The Judiciary’s vision of an efficient process for better administration justice has been observed and well represented in the Code of Criminal Procedure in its classification of magistrates into two categories – the Executive Magistrates and the Judicial Magistrates. Section 3(4) of the CrPC draws a line of demarcation between the functions of an executive magistrate and those of the Judicial Magistrates. The Judicial Magistrates are enshrined with the power of giving verdicts pronouncing punishments or penalty or detention and go through the evidence in the process of investigation on the other hand matters regarding granting, suspension and cancellation of licenses come under the supervision of an executive magistrate. Hence, it can be understood that the scope of the functions of an executive magistrate is limited to administrative roles, in taking preventive measures and issues about the maintenance of law and order.
The Executive Magistrates are primarily concerned with police and administrative functions with minimal or no intervention in the judicial aspect of the process. However, their role cannot be undermined while curbing the law and order in society following the procedure laid out and the personal liberties of the people. It is observed that an executive magistrate has a dual characteristic meaning that it can sometimes perform functions which are judicial as mentioned in S.116 of the CrPC to maintain peace and order under S.107 of the CrPC.
They are involved majorly with general law and order issues and preventive measures that are to be taken in a particular locality. They are the officers of the executive branch and not of the judicial branch; hence, dealing with matters that are either Executive or administrative. They are empowered to obtain bonds or security for keeping the peace or maintaining good behaviour under Sections 107, 108, 109 and 110 of the CrPC and also to initiate the dispersal of unlawful assemblies in addition to dealing with public nuisances and issues that can cause danger to public tranquillity under Sections 133 and 144.
Section 107 is responsible for ensuring security to maintain peace under all situations, and for this purpose, there has been a sense of urgency attached to this particular section. Due to this sense of urgency, it comes within the jurisdiction of Executive Magistrates. This section and the powers mentioned in it, ensure preventive justice not allowing any potential threats to public tranquillity, to transform into anything more hazardous than it already might be. Proceedings can be initiated under S.107 by the Executive Magistrates in cases where the breach of the peace is within his jurisdiction or out of his jurisdiction when there is a reasonable apprehension that such a breach has been caused. In the case of Madhu Limaye v. Sub-Divisional Magistrate, it was held that the powers enshrined in this section are necessary to ensure preventive justice to counter any threats to public tranquillity. In the Madras High Court judgment of M. Krishnamurthy v Sub-divisional magistrate, it was observed that it was necessary that a reasonable apprehension was to be formed by the magistrate based on the information received by him and the true value was not be measured since it was the need of the hour.
S.129 of the Criminal Procedure Code empowers the magistrate to disperse unlawful assemblies with the support of the civil force. The executive magistrates also have the power to disperse assemblies which could cause potential threats resulting in disruption of peace. However, this is merely an extension of the primary power to disperse unlawful assemblies as defined in S.144 of the Criminal Procedure Code.
It can happen on several occasions that there is a shortage of police officers in an area to disperse assemblies, in such a situation the role of an executive magistrate is magnified. This is under a fair presumption that any delay in obtaining the order from the concerned authorities causing undue delay might push the situation beyond unimaginable circumstances. They are also permitted to disperse such unlawful assemblies with the aid of the armed forces under S.130 and are protected by the provisions in S.132 which require these actions to be done in good faith. Their actions of maintaining peace in the society are thus statutorily protected.
The question of whether an executive magistrate is competent to file an FIR was discussed in Naman Singh v State of UP. S.154 of the CrPC provides that the information provided by the complainant ought to be put down in writing by the officer in charge of the station, and a further additional provision under S.154(3) allows the complainant to approach the Superintendent of Police in case there is any refusal by the officer in charge to record such information.
S.190 allows the magistrate to take cognizance of an offence based on either a complaint or a police report. The magistrate is also then given the power to direct an investigation and even lodge an FIR. It is clear from the provisions of CrPC that the executive magistrate doesn’t have the power to lodge an FIR based on a private complaint raised before him. It has also been laid down that the executive magistrate does not exercise powers under S.156(3) of the code to be able to direct an investigation.
Article 50, one of the Directive Principles of State Policy as enshrined in Part IV of the constitution states that effective steps are to be taken to separate the functioning of the Judiciary from that of the Executive. This is most relevant in the administration of criminal justice where a line has been drawn between the Executive and the Judicial Magistrates with the former focusing on the administrative functions involving maintenance of peace and order. At the same time, the latter plays an important role in the process of investigation. The provisions vesting the power to the Executive Magistrates have been legislated along the lines of – “Prevention is better than cure.” This is the proof of the role of an executive magistrate which is pertinent to the functioning of the justice system in whatever capacity that they work in. However, it has been suggested that there should be minimal interference from the courts in the administration of justice according to S.107 or S.111, which would otherwise cause a rise in hate and other violent actions.
It can hence be settled that the powers granted to the executive magistrate are limited and are mainly administrative. Even in the limited powers that are granted to the Executive Magistrates, there is further disparity as in the case of S.167 where executive magistrates are allowed to order detention for not more than seven days in comparison to the Judicial Magistrates who have the jurisdiction to mandate 15 days, highlighting the difference in their functioning and the exercise of power.
On July 2017, while hearing cases related to alleged encounter killing in Manipur, the Apex Court observed that there’s no doubt that the NHRC has been most unfortunately reduced to a “Toothless Tiger”.
From time immemorial jurisprudence is there to show the law its way. It acts as an eye of law or we can say the grammar of law. It seeks to explain what law is and which direction the law needs to grow.