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Report No. 154

40.1. Appointment of Special Magistrates.- In India, the Criminal Procedure Code, 1898, provided for appointment of Honorary Magistrates. These magistrates were appointed by the government to relieve the regular magisterial courts. However, it was felt that the system was used to reward many persons who were loyal to the government. Many persons were appointed as Special Magistrates who did not possess either qualification or experience to discharge judicial duties. It is also alleged that such persons were attracted by the honour attached to the post rather than by a sense of duty or service. They did not have the knowledge or inclination to perform magisterial work.

40.2. After India became independent, the desirability of having honorary magistrates was examined by a Joint Select Committee of Parliament while considering the Code of Criminal Procedure Bill, 1970. The Committee took note of the criticism of the working of honorary magistrates but at the same time did not lose sight of the possible assistance the honorary magistracy could render to the judiciary to relieve it of some of its burden of work. The Committee came to the conclusion that the facility of appointment of Special Magistrates should be retained. However, safeguards were introduced in the Code of Criminal Procedure to forestall abuse of system.

40.3. The Code of Criminal Procedure, 1973 brought following changes in the system of special magistrates:

Magisterial powers could be conferred on Special Magistrates by the High Court of a State and not by the State Government as was the position earlier.

(ii) The persons to be appointed as Special magistrates had to be persons who held or had held any post under the government.

(iii) The High Courts were given the power to prescribe qualifications or experience in relation to legal affairs to be satisfied by a person before his appointment as a Special Magistrate.

(iv) The term of appointment of a Special Magistrate was restricted to a maximum of one year at a time.

(v) The High Courts could grant all or any of the powers of a first class or a second class magistrate on a Special Magistrate.

40.4. Section 13 of the Code of Criminal Procedure, 1973 which provides for the institution of Special Magistrates reads:

"(1) The High Court may, if requested by the Central or State Government so to do, confer upon any person who holds or has held any post under the Government, all or any of the powers conferred or conferrable by or under this Code on a Judicial Magistrate of the first class or of the second class, in respect 'to particular cases or to a particular classes of cases, in any local area, not being a metropolitan area:

Provided that no such power shall be conferred on a person unless he possesses such qualification or experience in relation to legal affairs as the High Court may, by rules, specify.

(2) Such Magistrates shall be called Special Judicial Magistrates and shall be appointed for such term, not exceeding one year at a time, as the High Court may by general or special order, direct.

(3) The High Court may empower a Special Judicial Magistrate to exercise the powers of a Metropolitan Magistrate in relation to any metropolitan area outside his local jurisdiction."

40.5. Likewise, section 18 of the Code which provides for the institution of Special Metropolitan Magistrates runs as follows:

"(1) The High Court may, if requested by the Central or State Government so to do, confer upon any person who holds or has held any post under the Government, all or any of the powers conferred or conferrable by or under this Code on a Metropolitan Magistrate in respect to particular cases or to particular classes of cases, in any metropolitan area within its local jurisdiction:

Provided that no such power shall be conferred on a person unless he possesses such qualification or experience in relation to legal affairs as the High Court may, by rules, specify.

(2) Such Magistrates shall be called Special Metropolitan Magistrates and shall be appointed for such term, not exceeding one year at a time, as the High Court may, by general or special order, direct.

(3) The High Court or the State Government, as the case may be, may empower any Special Metropolitan Magistrate to exercise, in any local area outside the metropolitan area, the powers of a Judicial Magistrate of the first class."

40.6. Though after the amendment of the Code of Criminal Procedure in-1978, first class magisterial powers can be conferred upon Special Judicial Magistrates, but even with second class powers the Special Judicial Magistrates can try a wide variety of cases. The offences enumerated in the I.P.C. which can be tried by a second class Judicial Magistrate are enumerated in the Schedule and fall in the following broad categories:

(a) Offences against public tranquility like, being a member of an unlawful assembly; knowingly joining or conducting any assembly of five or more persons after it has been commanded to disperse; giving provocation with intent to cause riot; harboring persons hired for an unlawful assembly or committing affray.

(b) Offences relating to weights and measures like fraudulent use of false instruments for weighing; fraudulent use of false weights or measures.

(c) Offences affecting public health, safety, convenience decency, and morals; for example, negligently doing any act known to be likely to be spread infection of any disease, adulterating food or drink intended for sale so as to make it noxious or selling any good or drink knowing the same to be noxious; offering for sale or issuing from a dispensary any drug or medical preparation known to have been adulterated; making the atmosphere noxious to health; driving or riding on a public way so rashly or negligently as to endanger human life; committing a public nuisance or singing obscence songs.

(d) Offences relating to religion, for example, causing disturbance to an assembly engaged in religious worship with intention to wound the feelings of the members of such assembly; to insult the religious feelings of any person or uttering any word or making any sound in the hearing of any person or making any gesture in the sight of any person with the intention to wound his religious feelings.

(e) Offences affecting the human body like attempt to commit suicide; voluntarily causing hurt; wrongfully confining any person: unlawful compulsory labour.

(f) Offences relating to property like cheating; mischief, criminal trespass.

(g) Criminal intimidation, insult and annoyance, for example, uttering any word or making any gesture intended to insult the modesty of a woman; appearing in a public place in a state of intoxication and thereby causing annoyance to any person.

In addition, a large number of crimes related to violations of special Acts, such as Municipal Acts and bye-laws, Cinematography Act, Police Act are amenable to the jurisdiction of a Special Judicial Magistrate.

40.7. Many State Governments and Union Territories have, however, not appointed special magistrates which led to the delay and arrears of criminal cases. The statement of contents of the affidavit filed before the Supreme Court in Kadra Pahadia v. State of Bihar, 1995 (6) SCALE 45 reveals that State of Maharashtra has not taken action to make request to the High Court under sections 13 and 18 of the Code on the plea that it has forwarded a proposal to the Central Government to amend section 13 of the Code. Likwise the State of Uttar Pradesh has also not taken any initiative in this direction.

In the State of Karanataka even though the State Government has taken initiative and written to the High Court, the High Court has not yet finalised the proposal. In the State of Kerala, there is no such appointment. However, in the State of Himachal Pradesh the provision has also been invoked and the High Court has framed rules and has conferred powers on three officers. In the State of Bihar, the government has also moved the High Court to confer powers to judicial magistrates. However, no notification has been issued.

Likewise, in the State of Punjab the Government has written to the High Court under sections 13 and 18 and the proposal is still pending in the High Court. The State of Assam has, however, appointed 97, I.A.S. Officers as Special Judicial Magistrates. So far as Delhi is concerned, despite the fact that two lakh traffic cases were pending in magistrate courts, it has not taken any action to appoint judicial magistrates of the 2nd class under section 6(4) and Meropolitan Magistrates under section 18 of the Code.

This is not a happy state of affairs. In view of this the Supreme Court in Kadra Pahadia v. State of Bihar (supra) issued certain directions with a view to ensure that the machinery contemplated by those provisions would be put into effect with the view to clearing of the backlog of petty criminal cases and further relieve the magisterial court of over work so that it is able to attend to more serious business.

40.8. In the Chief Ministers & Chief Justices conference held in 1993. Resolution was adopted expressing the view that the provisions of the Code of Criminal Procedure, 1973, in regard to appointment of Judicial Magistrates of 2nd class. Special Judicial Magistrates and Special Metropolitan Magistrate should be put to use by identifying cases which they are empowered to deal with under the Code.

40.9. In various workshops organised by the Law Commission in various States, it was generally agreed that the system of special magistrate be revived with certain modifications.

40.10. The Law Commission has considered the various difficulties experienced in the working of the system of honorary magistrates in the pre-1973 period. We feel that in order to meet the situation leading to delay in disposal of cases and to activate disposal of cases and timely action in the matter, new section 23A be inserted in the Code providing that the "State Government may, after consultation with the High Court review the strength of courts once in two years for setting up a new/additional court depending upon the pendency of the cases therein".

40.11. We feel that there is need for appointing more Special Magistrates to deal with the above types of criminal cases. We, therefore, suggest necessary changes be made in sections 13 and 18 of the Code of Criminal Procedure in the following manner:

(i) In every district or metropolitan area there may be as many Special Magistrates at such places as the State Government may after consultation with the High Court, by notification specify to be manned by a person who holds or has held any post in the Government, local authorities or corporations provided he possesses such qualifications and experience as the High Court by rules specified in the legal affairs.

(ii) Such Magistrates shall be appointed by the High Court and shall be called Special Magistrates.

(iii) Such Magistrates shall be appointed for such term, not exceeding two years at a time, as the High Court may, by general or special order, direct.

(iv) Such Magistrates shall have all or any of the powers under this Code of a I Class or a II Class Magistrate as the High Court may confer.



The Code of Criminal Procedure, 1973 Back




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