LexSTATE OF MAHARASHTRA AND ORS versus MOHAMMED SALIM KHAN AND ORS
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STATE OF MAHARASHTRA AND ORS.
v.
MOHAMMED SALIM KHAN AND ORS.
NOVEMBER, 22 1990.
[K.N. SINGH K. JAGANNATHA SHETTY AND KULDIP
SINGH, JJ,]
Criminal law: Code of Criminal Procedure 1973: Sections 20 and
21-Interpretation and Scope of Section 21-Special Executive
Magistrates-Powers of-Entitled to exercise the powers conferred by
the Code much the same way as the Executive Magistrates-'Powers
conferred' and 'powers conferrable' -Distinction.
A complaint was lodged by Respondent No. 7 against Respondent
Nos. l .to 6 before the Senior Inspector of Police-Appellant No. 2.
After investigation proceedings under Section 107 of the Code were
initiated before appellant No. 3, an Assistant Commissioner of Police
invested with the powers of Special Executive Magistrate pursuant to
the Notification dated 11th April 1974 issued by the Government of
Maharashtra whereby all Assistant Commissioners of Police in the
Metropolitan area of Greater Bombay were appointed as Special Execu-
tive Magistrate. These proceedings were challenged before the High
Court of Bombay by Respondents l to 6. While quashing these proceed-
ings the High Court observed that the Special Executive Magistrate is
not entitled to exercise the powers of Executive Magistrate and cannot
be conferred with the powers of an Executive Magistrate under Section
107 of the Code. The State Government has challenged this decision of
the High Court.
Disagreeing with the High Court on the scope and construction of
Section 21, this Court while setting aside the judgment of the High
Court and allowing the appeal,
HELD: The aim of Section 21 as evinced in its language should be
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ascertained and the provision so construed as to effectuate the purpose
of the legislation. [345H]
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.
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Such appointments without adequate powers would be futile and the
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STATE OF MAHARASHTRA v. SALIM KHAN [SHEITY, J.]
341
legislation without providing such powers would he pointless. Special
Executive Magistrates are also entitled to exercise the powers of the
Executive Magistrates conferred by the Code. It was unnecessary for
the State Government to have conferred the powers under Section 107
on the Special Executive Magistrate. [346H; 347C-D]
The powers conferred by the Code on the Executive Magistrate
are the powers that are attached to this post for instance powers under
Section 107, 108, 109, 110, 129, 145 and 147 etc. Any person appointed
as Executive Magistrate is entitled to exercise such powers. These
powers are not the powers conferrable ou them though they may he
conferred on others like the Police Comtnissiouer under Section 20
sub-section (5). But there are other provisions in the Code which may
be said to be conferrable powers under the Code such as Sections 133,
143 and 144 etc. These powers cannot be exercised by the Executive
Magistrate unless they are specially empowered in that behalf. [345F-G]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 640 of 1990.
From the Judgment and Order dated 2.11.1988 of the Bombay
High Court in Crl. W.P. No. 955 of 1988.
V.N. Ganpule and A.S. Bhasme for the Appellants.
N .A. Siddiqui for the Respondents.
The Judgment of the Court was delivered by
K. JAGANNATHA SHETTY, J. We grant special leave and
proceed to dispose of the appeal.
The point raised in the appeal is a very short one, but neverthe-
less of general importance. It is with respect to the powers of the
Special Executive Magistates appointed under Section 21 of the Code
of Criminal Procedure, 1973 ('the Code').
Before narrating the facts, we may set out the relevant statutory
provisions bearing on the question. Section 20 and 21 of the Code
provide power to .the State Government to appoint Executive Magis-
trates and Special Executive Magistrates.
Section 20•so far as material reads:
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SUPREME COURT REPORTS
[1990] Supp. 3 S.C.R.
"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 MagExcerpt shown. Read the full judgment & AI analysis in Lexace.