Indian Kanoon - Search engine for Indian Law

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NC: 2025:KHC:25601 HC-KAR provides that there shall be in every State four classes of criminal courts, namely,

(i) Courts of Session, (ii) Judicial Magistrates of the First class and, in any metropolitan area, Metropolitan Magistrates;(iii) Judicial Magistrates of the Second Class;

and (iv) Executive Magistrates; Sections 8 to 19 provide inter alia for declaration of metropolitan area, establishment of Courts of Session, Courts of Judicial Magistrates, Courts of Metropolitan Magistrates and appointments of Sessions Judges, Additional Sessions Judges, Assistant Sessions Judges, Chief Judicial Magistrates, Judicial Magistrates, Chief Metropolitan Magistrates and Metropolitan Magistrates together with inter se subordination, but all appointments being required to be made by the High Court, while Sections 20, 21, 22 and 23 deal with appointments of District Magistrates, Additional District Magistrates, Executive Magistrates, Sub-Divisional Magistrates and Special Executive Magistrates and their respective jurisdictions in every district and metropolitan area together with inter se subordination, but appointments being made by the State Government. Chapter III comprising Sections 26 to 35 clearly shows that Executive Magistrates are totally excluded from conferment of powers to punish, which are conferred on Judicial Magistrates; this shows that if any one were to commit a breach of any order passed by an Executive Magistrate in exercise of his administrative or executive function he will have to be challenged or prosecuted before a Judicial Magistrate to receive punishment on conviction. Further, if certain sections of the present Code are compared with the equivalent sections in the old Code it will appear clear that a separation between judicial functions and executive or administrative functions has been achieved by assigning substantially the former to the Judicial Magistrates and the latter to the Executive Magistrates. For example, the power under Section 106 to release a person on conviction of certain types of offences by obtaining from him security by way of execution of bond for keeping

-- an executive function of police to maintain law and order and public peace which was conferred on a Presidency Magistrate, District Magistrate, etc. under the old Section 107 is now assigned exclusively to the Executive Magistrate under the present Section 107; Chapter X of the new Code deals with the topic of maintenance of public order and tranquillity and in that Chapter Sections 129 to 132 deal with unlawful assemblies and dispersal thereof, Sections 133 to 143 deal with public nuisance and abatement or removal thereof, Section 144 deals with urgent cases of nuisance and apprehended danger to public tranquillity and Sections 145 to 148 deal with disputes as to immovable properties likely to cause breach of peace -- all being in the nature of executive ("police") functions, powers in that behalf have been vested exclusively in Executive Magistrates whereas under equivalent provisions under the old Code such powers were conferred indiscriminately on any Magistrate, whether Judicial or Executive. In particular it may be stated that whereas under the old Section 144 the power to take action in urgent cases of nuisance or apprehended danger to public tranquillity had been conferred on "a District Magistrate, a Chief Presidency Magistrate, a Sub-Divisional Magistrate or any other Magistrate, specially empowered by the State Government", under the present Section 144 the power has been conferred on "a District Magistrate, a Sub- Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in that behalf". Having regard to such implementation of the

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NC: 2025:KHC:25601 HC-KAR concept of separation of judicial functions from executive or administrative functions and allocation of the former to the Judicial Magistrates and the latter to the Executive Magistrates under the Code of 1973, it will be difficult to accept the contention of the counsel for Respondents 5 and 6 that the order passed by a District Magistrate, Sub- Divisional Magistrate or any other Executive Magistrate under the present Section 144 is a judicial or quasi-

judicial order, the function thereunder being essentially an executive (police) function. ..............................."

19. Since the Magistrate referred to under Section 155 under Chapter XII of the CrPC refers to a Magistrate who has the power to try such case or commit the case for trial and thus exercises judicial function, he has to be a Judicial Magistrate. Further, under Section 195 (1) of the CrPC read with Section 2 (d) of the CrPC, the complaint, has to be filed before the court taking cognizance, and the complaint which is required to be filed under Section 195 (1) of the CrPC, can only be before a Judicial Magistrate and not an Executive Magistrate who does not have the power to take cognizance of an offence or try such cases.