Conferring and Withdrawing the Powers of a Court

Unpack the conditions, because all four must be met.

1. He was invested with the powers by the High Court or the State Government.
2. The new office is equal or higher, not lower.
3. It is of the same nature, so a move from the executive to the judicial side is not covered.
4. It is within a like local area under the same State Government.

And the whole thing yields to a contrary direction. That is what "unless the High Court or the State Government, as the case may be, otherwise directs, or has otherwise directed" does.

Section 28: withdrawing powers

Sub-section (1). The High Court or the State Government may withdraw all or any of the powers conferred by it under the Sanhita on any person, or by any officer subordinate to it.

Sub-section (2). Powers conferred by the Chief Judicial Magistrate or by the District Magistrate may be withdrawn by the respective Magistrate who conferred them.

The principle is the ordinary one: the authority that gave the power takes it away, and a superior authority may take away what its subordinate gave.

Section 29: the successor-in-office

This is the section that earns the chapter its place.

Sub-section (1). Subject to the other provisions of the Sanhita, the powers and duties of a Judge or Magistrate may be exercised or performed by his successor-in-office.

So a part-heard proceeding does not collapse when the presiding officer is transferred, promoted or retires. His successor picks it up. Whether the evidence already recorded can simply be used, or whether a witness must be recalled, is a separate question governed by the trial chapters and by section 365, which deals with a conviction on evidence partly recorded by one Magistrate and partly by another.

Sub-section (2). Where there is doubt about who the successor-in-office of a Judge is, the Sessions Judge determines it by order in writing.

Sub-section (3). Where there is doubt about who the successor-in-office of a Magistrate is, the Chief Judicial Magistrate or the District Magistrate, as the case may be, determines it by order in writing.

Notice that sub-section (3) names both, and which one decides follows the magistracy in question: the Chief Judicial Magistrate for a Judicial Magistrate, the District Magistrate for an Executive Magistrate. That is the two ladders from [Classes of Criminal Courts] and [Executive Magistrates] appearing again.

A worked example

Shri Deshmukh is a Judicial Magistrate of the first class at Vasai. The High Court, on the State Government's request, has conferred on him the powers of a Special Judicial Magistrate for a class of excise cases, by an order naming him personally.

When did those powers begin? On the day the order was communicated to him, under section 26(2), not on the day it was passed.

He is transferred to Palghar as a Judicial Magistrate of the first class. Does he keep the special powers? The order named him specially by name under section 26(1), and section 27 carries powers to an equal or higher office of the same nature in a like local area under the same State Government. The move satisfies section 27, so unless the High Court directs otherwise he exercises the same powers at Palghar.

The High Court later decides the arrangement is unnecessary. It may withdraw the powers under section 28(1), because it conferred them.

Meanwhile a trial Shri Deshmukh had part heard at Vasai is still going on. His successor at Vasai may continue it under section 29(1). There is no need to start again.

Nobody is sure who the successor is, because two officers have been given charge of different parts of the file. The Chief Judicial Magistrate determines the question by an order in writing under section 29(3).

Distinctions

What this does NOT mean

Section 29 does not mean the successor may act as though he heard the evidence. It means the office continues. What use he may make of evidence recorded by his predecessor is governed elsewhere, and a trial may still have to be reheard in part.

Section 27 does not carry a power sideways into a different kind of office. The new office must be of the same nature, so a Judicial Magistrate appointed as an Executive Magistrate does not carry his judicial powers with him.

And an order under section 26 is not effective when it is signed. Section 26(2) makes communication the moment it takes effect.

Quick revision

• Section 26(1): powers may be conferred on persons specially by name, in virtue of their offices, or on classes of officials by their official titles.
• Section 26(2): the order takes effect from the date it is communicated to the person empowered.
• Section 27: powers continue on appointment to an equal or higher office of the same nature in a like local area under the same State Government, unless otherwise directed.
• Section 28(1): the High Court or the State Government may withdraw what it conferred.
• Section 28(2): the Chief Judicial Magistrate or District Magistrate may withdraw what he conferred.
• Section 29(1): the powers and duties of a Judge or Magistrate may be exercised by his successor-in-office.
• Section 29(2) and (3): doubt about a Judge's successor is settled by the Sessions Judge; about a Magistrate's, by the Chief Judicial Magistrate or the District Magistrate, in each case by order in writing.

Test yourself

1. From what date does an order conferring powers take effect? From the date it is communicated to the person empowered, section 26(2).

2. Name the three ways in which powers may be conferred. Specially by name, in virtue of the office held, and on classes of officials generally by their official titles, section 26(1).

3. A Magistrate invested with powers in one district is appointed to a lower office in another district in the same State. Do his powers travel with him? No. Section 27 applies only to an appointment to an equal or higher office of the same nature within a like local area under the same State Government.

4. A Sessions Judge who has part heard a trial retires. Must the trial start again? Not by reason of the retirement. Section 29(1) allows his successor-in-office to exercise his powers and perform his duties.

5. Who resolves a doubt about who the successor-in-office of an Executive Magistrate is? The District Magistrate, by order in writing, under section 29(3).

6. Who may withdraw powers conferred by a District Magistrate? The District Magistrate himself, under section 28(2), and the State Government under section 28(1) as the authority to which he is subordinate.