Madras High Court
The State Of Tamil Nadu And Another vs R. Gandhi, President, And Another on 16 February, 1995
Equivalent citations: 1995CRILJ3129
Author: M. Srinivasan
Bench: M. Srinivasan
JUDGMENT Srinivasan, J.
1. This appeal is against the order of a learned single Judge allowing the writ petition filed by the first respondent herein, the prayer in which is in the following terms :-
"For the reasons in the accompanying affidavit, it is prayed that this Honourable Court may be pleased to issue a writ of certiorarified mandamus or any other writ, order or direction in the nature of writ calling for the records relating to the order of the 1st respondent in his G.O. Ms. No. 1487, Home (Cts. II), dated 29-7-1989 and all the consequential appointments made based in the said G.O. and to quash the same and to direct the respondents to appoint Special Executive Magistrates/Judicial Magistrates Grade II/Metropolitan Magistrate only persons having law degree following the judgment reported in 1985 Mad LJ (Crl) p. 453 and to pass such other order or direction as this Honourable Court may deem fit and proper and thus render justice."
2. It is obvious that the prayer is misconceived and based on an erroneous understanding of the judgment reported in Narayanaswamy v. State of Tamil Nadu (1985 Mad LJ (Crl) 453). G.O. Ms. No. 1487, Home (Cts. II), dated 29-7-1989, which is sought to be quashed by the writ petitioner is one issued by the Government under S. 21 of the Code of Criminal Procedure, 1973 (Central Act II of 1974), whereby all regular Taluk Tahsildars and Deputy Tahsildars including Special Deputy Tahsildars of all Districts are appointed as Special Executive Magistrates in the Districts concerned for perennial period and powers exercisable by an Executive Magistrate under the Code are all conferred on them. They are also specially empowered to exercise the powers under Ss. 133, 143, and 144 of the Code. Section 21 of the Code enables the State Government to appoint for such term as it may think fit, Executive Magistrates, to be known as Special Executive Magistrates, for particular areas or for the performance of particular functions and confer on them such of the powers as are conferable under the Code on Executive Magistrates, as it may deem fit. The provisions relating to Executive Magistrates are found in Ss. 20 to 23 of the Code. They are new provisions and under the old Code of 1898 there was no provision for Executive Magistrates. Under S. 6 of the present Code, there are four classes of Criminal Courts, one of them being Executive Magistrates. Under the old Code of 1898, there was a provision for appointment of Justices of Peace, which is absent in the present Code. The Thirtyseventh Report of the Law Commission recommended the creation of a class of Special Executive Magistrates. It was pointed out that in Presidency Towns, there were no District Magistrates under the old Code and that the District Collector was never a Magistrate in the Presidency Towns. Work in the Presidency Towns was apportioned between the Presidency Magistrates and the Commissioner of Police. As the separation of the powers under the new code calls for a different approach to the problem, the Metropolitan area becomes a District under S. 7(1) proviso of the new code. The Law Commission in its report indicated a draft section to be inserted while amending the Code. Draft S. 14-A provided that the State Government may also appoint Executive Magistrates, who shall be called as Special Executive Magistrates for particular areas or for the performance of particular functions and confer upon them such powers conferred or conferable by or under the Code on an Executive Magistrate of the First or Second Class, as it deems fit. The Forty-first Report of the law commission did not approve the idea of creating a class of Special Executive Magistrates. The bill introduced in the Parliament did not contain a provision for appointment of Special Executive Magistrates and it was referred to the Joint Select Committee, which accepted the line of suggestion made by the Law Commission in its thirty-seventh report. The committee made a report dated 14th December, 1972 to the effect that a provision to enable the appointment of Special Executive Magistrates to meet special needs in relation to particular areas or for the performance of particular duties should be incorporated. Accordingly, Section 21 was enacted.
3. It is under that Section the Government has passed G.O. Ms. No. 1487, dated 29-7-1989. The Code also contains provisions for Special Judicial Magistrates and Special Metropolitan Magistrates in Ss. 13 and 18 respectively. In the forty-first report of the law commission, recommendation was made for the retention of benches and it was also proposed that the Honorary Magistrates who make up the Benches should be chosen and appointed by the High Court and they should possess such qualification as the High Court may prescribe. The Bill as originally introduced, vested the power of appointment of Honorary Magistrates in the High Court. The Joint Select Committee recommended the continuation of the system of appointing the Special Judicial Magistrates, but deleted the provision for permitting them to sit as Benches. The view of the Committee is expressed in the following terms :-
"In the committee's view the proper way to deal with arrears will be to appoint sufficient number of stipendiary Magistrates. However, the committee is convinced that the deletion of the enabling provision for appointment of special Magistrates would create problems, as happened in the Union Territory of Delhi recently. In certain States, the practice of appointing retired government officers as Special Magistrates, sitting singly to dispose of petty cases has been adopted with advantage. These Magistrates, who are usually invested with summary powers are able to dispose of a large number of petty cases with expedition. An enabling provision in this behalf is necessary as it may facilitate the appointment of such special Magistrates for disposing of petty cases. The enabling provision would also be useful in another way. In remote or inaccessible localities or areas with thin population, the available work may not justify the appointment of a full time Magistrate. In such situations there is a practice in some States to confer the powers of a Magistrate on a local officer of Government, like the Sub-Registrar to dispose of the few criminal cases arising in such areas. This will be a facility to the local inhabitants who otherwise would have to travel a long distance, to reach a Magistrate's Court. The committee, after careful consideration, is of the view that the enabling power to appoint special Magistrates should be retained, both in the Metropolitan areas and elsewhere, with the following modifications :-
(a) The system of appointing Benches of Magistrates should be abolished.
(b) The persons to be appointed as Special Magistrates should be either persons in Government service or those who have retired from Government service.
(c) The High Court should have power to prescribe qualifications or experience in relation to legal affairs to be satisfied by a person before he is appointed as a Special Magistrate.
(d) The appointment should be made by the High Court and should be for a period not exceeding one year at a time.
(e) The sentencing powers of a Special Magistrate should correspond to the powers of a second class Magistrate. The committee has accordingly deleted clauses 15 and 20 dealing with the appointment of benches of Magistrates and has suitably amended clauses 13 and 19 (original) to give effect to the foregoing decision."
4. Thus, the function of the Government is to nominate a suitable person who holds a post or has held a post under the Government and who possess the qualifications prescribed in the rules framed by the High Court. Thereafter, the High Court has to confer on him judicial powers and specify the length of his service. In exercise of the powers conferred by S. 13 of the Code, the High Court issued judicial Notifications Nos. 23 and 24 of 1990 in R.O.C. Nos. 2196,/90E4 and 2289/90/E4 respectively. A period of 180 days from the date of assumption of office or till the need ceases whichever is earlier, is prescribed in the said notifications. Those two notifications have nothing to do with G.O. Ms. No. 1487, dated 29-7-1989. But, the writ petitioner has erroneously thought that the notifications issued by the High Court and published in the Tamil Nadu Government Gazette dated 8-8-1990 at pages 663 and 664 are consequential to G.O. Ms. No. 1487. On that footing, the affidavit of the writ petitioner refers to the High Court notifications in para 6 thereof and states that the notifications are violative of the judgment of the Division Bench of this Court reported in Narayanaswamy v. State of Tamil Nadu (1985) MLJ (Crl.) 453). It is on the above basis, the prayer in the writ petition has been compendiously framed.
5. Before considering the merits of the contentions urged by the writ petitioner, we shall refer to the judgment of the Division Bench reported in Narayanaswamy v. State of Tamil Nadu ((1985) MLJ (Cri.) 453), and discuss the ratio thereof. We have already referred to the fact that the old Code enabled the appointment of Honorary Magistrates and Justices of the peace. Such Honorary Magistrates were selected from among all citizens in all walks of life. On the abolition of the institution of the Honorary Magistrates and Justices of Peace, one Narayanaswamy, who was functioning as an Honorary Magistrate previously, filed W.P. No. 11746 of 1981 in this Court challenging the validity of Ss. 13 and 18 of the Code as well as Rules framed thereunder. The contention was that the two sections violated Art. 14 of the Constitution inasmuch as they confine the appointment of Special Judicial Magistrates and Special Metropolitan Magistrates to persons who hold or had held any post under the Government. The Bench accepted that contention and pointed out that under the system of Honorary Magistrate which was previously in vogue, there was no restriction whatever with reference to the class of persons who could seek appointment as such Honorary Magistrates and persons of integrity and independence, reputation and character, sincerity and devotion to work and possessing rich and valuable worldly experience from every walk of life, could reasonably expect to be considered for such appointment. The Bench held that the requirement of a Special Judicial Magistrate or a Special Metropolitan Magistrate his ability to understand, deal with and dispose of cases which are brought up before him and from the point of view of competency to deal with the effective disposal of such cases, the holding of any post under the Government is totally irrelevant and immaterial, especially when the object of the appointment and the conferment of powers on such persons is with a view to relieve the stipendiary Magistrates of their workload. The Bench pointed out that the post held by a person under the Government might have been in a Department which is not in any manner concerned in the administration of criminal law and the kind of experience that is likely to have been acquired by him during the period of his service as Government Servant would not in any manner assist him in effectively dealing with and disposing of cases relating to offences in his capacity as a Special Judicial Magistrate or as a Special Metropolitan Magistrate. The Bench observed that there is no rational relation at all between the classification of person, as those who hold or have held any post under the Government and the others and the object, namely, the administration of criminal justice through the said Magistrates. Consequently, it was held that the classification is not only arbitrary, but is irrational and totally unrelated to the object and, therefore, Ss. 13(1) and 18(1) of the Code in so far as they confined the appointment of and the conferment of powers of Special Judicial Magistrates or Special Metropolitan Magistrates to any person who holds or has held any post under the Government, are arbitrary and vilolative of Art. 14 of the Constitution of India and have to be struck down.
6. Thus, the only question considered by the bench was whether appointment of Special Judicial Magistrates and Special Metropolitan Magistrates could be confined to persons who hold or had held any posts under the Government. The Bench had no occasion whatever to consider whether the appointment of such Magistrates should be only from persons who have legal qualifications prescribed for manning judicial posts. In fact, the Bench did not make any reference whatever to that aspect of the matter; but on the other hand, the reasoning of the bench is that persons who have never been Government Servants could also be eligible for appointment as Special Judicial Magistrates and Special Metropolitan Magistrates. It is brought to our notice that the judgment of the Bench is challenged in appeal by Special Leave before the Supreme Court of India in C.A. No. 1276 of 1986. The Supreme Court has also stayed. The operation of the order passed by the Bench in that case.
7. That judgment of the bench has nothing to do with the contention now raised by the writ petitioner. It is puzzling how the writ petitioner states that G.O.Ms. No. 1487 and the consequential appointments made on the basis of the said G.O. are in any way violative of the judgment of the Bench. It is rather surprising that the said contention has been accepted in the order under appeal.
8. Even though the constitutional validity of S. 21 of the Code is not challenged, the learned Judge has accepted the contention of the writ petitioner on an interpretation of the said Section, which according to him, is based on the doctrine of reading down necessitated by the exigencies of the situation. According to learned Judge. If the terms of S. 21 are construed in the normal manner, they would be unconstitutional and, therefore, he is obliged to place a restricted construction on the Section. While the Section does not confine the appointment of Executive Magistrates to any particular class of persons, it is not known how the Court can introduce a rule that only persons having qualifications in law and legal training can be appointed. The object and purpose of the Section conferring the power of appointment on the Government will be defeated in entirety if the construction put upon the same by the writ petitioner or the learned Judge is accepted.
9. The Supreme Court had occasion to consider S. 21 in detail in State of Maharashtra v. Mohammed Salim Khan . The Maharashtra Government by a notification appointed all Assistant Commissioners of police in the metropolitan area of Greater Bombay as Special Executive Magistrates. By another notification, the Government conferred on them the powers of an Executive Magistrate under S. 107 of the Code. A complaint was lodged by one of the respondents against a group of persons, who were the other respondents before the Senior Inspector of Police, Mahim Police Station. After investigation, proceedings were initiated under S. 107 of the Code before the Special Executive Magistrate. The Bombay High Court quashed the proceedings at the instance of respondents 1 to 6 taking the view that the Special Executive Magistrate is not entitled to exercise the powers of an Executive Magistrate and cannot also be conferred with such powers under the Code. On appeal by the State Government, the Supreme Court allowed it and reversed the judgment of the Bombay High Court. It was held that the Special Executive Magistrates are also Executive Magistrates and their area of operation may be limited and the terms of appointment may be different. But, nevertheless, basically they remain as Executive Magistrates and they are entitled to exercise the powers conferred by the Code. The Court pointed out that the purpose of empowering the State Government to appoint Special Executive Magistrates was evidently to meet the special needs of a particular area or to perform particular functions in a given area and it can be assumed that the Parliament does not indulge in pointless legislation and it has not done so in S. 21. The Court said that the Section may be conveniently divided into two parts, one providing power to the State Government to appoint Executive Magistrates to be known as the Special Executive Magistrates and setting out the terms of such appointment, while the other speaks of the nature of the power to be conferred on the Special Executive Magistrates. The power to appoint under Part I is not dependent upon or coupled with the power to be conferred under Part II of the Section. The appointment of Special Executive Magistrates is one thing and conferment of power on them is another and each is independent of the other. Part II of the Section speaks of additional powers to be conferred depending upon the nature of the particular function to be performed and it has nothing to do with the power conferred under Part I of the Section.
10. If the Section is to be construed in the way in which it has been done in the order under appeal, the purpose of the section will be defeated. It is also brought to our notice that in several Service Rules, training as Magistrates or doing magisterial work for a particular period is essential even for declaration of probation. Under the Tamil Nadu Revenue Subordinate Service Rules, for declaration of probation in the post of Deputy Tahsildar and for promotion as Tahsildar, a Deputy Tahsildar shall exercise the Magisterial powers for a period of six months to the satisfaction of the Chief Judicial Magistrate concerned. As per G.O.Ms. No. 1127, Personnel and Administrative Reforms (Training) Department, dated 3-10-1979, the I.A.S. Probationers shall do magisterial work during the period of his District training for about nine months on part-time basis and shall try at least 15 contested cases. If law qualification is insisted upon for their being appointed as Special Executive Magistrates, they will not be able to have such training and they will become ineligible for appointment as Deputy Tahsildars or I.A.S. Officers. Such persons are not appointed as Special Magistrates on regular basis and they are appointed only for a limited purpose for a limited period.
11. As stated already, the history of the section shows that the Joint Select Committee applied its mind to the suggestion made by the Law Commission in its Thirty-seventh Report and recommended the introduction of the section. Thus, the Parliament deliberately introduced a new provision of appointment of Executive Magistrates without prescribing qualification in law. The impugned G.O.Ms. No. 1487 does not in any way transgress the provisions of S. 21 of the Code. Hence, the challenge to the validity of the same cannot be sustained. Nor is it open to the writ petitioner to challenge incidentally the judicial notifications issued by the High Court and published in the Tamil Nadu Government Gazette dated 8-8-1990 at pages 663 and 664 referred to earlier. Those notifications do not depend on G.O. Ms. No. 1487 and they are in no way consequential to the same. They are issued under S. 13 of the Code and in view of the order of stay passed by the Supreme Court in C.A. No. 1276 of 1986, the Section continues to be in force.
12. The writ petitioner submits that the Executive Magistrates have powers of adjudication when they exercise judicial functions under the various Sections of the Code. It is submitted that their work requires judicial expertise as they have to consider the correctness of the arguments of lawyers appearing before them and weigh the evidence recorded by them in a judicial manner. According to him they will have to decide questions of law and at times of great importance. It is submitted that if a person who has no qualification in law and legal training carries out such a work, it will be violative of the fundamental rights of the parties to the cases decided by them. It is also argued that the impugned G.O. runs counter to the provisions in Article 50 of the Constitution, which directs the State to take steps to separate judiciary from the Executive in the public services.
13. The petitioner has drawn our attention to the judgment of the Calcutta High Court in Bholanath v. Gour Gopal in which it was held that the Magistrate in a proceeding under Section 145, of the Code of Criminal Procedure has to peruse the written statements put in by the parties who claim the right to possess the subject-matter of the dispute and consider the effect of all such evidence as may be produced by the parties before him. The ruling does not help the writ petitioner in this case. That judgment deals only with what a Magistrate should do in a proceeding under Section 145, of the Code.
14. Reliance is placed upon some observations of the Supreme Court in S. P. Gupta v. President of India , the Court has referred to the functions of judiciary and observed that it is absolutely essential that the judiciary must be free from executive pressure or influence. It is argued by the petitioner that if Tahsildars and Deputy Tahsildars who are subordinate officials in the service of Government are appointed as Executive Magistrates, they will easily succumb to the pressure of the Government and they will not be able to render Justice in an independent manner. There is no merit whatever in this contention.
15. Reliance is also placed on some observations in S.P. Sampath Kumar v. Union of India (AIR 1987 SC 386), wherein Secion 6(1)(c) of the Administrative Tribunals Act (13 of 1985) providing for appointment of Secretary to Government of India as Chairman of Tribunal was struck down. The Court held that the Tribunal constituted under the Act is a substitute of High Court and is entitled to exercise the powers thereof, and therefore, it is of paramount importance that the Tribunal must be a worthy successor of the High Court in all respects. It was, therefore, held that ordinarily a retiring or retired Chief Justice of a High Court or when such a person is not available, a Senior Judge of proved ability either in office or retired should be appointed, as Chairman of the Tribunal. Similarly, it is held that a District Judge or an Advocate who is qualified to be a Judge of the High Court should be regarded as eligible for being Vice-Chairman of the Tribunal.
16. In Shri Kumar Padama Prasad v. Union of India , the Court held that a person holding executive post under the Government is not eligible to be appointed as a Judge of the High Court as he is not holding judicial office. Referring to Article 217(2) of the Contitution, the Court said that the expression 'judicial office' occurring in the Article has to be interpreted in consonance with the scheme of Chapters V and VI of Part VI of the Constitution and it means that a Judicial office belongs to judicial service as defined under Article 236(b) of the Constitution.
17. In Manogarane v. Union of India (1993) 2 Mad J. 50), a learned single Judge of this Court has, after referring to S. P. Gupata's Case , observed that every litigant is entitled to have his case judged by a qualified, trained and experienced judge and not by any other men and denial of the same shall be violative of a citizen's constitutional right to have real and proper Justice. Reliance is placed by the writ petitioner on the above observation.
18. None of these cases referred to above has any bearing in the context of the present case. The observations made in those judgments cannot be torn out of the context and utilised in this case. As rightly pointed out by the learned Advocate General appearing for the appellants, the scope of the question which has arisen before us is very limited. It is rightly submitted that Executive Magistrates and Special Magis trates are appointed for the purpose of disposing of petty cases urgently and expeditiously. Further, the Sections under which the Executive Magistrates exercise their functions generally relate to public peace and maintenance of public order. Very rarely individual rights come up for consideration in such cases. For example, under Section 144 of the Code, the Magistrate is not concerned with individual rights in performing his duty under that Section, but he has to determine what may be reasonably necessary or expedient in a particular situation. The same can be said of Sections 107 and 133 of the Code. In such circumstances, we do not find any infirmity in the provisions contained in Section 21 of the Code or the impugned G.O. passed thereunder.
19. In the result, we are unable to agree with the view taken by the learned single Judge or accept the contention raised by the Writ Petitioner.
20. Consequently, the writ appeal is allowed and the judgment of the learned single Judge in W.P. No. 2588 of 1991 is set aside. The writ petition is dismissed. There will be no order as to costs.
21. Appeal allowed.