Magistrate should not issue notice without indicating as to what was the sufficient ground for initiating these proceedings. By merely incorporating the language of the section will not form his expressed opinion. There has to have a sufficient ground for initiating these proceedings which in this notice are lacking. Section 107 Cr.P.C. is aimed as persons who cause a reasonable apprehension of conduct likely to lead to a breach, of peace or a disturbance of public tranquillity. It is an instance of preventive justice which the Courts are intended to administer. It is like Section 106, in aid of orderly society and seeks to prevent conduct subversive of peace and public tranquillity. For that purpose it invests Magistrates with large judicial discretionary powers. The power u/s 107 would apply where the Magistrate affirms his opinion on the basis of the information that unless prevented from so acting the person would act to the detriment of public peace and public tranquillity. But in the instant case, the dispute is primarily between a landlord and a tenant. The two individuals have nothing to do with public tranquillity or breach of peace. No instance has been brought on record to show that by lodging a complaint against the tenant and the landlord disturbed the public tranquillity or was going to disturb the peace. Repeated complaints and counter complaints would not constitute an offence for which purpose the provisions of Section 107 Cr.P.C. could be invoked.
The purpose of Section 107 is preservation of public peace and tranquillity which question in the facts of this case did not arise. This Section does not confer any power on the Special Executive Magistrate to adjudicate or decide disputes of civil nature or to decide the question of titles to property or entitlement to rights. The exercise of this power must be in aid of those rights and against those who interfere with the lawful exercise. Therefore and even in case where there are no declared or established rights. The power cannot be exercised in a manner that would give material advantage to one party to the dispute over the other. It would not be proper exercise of discretion on the part of the Special Executive Magistrate to interfere with the lawful exercise of the right by a party on consideration. Legal right should be regulated and not prohibited altogether.
Under Code of Criminal Procedure -1973 [Ch-2]
20. Executive Magistrates
(1) In every district and in every metropolitan area. 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.
(2) The State Government may appoint any Executive Magistrate to be an Additional District Magistrate, and such Magistrate shall have such of the powers of a District Magistrate under this Code or under any other law for the time being in force, as may be directed by the State Government.
( 3 ) Whenever, in consequence of the office of a District Magistrate becoming. Vacant, any officer succeeds temporarily to the executive administration of the district, such officer shall, pending the orders of the State Government, exercise all the powers and perform all the duties respectively conferred and imposed by this Code on the District Magistrate.
(4 ) The State Government may place an Executive Magistrate in charge of a sub-division and may relieve him of the charge as occasion requires; and the Magistrate so placed in charge of a sub-division shall be called the Sub-divisional Magistrate.
(4A) The State Government may, by general or special order and subject to such control and directions as it may deem fit to impose, delegate its powers under sub-section (4) to the District Magistrate.
(5) Nothing in this section shall preclude the State Government from conferring. Under any law for the time being in force, on a Commissioner of Police, all or any of the powers of an Executive Magistrate in relation to a metropolitan area.
21. Special Executive Magistrates
The state Government may 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 such Special Executive Magistrates such of the powers as are conferrable under this Code on Executive Magistrate, as it may deem fit.
We may first have the history perspective of Section 21 of the Code. The 37th Report of the Law Commission (1967 para 117- 118) recommended the creation of a class of Special Executive Magistrates. The Law Commission in that Report also indicated a draft section to be inserted while amending the Code. The draft Section 14-A as indicated by the Law Commission 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 conferrable by or under this Code on an Executive Magistrate of the first or second class as it deems fit. The 41st Report of the Law Commission, however, did not approve the idea of creating a class of Special Executive Magistrates. It has been pointed out that the functions of the Executive Magistrates under the new Code are going to be so limited that it would not warrant the creation of a separate class of Executive Magistrates for performing particular functions or in a particular area. The Bill introduced in the Parliament apparently did not contain a provision for appointment of Special Executive Magistrates. The Bill was referred to the Joint Select Committee which upon deliberation seems to have accepted the line of suggestion made by the Law Commission in its 37th Report. The Committee made a report dated 14th December, 1972 stating 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, the Parliament has enacted Section 21.
12. The primary question for decision is, what, on its true construction, does this provision mean?
13. The entire reasoning of the High Court is rested on the distinction between “powers conferred” by the Code and “powers conferrable” under the Code on the Executive Magistrate and the omission to use the term “powers conferred” in Section 21. The High Court has inter-alia expressed the views that the “powers conferred” by the Code are those powers which are exercisable by virtue of holding the post of Executive Magistrate. The person appointed as an Executive Magistrate gets automatically all the powers conferred by the Code and is entitled to exercise such powers. He is entitled to exercise all the powers arid perform all the duties by virtue of his being and Executive Magistrate. Such powers are not to be conferred on him since they are attached to the post. But it would be open to the Government to confer on the Executive Magistrates the powers that are conferrable under the Code which powers are distinct and different. The High Court then dealt with the structure of Section 21 and pointed out that the Special Executive Magistrate appointed u/s 21 can have only the powers which are conferrable, and not the powers conferred by the Code since the term ‘conferred’ has not been used in the section. And the Special Executive Magistrate cannot possess by virtue of his appointment any of the powers of the Executive Magistrate conferred by the Code.
SUPREME COURT OF INDIA in STATE OF MAHARASHTRA AND OTHERS Vs. MOHAMMED SALIM KHAN AND OTHERS [(1991) 1 SCC 550 :] Held :-
Section 21 may conveniently be divided into two parts: (i) The State Government may 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 (ii) the State Government may confer on such Special Executive Magistrates such of the powers as are conferrable under this Code or Executive Magistrates, as it may deem fit. Part I provides power to the State Government to appoint Executive Magistrates to be known as the Special Executive Magistrates. It also sets out the terms of such appointment. Part II speaks of the nature of the power to be conferred or the Special Executive Magistrates. It refers only to the powers conferrable on the Executive Magistrate under the Code but not the powers conferred on them by the Code. We agree with the High Court that there is a broad divide between the powers conferred and powers conferrable by or under the Code on the Executive Magistrate. The powers conferred by the Code on the Executive Magistrates are the powers which are attached to the post of Executive Magistrate. Any person appointed as Executive Magistrate is entitled to exercise such powers. The powers located under Sections 107, 108, 109, 110, 129, 145 and 147 etc. are the instances of such powers. These are not the powers conferrable on the Executive Magistrate though they may be conferred on others like the Commissioner of Police u/s 20 Sub-section (5). There are other provisions in the Code such as Sections 133, 143 and 144, which may be said to be conferrable powers under the Code. The Executive Magistrate cannot exercise such powers unless they are empowered in that behalf.
16. The attractiveness of this distinction by our meticulous construction should not however, lead us astray in construing Section 21. The aim of the section as evinced in its language should be ascertained and the provision should be so construed so as to effectuate the purpose of the legislation. 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. Such appointments without adequate powers would be futile and the legislation without providing such powers would be pointless. It can be assumed that the Parliament does not indulge in pointless legislation. Indeed, it has not done so in Section 21. A careful analysis of the section indicates very clearly that the Special Executive Magistrates are also Executive Magistrates. Under Part I of the section, the State appoints Executive Magistrates to be known as Special Executive Magistrates. They are given a different appellation perhaps to distinguish them from the category of other Magistrates appointed u/s 20. But basically they are Executive Magistrates. Their area of operation may be limited and the terms of appointment may be different, but nevertheless they remain as Executive Magistrates. They do not cease to be Executive Magistrates by being called with different designation. Since they are appointed as Executive Magistrates, they are entitled to exercise the powers conferred by the Code much the same way as other Executive Magistrates.
17. It is true that the latter part of Section 21 speaks of the powers to be conferred upon the Special Executive Magistrates and it refers only to the powers conferrable on the Executive Magistrate. But the power to appoint under part I of Section 21 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. Each is independent of the other. Part II of the section, in our opinion, speaks of additional powers to be conferred depending upon the nature of the particular function to be performed. It has nothing to do with the power located under Part I of the section.
18. The significant difference can be discerned between the language of Section 13 Sub-section (1); Section 18 Sub-section (1) and Section 21 of the Code. Section 13 Sub-section (1) provides that the High Court may, if requested by the Central or State Government so to do, confer upon any person who holds or had held any post under the Government, all or any of the powers conferred or conferrable, by or under the Code on a Judicial Magistrate of the first class or of the second class, in respect to particular cases or to particular classes of cases, in any local area, not being a metropolitan area. Section 18 Sub-section (1) likewise provides power to the High court to confer on any person all or any of the powers conferred or conferrable by or under this Code on a Metropolitan Magistrate. But he is not first appointed as Judicial Magistrate or Metropolitan Magitrate. It is only the powers of such Magistrate are conferred upon a person. Therefore, there was need to use the term ‘conferred’ or ‘conferrable’ in Sections 13 and 18. But the language of Section 21 as analysed earlier is quite different. Since the Special Executive Magistrates are appointed as Executive Magistrates. The draftsman seems to have purposely avoided to use the term “conferred” in the latter part of Section 21. It would seem very odd indeed to say that the State may appoint Executive Magistrate to be known as Special Executive Magistrate and confer upon them the powers conferred by the Code on Executive Magistrate.
22. Local Jurisdiction of Executive Magistrates
(1) Subject to the control of the State Government, the District Magistrate may, from time to time, define the local limits of the areas within which the Executive Magistrates may exercise all or any of the powers with which they may be invested under this Code.
(2) Except as otherwise provided by such definition, the jurisdiction and powers of every such Magistrate shall extend throughout the district.
23. Subordination of Executive Magistrates
(1) All Executive Magistrates, other than the Additional District Magistrate, shall be subordinate to the District Magistrate, and every Executive Magistrate (other than the Sub-divisional Magistrate) exercising powers in a sub-division shall also be subordinate to the Sub-divisional Magistrate, subject, however, to the general control of the District Magistrate.
(2) The District Magistrate may, from time to time, make rules or give special orders, consistent with this Code, as to the distribution of business among the Executive Magistrates subordinate to him and as to the allocation of business to an Additional District Magistrate.
- Section 20 as quoted above plainly consists of three parts. The first part deals with the power of the State Government to appoint as many persons as it thinks fit to be EXECUTIVE MAGISTRATEs and to appoint one of them to be the District MAGISTRATE. The second part empowers the State Government to appoint any EXECUTIVE MAGISTRATE to be an Additional District MAGISTRATE and such MAGISTRATE shall have the powers of a District MAGISTRATE under the Code or under any other law for the time being in force as may be directed by the Government. The third part is sub-section (5) of Section 20 which empowers the State Government for conferring under any law for the time being in force, on a Commissioner of Police, all or any of the powers of an EXECUTIVE MAGISTRATE in relation to a metropolitan area.
- Very fact that in case of Commissioner of Police and that too restricted in the metropolitan area, a specific provision has been made in sub-section (5) in spite of a general provision being there in sub-section (1) empowering the State Government to appoint any person as an EXECUTIVE MAGISTRATE, that itself discloses the intention of the Legislature to classify the Commissioner of Police to be different from the person who can be appointed as an EXECUTIVE MAGISTRATE in exercise of the powers under sub-section (1). Otherwise, there was absolutely no need of incorporating a specific provision under sub-section (5) in relation to Commissioner of Police. Otherwise, even in the absence of sub-section (5) a Commissioner of Police could have been appointed as an EXECUTIVE MAGISTRATE. The Legislature in its wisdom, however, has excluded the office of the Commissioner of Police under sub-section (1) while reserving the power to the State Government to confer the powers of an EXECUTIVE MAGISTRATE upon the Commissioner of Police in relation to a metropolitan area. In other words, it discloses that in case of the office of the Commissioner of Police only all or any of the powers of an EXECUTIVE MAGISTRATE can be conferred upon him and that too in relation to a metropolitan area but the Commissioner of Police cannot be appointed as an EXECUTIVE MAGISTRATE. The appointment of a person in an office is different from the conferment of powers attached to an office upon the person. In fact the decision sought to be relied up by the learned A.P.P., rather than assisting the contention on the part of the respondents, justifies the view that we are taking in the matter.
- Reading sub-sections (1), (2) and (5) of Section 20 in conjunction, it can be stated, that the State has power to appoint the Commissioner of Police of Brihan Bombay as an EXECUTIVE MAGISTRATE and further appoint him as an Additional District MAGISTRATE, who shall have the powers of District MAGISTRATE for the purposes of Sections 18 and 20 of the Act. 25. The State Government shall now appoint the Commissioner of Police as an EXECUTIVE MAGISTRATE in Brihan Bombay and shall further appoint him as an Additional District MAGISTRATE, who shall have the powers of District MAGISTRATE for the purposes of Sections 18 and 20 of the Act.