Executive Magistrates

To an Executive Magistrate if it is administrative or executive in nature, and the section gives its own examples: granting a licence, suspending or cancelling a licence, sanctioning a prosecution, and withdrawing from a prosecution.

So the question to ask is not "is this serious?" but "does it turn on evidence, and does it end in punishment or trial?"

Section 14: the appointments

Sub-section (1). In every district the State Government may appoint as many persons as it thinks fit to be Executive Magistrates, and shall appoint one of them to be the District Magistrate. The "may" and the "shall" in one sentence are deliberate: how many Executive Magistrates there are is discretionary, but every district must have a District Magistrate.

Sub-section (2). The State Government may appoint any Executive Magistrate to be an Additional District Magistrate, with such of the District Magistrate's powers under the Sanhita or any other law as it directs.

Sub-section (3). Where the office of District Magistrate falls vacant and an officer temporarily succeeds to the executive administration of the district, that officer exercises all the powers and performs all the duties of the District Magistrate, pending the State Government's orders. This is the provision that stops a district being left without an executive magistracy between two postings.

Sub-section (4). The State Government may place an Executive Magistrate in charge of a sub-division, and relieve him as occasion requires. A Magistrate so placed is called the Sub-divisional Magistrate.

Sub-section (5). The State Government may delegate its power under sub-section (4) to the District Magistrate, by general or special order and subject to whatever control and directions it imposes.

Sub-section (6). Nothing in section 14 prevents the State Government from conferring on a Commissioner of Police, under any law in force, all or any of the powers of an Executive Magistrate.

Sub-section (6) is the one a Mumbai student should remember, because it explains the orders they actually see. In a commissionerate city, prohibitory orders and security proceedings commonly issue from the Police Commissioner rather than from a Collector, and this is the sub-section that makes that lawful.

Section 15: Special Executive Magistrates

The State Government may appoint, for such term as it thinks fit, either Executive Magistrates or any police officer not below the rank of Superintendent of Police or equivalent, to be Special Executive Magistrates, for particular areas or for particular functions, and may confer on them such of the powers conferrable on Executive Magistrates as it thinks fit.

Two features are worth holding.

A police officer can be one. That is unusual and it is expressly permitted, but the floor is high: not below Superintendent of Police or equivalent.

The appointment is limited by area or by function. A Special Executive Magistrate is not a general purpose Magistrate; he is appointed for a defined patch or a defined job, and the notification appointing him is what fixes the scope.

Sections 16 and 17: where they act, and who they answer to

Section 16, local jurisdiction. Subject to the control of the State Government, the District Magistrate defines from time to time the local limits within which Executive Magistrates may exercise their powers. Except as so defined, the jurisdiction and powers of every such Magistrate extend throughout the district.

Compare that with section 12 for the judicial side. The structure is identical, but the authority that defines the limits is different: for Judicial Magistrates it is the Chief Judicial Magistrate under the High Court's control; for Executive Magistrates it is the District Magistrate under the State Government's control. The two ladders never cross.

Section 17, subordination. All Executive Magistrates are subordinate to the District Magistrate. Every Executive Magistrate other than the Sub-divisional Magistrate who exercises powers in a sub-division is also subordinate to the Sub-divisional Magistrate, subject to the general control of the District Magistrate. The District Magistrate may make rules or give special orders, consistent with the Sanhita, on the distribution or allocation of business among the Executive Magistrates subordinate to him.

What Executive Magistrates actually do in this book

It helps to know now which later chapters belong to them, because the powers are scattered and the pattern is easy to miss.

Security proceedings. The whole of Chapter IX, sections 125 to 143, is worked by Executive Magistrates. That is [Security for Keeping the Peace and for Good Behaviour] and [The Security Inquiry and What Follows It].

Public order. Chapter XI, sections 148 to 167: dispersal of an unlawful assembly, public nuisance, urgent orders under section 163, and disputes about land and water likely to cause a breach of the peace.

Arrest and the police. An Executive Magistrate may arrest under section 41, and Chapter IV requires the public to assist Magistrates.

Inquests. Section 196 gives certain Executive Magistrates the power to inquire into the cause of death in custody and other cases.

Maintenance of wives, children and parents, Chapter X, is not theirs. Section 144 gives it to a Judicial Magistrate of the first class, because ordering a man to pay and committing him to prison if he does not is judicial work in the section 3(2) sense.

A worked example

Two groups in a Palghar village are about to come to blows over a strip of land. Each says it is theirs. The police report that a breach of the peace is likely.

Who acts, and under what? The Sub-divisional Magistrate, an Executive Magistrate placed in charge of the sub-division under section 14(4). He acts under section 164, which deals with a dispute concerning land or water likely to cause a breach of the peace, and he may attach the subject of the dispute and appoint a receiver under section 165.

Is he deciding who owns the land? No, and this is the point of the separation. He is preventing a fight. Ownership is for a civil court, and his order says so expressly.

Now suppose one of the men assaults the other. That is an offence. The Executive Magistrate cannot try it. It goes to a Judicial Magistrate, because trying it means appreciating evidence and may end in punishment, which section 3(2)(a) reserves to the judicial side.

And suppose the same man keeps threatening others. The Executive Magistrate may require him to show cause why he should not give security for keeping the peace, under Chapter IX. That is preventive, not punitive, so it stays on the executive side even though it can end in imprisonment in default of security.

Distinctions

What this does NOT mean

An Executive Magistrate is not a lower grade of Judicial Magistrate. They are different offices on different ladders. Neither is promoted into the other.

"Executive" does not mean the power is trivial. An order under section 163 can shut down movement in a whole district, and an order under Chapter IX can put a person in prison for failing to furnish security. The powers are serious; what makes them executive is that they are preventive and do not decide guilt.

The District Magistrate is not the head of the criminal courts of the district. That is the Sessions Judge on the sessions side and the Chief Judicial Magistrate on the magisterial side. The District Magistrate heads only the executive magistracy.

And a Special Executive Magistrate who is a police officer does not become a judge. He gets specified executive powers for a specified area or function, and nothing more.

Quick revision

• Section 14(1): the State Government may appoint Executive Magistrates and shall appoint one District Magistrate in every district.
• Section 14(2): Additional District Magistrate, with such powers as the State Government directs.
• Section 14(3): an officer temporarily succeeding to the executive administration exercises the District Magistrate's powers pending orders.
• Section 14(4) and (5): Sub-divisional Magistrate; the power to place and relieve may be delegated to the District Magistrate.
• Section 14(6): a Commissioner of Police may be given the powers of an Executive Magistrate.
• Section 15: Special Executive Magistrates, who may be police officers not below Superintendent of Police or equivalent, for particular areas or functions.
• Section 16: local limits defined by the District Magistrate; otherwise jurisdiction runs throughout the district.
• Section 17: all Executive Magistrates subordinate to the District Magistrate; those in a sub-division also to the Sub-divisional Magistrate.
• Section 3(2) is the test: evidence, punishment, detention or trial goes judicial; administrative or executive, including licences and sanctions, goes executive.

Test yourself

1. Who appoints Executive Magistrates, and who appoints Judicial Magistrates? The State Government appoints Executive Magistrates under section 14(1). The High Court appoints Judicial Magistrates as presiding officers under section 9(2), the courts themselves being established by the State Government after consultation with the High Court.

2. May a police officer be a Special Executive Magistrate? Yes. Section 15 allows the State Government to appoint a police officer not below the rank of Superintendent of Police or equivalent, for particular areas or particular functions.

3. The office of District Magistrate falls vacant. Who exercises his powers? Any officer who temporarily succeeds to the executive administration of the district exercises all the District Magistrate's powers and duties pending the orders of the State Government, under section 14(3).

4. A State law says "the Magistrate may cancel the licence". Which Magistrate? An Executive Magistrate. Section 3(2)(b) names suspension or cancellation of a licence as an example of an administrative or executive function.

5. Who defines the local limits within which an Executive Magistrate acts? The District Magistrate, subject to the control of the State Government, under section 16(1). Otherwise the Magistrate's powers extend throughout the district.

6. Why is maintenance under section 144 not an Executive Magistrate's job? Because section 144 gives it to a Judicial Magistrate of the first class. It involves taking evidence and can end in a warrant and imprisonment, which is judicial work under the section 3(2)(a) test.