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 1 st 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 – 1 st Schedule contains classification of offences and 2 nd Schedule contains 56 Forms required to be used.

Contd..



Sections deals with Powers & Functions of Executive Magistrates :

Section

20

Subject

Appointment of Executive Magistrates by Govt., 21 22 23 37 39 44 Appointment of Special Executive Magistrates by Government for particular area or for the performance of particular functions.

Local jurisdiction of Executive Magistrates Subordination of Executive Magistrates Public when to assist Magistrate Public to give information of certain offences like against public tranquility etc., Arrest by Magistrate

Contd..



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

107 108 109 110 111 Security for keeping the peace.

Security for good behaviour from persons disseminating seditious matters.

Security for good behaviour from suspected persons.

Security for good behaviour from habitual offenders.

112 113 Order to be made when Magistrate acting U/s 107, 108, 109 & 110.

Procedure in respect of person present in court Summons or warrant in case of person not so present

Contd..

Section

114 115 116 117 118 119 120 121 122 123 124 -

Subject

Copy of order to accompany summons or warrant.

Power to dispense with personal attendance.

Inquiry as to truth of information Order to give security Discharge of person informed against .

Commencement of period for which security is required Contents of bond Power to reject securities Imprisonment in default of security Power to release persons imprisoned for failing to give security Security for unexpired period of bond

Contd..



Unlawful assemblies :

Section Subject

129 Dispersal of unlawful assembly by use of civil force.

130 Use of Armed Forces to disperses unlawful assembly.

131 132 Power of certain armed force officers to disperse unlawful assembly.

Protection against prosecution for Sections 129, 130 & 131.

acts done under

Contd..



Public Nuisance :

Section

133 134 135 136 137 138 139 140 141 142 143 -

Subject

Conditional order for removal of nuisance.

Service or notification of order.

Person to whom order is addressed to obey or show cause Consequences of his failing to do so.

Procedure where existence of public right is denied.

Procedure where he appears to show cause.

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

Power of Magistrate to furnish written instructions etc., Procedure on order being made absolute and consequences of disobedience.

Injunction pending inquiry.

Magistrate may prohibit repetition or continuance of public nuisance.

Contd..



Urgent Cases of Nuisance or Apprehended Danger :

Section

144 -

Subject

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

Disputes as to immovable property :

Section Subject

145 146 147 148 Procedure where dispute concerning land or water is likely to cause breach of peace.

Power to attach subject of dispute and to appoint receiver.

Dispute concerning right of use of land or water.

Local Inquiry.

Contd..



Inquests and Inquiries into unnatural deaths :

Section

174 175 176 -

Subject

Police to enquiry and report on suicide etc., to the nearest Executive Magistrate.

Powers to summon persons.

Enquiry by Magistrate into cause of death.



Withdrawal of Cases :

Section Subject

411 412 Making over a withdrawal of cases by Executive Magistrates.

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

(1) 1. Dist. Collector 2. Joint Collector 3. Dist.Rev.Officer

Appointed as

(2) District Magistrate Addl.Dist. Magistrate

Local Jurisdiction

(3) Entire District Entire District Addl.Dist. Magistrate Entire District 4. Rev.Divil.Officer

Sub 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 disturbance to public tranquility.

involving breach of peace or • 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.