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Law in Motion — 13

By EMN Updated: Sep 21, 2020 11:13 pm

Executive Magistrates

As per the Criminal Procedure Code, the allocation of magisterial functions is divided into two categories of Magistrates – “Judicial Magistrates” under the control of High Court and “Executive Magistrates” under the control of State Government.

Sections deals with Powers & Functions of Executive Magistrates
Appointment of Executive Magistrates is by the by Executive Branch of the Govt and their superintendence and control also vests with the executive.

The State Government also has powers to appoint Special Executive Magistrates for a particular area or for the performance of particular functions.

Under the District Magistrate, there can be Additional District Magistrate or Sub-Divisional Magistrates or even Tehsildars (Extra Assistant Commissioners) to look after the smaller sub-units and to assist the DM in his magisterial duties. Public is obligated to give information of certain offences like those against public tranquility etc.

Powers of Executive Magistrates

The executive magistrates have been assigned various powers under the CrPC, some of which are as follows:

[A] Search Warrants

(a) Authorising Police Officer to search of place suspected to contain stolen property, forged documents etc.,

(b) Search for persons wrongfully confined.

(c) Power to compel restoration of abducted females.

[B] Security For Keeping Peace and For Good Behaviour

(a) Security for keeping the peace;

(b) Security for good behaviour from persons disseminating seditious matters.

(c ) Security for good behaviour from suspected persons. Security for good behaviour from habitual offenders.

(d) Order to be made when Magistrate acting U/s 107, 108, & 110.

(e) Procedure in respect of person present in court

(f) Summons or warrant in case of person not so present

[D]Unlawful assemblies

(a) Dispersal of unlawful assembly by use of civil force.

(b) Use of Armed Forces to disperses unlawful assembly.

(c ) Power of certain armed force officers to disperse unlawful assembly.

[E] Conditional order for removal of nuisance

(a) Conditional order for removal of nuisance.Service or notification of order. Magistrate may prohibit repetition or continuance of public nuisance.

(b) Person to whom order is addressed to obey or show cause

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

[F] Disputes as to Immovable Pproperty

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)

[G] 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.

[H] Security For Keeping the Peace and For Good Behaviour

Chapter VIII of the CrPC on Security For Keeping The Peace And For Good Behaviour is perhaps the most important but least used legal power in Nagaland.

The Chapter, especially the Section 107 (and the rest) 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 in his jusisdiction.

Such breach of peace and disturbance to public tranquility may due to – Religious Processions, Festivals, Elections, Political Movements, supremacy within/between/among the villages – disputes due to factions, clan rivalries, land disputes, water disputes etc., or even minor scuffles between individuals.

The chapter VIII lays down an elaborate procedure for executive magistrates for dealing with disturbances to public tranquility.

It is not essential in every case that there should be two parties against each other. However, there must be a breach of the peace which is so imminent, that unless averted by proceedings under the Section 107, it will happen.3

[I] Magistrate – Powers on Public Tranquility

Usually the preventive powers are used in conjunction with other provisions of CrPC like provisions of law
Section 144 – Power to issue order in urgent cases of nuisance or apprehended danger –
Dispersal of unlawful assemblies (Section 129)
Section 145 – Dispute concerning land or water is likely to cause breach of peace.
Section 147 – Dispute concerning right of use of land or water
Section 149 – Police to prevent cognisable offences
Section 150 – Information of design to commit cognisable offences,
Section 151 – Arrest to prevent the commission of cognisable offences
Section 152 – Prevention of injury to public property

[J] Role of Police

Before commencement of proceedings under Section 107, the Police should collect evidence, oral and documentary, of persons (including Police Officers) acquainted with the circumstances of the case.

This may include

(i) the specific occasion on which the breach of the peace is anticipated;

(ii) the existence of a cause, quarrel or other circumstances which is likely to lead to the breach and the period of its duration;

(iii) the declaration of the parties indicating their determination to carry out, or to prevent, certain things in connection with the subject-matter of the quarrel;

(iv) the strength and the following of the party or parties, and

(v) attempts made for conciliation with their results.

Certain things vital here for police officers are

(a) it is not necessary to record elaborate statements of witness, short notes being sufficient.

(b) The provisions of Section 162 of the Code of Criminal Procedure do not apply to any statements or notes made in connection with such an enquiry. Thus, statements made to police officers here can be signed by the persons.
The enquiry under this chapter is not governed by the Chapter on “investigations”. Usually the sequence of events recorded by police in its reports is called a ‘Calendar’ or “Kalandaraa”.

(c) Section 151 of the Code of Criminal Procedure empowers a Police Officer to arrest without warrant any person designing to commit a cognisable offence, if, in his opinion, the commission of the offence cannot otherwise be prevented.

After arrest u/s 151 CrPC, the person arrested may be produced before an Executive Magistrate for taking action under Section 107 CrPC. The actions u/s 107/151 is probably the most resorted to and most powerful tool in the hands of the police and executive magistrates to prevent crimes and incidents which disturb public tranquility.

Sadly, in Nagaland, these are hardly used

In addition to this, the police and magistrates can also resort to Section 107/150 for preventing situations going out of hand. Thus, every police officer is duty bound to inform if he comes to know of a design to commit a cognisable offence:

Section 150 -“Every police officer receiving information of a design to commit any cognisable offence shall communicate such information to the police officer to whom he is subordinate, and to any other officer whose duty it is to prevent or take cognisance of the commission of any such offence.

Therefore failure to inform seniors is a dereliction of a legal duty cast on police officers. Based on such information, the police can initiate action u/s 107/150 which could, in the event of arrest become 107/151

[K] Procedure

When an Executive Magistrate receives information (either an FIR or otherwise) either from police 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,

The magistrate can initiate action under Section 107 Cr.P.C. 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, with or without sureties to maintain the peace.

If the person arrested fails to satisfy the conditions of the bond and/or sureties, the magistrate may order his detention in custody also till he is satisfied or the tranquility returns.

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 holds an enquiry under Section 116(1).

If 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 may make an order in writing under Section 117 directing either of the parties/respondents to executive bonds.

Rupin Sharma

By EMN Updated: Sep 21, 2020 11:13:57 pm