Law and You >Procedural Laws > BNSS > Criminal Courts under Bharatiya Nagarik Suraksha Sanhita (Ss. 6, 14 to 17 of BNSS)
List of Sub-Topics:
- Introduction
- Comparative Tables of Provisions BNSS and CRPC
- Objective behind Court of Executive Magistrate
- Executive Magistrate (S. 14 BNSS)
- Special Executive Magistrate (S. 15 BNSS)
- Local Jurisdiction of Executive Magistrates (S. 16 BNSS)
- Subordination of Executive Magistrates (S. 17 BNSS)
- Powers of Executive Magistrate
- Conclusion
- Related Topics
The word ‘Magistrate’ is derived from the Latin ‘Magister’ a medieval title given to a person in authority. A magistrate has been described as a public civil officer invested with executive or judicial powers. The office of the Executive Magistrate in India evolved along with the office of the Collector and the district as the unit of administration during the British period. Appointment of executive magistrates is by the by executive branch of the government and their superintendence and control also vests with the executive. Hence the powers and functions attached to this office can be well appreciated in the background of the evolution of district administration.
Comparative Tables of Provisions BNSS and CRPC:
| BNSS, 2023 | CrPC, 1973 | |||
| Section | Heading | Provision | Section | Heading |
| 6 | Classes of Criminal Courts | 6 | Classes of Criminal Courts | |
| 14 | Executive Magistrates | 20 | Executive Magistrates | |
| 15 | Special Executive Magistrates | 21 | Special Executive Magistrates | |
| 16 | Local Jurisdiction of Executive Magistrates | 22 | Local Jurisdiction of Executive Magistrates | |
| 17 | Subordination of Executive Magistrates | 23 | Subordination of Executive Magistrates | |
Objective behind Court of Executive Magistrate:
The Bharatiya Nagarik Suraksha Sanhita, 2023, has a two- fold object. While providing a machinery for punishment of offenders against substantive criminal law, it also provides for prevention of offences. The provisions relating to the preventive aspects are to be found in the Chapters dealing with:
(a) Security for keeping the peace and for good behaviour (Chapter IX);
(b) Maintenance of public order and tranquillity (Chapter XI); and
(c) Preventive action of the Police (Chapter XII).
As the responsibility of maintaining law and order is a function of the Executive and prevention of offences is one aspect of this function, the Sanhita has provided for the constitution of Courts of Executive Magistrates and has conferred on them powers to take preventive action wherever necessary.
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Distinguishing Between Judicial Magistrate and Executive Magistrate:
The Sanhita has created two categories of Magistrates: (1) Judicial Magistrates (including the Magistrates for metropolitan areas); and (2) Executive Magistrates, and has allotted magisterial functions under the Sanhita between them.
Judicial Magistrate:
Judicial Magistrate deal with matters which involve:
(a) Appreciation or sifting of evidence.
(b) Formulation of any decision which exposes any person
(i) to any punishment or penalty or detention in custody pending investigation;
(ii) to any inquiry or trial would have the effect of sending him for trial before any court.
Executive Magistrate:
Executive Magistrates deal with matters which involve functions which are administrative or executive in nature like the following:
(a) Granting of a licence, its suspension or cancellation.
(b) Sanctioning a prosecution or withdrawing from prosecution.
Examples of Executive Magistrates:
In every District, the following Officers are appointed as Executive Magistrates by the Government under Section 14 BNSS.
- Collector
- Joint Collector
- District Revenue Officer
- Revenue Divisional officer
- Tahsildar
| Sr. No. | Designation | Appointed as | Local Jurisdiction |
| 1 | Collector | District Magistrate | Entire District |
| 2 | Joint Collector | Addl.Dist. Magistrate | Entire District |
| 3 | Dist.Rev.Officer | Addl.Dist. Magistrate | Entire District |
| 4 | Rev.Divil.Officer | Sub Divisional Magistrate | Entire Revenue |
| 5 | Tahsildar | Mandal Executive | Magistrate Entire Mandal |
Executive Magistrate:
- According to Section 14(1) of BNSS, in every district, 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.
- According to Section 14(2) of BNSS, 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 Sanhita or under any other law for the time being in force as may be directed by the State Government.
- According to Section 14(3) of BNSS, 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 Sanhita on the District Magistrate.
- According to Section 14(4) of BNSS, 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.
- According to Section 14(5) of BNSS, the State Government may, by general or special order and subject to such control and directions as it may deem fit to impose, delegate its powers under sub-section (4) to the District Magistrate.
- According to Section 14(6) of BNSS, 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.
Section 14(1) BNSS only talks of appointment of Executive Magistrates. Sections 14(2) and 14(3) of BNSS confer powers to Executive Magistrates.
In Madhu Limaye v. Sub-Divisional Magistrate, AIR 1971 SC 2486 Case, the Supreme Court identified that this section and the powers described within, purports to ensure preventive justice to curb any potential threats to public tranquillity, to grow and bloom into something more dangerous than it already might be.
In Medha Patkar v State of M.P., 2008 CRILJ 47 case, the Supreme Court held 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.
In State of Karnataka v. Dr. Praveen Bhai Thogadia, AIR 2004 SC 2081 case, the Supreme Court held that the prohibitory order passed by ADM Prohibiting Dr. Praveen Togadia from entering Dakshina Kannada District for a period of 15 days and participating in any function in that district was valid. Court also held that an Executive Magistrate appointed as Additional District Magistrate can pass order under Section 144 CrPC (S. 189(4) of BNSS)
In M. Krishnamurthy v Sub-divisional magistrate, Crl.O.P.No.17684 of 2015 case, the Madras High Court opined that it was necessary that a subjective opinion was formed by the magistrate based on the information received by him and the truth value was not be checked since alacrity was said to be the need of the hour.
In A N Roy v. Suresh Sham Singh AIR 2006 SC 2677 case, the Supreme Court held that once the Commissioner of Police is appointed as an Executive Magistrate, he can be appointed as an Additional District Magistrate, who shall have the powers of the District Magistrate for the purpose of Section 20 of CrPC (S. 14 of BNSS).
In State of Tamil Nadu v. R Gandhi, 1995 Cr LJ 3129 (Mad-DB) case, the Madras High Court said that Section 21 CrPC (S. 14 BNSS) does not prescribe any qualifications for the appointment of Executive Magistrates. Hence appointment of regular Taluk Tahasildars, Deputy Tahasildars, and Special Deputy Tahasildars as Executive Magistrates under Section 24 CrPC (S. 14 BNSS) by the Government was held valid.
Special Executive Magistrate:
According to Section 15 of BNSS, the State Government may appoint, for such term as it may think fit, Executive Magistrates or any police officer not below the rank of Superintendent of Police or equivalent, 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 Sanhita on Executive Magistrates, as it may deem fit.
In State of Maharashtra v. Mohammad Salim Khan, (1991) 1 Crimes 120 (SC) case, the Supreme Court held that the Special Executive Magistrate can exercise any of the powers of the Executive Magistrate conferred by the Code (Sanhita).
Local Jurisdiction of Executive Magistrates:
- According to Section 16(1) of BNSS, 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 Sanhita.
- According to Section 16(2) of BNSS, except as otherwise provided by such definition, the jurisdiction and powers of every such Magistrate shall extend throughout the district.
Subordination of Executive Magistrates:
- According to Section 17(1) of BNSS, all Executive Magistrates 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, to the general control of the District Magistrate.
- According to Section 17(2) of BNSS, the District Magistrate may, from time to time, make rules or give special orders, consistent with this Sanhita, as to the distribution or allocation of business among the Executive Magistrates subordinate to him.
Powers of Executive Magistrates
The executive magistrates have been assigned various powers under the BNSS, some of which are as follows:
- Power of arrest u/s 41 BNSS
- Power to compel appearance u/s 63 BNSS
- Power to compel production of documents or things u/s 94 BNSS
- Power of search and seizure u/s 96 to 110 BNSS
- Power to compel restoration of abducted females u/s S. 101 BNSS
- Power of contempt u/s 384 BNSS
- Power of personal inspection u/s 347 BNSS
- Power demand security u/s 126 BNSS
- To make order for security for good behaviour from persons disseminating seditious matters (S. 127);
- To make order for security for good behaviour from suspected persons. Security for good behaviour from habitual offenders (S. 129).
- Procedure in respect of person present in court (S. 131)
- Summons or warrant in case of person not so present (S. 132)
- Power to disperse unlawful assemblies (using Civil Force u/s 148 BNSS or u/s 149 BNSS Armed Force)
- Power of certain armed force officers to disperse unlawful assembly (S. 150).
- Power to order removal of public nuisance u/s 152 BNSS
- Power to issue order in urgent cases of nuisance or apprehended danger u/s 163 BNSS
- Power to intervene in a dispute concerning land or water – likely to cause breach of peace u/s 164 BNSS
- Power to attach subject of dispute u/s 165 BNSS
- Power to enforce warrants of outside Courts u/s 81 BNSS
- Endorsement of warrants by the Executive Magistrate u/s 81 BNSS
- Power of remand for not exceeding 7 days u/s 187 BNSS
- Power to hold inquest u/s 194 (1) BNSS
- Power of enquiry into the cause of death u/s 196 BNSS
Incidental powers:
- Taking and recording evidence in inquiries u/s 277 BNSS
- Disposal of property pending inquiry and at the conclusion of the inquiry u/s 497-505 BNSS
- Forfeiture of bonds furnished to the Executive Magistrates u/s 491 BNSS
- Issuing commission for examination of witness u/s 319 BNSS
- Holding local inspection u/s 347 BNSS
- Discharge of sureties u/s 489 BNSS
- Punishing for criminal contempt of court in view or in the face of the court u/s 384 BNSS
Power to attest Affidavit.
Affidavit to be used before any court under the BNSS may be sworn or affirmed before and Executive Magistrate u/s 333 BNSS
Powers on Public Tranquillity:
Usually, the preventive powers are used in conjunction with other provisions of BNSS like provisions of law:
- Section 163 BNSS – Power to issue order in urgent cases of nuisance or apprehended danger –
- Section 148 BNSS – Dispersal of unlawful assemblies
- Section 164 BNSS – Dispute concerning land or water is likely to cause breach of peace.
- Section 166 BNSS – Dispute concerning right of use of land or water
- Section 168 BNSS – Police to prevent cognizable offences
- Section 169 BNSS – Information of design to commit cognizable offences,
- Section 170 BNSS – Arrest to prevent the commission of cognizable offences
- Section 171 BNSS – Prevention of injury to public property
Conditional Order for Removal of Nuisance:
- Conditional order for removal of nuisance. Service or notification of order. Magistrate may prohibit repetition or continuance of public nuisance (u/s 152 BNSS).
- Person to whom order is addressed to obey or show cause (u/s 154 BNSS).
- Power to Magistrate to direct local investigation and examination of an expert (u/s 158 BNSS).
Disputes as to Immovable Property:
- In cases urgent cases of nuisance or apprehended danger to the law and order and security in the local area where disputes as to immovable property or land or water are likely to cause breach of peace, the magistrates have Power to attach subject of dispute and to appoint receiver or order that the a particular status quo may be maintained (usually in favour of the person in possession of the property on the date of decision) u/s. 165 BNSS
Inquests and Inquiries into Unnatural Deaths:
- Police is required to conduct enquiry and report on suicide etc., to the nearest Executive Magistrate. The magistrates, in such cases have powers to summon persons for Enquiry. u/s 194 BNSS
Conclusion:
The provisions granting power to the Executive Magistrates have been built along the lines of– “Prevention is better than cure”. This is indicative of how the role of an executive magistrate is pertinent to the functioning of the justice system in whatever capacity that they work in. The powers granted to the Executive Magistrate are limited and are mainly administrative in nature. There is a difference between the Executive and the Judicial Magistrates with the former focussing on the administrative functions relating to the maintenance of peace and order while the latter plays a crucial, inseparable role in the process of investigation.
In conclusion, executive magistrates play a crucial role in the maintenance of public order and the enforcement of law. While their powers are substantial, it is essential for them to exercise their authority judiciously, ensuring that individual rights are respected and that their actions are in accordance with the principles of fairness and justice outlined in the BNSS. Effective coordination between executive and judicial magistrates is also vital for the smooth functioning of the criminal justice system and the preservation of civil liberties.
Related Topics:
- Court of Sessions (Ss. 6 to 8, 21 and 22)
- Court of Judicial Magistrate (Ss. 6, 9 to 13 and 23)
- Public Prosecutor (Ss. 18 to 20)