TaxTMI 
TaxTMI 
TaxTMI 
1990 (11) TMI 433
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.... the Code provide power to the State Government to appoint Executive Magistrates and Special Executive Magistrates. 4. Section 20 so far as material reads: 20. Executive Magistrates (1) In every district and in every metropolitan area, the State Government may appoint as many persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be the District Magistrate. (2) The State Government may appoint any Executive Magistrate to be an Additional District Magistrate, and such Magistrate shall have (such) of the powers of a District Magistrate under this Code or under any other law for the time being in force (as may be directed by the State Government) (4) The State Government may place an Executive Magistrate i....
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....powers that are conferrable under the Code on Executive Magistrates. 8. The facts in the instant case are not in dispute and they fall within a narrow compass. The Maharashtra Government by notification dated 11th April, 1974 appointed all Assistant Commissioners of Police in the Metropolitan area of Greater Bombay as Special Executive Magistrates. By another notification dated 20 October, 1976 the Government conferred on them the powers of an Executive Magistrate under Section 107 of the Code. The notification reads as follows: No. XXI-SB/EXM.0775.1 - In exercise of the powers conferred by Section 21 of the CrPC, 1973 (II of 1974) the Government of Maharashtra hereby confers the powers of an Executive Magistrate under Section 107 of the....
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....agistrates who shall be called as Special Executive Magistrates for particular areas or for the performance of particular functions and confer upon them such powers conferred or conferrable by or under this Code on an Executive Magistrate of the first or second class as it deems fit. The 41st Report of the Law Commission, however, did not approve the idea of creating a class of Special Executive Magistrates. It has been pointed out that the functions of the Executive Magistrates under the new Code are going to be so limited that it would not warrant the creation of a separate class of Executive Magistrates for performing particular functions or in a particular area. The Bill introduced in the Parliament apparently did not contain a provisio....
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....t are conferrable under the Code which powers are distinct and different. The High Court then dealt with the structure of Section 21 and pointed out that the Special Executive Magistrate appointed under Section 21 can have only the powers which are conferrable, and not the powers conferred by the Code since the term 'conferred' has not been used in the section. And the Special Executive Magistrate cannot possess by virtue of his appointment any of the powers of the Executive Magistrate conferred by the Code. 14. Counsel for the appellant submitted that the view taken by the High Court is not warranted by the scope and shape of Section 21 and that would defeat the very purpose of appointing the Special Executive Magistrates if they ....
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....such powers. The powers located under Sections 107, 108, 109, 110, 129, 145 and 147 etc. are the instances of such powers. These are not the powers conferrable on the Executive Magistrate though they may be conferred on others like the Commissioner of Police under Section 20 Sub-section (5). There are other provisions in the Code such as Sections 133, 143 and 144, which may be said to be conferrable powers under the Code. The Executive Magistrate cannot exercise such powers unless they are empowered in that behalf. 16. The attractiveness of this distinction by our meticulous construction should not however, lead us astray in construing Section 21. The aim of the section as evinced in its language should be ascertained and the provision sho....
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....rs conferrable on the Executive Magistrate. But the power to appoint under part I of Section 21 is not dependent upon or coupled with the power to be conferred under Part II of the section. The appointment of Special Executive Magistrates is one thing and conferment of power on them is another. Each is independent of the other. Part II of the section, in our opinion, speaks of additional powers to be conferred depending upon the nature of the particular function to be performed. It has nothing to do with the power located under Part I of the section. 18. The significant difference can be discerned between the language of Section 13 Sub-section (1); Section 18 Sub-section (1) and Section 21 of the Code. Section 13 Sub-section (1) provides t....