State of
Maharashtra & Ors Vs. Mohammed Salim Khan
& Ors [1990] INSC 366 (22 November 1990)
Shetty,
K.J. (J) 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.
HEAD NOTE:
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]
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