THEIR FUNCTIONS AND POWERS UNDER

THE CODE OF CRIMINAL PROCEDURE, 1973 -

AND OTHER LAWS

A BRIEF OUTLINE

EXECUTIVE MAGISTRATES –

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.

The Magisterial Functions of JM and EM

Judicial Magistrates are under the control

of the High Court and Executive Magistrates are under

the control of the State Government.

Cr.P.C 3(4) Where, under any law, other than this Code, the functions exercisable by a Magistrate relate to matters— (a) 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, the 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

THE word magistrate used in the cr.p.c. does not mean to both jm and em. the code is specific in, section 3 ,that any reference without qualifyiing words to magistrates only mean JM

ENDORSEMENT of warrant79. Warrant directed to police officer for execution outside jurisdiction - (1) When a warrant directed to a police officer is to be executed beyond the local jurisdiction of the Court issuing the same, he shall ordinarily take it for endorsement either to an Executive Magistrate or to a police officer not below the rank of an officer in charge of a police station, within the local limits of whose jurisdiction the warrant is to be executed.

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 is acting as an officer having administrative power not under a judicial power.

1.District magistrate2.Additional district magistrate3.Subdivisional magistrate4.Special executive magistrates

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).

Cr.P.C 20. Executive Magistrates (1) In every district and in every metropolitan area The State Government may appoint as many persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be the District Magistrate (2) The State Government may appoint any Executive Magistrate to be an Additional District Magistrate, and such Magistrate shall have such of the powers of a District Magistrate under this Code or under any other law for the time being in force as may be directed by the State Government

Cr.P.C 20 (3) Whenever, in consequence of the office of a District 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

(4) 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(5) In metroploitian areas, commissioner of police also confered as Exe.Mag.

21. Special Executive Magistrates The State Government may appoint, for such term as it may think fit, Executive Magistrates, to be known as Special Executive Magistrates for particular areas or for the performance of particular functions and confer on such Special Executive Magistrates such of the powers as are conferrable under this Code on Executive Magistrate, as it may deem fit Comments Special Executive Magistrate is entitled to exercise any of powers of the Executive Magistrate conferred by the Code the same way as other EMs, State of Maharashtra v Mohammad Salim Khan, (1991)1 Crimes 120 (SC)

Court Confirmations

• State Govt. can appoint Tahsildars and Deputy Tahsildars as the Special Executive Magistrates

• State of Tamil Nadu Vs. R.Gandhi,1995 Cr.L.J.3129(Mad)

22. Local Jurisdiction of Executive Magistrates (1) Subject to the control of the State Government, the District Magistrate may, from time to time, define the local limits of the areas within which the Executive Magistrates may exercise all or any of the powers with which they may be invested under this Code (2) Except as otherwise provided by such definition, the jurisdiction and powers of every such Magistrate shall extend throughout the district

23. Subordination of Executive Magistrates (1) All Executive Magistrates, other than the Additional District Magistrate, shall be subordinate to the District Magistrate, and every Executive Magistrate (other than the Sub-divisional Magistrate) exercising powers in a sub-division shall also be subordinate to the Sub-divisional Magistrate, subject, however, to the general control of the District Magistrate (2) The District Magistrate may, from time to time, make rules or give special orders, consistent with this Code, as to the distribution of business among the Executive Magistrates subordinate to him and as to the allocation of business to an Additional District Magistrate

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.

44. Arrest by Magistrate (1) 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 (2) 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

• Executive magistrate do not directly exercise

these powers,

• but through the agency of police.

THE SPECIAL POWERS OF THE EXECUTIVE MAGISTRATESTen Commandments

1.TO PASS INJUCTIONS2.TO STOP PUBLIC NUISANCE3.TO PREVENT UNLAWFUL ASSEMBLY4.TO PREVENT DISORDER OR APPREHENSION OF DANGER OR BREACH OF PEACE,WHEN A DISPUTE CONCERNING LAND AND WATER contd…..

5.TO ATTACH SUCH SUBJECT OF DISPUTE AND TO APPOINT RECEIVER,

6. TO ISSUE SEARCH WARRANT

7. TO HOLD INQUEST OF UNNATURAL OR SUSPICIOUS DEATH

contd…………

8. TO TAKE DYING DECLARATION

9.MAKE ENQUIRY ON CUSTODIAL DEATH 10. JUSTIFICATION OF POLICE FIRING

The Constitution of India

• Article 22 (1) No person who is arrested shall be detained in custody without being informed, as soon as may be ,of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by ,a legal practioner of his choice.

The Constitution of India

• Article 22 (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hrs of such arrest excluding the time necessary for the journey from the place of arrest to court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

Cr.PC. 58

• 58. Police to report apprehensions• 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

Cr.P.C 59

• 59. Discharge of person apprehended• No person who has been arrested by a police

officer shall be discharged except on his own bond,

• or on bail, or under the special order of a Magistrate (i.e.Judicial mag.)

Cr.P.C.80

• 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.

Cr.P.C.80

• 80. Procedure of arrest of person against whom warrant issued

• When a warrant of arrest is executed outside the district in which it was issued, the person arrested shall, unless the Court which issued the warrant is within 30 kilometres of the place of arrest or is nearer than the Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction the arrest was made, or unless security is taken under section 71, be taken before such Magistrate or District Superintendent or Commissioner

a warrant of arrest is executed outside the district

• വാ�റണ്ടയച്ചകോ��ടതി� 30 ��.മീ . ന്� വെവാളി�യ�ലാ�യ�രി�ക്കു��യ��

• എ��സി�.മീജി�.,ഡി�. എസി�പി�എന്നി�വാര്‍ അട�ത്താ�യ�രി�ക്കു��യ��

• വെ യ�തി�ല്‍അറസ്റ്റു# വെ യ�തിയ�വെളി• ആഎ. മീജി� വെ%കോയ�സി&പ്രപിണ്ട�വെ%കോയ�

മീ�മ്പാ�വെ�ഹാ�ജിരി�ക്കുണം�

Cr.P.C.81

• 81. Procedure by Magistrate before whom such person arrested is brought

• (1) The Executive Magistrate or District Superintendent of Police or Commissioner of Police shall, if the person arrested appears to be the person intended by the Court which issued the warrant, direct his removal in custody to such Court:

CrPC 81 proviso,(1)

• Provided that, if the offence is bailable, and such person is ready and willing to give bail

• to the satisfaction of such Magistrate, District Superintendent or Commissioner, or a direction

• has been endorsed under section 71 on the warrant and such person is ready and willing to give

• the security required by such direction, the Magistrate, District Superintendent or Commissioner

• shall take such bail or security, as the case may be, and forward the bond, to the Court which

• issued the warrant:

CrPC 81 proviso,(2)

• Provided further that if the offence is a non-bailable one, it shall be lawful for the Chief

• Judicial Magistrate (subject to the provisions of section 437), or the Sessions Judge, of the

• district in which the arrest is made on consideration of the information and the documents

• referred to in sub-section (2) of section 78 to release such person on bail

• (2) Nothing in this section shall be deemed to prevent a police officer from taking security under section 71

CrPC 71

• 71. Power to direct security to be taken• (1) Any Court issuing a warrant for the arrest of any person may in

its discretion direct by endorsement on the warrant that, if such person executes a bond with sufficient sureties for his attendance before the Court at a specified time and thereafter until otherwise directed by the Court the officer to whom the warrant is directed shall take such security and shall release such person from custody

• (2) The endorsement shall state—• (a) the number of sureties;(b) Amount;(c) time to attend before

court• (3) shall take such bail or security, as the case may be, and forward

the bond, to the Court which issued the warrant:

CrPC 78• 78. Warrant forwarded for execution outside jurisdiction (1) When a

warrant is to be executed outside the local jurisdiction of the Court issuing it, such Court may, instead of directing the warrant to a police officer within its jurisdiction, forward it by post or otherwise to any Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction it is to be executed; and the Executive Magistrate or District Superintendent or Commissioner shall endorse his name thereon, and if practicable, cause it to be executed in the manner hereinbefore provided

• (2) The Court issuing a warrant under sub-section (1) shall forward, along with the warrant, the substance of the information against the person to be arrested together with such documents, if any, as may be sufficient to enable the Court acting under section 81 to decide whether bail should or should not be granted to the person

Power to Search

• 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

search warrant

• 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.

94. Search of place suspected to contain stolen property, forged documents, etc

• (1) If a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property, or for the deposit, sale or production of any objectionable article to which this section applies, or that any such objectionable article is deposited in any place, he may by warrant authorise any police officer above the rank of a constable—

97. Search for persons wrongfully confined

• If any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has reason to

• believe that any person is confined under such circumstances that the confinement amounts to an

• offence, he may issue, a search-warrant, and the person to whom such warrant is directed may

• search for the person so confined; and such search shall be made in accordance therewith, and

• the person, if found, shall be immediately taken before a Magistrate, who shall make such order

• as in the circumstances of the case seems prope

98. Power to compel restoration of abducted females

• Upon complaint made on oath of the abduction or unlawful detention of a woman, or a female child under the age of eighteen years, for any unlawful purpose, a District Magistrate, Sub divisional Magistrate or

Magistrate of the first class may make an order for the immediate restoration of such woman to her liberty, or of such female child to her husband, parent, guardian

• or other person having the lawful charge or such child, and may compel compliance with such order, using such force as may be necessary

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.

CrPC 103

• 103. Magistrate may direct search in his presence

• Any Magistrate may direct a search to be made in his presence of any place for the search of which he is competent to issue a search warrant.

The Code of Criminal Procedure (Amendment) Act, 1980

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.

Security for keeping peace and for good behaviour

• (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.

CrPC 107 (1)

• 107. Security for keeping the peace in other cases • (1) When an Executive Magistrate receives information

that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity and is of opinion that there is sufficient ground for proceeding, he 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 keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit

CrPC 107 (2)

(2) Proceeding under this section may be taken before any Executive Magistrate when either the

place where the breach of the peace or disturbance is apprehended is within his local jurisdiction

or there is within such jurisdiction a person who is likely to commit a breach of the peace or

disturb the public tranquillity or to do any wrongful act as aforesaid beyond such jurisdiction

Cr.PC 108

• 108. Security for good behaviour from persons disseminating seditious matters

• (1) When an Executive Magistrate receives information that there is within his local jurisdiction

• any person who, within or without such jurisdiction,—• (i) either orally or in writing or in any other manner, intentionally

disseminates(പ്രപി രി�പ്പി�ക്കു��) 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),

Indian Penal Code

• 124A. Sedition (രി�ജി,കോപ്ര-�ഹാ�)—Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to

which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Indian Penal Code

• 153A.(1) Promoting enmity between different groups on grounds of religion,race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony

Indian Penal Code

• Offence committed in place of worship, etc.—153എ(2) Whoever commits an offence

• specified in sub-section (1) in any place of worship or in any assembly engaged in

• the performance of religious worship or religious ceremonies, shall be punished

• with imprisonment which may extend to five years and shall also be liable to fine.

Indian Penal Code

• 295A. Deliberate and malicious acts, intended to outrage (അക്ര�മം�)religious feelings of any class by insulting its religion or religious beliefs —

• Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both

CrPC 108

• 108 [1](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 (45 of

• 1860),(I P C 292. Sale, etc., of obscene books, etc.—)

CrPC 108

• 108 (2) No proceeding shall be taken under this section against the editor, proprietor, printer or

• publisher of any publication registered under, and edited, printed and published in conformity

• with, the rules laid down in the Press and Registration of Books Act, 1867 (25 of 1867), with

• reference to any matter contained in such publication except by the order or under the authority

• of the State Government or some officer empowered by the State Government in this behalf

CrPC 109

• 109. Security for good behaviour from suspected persons -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

CrPC 110

• 110. Security for good behaviour from habitual offenders• 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

CrPC 110

• 110(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

IPC Chapter XII

• OF OFFENCES RELATING TO COIN AND GOVERNMENT STAMPS

• SEC. 230 TO 263A• 489A- COUNTERFEITING CURRENCY NOTES OR

BANK NOTES• 489B-USING AS GENUINE, FORGED COUNTERFEIT

CURRENCY • 489C-POSSESSION OF FORGED OR COUNTERFEIT

CURRENCY• 489D- MAKING OR POSSESSING OF

INSTRUMENTSOR MATRIALS FOR COUNTERFEITING CURRENCY NOTES OR BANK NOTES

CrPC 110

• (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—• (i) any offence under one or more of the following

Acts, namely:—• (a) the Drugs and Cosmetics Act, 1940 (23 of 1940);• (b) the Foreign Exchange Regulation Act, 1973 (46 of

1973);

THE DRUGS AND COSMETICS ACT, 1940

• 22. Powers of Inspectors—(1) Subject to the provisions of section 23 and of any rules

• made by the Central Government in this behalf, an Inspector may, within the local limits of

• the area for which he is appointed, —

THE DRUGS AND COSMETICS ACT, 1940

• 22(2) The provisions of the Code of Criminal Procedure, 2[1973 (2 of 1974)] shall, so far as

• may be, apply to any search or seizure under this Chapter as they apply to any search or

• seizure made under the authority of a warrant issued under section 2[94] of the said Code.

CRIMINAL APPEAL NO. 413 OF 2000supreme court

• as per the directions of District Magistrate, • appellant conducted raid at the medical shop

of respondent • No.2 around 5.15 p.m. in the presence of two

Executive • Magistrates and certain medicines were seized.• Sections 27(b)(ii) and 28 of the Drugs and

Cosmetics Act, 1940

CrPC 110 (i)cdefgh

• (c) the Employees' Provident Funds and Family Pension Fund Act, 1952

• (19 of 1952);• (d) the Prevention of Food Adulteration Act, 1954 (37

of 1954);• (e) the Essential Commodities Act, 1955 (10 of 1955);• (f) the Untouchability (Offences) Act, 1955 (22 of

1955);• (g) the Customs Act, 1962 (52 of 1962); or

FORM NO. 12 Bond to Keep the Peace

(See sections 106 and 107)

• WHEREAS I……………………………….. (name) inhabitant of • ………………. (place), have been called upon to enter into a bond to keep • the peace for the term of………………or until the completion of the • inquiry in the matterof……………………………………..now pending in the • court of……………… ……………… I hereby bind myself not to commit a • breach of the peace, or do any act that may probably occasion a breach • of the peace, during the said term or until the completion of the said • inquiry and, in case of my making default therein; I hereby bind myself • to forfeit to Government the sum of Rupees…………………………… • • Dated, this ………………………… day of………………… 20………… • • (Seal of the Court) (Signature) 8

FORM NO. 13Bond for Good Behaviour

(See sections 108, 109 and 110)

• WHERES I…………………………………….(name, inhabitant of (place)…………… have been called upon to enter, into a bond to be of good behaviour to Government and all the citizens of India for the term of ………………………………..(state the period) or until the completion of the inquiry in the matter of …………………now pending in the court of ………………….. . I hereby bind myself to be of good behaviour to Government and all the citizens of India during the said term or until the completion of' the said inquiry; and, in case of my making default therein, I hereby, myself to forfeit to Government the sum of rupees……………………………….

• Dated, this ………………………… day of………………… 20…………• (Seal of the court) (Signature)• (Where a bond with sureties to be executed, add………..)• We do hereby declare ourselves sureties for the above-named…………………………. that he

will be of good behaviour to Government and all the citizens of India during the said term or until tile completion of the said inquiry; and, in case of his making default therein, we bind ourselves, jointly and severally, to forfeit to Government the sum of rupees……………….

• Dated, this ………………………… day of………………… 19…………• (Seal of the court)• (Signature)

• 3.• 19.10.09 • U/S 111, 113 & 114 Cr.P.C.• The present Report intentionally whereas appears the O P• The First Party is present. Seen the Police Report. Whereas it appears from the

report of the O/C ………P.S. that the O.P. is making constant threats with dire consequences to the petitioner intentionally. And it that O.P. could not be restrained despite cautions made to him by the O/C of the P.S. And whereas it appears that unless any action is taken against the O.P. there is likelihood of disturbances of public tranquility. Hence, on being satisfied about the existence of sufficient ground for proceeding against the O.P., I, hereby, order for issuing a show cause notice through Summon upon the O.P. as to why he should not be asked to execute a Bond of Rs 1,000/-only with one Surety of like amount for maintaining peace in the locality for a period of one year. Copy of this order be also sent along with the Summon to the O/C … P.S. for service upon the O.P. and to submit S.R. by the next date fixed to 02.11.2009. Sd/-

Model Proceeding (Section 107)

• 1. 20 09 2009 u/s 107 Cr.P.C.• Seen the petition filed by the petitioner (first party)

alleging against the opposite party for his commitment of certain acts that are likely to cause breach of the peace or to disturb public tranquility and praying for taking action u/s 107 Cr.P.C.

• Considered. Send the petition to the O/C…………P.S. for a report

• To 04.10.2009.• Sd/-

• 2. 04.10.09• The First Party files affidavit through his

Advocate and is also present in person. No report received from the P.S. Issue reminder.

• To• 19 10 2009 for report.• Sd

• 4. 02 11 09• The petitioner is present. S.R. received. The O.P.

appears in person and files affidavit through his Advocate. The O.P. is asked as to whether he admits the allegations made against him or wants to defend the case. The O.P. wants to defend the case. Hence, he is directed to file Written Objection.

• To• 17.11.2009 for W/O by the O.P. Sd/-

• 5. 17.11.09 u/s 116 Cr.P.C.• Both the parties are present. The O.P. files

written objection. Copy of the same is served upon the petitioner (F.P.). The petitioner wants to put evidence from his side. Allowed.

• To• 30.11.2009 for oral evidence by the F.P. & cross

examination.• Sd

• 6. 30 11 09• Both the parties are present. F.P. produces two

witnesses. Evidence in chief as well as cross examination is concluded. The O.P. wants to adduce evidences from his side. Allowed.

• To• 10.12.2009 for evidence from O.P.’s side.• Sd/-

• 7. 10.12.09• Both the parties are present. The O.P. is

present with one witness. Evidence from the O.P.’s side as well as cross-examination is concluded.

• To• 28.12.2009 for hearing on argument.• Sd/-

• 8. 28 12 09• Both the parties are present. Heard both the

sides.• To• 15.01.2010 for order.• Sd

• 9. 15.01.10 u/s117 Cr.P.C.• ORDER• Case of the First Party:-In brief including the evidences given from his side.• Case of the Opposite Party:-In brief including the evidences given from his side.• Issue to be decided:-In the aforesaid circumstances, it is to be decided whether

the O.P. is required to execute a Bond for keeping the peace in the locality. ………………………………… In the aforesaid analysis I am satisfied that there is every likelihood from the end of the O.P. to commit breach of the peace or disturb public tranquility and that it can be prevented if the O.P. is directed to execute a Bond for keeping peace. Hence it is ordered that: Let the O.P. execute a Bond of Rs

• 1,000/-(rupees one thousand) only with one surety of like amount for maintaining peace in the locality for a period of one year, in failure to judicial custody.

• To 22.01.2010 for furnishing Bond by the O.P.• Sd/-

• 10. 22.01. 10• Both the parties are present. O.P. furnishes

Bond as per order. Perused the Bond.• Satisfied. Accepted the Bond. O.P. is released.

The petition of the First Party is disposed of.• To 23.01.11• Sd/-

• 11. 23.01. 11• Both parties present. There is no report from

any corner about breach of bond• executed by OP. Hence the OP is discharged

and instant case is filed.• Sd/-

CrPC 129

• 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.

CrPC 129

• 129. Dispersal of assembly by use of civil force• (1) Any Executive Magistrate or officer in charge of a

police station or, in the absence of such• officer in charge, any police officer, not below the rank

of a sub-inspector, may command any• unlawful assembly, or any assembly of five or more

persons likely to cause a disturbance of the• public peace, to disperse; and it shall thereupon be the

duty of the members of such assembly to• disperse accordingly

CrPC 129

• 129(2) If, upon being so commanded, any such assembly does not disperse, or

• if, without being so commanded, it conducts itself in such a manner as to show a determination

• not to disperse, any Executive Magistrate or police officer referred to in sub-section (1), may

• proceed to disperse such assembly by force, and may require the assistance of any make person,

• not being an officer or member of the armed forces and acting as such, for the purpose of

• dispersing such assembly, and, if necessary, arresting and confining the persons who form part of

• it, in order to disperse such assembly or that they may be punished according to law

CrPC 130 (1)

• 130. Use of armed forces to disperse assembly

(1) If any such assembly cannot be otherwise dispersed, and if it is necessary for the public

security that it should be dispersed, the Executive Magistrate of the highest rank who is present may cause it to be dispersed by the armed forces

CrPC 130 (2)

• 130(2) Such Magistrate may require any officer in command of any group of persons belonging to

• the armed forces to disperse the assembly with the help of the armed forces under his command,

• and to arrest and confine such persons forming part of it as the Magistrate may direct, or as it

• may be necessary to arrest and confine in order to disperse the assembly or to have them

• punished according to law

CrPC 130(3)

• 130(3) Every such officer of the armed forces shall obey such requisition in such manner as he thinks fit, but in so doing he shall use as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly and arresting and detaining such persons.

CrPC 132

• 132. Protection against prosecution for acts done under preceding sections

• (1) No prosecution against any person for any act purporting to be done under section 129,

• section 130 or section 131 shall be instituted in any Criminal Court except—

• (a) with the sanction of the Central Government where such person is an officer or

• member of the armed forces;• (b) with the sanction of the State Government in any other

case

CrPC 132 –defence against suit

• `132(2) (a) No Executive Magistrate or police officer acting under any of the said sections in good faith;

• (b) no person doing any act in good faith in compliance with a requisition under section 129 or section 130;

• (c) no officer of the armed forces acting under section 131 in good faith;

• (d) no member of the armed forces doing any act in obedience to any order which he was bound to obey, shall be deemed to have thereby, committed an offence

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.

Power to deal with public nuisances

• (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.

Power to deal with public nuisances

• (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.

CrPC 133

• 133. Conditional order for removal of nuisance -• (1) Whenever a District Magistrate or a Sub-

divisional Magistrate or any other Executive• Magistrate specially empowered in this behalf by

the State Government on receiving the report• of a police officer or other information and on

taking such evidence (if any) as he thinks fit,• considers—

CrPC 138

• 138. Procedure where he appears to show cause• (1) If the person against whom an order under section 133 is made

appears and shows cause

against the order, the Magistrate shall take evidence in the matter as in a summons-case• (2) If the Magistrate is satisfied that the order, either as originally made

or subject to such

modification as he considers necessary, is reasonable and proper, the order shall be made

absolute without modification or, as the case may be, with such modification• (3) If the Magistrate is not so satisfied, no further proceedings shall be

taken in the case

CrPC 139

• 139. Power of Magistrate to direct local investigation and examination of an expert

CrPC 140

• 140. Power of Magistrate to furnish written instructions, etc

CrPC 141

• 141. Procedure on order being made absolute and consequences of disobedience he will be liable to the penalty provided by section 188 of the Indian Penal Code (45 of 1860)

Cr.P.C.142

• 142. Injunction pending inquiry till disposal of the case

Cr.P.C.143

• 143. Magistrate may prohibit repetition or continuance of public nuisance

CrPC 144

• 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.

CrPC 144

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

• (1) In cases where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management , if such Magistrate considers that such direction is likely to prevent, or tends to prevent,

• obstruction, annoyance or injury to any person lawfully employed, or danger to human life , health or safety, or a disturbance of the public tranquillity, or a riot, or an affray

CrPC 144

• 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.

Cr.P.C.144

• 144. Power to issue order in urgent cases of nuisance or apprehended danger to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray

Cr.P.C.144

• 144(4) No order under this section shall remain in force for more than two months from the making thereof:

Cr.P.C.145

• 145.(1) Procedure where dispute concerning land or water is likely to cause breach of peace make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written

• statements of their respective claims as respects the fact of actual possession of the subject of

• dispute

Cr.P.C.145

• (2)land or water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property

• (4) The Magistrate shall (i) examine the statements so put in,(ii) hear the parties,

• (iii)receive all such evidence as may be produced by them,(iv) take such further evidence,(v) decide whether and which of the parties was in possession of the subject of dispute:

• Provided that if it appears to the Magistrate that any party has been forcibly and

• wrongfully dispossessed within two months next before the date on which the report of a police

• officer or other information was received by the Magistrate, or after that date and before the date

• of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1)

• (8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of

• dispute in a proceeding under this section pending before him, is subject to speedy and natural

• decay, he may make an order for the proper custody or sale of such property, and, upon the

• completion of the inquiry, shall make such order for the disposal of such property, or the sale proceeds thereof, as he thinks fit

• (9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing

• 146. Power to attach subject of dispute and to appoint receiver -• (1) If the Magistrate at any time after making the order under sub-

section (1) of section 145• considers the case to be one of emergency, or if he decides that

none of the parties was then in• such possession as is referred to in section 145, or if he is unable

to satisfy himself as to which of• them was then in such possession of the subject of dispute, he

may attach the subject of dispute• until a competent Court has determined the rights of the parties

thereto with regard to the person• entitled to the possession thereof:

• Provided that such Magistrate may withdraw the attachment at any time if he is satisfied

• that there is no longer any likelihood of breach of the peace with regard to the subject of dispute

• (2) When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such

• subject of dispute has been appointed by any civil Court, make such arrangements as he

• considers proper for looking after the property or if he thinks fit Appoint a receiver thereof, who

• shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under

• the Code of Civil Procedure, 1908 (5 of 1908)

147. Dispute concerning right of use of land or water -

• (1) Whenever an Executive Magistrate is satisfied from the report of a police officer or upon other information, that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land or water within his local jurisdiction, whether such right be claimed as an easement or otherwise, he shall make an order in writing, stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader on a specified date and time and to put in written statements of their respective claims

• (2) The Magistrate shall then peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and, if possible, decide whether such right exists; and the provisions of section 145 shall, so far as may be, apply in the case of such inquiry

• (3) If it appears to such Magistrate that such rights exist, he may make an order prohibiting any interference with the exercise of such right, including, in a proper case, an order for the removal of any obstruction in the exercise of any such right:

P&T search

• 93(3) Nothing contained in this section shall authorise any Magistrate other than a District

Magistrate or Chief Judicial Magistrate to grant a warrant to search for a document, parcel or other thing in the custody of the postal or telegraph authority

K A P P ATHE KERALA ANTI-SOCIAL

ACTIVITIES (PREVENTION) ACT,• W.P.Crl No.368/09. • a) This writ petition is allowed.• b) The impugned order is set aside on the

ground that the 3rd respondent who is only a District Magistrate temporarily in charge has no legal competence to exercise delegated authority under Section 3(2) of the KAAPA.

KAPPA 3(1)

• 3. Power to make orders for detaining Known Goondas and• Known Rowdies.--(1) The Government or an officer

authorised under sub-section (2), may, if satisfied on information received from a Police Officer not below the rank of a Superintendent of Police with regard to the activities of any Known Goonda or Known Rowdy, that,

• with a view to prevent such person from committing any anti-social activity within the State of Kerala in any manner, it is necessary so to do, make an order directing that such person be detained.

• .

KAPPA 3(2)

• (2) If having regard to the circumstances prevailing, or• likely to prevail in any area, the Government, if satisfied

that it is necessary so to do, may, by order in writing, direct that during such period as may be specified in the said order, the District Magistrate having jurisdiction may exercise the powers under sub-section (1) in respect of such persons residing within his jurisdiction or in respect of such persons not so resident who have been indulging in or about to

• indulge in or abet any anti-social activities within such jurisdiction

Summons by s.i• To,

• Remesan, Age 42/10 • S/o.Gopalan• Niravath (H), Maradu• Ernakulam

• It has been made to appear that you have committed the offences mentioned below on 23-3-2010 at 10.20 p.m. at Maradu. You are directed to appear before the ACJM Court, Ernakulam at 11 0' clock on 10-5-2010 to answer the charge in the aforesaid petty case.

• Offence:- U/s. 279 I.P.C. & 132 (1) r/w 179 M.C. Act.

• Cr.446/10

• Signature of Ramesan

• (Signature)

• S.I. Panangad

next

Crl.M.C. Nos. 2125 of 2010

Notice issued by the Sub Inspector without any authority.

• Secondly, it was an arrangement made by means• of administrative instructions in a conference convened by

the Chief Judicial Magistrate (District Magistrate (Judicial) of Trivandrum, for expeditious disposal of "petty offences" by the Magistrates in Trivandrum District only.

• Thirdly, such executive instructions which are contrary to the provisions of law cannot legalise the procedure given thereunder. The above Circular was issued by the Police Department at a time when Executive Magistrates were invested with judicial powers as well. But under the present Code there is a clear separation of the Judiciary from the Executive.

Crl.M.C. Nos. 2125 of 2010• No executive instruction can take away or abridge the

power of the Magistrate to issue process for summoning an accused person to answer a charge for a criminal offence alleged to have been committed by him.

• The said power of the Magistrate under Sec. 204 Cr.P.C. Generally and under Sec. 206 (1) in the case of petty offences cannot be delegated by him to the police nor can any police officer arrogate to himself the said power which is exclusively vested in the Magistrate.

Crl.M.C. Nos. 2125 of 2010• In Ajay Kumar Bhuyan v. State of Orissa - 2003• (1) SCC 707 the Apex Court repelled a plea urged on behalf

of the State of Orissa that administrative instructions issued by the State Government under the Orissa Police Manual, 1940 were having statutory force. It was held that they were only authoritative guides for the officers of the Police Department and could not be termed as statutory rules constituting "existing law" within the meaning of Article 313 of the Constitution of India.

• ".

OVERRIDING EFFECT OF ACT

• In Punjab Water Supply• and Sewerage Board v. Ranjodh Singh -

AIR 2007 SC 1082 the Supreme Court observed as follows:-

• "Any departmental letter or executive instruction cannot prevail over statutory rule and constitutional provisions”