Supreme Court of India
State Of Maharashtra And Ors vs Mohammed Salim Khan And Ors on 22 November, 1990
Equivalent citations: 1990 SCR, SUPL. (3) 340 1991 SCC (1) 550, AIRONLINE 1990 SC 97, 1991 (1) SCC 550, (1991) SC CR R 309, 1991 UJ(SC) 1 337, 1991 BOM LR 93 25, 1991 ALLAPPCAS (CRI) 87, (1991) 1 BLJ 404, (1991) 1 ALLCRILR 55, 1991 CRILR(SC MAH GUJ) 105, (1991) 1 ORISSA LR 1, (1991) CRICJ 80, 1991 UP CRIR 110, (1991) 1 CRIMES 120, (1991) 1 RECCRIR 36, (1991) 1 CRILC 648, (1991) 1 ANDHWR 59, (1991) EASTCRIC 57, (1991) 2 ANDH LT 1, (1991) MAH LJ 1, (1991) 48 ALLCRIC 1, (1991) IJR 43 (SC), (1991) MAD LJ(CRI) 582, (1990) 4 JT 469 (SC), 1991 SCC (CRI) 253, (1992) 1 BOM CR 470, 2013 (14) SCC 367
Author: K.J. Shetty
Bench: K.J. Shetty, K.N. Singh, Kuldip Singh
PETITIONER:
STATE OF MAHARASHTRA AND ORS.
Vs.
RESPONDENT:
MOHAMMED SALIM KHAN AND ORS.
DATE OF JUDGMENT22/11/1990
BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
SINGH, K.N. (J)
KULDIP SINGH (J)
CITATION:
1990 SCR Supl. (3) 340 1991 SCC (1) 550
JT 1990 (4) 469 1990 SCALE (2)1099
ACT:
Criminal law: Code of Criminal Procedure 1973: Sections
20 and 21--Interpretation and Scope of Section 21--Spe-
cial Executive Magistrates--Powers of--Entitled to exercise
the powers conferred by the Code much the same way as the
Executive Magistrates--'Powers conferred' and 'powers con-
ferrable'--Distinction.
HEADNOTE:
A complaint was lodged by Respondent No. 7 against
Respondent Nos. 1 to 6 before the Senior Inspector of Po-
lice---Appellant No. 2. After investigation proceedings
under Section 107 of the Code were initiated before appel-
lant No. 3, an Assistant Commissioner of Police invested
with the powers of Special Executive Magistrate pursuant to
the Notification dated 11th April 1974 issued by the Govern-
ment of Maharashtra whereby all Assistant Commissioners of
Police in the Metropolitan area of Greater Bombay were
appointed as Special Executive Magistrate. These proceedings
were challenged before the High Court of Bombay by Respond-
ents 1 to 6. While quashing these proceedings the High Court
observed that the Special Executive Magistrate is not enti-
tled to exercise the powers of Executive Magistrate and
cannot be conferred with the powers of an Executive Magis-
trate under Section 107 of the Code. The State Government
has challenged this decision of the High Court.
Disagreeing with the High Court on the scope and con- ï7
3
judgment of the High Court and allowing the appeal,
HELD: The aim of Section 21 as evinced in its language
should be ascertained and the provision so construed as to
effectuate the purpose of the legislation. [345H]
The purpose of empowering the State Government to ap-
point Special Executive Magistrates was evidently to meet
the Special needs of a particular area or to perform partic-
ular functions in a given area. Such appointments without
adequate powers would be futile and the
341
legislation without providing such powers would be point-
less. Special Executive Magistrates are also entitled to
exercise the powers of the Executive Magistrates conferred
by the Code. It was unnecessary for the State Government to
have conferred the powers under Section 107 on the Special
Executive Magistrate. [346H; 347C-D]
The powers conferred by the Code on the Executive Magis-
trate are the powers that are attached to this post for
instance powers under Section 107, 108, 109, 110, 129, 145
and 147 etc. Any person appointed as Executive Magistrate is
entitled to exercise such powers. These powers are not the
powers conferrable on them though they may be conferred on
others like the Police Commissioner under Section 20 sub-
section (5). But there are other provisions in the Code
which may be said to be conferrable powers under the Code
such as Sections 133, 143 and 144 etc. These powers cannot
be exercised by the Executive Magistrate unless they are
specially empowered in that behalf. [345F-G]
JUDGMENT: