POWERS & FUNCTIONS OF REV. OFFICERS AS EXECUTIVE

MAGISTRATES

B. VENKATESWARA RAO, District Revenue Officer (Retd.)

CONSULTANT, AMR-APARD,Rajendranagar, Hyderabad-500 030.

CRIMINAL PROCEDURE CODE, 1973 :BACKGROUND :• The Law relating to all Criminal Proceedings in India except

those of State of Jammu & Kashmir and Nagaland and the Tribal areas of Assam is contained in the Criminal Procedure Code, 1898.

• It was amended in 1923 and 1955 relating to the procedure for

speedy trial of the cases.

• Apart from several amendments, the provisions of the Code of

1898 have remained practically unchanged.

• No attempt was made to have comprehensive revision of the code till the Law Commission was set up in 1955.

• A comprehensive report for the revision of the Code, namely the Forty First Report, was presented by the Law Commission in the year, 1969. Contd..

• 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.

• Basing on the recommendations of Law Commission, the Code of

Criminal Procedure 1973 was enacted extending the whole of India

except the State of Jammu & Kashmir. It came into force on the 1st day

of April, 1974. It is amended in 1978, 1980, 1998 & 2001.

• In the present Code, 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.

• There are altogether 486 Sections and Two Schedules – 1st Schedule

contains classification of offences and 2nd Schedule contains 56 Forms

required to be used.

Contd..

Sections deals with Powers & Functions of Executive

Magistrates :

Section Subject

20 - Appointment of Executive Magistrates by Govt.,

21 - Appointment of Special Executive Magistrates by

Government for particular area or for the performance of

particular functions.

22 - Local jurisdiction of Executive Magistrates

23 - Subordination of Executive Magistrates

37 - Public when to assist Magistrate

39 - Public to give information of certain offences like

against

public tranquility etc.,

44 - Arrest by MagistrateContd..

Search Warrants : Section Subject

94 - Authorizing Police Officer to search of place suspected

to contain stolen property, forged documents etc.,

97 - Search for persons wrongfully confined.

98 - Power to compel restoration of abducted females.

Contd..

Security for keeping peace and for good behaviour :

Section Subject

107 - Security for keeping the peace.

108 - Security for good behaviour from persons

disseminating

seditious matters.

109 - Security for good behaviour from suspected persons.

110 - Security for good behaviour from habitual offenders.

111 - Order to be made when Magistrate acting U/s 107,

108, 109 & 110.

112 - Procedure in respect of person present in court

113 - Summons or warrant in case of person not so

present

Contd..

Section Subject

114 - Copy of order to accompany summons or warrant.

115 - Power to dispense with personal attendance.

116 - Inquiry as to truth of information

117 - Order to give security

118 - Discharge of person informed against.

119 - Commencement of period for which security is

required

120 - Contents of bond

121 - Power to reject securities

122 - Imprisonment in default of security

123 - Power to release persons imprisoned for failing to give security

124 - Security for unexpired period of bondContd..

Unlawful assemblies :

Section Subject

129 - Dispersal of unlawful assembly by use of civil force.

130 - Use of Armed Forces to disperses unlawful assembly.

131 - Power of certain armed force officers to disperse

unlawful assembly.

132 - Protection against prosecution for acts done under

Sections 129, 130 & 131.

Contd..

Public Nuisance : Section Subject

133 - Conditional order for removal of nuisance.

134 - Service or notification of order.

135 - Person to whom order is addressed to obey or show

cause

136 - Consequences of his failing to do so.

137 - Procedure where existence of public right is denied.

138 - Procedure where he appears to show cause.

139 - Power to Magistrate to direct local investigation and

examination of an expert.

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

141 - Procedure on order being made absolute and

consequences of disobedience.

142 - Injunction pending inquiry.

143 - Magistrate may prohibit repetition or continuance of

public

nuisance.

Contd..

Urgent Cases of Nuisance or Apprehended Danger :

Section Subject 144 - Power to issue order in urgent cases of nuisance or apprehended danger.

Disputes as to immovable property :

Section Subject

145 - Procedure where dispute concerning land or water is

likely to cause breach of peace.

146 - Power to attach subject of dispute and to appoint

receiver.

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

148 - Local Inquiry.

Contd..

Inquests and Inquiries into unnatural deaths :

Section Subject

174 - Police to enquiry and report on suicide etc., to the

nearest Executive Magistrate.

175 - Powers to summon persons.

176 - Enquiry by Magistrate into cause of death.

Withdrawal of Cases : Section Subject

411 - Making over a withdrawal of cases by Executive

Magistrates.

412 - Reasons to be recorded.

Contd..

ANALYSIS OF IMPORTANT SECTIONS

Executive Magistrates :• In every District, the following Officers are appointed by virtue of the

offices held by them as Executive Magistrates by the Government U/S

20 Cr.P.C.

Designation Appointed as Local Jurisdiction (1) (2) (3)

1. Dist. 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.OfficerSub Divisional Magistrate Entire Revenue Div.

5. M.R.O. Mandal Executive Mag. Entire Mandal• Addl. District 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.

Contd..

• The Dy. Collectors or MRO cadre officers or Dy. Tahsildars may be

appointed as Special Executive Magistrates by Govt. to handle

urgent law and order problems on the special occasions. (Sec. 21)

• In the Cities of Hyderabad and Secunderabad, Vijayawada and

Visakhapatnam, the Commissioners of Police are conferred the

powers of Executive Magistrates.

• All Executive Magistrates other than Addl. District Magistrates shall

be subordinate to the District Magistrate.

• Executive Magistrates in Sub-Division are also subordinate to the

Sub-Divisional Magistrates.

Contd..

Security in keeping peace and tranquility – 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 tranquility.

• Breach of peace and disturbance to public tranquility arises due to :

- Religious Processions

- Festivals

- Elections

- Political Movements

- Supremacy in the Village

- Disputes due to factions

- Group Rivalry etc.,

Contd..

PROCEDURE :• 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).

Contd..

• 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.

• 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.

Contd..

Dispersal of unlawful assemblies – Section 129:

• 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.

Contd..

Conditional Order for Removal of Nuisance–Section 133:• 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.

Contd..

• The Executive Magistrate may make a conditional order requiring the

person causing such nuisance to remove such nuisance within time

specified and show-cause why the order should not be made absolute.

• The order passed if practicable to be served on the person and it cannot

be served, it should be notified by proclamation and copy thereof shall

be struck-up at a conspicuous place.

• If the conditional order not complied with, conditional order shall be

made absolute.

• Also punishable under Section 188 IPC (simple imprisonment for one

month or fine of Rs.200 or both)

• During the enquiry, the Executive Magistrate finds that there is reliable

evidence in support of denial by the respondent, he shall stay the

proceedings until the matter is decided by the competent court.

• No order duly made by the Executive Magistrate under Section 133

shall be called in question in any Civil Court. Contd..

Power to issue order in urgent cases of nuisance or apprehended

danger – Section 144 :• Preservation of the public peace and tranquility is the primary function of

the Government and aforesaid power is conferred on the Executive

Magistrate to enable him to perform that function effectively during the

emergent situations.• If the Executive Magistrate on receipt of the Requisition from the Police,

is of the opinion that there is sufficient ground for proceeding under this

Section and immediate prevention or speedy remedy is desirable, he

may be issue a written order stating the material facts of the case,

direct any person to abstain from certain Act etc., • The order to specify the period for which it will remain in force and the

area covered by it. The order will be in force for a maximum period of

two months.• In case of emergency or in cases where the circumstances do not admit

of the serving in due time of a notice upon the person against whom the

order is directed be passed ex-parte. The order to be proclaimed by

public announcement and display at important places. Contd..

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.

• 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.

Contd..

• 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.

Contd..

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.Contd..

• The following points are to be noted as accurately as possible :

- The Nature of the surroundings where the body lies. - The exact position of the dead body. - Accurate description of all various injuries, fractures etc., seen on

the body. - The probable weapon with which the injuries might have been

inflicted.

- The details of the properties found on the body. - The marks of identification and other special features that go to

establish the identity of the body.• All the relevant columns of the inquest report should be accurately filled

up by the Executive Magistrate in his own hand and opinion of the Panchayatdars regarding the apparent cause of death should be mentioned in the relevant column.

• In case of death of married woman within 7 years of her marriage, Executive Magistrate should conduct inquest and after the inquest, the body to be forwarded to the nearest Civil Surgeon for conducting post - mortum examination.

Contd..

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

• 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) :

• 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.

Contd..

• 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.