93 Bomb Blast Case: Yakub Memon Death Sentence Appeal Supreme Court Judgement: Part 012

Appointment of Special Executive Magistrates

209) It was further contended that Special Executive Magistrates are not trained Magistrates and they ought not to have conducted the proceedings. In this regard the law relating to the appointment of Special Executive Magistrates may be pertinent. Special Executive Magistrates (SEMs) are appointed by the State Government under Section 21 of the Code which states as follows:

“21 Special Executive Magistrates: The State Government may appoint, for such term as it may think fit, Executive Magistrates, to be known as Special Executive Magistrates for particular areas or for the performance of particular functions and confer on such Special Executive Magistrates such of the powers as are conferrable under this Code on Executive Magistrate, as it may deem fit.” Section 21 is thus clear that the State Government can appoint SEMs for particular functions on such terms and conditions as it may deem fit.

210) Section 21 of the Code was enacted pursuant to the Thirty-Seventh Report of the Law Commission of India which recommended creation of a special class of magistrates for carrying out specific functions. This report also brought forth a draft of the new section for appointment of Special Magistrates for particular areas or for particular functions and confer upon them such powers as are conferrable on an Executive Magistrate under the Code. It may be noted that the Forty-First report of the Law Commission did not approve of the creation of Special Magistrates. However, the Joint Select Committee of the Parliament agreed with the Thirty Seventh Report of the Law Commission and recommended amending the Code to provide for creation of a special class of Magistrates to carry out specific functions, upon whom powers exercised by an Executive Magistrate can be conferred. Accordingly, Section 21 was enacted.

211) Special Executive Magistrates are appointed by the State Government for a particular purpose and can exercise powers so conferred upon them by the State as are exercisable by an Executive Magistrate. It is useful to note that the legality of Section 21 of the Code which provides for appointment of Special Executive Magistrates was also considered by this Court in State of Maharashtra vs. Mohd. Salim Khan (1991) 1 SCC 550. In this case, the State of Maharashtra appointed all Assistant Commissioner of Police (ACPs) in the Greater Bombay area as Special Executive Magistrates. This Court, while upholding the appointment of ACPs as Special Executive Magistrates held as under:

‘The purpose of empowering the State Government to appoint Special Executive Magistrates was evidently to meet the special needs of a particular area or to perform particular functions in a given area.

Such appointments without adequate powers would be futile and the legislation without providing such powers would be pointless. It can be assumed that the Parliament does not indulge in pointless legislation. Indeed, it has not done so in Section 21. A careful analysis of the section indicates very clearly that the Special Executive Magistrates are also Executive Magistrates.” Provisions of TADA in this regard:

212) Section 20 of TADA provides for certain modifications to the provisions of the Code. One such modification was made to Section 21 of the Code which provides that a Special Executive Magistrate can also be appointed by the Central Government in addition to the State Government as provided for in the Code. Similarly, another modification provides that a Special Executive Magistrate may also record statements made under Section 164 of the Code. Section 20 of TADA provides as follows:

“20. Modified application of certain provisions of the Code.-(1) Notwithstanding anything contained in the Code or any other laws, every offence punishable under this Act or any rule made thereunder shall be deemed to be a cognizable offence within the meaning of clause (c) of Section 2 of the Code, and “cognizable case” as defined in that clause shall be construed accordingly.

(2) Section 21 of the code shall apply in relation to a case involving an offence punishable under this Act or any rule made thereunder subject to the modification that the reference to “the State Government” therein shall be construed as a reference to “the Central Government or the State Government.” (3) Section 164 of the Code shall apply in relation to a case involving an offence punishable under this Act or any rule made thereunder, subject to the modification that the reference in sub section (1) thereof to “Metropolitan Magistrate or Judicial Magsitrate” shall be construed as a reference to “Metropolitan Magistrate, Judicial Magistrate, Executive Magistrate or Special Executive Magistrate…..” Section 20 of TADA expressly permits that Section 21 of the Code applies in relation to an offence punishable under TADA. Accordingly, a Special Executive Magistrate may be appointed in a TADA case either by the State Government or the Central government to perform such functions as the government may deem fit. Special Executive Magistrates may perform such functions as are required in a TADA case. In the instant case, Special Executive Magistrates conducted identification parades of arrested accused persons in compliance with the provisions of the Criminal Manual of the Bombay High Court.

213) Section 20 of TADA read with Section 21 of the Code permits a Special Executive Magistrate to carry out such functions as are required in a TADA case and accordingly in the instant case Special Executive Magistrates, inter alia, conducted identification parades of the accused persons.

214) The constitutional validity of Section 20 of TADA has been upheld by this Court in Kartar Singh vs. State of Punjab (1994) 3 SCC 569 wherein this Court upheld that Special Executive Magistrates appointed under Section 21 of the Code can record confessional statements for offences committed under TADA and perform such other functions as directed. This Court held as follows:

“309. Therefore, merely because the Executive Magistrates and Special Executive Magistrates are included along with the other Judicial Magistrates in Section 164(1) of the Code and empowered with the authority of recording confessions in relation to the case under the TADA Act, it cannot be said that it is contrary to the accepted principles of criminal jurisprudence and that the Executive Magistrates and Special Executive Magistrates are personam outside the ambit of machinery for adjudication of criminal cases.

316……Therefore, the contention of the learned counsel that the conferment of judicial functions on the Executive Magistrates and Special Executive Magistrates is opposed to the fundamental principle of governance contained in Article 50 of the Constitution cannot be countenanced. Resultantly, we hold that sub-section (3) of Section 20 of the TADA Act does not offend either Article 14 or Article 21 and hence this sub-section does not suffer from any constitutional invalidity.” In the instant case, which involves offences punishable under TADA, Special Executive Magistrate can be appointed and carry out such functions, including conducting identification parades, as the government may deem fit. In view of the same, contentions raised regarding SEMs are liable to be rejected.

FOR FULL JUDGEMENT, PLEASE CHECK THE LINKS BELOW:

93 Bomb Blast Case: Yakub Memon Death Sentence Appeal Supreme Court Judgement:

Part 001 / Part 002 / Part 003 / Part 004 / Part 005 / Part 006 / Part 007 / Part 008 / Part 009 / Part 010 / Part 011 / Part 012 / Part 013 / Part 014 / Part 015 / Part 016 / Part 017 / Part 018 / Part 019 / Part 020 / Part 021 / Part 022 / Part 023 / Part 024 / Part 025 / Part 026 / Part 027 / Part 028 / Part 029 / Part 030 / Part 031 / Part 032 / Part 033 / Part 034 / Part 035 / Part 036 / Part 037 / Part 038 / Part 039 / Part 040 / Part 041 / Part 042 / Part 043 / Part 044 / Part 045

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