1990 (11) TMI 433 - SC - Indian Laws

Section 21 Special Executive Magistrates are Executive Magistrates with Code powers including Section 107; quashing of proceedings set aside

State of Maharashtra and Ors. Versus. Mohammed Salim Khan and Ors.

The SC allowed the State's appeal, holding that Special Executive Magistrates appointed under Section 21 are Executive Magistrates entitled to exercise ... - 1. ISSUES PRESENTED AND CONSIDERED 1. Whether Special Executive Magistrates appointed under Section 21 of the Code are entitled, by virtue of their appointment, to exercise the powers 'conferred by the Code' on Executive Magistrates. 2. Whether the State Government may confine Special Executive Magistrates to only those powers 'conferrable under the Code' and thereby exclude powers that are by statute attached to the post of Executive Magistrate. 3. Whether a specific notification conferring a particular power (e.g., powers under Section 107) on Special Executive Magistrates was necessary or redundant if they are already Executive Magistrates by appointment under Section 21. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Whether Special Executive Magistrates, by appointment under Section 21, are entitled to exercise powers 'conferred by the Code' on Executive Magistrates. Legal framework: Section 20 empowers the State Government to appoint Executive Magistrates and to designate District and Sub-Divisional Magistrates; Section 21 empowers the State Government to appoint Executive Magistrates 'to be known as Special Executive Magistrates' for particular areas or functions and to 'confer on such Special Executive Magistrates such of the powers as are conferrable under this Code on Executive Magistrates, as it may deem fit.' Sections such as 107, 108, 109, 110, 129, 145 and 147 are identified as powers attached to the post of Executive Magistrate (i.e., powers 'conferred by the Code'), while provisions like 133, 143 and 144 are characterized as powers 'conferrable' under the Code. Precedent treatment: The High Court construed Section 21 to preclude Special Executive Magistrates from exercising powers 'conferred by the Code,' reading the omission of the phrase 'conferred by the Code' in Part II of Section 21 as determinative. That view distinguished between powers automatically exercisable by virtue of holding the post and powers which must be separately conferred. Interpretation and reasoning: The Court recognizes a textual distinction between powers 'conferred' and 'conferrable' under the Code but emphasizes purposive construction. Part I of Section 21 appoints persons as Executive Magistrates 'to be known as Special Executive Magistrates,' thereby making them Executive Magistrates by appointment. Part II separately authorizes the conferral of additional powers that are 'conferrable' under the Code. The appointment (Part I) is not dependent upon the subsequent conferral (Part II); each operates independently. Given the legislative aim-to meet special needs of an area or specific functions-appointing Special Executive Magistrates without the substantive powers of an Executive Magistrate would be futile. The draftsman's omission of the specific phrase 'conferred by the Code' in Part II is explained by reference to other provisions (Sections 13 and 18) where only powers are conferred on persons who are not magistrates; unlike those sections, Section 21 actually appoints Executive Magistrates and thus need not repeat the language 'conferred.' Ratio vs. Obiter: Ratio - The decisive construction that Special Executive Magistrates, being appointed as Executive Magistrates under Part I of Section 21, are entitled to exercise powers conferred by the Code (i.e., the statutory powers attached to the post). Obiter - Observations on particular sections identified as examples of 'conferred' versus 'conferrable' powers (illustrative but supporting the main ratio). Conclusions: Special Executive Magistrates appointed under Section 21 are Executive Magistrates for the purposes of the Code and therefore are entitled, by virtue of appointment, to exercise those powers which the Code confers on Executive Magistrates. Issue 2: Whether the State Government may limit Special Executive Magistrates to only powers 'conferrable' under the Code, excluding the statutory powers attached to the post. Legal framework: Section 21(Part II) permits the State Government to 'confer on such Special Executive Magistrates such of the powers as are conferrable under this Code on Executive Magistrates, as it may deem fit.' The statutory scheme separately provides power to appoint Executive Magistrates (Section 20) and to confer powers on persons who are not magistrates (Sections 13 and 18). Precedent treatment: The High Court relied on the literal absence of the words 'conferred by the Code' in Part II to hold that Special Executive Magistrates could not exercise powers attached to the post. That approach was a strict lexical separation between appointment and conferral. Interpretation and reasoning: The Court rejects a construction that reads Part II as nullifying Part I. It holds that the power to appoint (making a person an Executive Magistrate) and the power to confer additional powers are independent. The legislature's intent to provide functional effectiveness to Special Executive Magistrates supports reading Part I as sufficient to impart the statutory powers of an Executive Magistrate unless expressly constrained. The separate use of 'confer' and 'conferrable' in other sections for persons not appointed as magistrates explains the textual differences; therefore, Section 21 is not to be read as precluding exercise of the statutory powers of Executive Magistrates by those appointed under it. Ratio vs. Obiter: Ratio - The State cannot, by use of Part II's language, strip a Special Executive Magistrate of powers that by statute attach to the office; conferral under Part II pertains to additional or varying powers conferrable under the Code and does not negate powers arising from the appointment. Conclusions: The State may confer additional conferrable powers under Part II, but it cannot render appointments meaningless by denying the statutory powers incident to the office; Special Executive Magistrates retain powers conferred by the Code by virtue of their appointment. Issue 3: Whether a contemporaneous notification specifically conferring Section-107 powers on Special Executive Magistrates was necessary. Legal framework and reasoning: Given the Court's conclusion that a Special Executive Magistrate is an Executive Magistrate by appointment under Section 21 and thus inherits the powers attached to that office, a separate notification purporting to confer powers already incident to the office is unnecessary. Part II's conferral mechanism is available to add or vary powers conferrable under the Code but does not need to be invoked to supply powers inherently attached to the post. Ratio vs. Obiter: Ratio - A specific notification conferring powers that are already conferred by the Code on Executive Magistrates is superfluous; the appointment itself suffices. Obiter - Practical and administrative reasons for issuing notifications (e.g., clarity) are peripheral to the legal holding. Conclusions: The notification conferring Section 107 powers on Special Executive Magistrates was unnecessary because they were entitled to exercise such powers by virtue of their appointment as Executive Magistrates under Section 21. Overall Disposition The Court allows the appeal, holds that Special Executive Magistrates appointed under Section 21 are entitled to exercise powers conferred by the Code on Executive Magistrates, and sets aside the contrary decision of the High Court; conferral under Part II is understood as enabling additional conferrable powers and is not a precondition to exercise of statutory powers incident to the office created by Part I.