Introduction
The Code of Criminal Procedure, 1973 talks about two kinds of Magistrates namely Judicial Magistrate and Executive Magistrate. A Judicial Magistrate has the power to try all kinds of criminal cases whereas the functions of an Executive Magistrate are executive in nature.
Chapter II of the code lays down the constitution of the criminal courts and offices. Section 6 lists four classes of criminal courts in India, besides the High Courts or any other court established under any other law, namely:
- Courts of Session;
- Judicial Magistrate of first-class, in case of a metropolitan area[1], Metropolitan Magistrates.
- Judicial Magistrates of the second class;
- Executive Magistrates.
Chief Judicial Magistrate and Additional Chief Judicial Magistrate
According to Section 12 of the code, the High Court in every district which is not a metropolitan area shall appoint a Judicial Magistrate of the first class to be a Chief Judicial Magistrate. In addition, the High Court may appoint any Judicial Magistrate of the first class to be an Additional Chief Judicial Magistrate, who shall have all or any of the powers of Chief Judicial Magistrate as directed by the High Court.
Special Judicial Magistrates
According to Section 13 of the code, the High Court on the request of the Central or State Government may confer upon any person all or any of the powers conferred on a Judicial Magistrate of the first class or second class. Such person shall hold or have held any post under the Government and shall have the qualification and experience in relation to the legal affairs as prescribed by the High Court.
Jurisdiction of Magistrate in case of Juveniles
Section 27 of the code provides that a Court of a Chief Judicial Magistrate may try any offense that is not punishable by death or imprisonment for life, committed by a person who is under sixteen years of age when he appears or is brought before the Court.
Sentences which Magistrates may Pass
Section 29 of the Code of Criminal Procedure, 1973 provides a list of sentences which Magistrates of different classes may pass:
- A Chief Judicial Magistrate may pass any sentence authorized by law except a sentence of death or imprisonment for life or of imprisonment for a term exceeding seven years.
- A Magistrate of first-class pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding ten thousand rupees, or both.
- A Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of a fine not exceeding five thousand rupees, or of both.
- A Chief Metropolitan Magistrate has the powers of Chief Judicial Magistrate and a Metropolitan Magistrate has powers of a Magistrate of the first class.
Sentence of Imprisonment in Default of Fine
Section 30 of the code provides a Court of Magistrate the power to award such term of imprisonment in default of payment of fine as authorized by law. However, it is provided that the term of imprisonment shall not be in excess to the powers conferred by Section 29. In addition, the term of imprisonment if awarded as part of the substantive sentence should not exceed one-fourth of the term which the Magistrate has the power to inflict for the offence otherwise than as imprisonment in default of payment of fine.
Arrest by Magistrate
According to Section 44 of the code, a Magistrate whether executive or judicial may arrest an order himself or order any person to arrest when the offence is committed in the presence of the Magistrate within his local jurisdiction. He may also arrest or order to arrest any person who he is competent to issue a warrant for at the time and under the circumstances.
Security for Keeping the Peace and for Good Behavior
Chapter VIII of the Code gives the provisions wherein the Magistrates may take securities from any person for keeping the peace and for good behavior. Section 106 allows the Court of Magistrate of the first class to order the offender to execute a bond, with or without surety on conviction. Section 107 allows an Executive Magistrate to provide show-cause notice to any person who is likely to breach public tranquility as to why he should not execute a bond. Section 108 provides that an Executive Magistrate may give a show-cause notice as to why a person should not be ordered to execute a bond for his good behavior when that person intentionally disseminates or attempts to disseminate any matter the publication of which is punishable under Section 124 A, 153 A, 153 B or 295 A of the Indian Penal Code, or any matter concerning a Judge acting in the discharge of his official duties which amounts to criminal intimidation or defamation under Indian Penal Code. Furthermore, an Executive Magistrate under Section 109 of the Code of Criminal Procedure, 1973 may also require a person who is taking precautions to hide his presence with an apprehension to commit a cognizable offence to give show cause as to why he should not be ordered to execute a bond with or without sureties. Such show cause may also be required by an Executive Magistrate from habitual offenders for their good behavior as provided under Section 110.
Order of Maintenance of Wives, Children and Parents
Chapter IX of the Code of Criminal Procedure, 1973 provides a Magistrate of the first class the power to order, the procedure, the alteration and enforcement of an order of maintenance of wives, children and parents. Section 125 allows a Magistrate of first-class to order to provide maintenance at such monthly rate as deemed fit to such person having sufficient means neglecting or refusing to maintain his:
- Wife who is unable to maintain herself;
- His legitimate or illegitimate minor child, whether married or not unable to maintain itself;
- His legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself;
- His father or mother, unable to maintain himself or herself.
According to Section 127, the Magistrate may also alter the terms of the maintenance as awarded under Section 125 of the Code depending upon the circumstances of the case.
Maintenance of Public Order and Tranquility
Section 129 and Section 130 provide powers to the Executive Magistrate to command dispersal of any unlawful assembly or assembly of five or more persons likely to cause disturbance of public peace and the use of armed forces for such dispersal.
Section 133 of the code allows a District or a Sub-divisional Magistrate or any other Executive Magistrate empowered by the State Government to a conditional order to any person causing a public nuisance by way of unlawful obstruction or nuisance, the conduct of any trade or occupation, construction of any building or possession of any dangerous animal to remove such obstruction, discontinue to carry such trade or occupation, prevent the construction of such building or to dispose of such animal.
Section 144 of the Code confers upon the Magistrate the powers to protect public tranquility. The Magistrate may order immediate prevention of public nuisance or speedy remedy for an apprehended danger when such a nuisance or danger can cause disturbance to public tranquility or lead to riots or affray.
Power of Magistrate to Order an Investigation
Under Section 156(3) of the Criminal Procedure Code, 1973 a Judicial Magistrate is empowered to order an investigation when no proper investigation is conducted despite the registration of FIR. Such an order of investigation can only be made for an offence in which the Magistrate is empowered to take cognizance of under Section 190 of the Code.
In the case of Kanak Singh v. Balabhadra Singh[2], the Magistrate passed the order of investigation without examining the complaint. It was held that the order was not illegal and the High Court cannot prevent the police from investigating the offence under Section 482.
Conclusion
The Code of Criminal Procedure, 1973 provides a wide range of powers to different classes of Magistrates with respect to different kinds of cases. These powers are provided by the legislation for the speedy and efficient disposal of criminal cases.
[1]Any area in the State comprising a city or town whose population exceeds one million shall be a metropolitan area (Section 8(1)).
[2] 1992 Cr LJ 579 (Guj)
This Article is Authored by Arushi Gupta, 5th Year B.A. LL.B Student of DES Law College, Pune University.
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