedings stand terminated.

Dispersal of unlawful assemblies – Section 129 [9] :

Any Executive Magistrate or any Police Officer not below the rank of Sub-Inspector may command any unlawful assembly or any assembly of five or more persons like to cause a disturbance of the public peace, to disperse, and it shall thereupon the duty of the members of such assembly to disperse accordingly. If they do not disperse, the above officers may proceed to disperse such assembly by force.Firing shall be ordered only as last resort after using lathis or tear gas.

Conditional Order for Removal of Nuisance–Section 133 [10] :

Section 133 empowers the Executive Magistrate to deal with the public nuisances or to deal with the removal of public nuisances.

CATEGORIES OF PUBLIC NUISANCES:

Any unlawful obstruction or nuisance from any public place or from any way, river or channel, which is or may be lawfully used by the public.

The conduct of any trade or occupation, or keeping of any goods or merchandise, is injurious to the health or physical comfort of the community.

The construction of any building or disposal of any substance, as is likely to occasion conflagration or explosion.

Any building, tent, structure, or tree which is likely to fall and thereby cause injury to persons.

Any tank, well or excavation adjacent to any such way or public place.

Any dangerous animal, which requires to be destroyed confined or otherwise disposed of.

Dispute concerning land or water is likely to cause breach of peace – Section 145 :

Where there is a dispute between two parties / groups over the possession of land, water of the boundaries thereof and if the dispute is likely to cause a breach of the peace and on receipt of report of Police Officer or upon other information, the Executive Magistrate having jurisdiction in the matter, should take action U/s 145 Cr.P.C [11] .

After due enquiry, if the Executive Magistrate decides that one of the parties was or should be treated as being in such possession, he shall declare that possession in his favour.

He the Executive Magistrate is not satisfied as to which of the party was in possession of the property, he may pass orders transferring the case to the District Judge for further proceedings as per Law.

After making order under Section 145(1), the Executive Magistrate considers the case to be one of the emergency or that none of the parties was in such possession or if he is unable to satisfy himself who is in possession of the subject in dispute, may attach the subject of dispute until Civil Court determines the rights of the parties.

The mere pendency of a Civil Suit regarding the subject matter of dispute will not deprive the jurisdiction of the Executive Magistrate to take action U/s 145 Cr.P.C. Simultaneous proceedings U/s 107 Cr.P.C. & 145 Cr.P.C between the same parties not barred.

Inquiry into Cases of sudden unnatural deaths, suicides etc., – Section 174 :

The Inquest is the inquiry to ascertain apparent cause of death. The question as to how the deceased was assaulted or who assaulted him or under what circumstances will not fall within the ambit and scope of the proceedings under Section 174 Cr.P.C.

The Police Officer shall immediately give intimation to the nearest Executive Magistrate in all cases of sudden and unnatural deaths like suicide or accident or death due to any machinery or animal or under circumstances raising reasonable suspicion that some other person has committed an offence.

On receiving information, the Executive Magistrate should proceed to the place immediately where the body of such deceased person is and on arrival, the presence of two or more inhabitants of the locality and the blood relations of the deceased and any witnesses are secured and start the inquest.

Inquiry by Executive Magistrate into cause of Death – Section 176 [12] :

In all cases of death in police custody either actual or constructive and in all cases where a married woman dies within 7 years of her marriage either by suicide or other circumstances raising a reasonable, suspicion that some other person committed an offence in relation to such woman, inquest has to be held by an Executive Magistrate.

Exhumation / Disinterrment – Section 176 (3) [13] :

In cases where the death body is buried (interred) and it is considered that the body has to be dug out (Exhumed/Disinterred) for the purposes of examining it, the Executive Magistrate, having jurisdiction, in order to discover the cause of the death make an order in writing permitting the body to be exhumed / disinterred.

Wherever practicable should inform the relatives of the decreased whose names and addressed are known and shall allow them to remain present at the inquiry.

He should get the grave properly identified by the relatives or other persons before ordering the opening of the grave.

It may be noted that opening a grave is interference with the dead and will amount to an offence, if a wrong grave is opened.

The items of clothing etc., should be noted, and the body then got lifted out of the grave and inquest after the body is identified by someone to the satisfaction of the Executive Magistrate.

scope of sec 144 in the criminal procedure code

In this section it is utilized to restrict certain actions even before they actually occur. Anticipatory restrictions are imposed generally in cases of emergency, where there is an apprehended danger of some event that has the potential to cause major public nuisance or damage to public tranquility [14] . So action taken under sec 144 is the urgency of the situation and executive magistrate enable to doing the function during the emergency situation.

In the case of Radhe Das v Jairam Mahto and Ors [15]

The dispute was over a piece of property. The petitioners applied for restriction on the respondent from entering the property, which was ordered by the Magistrate under Section 144. However, while the judicial proceedings were in way the respondents too claimed for the same prohibition on the petitioners, which was subsequently granted by the Magistrate under the same section. The respondents in response to this order brought the present action on the ground that their right over the property was being violated by the order. In this case court held that if the situation demands any action, then for prevention of public peace and tranquility, [16] the individual rights of a person can be renounced for the greater benefit of the society at large.

In the case of Manzur Hasan v Muhammad Zaman [17] laid down the principle which must be borne in mind before going through this sec and its also approved in shaik piru bux v kalandi pati these are.

1.Urgency of the situation and the power is to be used for maintaining public peace and tranquillity

2.Private rights may be temporarily overridden when there is a conflict between public interst and private rights.

3. Questions of title to properties or entitlements to rights or disputes of civil nature are not open for adjudication in a proceeding under section 144.

4. Where those questions have already been decided by the civil courts or by judicial pronouncements, the Magistrate should exercise their power under section 144 in aid of those rights and against those who interfere with the lawful exercise thereof.

5. The consideration should not be that restriction would affect only a minor section of the community rather that a large section more vociferous and militant.

this point confers full power on certain magistrate to take prompt action in case where emergency occurred .

“this section is intended to provide for an emergency, and it is idle to contend that in an emergency, when a riot is apprehended and where there is apprehension of a serious disturbance of the public tranquility the Magistrate is required to deliberate upon and decide the rights of the parties before acting.” [18]

things which need consideration for understanding the sec 144 because its not be a permanent in nature, in the case of Acharya Jagdisharanand Avadhut v Police Commissioner [19] , Calcutta where the Anand Margis were prohibited from conducting Tandava dance on the streets or carry skulls in their processions, by an order of the Commissioner under section 144 of the code. The first order lasted for two months and then after every gap of two months the Commissioner again issued the same order. This repetition of order was challenged. The Supreme Court held this act of the Commissioner as an abuse of power and stated on page 58 that:

“the Parliament never intended the life on an order under section 144 of the code to remain in force beyond two months when made by a Magistrate. The scheme of that section does not contemplate repetitive orders and in case the situation so warrants steps have to be taken under other provisions of the law when individual disputes are raised. If repetitive orders are made it would clearly amount to abuse of the power conferred by section 144 of the Code.”

Constitutional Validity of the section 144

Hidayutallah, C. J., stated in the celebrated case of Madhu Likaye v S.D.M. Monghyr [20] , that section 144 of the Criminal Procedure Code is not unconstitutional if properly applied and the fact that it may be abused is no ground for it’s being struck down. And the provisions of the Code properly understood are not in excess of the limits laid down in the Constitution for restricting the freedom guaranteed in it and that is precisely why the Court held that section 144 of the Criminal Procedure Code is valid and Constitutional.

The number of contention raised by counsel of petitioner but there were five important points which enumerated in the judgement, [21] shows the validity of this sec .

1) Although the Magistrate has a power under this section to pass orders ex-parte, however generally the procedure that is followed is to serve a notice to the person against whom the order is being passed. Only in cases of extreme critical situations that the Magistrate has to resort to passing an ex-parte order.

2) Additionally, the persons aggrieved by the order have a right to challenge the order on the grounds they find appropriate. This supports the view that the power granted under this section is not arbitrary.

3) To substantiate the above, an opportunity for hearing and to show cause is also provided to the person challenging the order of the Magistrate. Therefore, the principles of natural justice are also complied with under this section.

4) Next the court also stated that the fact that the aggrieved party has the right to challenge the propriety of the order, makes the action of the Magistrate more reasonable and based on cogent reason.

5) Finally the High Court’s power of revision under section 435 of the Code read with section 439 of the code also makes up for the condition that the order under section 144 is non-appeal able. The High Court can either quash the order or ask the Magistrate for the material facts, therefore ensuring accountability of the Magistrate.

supreme court accepted approach which given in this judgment and held that the preventive action under the 144 sec of crpc.

Conclusion

Under the code of criminal procedure executive magistrate have a wide power for deal with the emergent situation. Executive magistrate are generally not competent to take cognizance of an offence or to hold trail of an accused charged with an offence . in this context reference may be made to section 21 of the bonded labour system abolition act 1976 which authorises state govt to confer on an executive magistrate the powers of a judicial magistrate .

There is a broad divide between the powers conferred and powers conferrable by or under the code on the executive magistrate. The powers conferred by the code on the executive magistrate are the powers which are attached to the post of executive magistrate. Any person appointed as executive magistrate is entitled to exercise such power. The power located under section 107,108,109,110,129,145,147 etc. is the instances of such powers. There are not power conferrable on the executive magistrate thought they may be conferred on others like the commissioner of police under sec 20 sub sec (5). There are other provision in the code such as section 133,143,144, which may be said to be conferrable powers under the code . the executive magistrate cannot exercise such powers unless they are empowered in this behalf.

After analysis of the section 144 of crpc in light of judicial pronouncement i found that various cases filed for challenging for constitutional validity of section 144 of crpc and its discretionary powers are conferred upon the Magistrate, there are various fetters on its exercise so as to prevent any arbitrariness or unfairness in the order. The fact that the High Court can review the order of a Magistrate under this section makes the exercise of this power more rational. now days the increasing cases of riots and other incidents ruining public peace and tranquility has made it mandatory for the Magistrates to have such powers so as to secure the common people the safety and peace which is essential for their living.