Analysis of Important Sections of Executive Magistrates

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2. ANALYSIS OF IMPORTANT SECTIONS • Executive Magistrates : • In every District, the following Officers are appointed by virtue of the offices held by them as Executive Magistrates by the Government U/S 20 Cr.P.C. • Designation Appointed asLocal Jurisdiction • (1) (2) (3) • 1. Dist. Collector District Magistrate Entire District • 2. Resi Dy.Collector Addl.Dist. Magistrate Entire District • 3. SDO Revenue Sub Divisional Magistrate Entire Rev Sub-Div. • Tahasildar Executive Mag. Entire Tehsil • Addl. District 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. Contd..

3. Procedures of Executive Magistrate • Chapter Proceedings • Identification Parades • Disposal of Unclaimed property • Dying Declaration • Procedure to be followed where dispute concerning land etc is likely to cause breach of peace • Dispersal of an Assembly • Inquests • Execution of death sentences • Externment proceedings • Public Nuisance • Disposal of A. D. Cases • On atrocity being committed against SC/ST persons • Search & Seizure

4. Sections deals with Powers & Functions of Executive Magistrates : • SectionSubject • 20 - Appointment of Executive Magistrates by Govt., • 21 - Appointment of Special Executive Magistrates by • Government for particular area or for the performance of • particular functions. • 22 - Local jurisdiction of Executive Magistrates • 23 - Subordination of Executive Magistrates • 37 - Public when to assist Magistrate • 39 - Public to give information of certain offences like against • public tranquility etc., • 44 - Arrest by Magistrate Contd..

5. Search Warrants : • SectionSubject • 94 - Authorizing Police Officer to search of place suspected • to contain stolen property, forged documents etc., • 97 - Search for persons wrongfully confined. • 98 - Power to compel restoration of abducted females. Contd..

6. Security for keeping peace and for good behaviour : • SectionSubject • 107 - Security for keeping the peace. • 108 - Security for good behaviour from persons disseminating • seditious matters. • 109 - Security for good behaviour from suspected persons. • 110 - Security for good behaviour from habitual offenders. • 111 - Order to be made when Magistrate acting U/s 107, 108, 109 & 110. • 112 - Procedure in respect of person present in court • 113 - Summons or warrant in case of person not so present Contd..

7. SectionSubject 114 - Copy of order to accompany summons or warrant. 115 - Power to dispense with personal attendance. 116 - Inquiry as to truth of information 117 - Order to give security 118 - Discharge of person informed against. 119 - Commencement of period for which security is required 120 - Contents of bond 121 - Power to reject securities 122 - Imprisonment in default of security 123 - Power to release persons imprisoned for failing to give security 124 - Security for unexpired period of bond Contd..

8. Unlawful assemblies : • SectionSubject • 129 - Dispersal of unlawful assembly by use of civil force. • 130 - Use of Armed Forces to disperses unlawful assembly. • 131 - Power of certain armed force officers to disperse unlawful • assembly. • 132 - Protection against prosecution for acts done under Sections 129, 130 & 131. Contd..

9. Public Nuisance : • SectionSubject • 133 - Conditional order for removal of nuisance. • 134 - Service or notification of order. • 135 - Person to whom order is addressed to obey or show cause • 136 - Consequences of his failing to do so. • 137 - Procedure where existence of public right is denied. • 138 - Procedure where he appears to show cause. • 139 - Power to Magistrate to direct local investigation and • examination of an expert. • 140 - Power of Magistrate to furnish written instructions etc., • 141 - Procedure on order being made absolute and • consequences of disobedience. • 142 - Injunction pending inquiry. • 143 - Magistrate may prohibit repetition or continuance of public • nuisance. Contd..

10. Urgent Cases of Nuisance or Apprehended Danger : SectionSubject • 144 - Power to issue order in urgent cases of nuisance or • apprehended danger. • Disputes as to immovable property : SectionSubject • 145 - Procedure where dispute concerning land or water is • likely to cause breach of peace. • 146 - Power to attach subject of dispute and to appoint • receiver. • 147 - Dispute concerning right of use of land or water. • 148 - Local Inquiry. Contd..

11. Inquests and Inquiries into unnatural deaths : SectionSubject • 174 - Police to enquiry and report on suicide etc., to the nearest Executive Magistrate. • 175 - Powers to summon persons. • 176 - Enquiry by Magistrate into cause of death. • Withdrawal of Cases : SectionSubject • 411 - Making over a withdrawal of cases by Executive Magistrates. • 412 - Reasons to be recorded. Contd..

12. ANALYSIS OF IMPORTANT SECTIONS • Executive Magistrates : • In every District, the following Officers are appointed by virtue of the offices held by them as Executive Magistrates by the Government U/S 20 Cr.P.C. • Designation Appointed asLocal Jurisdiction • (1) (2) (3) • 1. Dist. Collector District Magistrate Entire District • 2. Resi Dy.Collector Addl.Dist. Magistrate Entire District • 3. SDO Revenue Sub Divisional Magistrate Entire Rev Sub-Div. • Tahasildar Executive Mag. Entire Tehsil • Addl. District 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. Contd..

13. The Dy. Collectors , Tahasildars or Naib Tahsildars may be appointed as Special Executive Magistrates by Govt. to handle urgent law and order problems on the special occasions. (Sec. 21) • In the Cities of Mumbai,Pune, Nagpur, Aurangabad, Nagpur, Nashik the Commissioners of Police are conferred the powers of Executive Magistrates. • All Executive Magistrates other than Addl. District Magistrates shall be subordinate to the District Magistrate. • Executive Magistrates in Sub-Division are also subordinate to the Sub-Divisional Magistrates. Contd..

14. Public Nuisance • Public Nuisance • Procedure under section 133 of Criminal Procedure Code • Type of Public Nuisance and conditions with which an order is to be passed • Nuisance of urgent nature and apprehended danger • Remedies available against Public Nuisance • Gist of guidelines for the working of the courts of Executive Magistrates in respect of Proceedings under Section 133 of Criminal Procedure Code, 1973 • Prescribed Model Forms

15. Type of Public Nuisance and conditions with which an order is to be passed

16. Criminal Procedure Code 1973 C.- Urgent cases of nuisance or apprehended danger

17. Section 144-Power to issue order in urgent cases of nuisance or apprehended danger • (1) In cases where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, • If there is sufficient ground for proceeding under this section and • immediate prevention or speedy remedy is desirable,

18. Section 144-Power to issue order in urgent cases of nuisance or apprehended danger • (1) such Magistrate may, • by a written order • stating the material facts of the case and • served in the manner provided by section 134, direct any person • to abstain from a certain act or • to take certain order with respect to certain property in his possession or • under his management,

19. Section 144-Power to issue order in urgent cases of nuisance or apprehended danger • if such Magistrate considers that • such direction is likely to prevent, or • tends to prevent, obstruction, annoyance or • injury to any person lawfully employed, or • danger to human life, health or safety, or • a disturbance of the public tranquility, or • a riot, or an affray.

20. Section 144-Power to issue order in urgent cases of nuisance or apprehended danger • An order under this section may, • in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte.

21. Section 144-Power to issue order in urgent cases of nuisance or apprehended danger • An order under this section may be directed - to a particular individual, or - to persons residing in a particular place or area, or - to the public generally when frequenting or - visiting a particular place or area. • No order under this section shall remain in force for more than two months from the making thereof:

22. Section 144-Power to issue order in urgent cases of nuisance or apprehended danger 3. An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area. 4. No order under this section shall remain in force for more than two months from the making thereof:

23. Section 144-Power to issue order in urgent cases of nuisance or apprehended danger Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, • direct that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification.

24. Section 144-Power to issue order in urgent cases of nuisance or apprehended danger 5. Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate subordinate to him or by his predecessor-in-office.

25. Section 144-Power to issue order in urgent cases of nuisance or apprehended danger 6. The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to sub-section (4).

26. Section 144-Power to issue order in urgent cases of nuisance or apprehended danger (7) Where an application under sub-section (5) or sub-section (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order; and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing.

27. Section- 134.Service or notification of order • (1)The order shall, if practicable, be served on the person against whom it is made, in the manner herein provided for service of a summons.(2) If such order cannot be so served, it shall be notified by proclamation, published in such manner as the State Government may, by rules, direct, and a copy thereof shall be stuck up at such place or places as may be fittest for conveying the information to such person.

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32. Decision of use of force • Firstly, the use of force on unarmed citizens is a very grave decision. • It is not to be taken lightly. • By use of this force, you will injure people, you will kill people. • Know the principles of using force.

33. Decision of use of force • Secondly, as a servant of the state you will be accountable for it. • In a democracy, you will have to render account either to the superiors, or to the legislature, or to a commission of inquiry. • That is only but right.

34. Decision of use of force • You will use force only for protection of public life and public property. • You will not use it for individual interest. • If there is a danger to one man, if there is a danger to one’s property, it is an IPC case to be dealt through the FIR, a criminal case.

35. Decision of use of force • When you use force, you will observe two further criteria. • (i) You will use force as last resort and • (ii) then you will use the minimum quantum of force necessary in that particular situation.

36. When not to use force • whatever the provocation. • Do not use force on women and children • Do not use force on physically handicapped. • Do not not use force against men of religion, the sadhus, the priests, etc. • Do not use force when force is not a solution to the problem. • Do not use force when you cannot control its consequences.

37. When not to use force • Before giving the order to use force consult police, subordinates and people around you. • Magistrate has to give the decision and at that time he/she happens to be a very lonely person. • It is an area of subjective decision-making • You have to say I was satisfied • At that time don’t expect any support from your seniors and people above or below.

38. Keep Evidence • So start with the presumption that you are standing on your own two feet in front of that mob and later on in front of that Inquiry Commission. • Now before you use force, try to build up the evidence. • You will be accountable for this use of force. • The evidence build up is of various types.

39. Keep Evidence • You are facing the mob, they are pelting you with stones, and constables are going down with injury. • There will be one inherent contradiction when the mob is facing you and beating, • and you have to decide the timing of use of force. • The police want to go in early, naturally, because they are taking the beating. • You want to restrain them to the farthest limit so that you build up the evidence that your hitting-back was justified.

40. Sequence of use of force • Give an oral warning over the mike or the megaphone to mob to disperse in peace. • If it fails, then you order use of tear gas, • then you order use of lathi charge • If it fails then you open fire aggressive mob only. • But sometimes the events do not permit it. • The sequence of events seldom follows this in actual practice.

41. Tear Gassing & Effective Lathi Charge • Firstly, if there are women and children in the mob, get them out of the way by good tear-gassing. • Secondly, in a mob everybody there is not for a fight. • A lot of people are there for tamasha. Once you start tear-gassing, the timid leave.

42. Commanding Force • After the lathi charge, when you come to firing, take one precaution. • You will have four riflemen or ten riflemen under a sub-inspector with you. • Establish direct contact with that Inspector or Dy.S.P. or force commander. • Tell him that you are the magistrate on duty. • He will keep a watch on you and you will give that order of firing. • Your command over the firing squad should be direct.

43. Commanding Force • Secondly, when you do have to fire, see that your rifles are at safe distance; that when the firing starts, the mob cannot rush at them and overwhelm them. • This safe distance is anywhere between 75 to a 100 yards. • Keep that distance between the mob and your firing squad.

44. Commanding Force • Thirdly, disengage the lathi police before firing. • This is a difficult operation which takes time and delays firing. • When you are firing, don’t fire a volley into the mob . • Put in one bullet at a time. • The reason is that it is only the frontage of the mob which sees the causalities falling.

45. Commanding Force • People at back can hear the gunshot only. • Now give them time to react, give them time to run away. • If you tell your four riflemen to fire a round each, you will have four dead and the people at back might hear one gun-shot. • Now how many rounds you will order depends on the mob.

46. Managing Aftermath Casualties Shifting of injured and dead persons in lathi charge/firing to hosptals

47. Casualties • After the use of force is over, look after the casualties. • Pick up the casualties as far as possible because these casualties if in the hands of the mob, can be very embarrassing evidence. • Also, it is your responsibility to see that the injured after the fight received adequate medical treatment. • Apart from the injured, the dead bodies can cause you a problem.

48. Inquest, Post mortem & thereafter • Carry out thorough Inquest as quick as possible • Get post mortem done. • The relatives and netas after the post-mortem will try to take the dead bodies, • They may try to take out a procession the next day, and you will have another mar pit on your hands. • Now make an attempt that day specially with the families of the deceased, • Let them have a quite funeral and no tamasha the next day. • Do not allow to play on their sentiments that whatever the politics, • Only allow a quiet dignified funeral,

49. Managing Press Be Open & Transparent

50. Official Version in press • Also get your version in the press in time. • Next morning, when it comes out in the press, there will be three versions. • There will be version of the aggrieved party and their leaders. • There will be the version of the eyewitness account of the press reporters who have reached the spot. • There must be your official version. • Because if your version comes the next day, it is lost. • What strikes in people’s mind, which includes MLAs, MPs, your own seniors sitting in the Ministry is what they read in the newspaper that day first time.