STATE OF TAMIL NADU Vs. R GANDHI PRESIDENT

JUDGEMENT

(1.) This appeal is against the order of a learned single Judge allowing the writ petition filed by the first respondent herein, the prayer in which is in the following terms :-

(2.) It is obvious that the prayer is misconceived and based on an erroneous understanding of the judgment reported in Narayanaswamy v. State of Tamil Nadu (1985 Mad LJ (Crl) 453). G.O. Ms. No. 1487, Home (Cts. II), dated 29-7-1989, which is sought to be quashed by the writ petitioner is one issued by the Government under S. 21 of the Code of Criminal Procedure, 1973 (Central Act II of 1974), whereby all regular Taluk Tahsildars and Deputy Tahsildars including Special Deputy Tahsildars of all Districts are appointed as Special Executive Magistrates in the Districts concerned for perennial period and powers exercisable by an Executive Magistrate under the Code are all conferred on them. They are also specially empowered to exercise the powers under Ss. 133, 143, and 144 of the Code. Section 21 of the Code enables the State Government to 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 them such of the powers as are conferable under the Code on Executive Magistrates, as it may deem fit. The provisions relating to Executive Magistrates are found in Ss. 20 to 23 of the Code. They are new provisions and under the old Code of 1898 there was no provision for Executive Magistrates. Under S. 6 of the present Code, there are four classes of Criminal Courts, one of them being Executive Magistrates. Under the old Code of 1898, there was a provision for appointment of Justices of Peace, which is absent in the present Code. The Thirty-seventh Report of the Law Commission recommended the creation of a class of Special Executive Magistrates. It was pointed out that in Presidency Towns, there were no District Magistrates under the old Code and that the District Collector was never a Magistrate in the Presidency Towns. Work in the Presidency Towns was apportioned between the Presidency Magistrates and the Commissioner of Police. As the separation of the powers under the new code calls for a different approach to the problem, the Metropolitan area becomes a District under S. 7(1) proviso of the new code. The Law Commission in its report indicated a draft Section to be inserted while amending the Code. Draft S. 14-A provided that the State Government may also appoint Executive Magistrates, 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 conferable by or under the Code on an Executive Magistrate of the First or Second Class, as it deems fit. The Forty-first Report of the law commission did not approve the idea of creating a class of Special Executive Magistrates. The bill introduced in the Parliament did not contain a provision for appointment of Special Executive Magistrates and it was referred to the Joint Select Committee, which accepted the line of suggestion made by the Law Commission in its thirty-seventh report. The committee made a report dated 14/12/1972 to the effect that a provision to enable the appointment of Special Executive Magistrates to meet special needs in relation to particular areas or for the performance of particular duties should he incorporated. Accordingly,Section 21 was enacted.

(3.) It is under that Section the Government has passed G.O. Ms. No. 1487, dated 29-7-1989. The Code also contains provisions for Special Judicial Magistrates and Special Metropolitan Magistrates in Ss. 13 and 18 respectively. In the forty-first report of the law commission, recommendation was made for the retention of benches and it was also proposed that the Honorary Magistrates who make up the Benches should be chosen and appointed by the High Court and they should possess such qualification as the High Court may prescribe. The Bill as originally introduced, vested the power of appointment of Honorary Magistrates in the High Court. The Joint Select Committee recommended the continuation of the system of appointing the Special Judicial Magistrates, but deleted the provision for permitting them to sit as Benches. The view of the Committee is expressed in the following terms :-