VEERAMACHANENI BUTCHAIAH CHOWDARY Vs. NOOLI VENKATA SUBRAHMANYAM

JUDGEMENT

(1.) THE question raised in these proceedings is one of considerable importance. It relates to the jurisdiction of an officer described as an Executive Magistrate to pass an attachment order under Section 145 of the Code of Criminal Procedure.

(2.) THERE are, in the Andhra State, a number of districts where the policy embodied in Article 50 of the Constitution of India "of separating the judiciary from the executive in the public services of the State" is being implemented while there are a few districts where it is not. Such separation, where it is in force, is effected not by legislation hut administratively under the terms of G. O Ms. No. 2304 Public (Separation) Department, dated 24-9-1952. originally issued by the Government of Madras (when the Andhra State was part of the Madras State) which still continues to be operative within the Stale of Andhra. This G. O. is styled as a 'memorandum of instructions issued for the guidance of the Judicial and Executive Magistrates under the Madras Scheme of Separation of the Judiciary from the Executive". The scheme is designed within the framework of the Criminal Procedure Code and the powers and the functions of Magistrate to be exercised and discharged under that Code are divided between two sets of Magistrates described as the Judicial and the Executive Magistrates. Paragraph 3 of that G. O. points out that "the functions of a Magistrate under the Criminal Procedure Code fall into three broad categories, viz. (a) Functions which are 'police' in their nature, as for instance, the handling of unlawful assemblies; (b) functions of an administrative character, as for instance, the issue of licences for fire-arms, etc, and (c) functions which are essentially judicial as for instance, the trial of criminal cases. " Under the scheme, the purely judicial functions coming under category (c) are transferred to a new set of officers under the control of the High Court and designated as Judicial Magistrates. The Collector and the Revenue officers subordinate to him will, as before, continue to discharge functions falling under categories (a) and (b ). But both sets of officers, in the terms of the G. O. "will all be designated as Magistrates to satisfy statutory requirements". It is unnecessary to go into the details of the scheme as adumbrated in the Government Order. But, for the purposes of the present case, paragraph 20 of the G. O. , may be extracted: 20. Chapters X and XIII.-In cases falling under these Chapters, the Judicial Magistrate will take no action in the first instance. The Public and the police will go to the concerned Executive Magistrate and if he considers no action is necessary, or if his directions are complied with without contest, the proceedings will automatically end. If the party directed to show cause decides to do so and an enquiry becomes necessary, the case will be transferred by the District Magistrate to the appropriate Sub-Divisional Magistrate on the request of the Executive Magistrate concerned.

(3.) THE point for determination now is whether an Executive Magistrate acting contrary to these directions though in conformity with the provisions of the Code can be said to have jurisdiction to do so?