When Police Act As Magistrate : The Bizarre Case Of Special Executive Magistrates

The detention proceedings of CJP leaders Saurav Das and Ashutosh Ranka have brought to the public knowledge a bizarre fact which may not have been known or discussed much beyond the legal fraternity - that of Police Officers acting as Special Executive Magistrates.

By a notification issued under Section 70 of the Delhi Police Act, the Delhi Police Commissioner, Addl Commissioner,  Deputy Commissioner, Addl Deputy Commissioner, and Asst Commissioner have been empowered to exercise the powers of Executive Magistrates under Chapter VIII of the Code of Criminal Procedure (CrPC), now corresponding to Chapter IX of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which deal with security for keeping peace and good behaviour. These provisions (Sections 107 CrPC/S.126 BNSS etc.) enable the Executive Magistrates to initiate preventive proceedings against persons suspected of being likely to commit a breach of peace or disturb public tranquillity and require them to execute bonds for keeping the peace. In case of breach of peace bonds, the Executive Magistrates can order the detention of the persons for the duration of the bond(S.122 CrPC/ S.141 BNSS).

In many States, revenue officials such as RDOs are notified as Executive Magistrates who can exercise these powers. However, in places such as Delhi, Mumbai, police officials have been conferred with these powers. In Tamil Nadu, the Government notifications empowering police officials to exercise these powers were struck down by the Madras High Court as violating the principles of separation of powers (to be elaborated below).

 When Police wear the magistrate's hat

In most cases, the preventive proceedings under Section 107 CrPC, now Section 126 BNSS, are initiated on the basis of a report from the police themselves. As per the provision, the Executive Magistrate has to form an independent opinion whether further proceedings are necessary, and has to exercise own discretion.

There is some semblance of an independent check, at least theoretically, when an official outside of the Police hierarchy assesses the police report on threat perception. But if someone within the police machinery is the judge of the police report, even that theoretical concept of independent assessment is lost. 

This also raises concerns over the separation of powers between the judiciary and the executive.

'If khakhi and the judicial robes are blended, the result is executive anarchy' : Madras High Court

In 2013-14, the Tamil Nadu Government issued notifications empowering the Deputy Police Commissioners of various cities having Police Commissionerates to exercise the powers of Executive Magistrate under S.107 to 110 and 122 Cr.P.C. 

In 2020, a single bench (Justice PN Prakash) of the Madras High Court, in Devi v. Executive Magistrate-cum-Deputy Commissioner of Police, questioned these notifications. The Judge noted that even during British rule, the police were not given these powers.

Observing that the proceedings under Section 107 CrPC are judicial in nature, the Judge frowned upon police officials exercising such powers. The issue was referred to a two-judge bench since there was another contrary precedent.

In 2023, a division bench of Justice N Satish Kumar and Justice Anand Venkatesh, in P Sathish @ Sathish Kumar v. State and another, quashed the Government Orders which empowered Deputy Police Commissioners to exercise S.107 CrPC powers as unconstitutional for breaching the separation of powers.

The division bench observed that if the "khakhi and the judicial robes are blended and cast on one officer, the resultant picture is one of executive anarchy."

The danger of such an arrangement was explained as under :

"if we are to accede to the contention of the State that a Deputy Commissioner can be appointed as an Executive Magistrate for exercising powers under Section 107 to 110, we would have a situation where the Inspector of Police would investigate and lay information before the Deputy Commissioner who would then conduct an inquiry under Section 116 and pass an order either under Section 117 or 118. We are perplexed to find from some of the orders in the cases before us that the Deputy Commissioners have conducted full-fledged trials by examining witnesses, and in one case they have even declared witnesses hostile. In other words, the entire process of investigation, prosecution and adjudication have now been arrogated by one branch of the executive ie., the police "

The High Court observed that such a procedure was not free from the likelihood of bias, and described it as "a game of musical chairs within the police department" which plays with a citizen's liberty.

Since the powers can lead to the preventive detention of a citizen, the High Court stressed that the process must inspire the strictest confidence.

"Preventive detention is a necessary evil but an evil nonetheless. Our Constitution tolerates it by hedging it with procedural safeguards under Article 22 of the Constitution. But since those procedural safeguards impose exacting requirements on the police and the Government, it appears that the police wing of the executive has hit upon an ingenious alternative to invest its officers with powers under Section 107 to 110 Cr.P.C., and thereby give unto themselves the power to play the investigator, prosecutor and the judge and send people to jail. Ergo, such procedure reduces the fundamental constitutional principles of the rule of law and impartial adjudication into a mere charade. We are of the considered view that this is a textbook case of violation of separation of powers, where the police administration has nakedly arrogated unto itself the powers of adjudication under Chapter VIII thereby violating the overarching principles under Articles 14, 21 and 50 of the Constitution."

The High Court also held that Executive Magistrates cannot punish a person for breach of peace bond, and the powers of punishment under S.122 CrPC must be exercised by the Judicial Magistrate.

Supreme Court's 1990 judgment upholding notification of Mumbai police officials exercising S.107 CrPC as Special Executive Magistrates

In the 1990 judgment in State of Maharashtra v. Mohammed Salim Khan, the Supreme Court held that Assistant Police Commissioners of Mumbai, who have been notified as Special Executive Magistrates under Section 21 of the Code of Criminal Procedure, can exercise the powers of Executive Magistrate under Section 107 CrPC.

However, the issue in this case was on a more technical and narrow compass. It was whether the officials notified as Special Executive Magistrates, without any specific conferment of powers under Section 107 CrPC, can initiate preventive proceedings in the capacity of Executive Magistrates. The Bombay High Court ruled that powers which are already conferred on Executive Magistrates cannot be assumed to be conferred on Special Executive Magistrates. The Supreme Court disagreed with this view to hold that Special Executive Magistrates can inherently exercise all powers which are conferred on Executive Magistrates. Hence, a special notification conferring the S.107 powers on Special Executive Magistrates is not needed.

The issues of separation of powers and likelihood of bias did not arise for consideration in this case. The Madras High Court distinguished this decision of the Supreme Court on the ground that the scheme of the Police Act in Tamil Nadu was different from that in Maharashtra.

Delhi High Court's Warning In 2018

The Delhi High Court, in Aldanish Rein v. State of NCT of Delhi, had examined the functioning of Special Executive Magistrates (SEMs) in preventive proceedings under Section 107 CrPC in 2018 and expressed serious reservations about the manner in which these powers were being exercised.

In its judgment, the High Court bench of Justice S Muralidhar and Justice Vinod Goel observed:

"The Court expresses its doubts whether the SEMs who are exercising the above powers are even aware of the requirements of Articles 20, 21 and 22 of the Constitution. They also do not appear to be aware of the requirements of the Legal Services Authorities Act or the schemes announced by the National Legal Services Authority (NLSA) or the DSLSA. All of the above provisions in the Constitution of India and the CrPC as explained by several decisions of the Court and the LSAA appear to remain on paper."

The High Court also observed that in most cases, the detention orders are issued mechanically, in cyclostyled forms, and the detainees were not given proper legal aid. It was also noted that surety amounts in many cases were fixed at an unreasonably exorbitant level, leading to further detention of persons.

"The SEMs simply do not appear to apply their minds and seriously consider whether the remand is required at all and for what period is it actually required," the High Court lamented.

The High Court then proceeded to issue a slew of guidelines to ensure that the SEMs do not misuse the detention powers

 Should they even be called Magistrates?

The Delhi High Court went further and questioned the very designation of Magistrates used for these officials, and suggested that they be called Special Executive Officers.

"The LG will also consider calling these public officials as Special Executive Officers rather than SEMs as the appellation Magistrate is likely to be mistaken for a Judicial Magistrate which SEMs clearly are not. They are, at present, invariably police officers who simultaneously function as ACPs."

The Karnataka High Court, in Sathi Sundaresh v. State (2007), had cautioned that the preventive proceedings can be "easily made an engine of injustice and oppression", and hence advocated closest judicial scrutiny. When the scrutiny is exercised by the Police officials themselves, due process might become a casualty, leading to arbitrary detentions. 

The new BNSS, which was supposedly brought to decolonise the legal system, specifically empowers (Section 15) the notification of police officials, not below the rank of Superintendent of Police, as Special Executive Magistrate. This, when read with the Supreme Court's judgment in State of Maharashtra v. Mohammed Salim Khan, creates a legal architecture for an unchecked police state.

Hence, the practice of conferring the Executive Magistrate powers on the police requires a revisit, in the light of the constitutional concerns flagged by the Madras High Court.