MP High Court Issues Notice On Plea Challenging State Notification Granting Special Executive Magistrate Powers To ACP

The Madhya Pradesh High Court has issued notice on a petition challenging a State Government notification conferring the powers of a Special Executive Magistrate under the Code of Criminal Procedure, 1973, upon an Assistant Commissioner of Police.

The division bench of Justice Vijay Kumar Shukla and Justice Alok Awasthi ordered:

"...issue notice to the respondents on payment of process fee within seven working days by RAD mode, with due acknowledgement, returnable within four weeks".

The petition challenges a notification dated December 9, 2021, issued by the State Government conferring powers under Sections 58, 106–124, 129–132, 144 and 144-A of the Cr.P.C upon the Assistant Commissioner of Police as Special Executive Magistrate.

The petitioner argued that the notification was issued under Section 21 of the CrPC, which empowers the State Government to appoint a Special Executive Magistrate for a particular area and for a specific duration.

It was further contended that after the implementation of the Commissionerate system in Indore and the coming into force of the Bharatiya Nagarik Suraksha Sanhita, 2023, the legal framework governing the appointment of Special Executive Magistrates has undergone a change. Under Section 15 of the BNSS, such powers cannot be conferred upon a police officer below the rank of Superintendent of Police. The petitioner submitted that Assistant Commissioners of Police in Indore hold the rank equivalent to Deputy Superintendent of Police and therefore the conferment of such powers upon them is contrary to the statutory scheme under the BNSS.

The plea further contends that the repeal and saving clause contained in Section 531 of the BNSS would not preserve earlier executive notifications that are inconsistent with the provisions of the new law, and therefore, the 2021 notification cannot continue to operate after the coming into force of the new code.

The petitioner has also raised concerns regarding the constitutional implications of the existing arrangement, contending that permitting a police officer to exercise magisterial powers in proceedings arising out of police action undermines the principle of separation between investigative and adjudicatory functions and has implications for personal liberty under Article 21 of the Constitution of India.

Taking note of the submission, the bench directed that upon payment of the process fee within seven working days, notice be issued to the respondents, returnable within four weeks.

Case Title: Saurabh Tripathi v State of Madhya Pradesh [WP-3346-2026]

For State: Deputy Advocate General Kushal Goyal 

Click here to read/download the Order