SCOPE OF SECTION 20(5) OF CR.P.C. TO CONFER MAGISTERIAL POWERS AS A POLICE OFFICER INTRODUCTION:

 

SCOPE OF SECTION 20(5) OF CR.P.C. TO CONFER MAGISTERIAL POWERS AS A POLICE OFFICER INTRODUCTION:

The power of the State Government in conferring power on the Commissioner of Police / Deputy Commissioner of Police as Executive Magistrate so as to invoke Section 107 to 110 Cr.P.C., proceedings.

 

It is needless to say that there are two types of Magistrates in the administration of criminal Justice system:

Section 6 of Cr.P.C., defines the kinds of criminal Court. As per the said Section, Judicial Magistrate of the First Class and the Judicial Magistrate of Second Class and Executive Magistrates are the kinds of Magisterial Court.

i         (i) Judicial Magistrate

ii        (ii) Executive Magistrate

 

At no stretch of imagination, the Executive Magistrates can perform judicial function. Only in some areas, quasi - judicial power has been vested with the Executive Magistrates, such as,

(i) proceeding U/S. 129 Cr.P.C.

(ii) proceeding U/S. 133 Cr.P.C.

(iii) proceeding U/S. 144 Cr.P.C. and

(iv) proceeding U/S. 107 to 110 Cr.P.C.

Now, the point for consideration is whether the quasi judicial function can be conferred upon the police officers, if so, whether it is constitutionally valid.

Section 20 (1) and (5) of Cr.P.C., are the relevant provisions of law, to discuss about the topic. For easy reference, Section 20(1) and 20(5) of Cr.P.C., is extracted hereunder.

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.

………

(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.                    

 

It is pertinent to point out here that Section 32 of Cr.P.C., 1973, has given the mode of conferring powers. On the strength of Section 20(5) of Code of Criminal Procedure, 1973, the State of Tamil Nadu has issued G.O. (MS) No. 181 Home (Cts VIA) Department, dated: 25.2.2014, thereby conferring power on the Deputy Commissioners of Police, Madurai, Coimbatore, Tiruchirappalli, Tirunelveli, Salem, enabling them to take cognizance and to proceed u/s. 107 to 110 Cr.P.C.

No doubt that proceedings under Section 107 to 110 Cr.P.C., are quasi-judicial proceedings and the power has been vested with the Executive Magistrate. Now, the point for consideration is whether this quasi judicial function can be given to the police officers and whether Deputy Commissioner of Police can be conferred with such power when Section 20(5) of Cr.P.C., gives power to the State Government to confer such power on a Commissioner of Police.

Section 20(5) Cr.P.C., restricts the State Government in two ways on conferment of power to appoint Commissioner of Police as executive Magistrates the viz., (1) the Executive Magistrate can be appointed only in relation to a Metropolitan area and (2) the Commissioner of Police can alone be appointed as Executive Magistrate. Hence, as per the clear language of Section 20(5) Cr.P.C., the State Government cannot confer power of executive Magistrate on the Commissioner of Police controlling other than the Metropolitan area as well the officer below the rank of Commissioner of Police cannot be appointed as Executive Magistrate.

The following are the relevant decisions on the subject matter:-

[Surendra Ramchandra Taori Vs. State of Maharashtra and others ]

[V. Mohan Ranga Rao Vs. State of A.P. ]

[S. Bharath Kumar Vs. Chief Election Commissioner of India and others]

The said G.O. is to be tested on the touch stone of Article 14 and 21 of Constitution of India. As per Article 21 of Constitution of India, no person shall be deprived of his life or personal liberty except according to procedure established by law. Now, the point arises is that whether the above G.O., has been issued as per the procedure established by law i.e., Code of Criminal Procedure, 1973.

Section 20(5) of Cr.P.C., specifically empowers the State Government to appoint Commissioner of Police as Executive Magistrate and so, other than the Commissioner of Police like Deputy Commissioner / Assistant Commissioner of Police cannot be appointed as Executive Magistrate. The intention of legislature is that except the Commissioner of Police, no one can be conferred with such power, so the power of state Government has been restricted u/s 20(5) Cr.P.C.

1. (2002) 104 BomLR 34

2. 1985 (2) APLJ 361

3.1995Crl.L.J.2608                                                 The Division Bench of Andhra Pradesh High Court referred to above came to a conclusion that such conferment of power on the other persons is against the law and liable to be quashed. Similar view has been expressed by the Division Bench of Bombay High Court also.

In [Surendra Ramchandra Taori Vs. State of Maharashtra and others]

The petitioner came to be produced before the Special Executive Magistrate (Respondent No. 2) on 23.10.1999, who is a Police Inspector,

Para.19 :

…………. Therefore, in our humble opinion, it is high time that the State, which is duty bound to protect the fundamental rights of its citizen and particularly relating to their liberty, should resort to Section 478 of the Code of Criminal Procedure which vests in the State powers to order functions allocated to Executive Magistrates and such powers vested in favour of police officers as Special Executive Magistrate particularly in reference to Chapter VIII proceedings as they are commonly known and relate to Sections 108 to 110 as well as Sections 145 and 147 of the Criminal Procedure Code to be made over to Judicial Magistrate of the First Class or Metropolitan Magistrate, as the case may be.

In [V. Mohan Ranga Rao Vs. State of A.P.]

The conferment of power under Section 20 (5) of the Code on the Commissioner of Police the powers of the Executive magistrates under any law (Police Acts)for the time being in force, though is unnecessary for the purpose of this case to pursue its legality, it is suffice to state that they are in the nature of executive orders but not deciding as a adjudicator of quasi criminal offences. Therefore reliance on Sec. 20 (5) by the respondents is misconceived. We cannot lose sight of the grave practical implications arising from the exercise of judicial powers under Section 107, etc. conferred on the Executive or Special Executive magistrates. They would be fraught with grave consequences to a citizen as well as to the institution of justice. Lessons of experience would tell us that if the exercise of powers are allowed to be done in a small way it would be limitless to confer power on anybody of the choice of the State Government. The consequences are perilous and disastrous.

Para.32:

Considered from the above perspective, though the executive has wide power under Section 20 (1) and section 21 of the Code to appoint "any person" as Executive or Special executive Magistrate, there is an implied prohibition thereunder that the exercise of the discretion must be circumspect attune to the statutory standard and constitutional goals. A person appointed as Executive or Special Executive magistrate, should be of the cadre or specified class of officers belonging to the executive service of the Government, like District Collector R D O. , etc hither to being appointed or in a given case a retired judicial official or person, a person of

 (2002) 104 BomLR 34

 1985 (2) APLJ 361 good reputation of the locality but he should not have any interest in the subject matter of the enquiry. Therefore we are inclined to hold that the parliament never intended to invest the state Government with an authority to appoint any person of its choice but should be of a person referred to above. Thus, the exercise of powers by the state Government must be declared to be arbitrary and unreasonable, violating Article 14 of the Constitution. It outstepped its limits prescribed by the Code and thereby it is ultra vires of its power.

In [S. Bharath Kumar Vs. Chief Election Commissioner of India and others ]

Para.10:

…… No doubt, Sub-section (5) of Section 20 clarifies that nothing in Section 20 would preclude the State Government from conferring the powers of Executive Magistrate on a Commissioner of Police in relation to a metropolitan area. This specific and express reference to the Commissioner of Police alone and that too in relation to metropolitan area can by no stretch be extended to either other police officers or with reference to other areas since Sub-sections (1) to (4) of section 20 nowhere, even remotely, spell out such a power of appointment vested in the State Government.

Para.11:

It would be interesting to recall the history behind appointment of Executive Magistrates to deal with security matters. In British-India Police Act of 1861 through Section 6 appointment of police officers as Executive Magistrates was envisaged. However, immediately in the next year i.e., in 1862, through Amendment Act X/1862, the said section was repealed for whatever reasons it was, perhaps being not a healthy practice. It is because such provision of appointment as Executive Magistrates was available in the British-India Police Act, the Code of Criminal Procedure, 1898 carried with it such a provision.

Conferring power of Executive Magistrate on higher police officer to invoke Section 107 to 110 of Cr.P.C will be against Articles 14 and 21 of the Constitution of India. Because higher police officers are having power to investigation as per section 36 of Cr.P.C. For easy reference Section 36 Cr.P.C is given below:

Section 36 – Powers of superior officers of police

Police officers superior in the rank to an officer in-charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station.

1995Crl.L.J.2608                                            The following are the important judgments on section 36 of Cr.P.C.

(1) [State of Bihar vs. J.A.C.Saldanna – the use of word ‘rank’ in section 36 of the code comprehends the hierarchy of police officers. It is equally clear that Inspector General of Police will have the jurisdiction over the whole of the state.

(2) [Manilal Keshri vs. State of Bihar & Anr. ]

….. It is an investigation by superior police official other than investigating officer under Section 36 of the Criminal Procedure Code. Under Section 36 of the Criminal 'Procedure Code any police officer, superior in rank other than Officer-in-Charge of the police station, can investigate a case like. the Officer-in- Charge on the investigating officer. The Section confers power upon the superior police officer to investigate a case. This power can be exercised either suo moto or under the direction of the superior officer or the Government…….

(3) [ Nirmal Singh Kahlon vs State of Punjab ]

….. Section 36 of the Code must be read harmoniously with the said provision. Therefore, when Section 36 of the Code uses the words `in rank', it should be given a purposive construction. Although a plain reading of the aforementioned provision appears to be containing three ingredients, namely, (i) the investigation must be carried out by an Officer in charge; (ii) which may be supervised by an Officer superior in rank; and (iii) in respect of a local area to which they are appointed, but in the context of the power of the State vis- `-vis the provisions of Act, the same, in our opinion, deserves a wider application.

From the above verdicts of the Honorable Apex Court, it is crystal clear that Deputy Commissioner of Police and the Commissioner of Police has got right to investigate as that of station house officer. Hence power to take cognizance under section 107 to 110 Cr.P.C by superior police officer on the statement or complaint by SHO will be nothing but against the policy that no one can be the judge of his own case so also the said G.O. is liable to be declared as unconstitutional. Hence the State cannot confer power on police officers to proceed under Section 107 to 110 of Cr.P.C.

AIR 1980 SC 326 = 1980 (1) SCC 554 (SC)

2006 CriL J 3981

2009 Crl J 958

 

 

CONCLUSION:

Hence, it is crystal clear that the Deputy Commissioner of Police cannot be appointed as Executive Magistrates. It is equally not correct that the power u/s. 107 to 110 Cr.P.C., cannot be conferred on the police personnel, because no one can be a judge of his own case. Here, proceeding u/s. 107 to 110 Cr.P.C., can be initiated by the Inspector of Police and the higher police officials cannot be conferred power to give verdict, the same is against the principle that no one can be appointed as judge of his own case. This is not the procedure established under law. Hence, Article 21 of Constitution of India will come into play and such a conferment cannot be legally sustainable.