SINGESHWAR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The important question for consideration in this writ application is the true effect of the Bihar Executive Magistrates (Temporary Powers) Ordinance 1974, (hereinafter referred to as the Ordinance) and Act 23 of 1975 (hereinafter referred to as the Act), which followed the aforesaid Ordinance. The other question of importance is whether the circular issued by the District Magistrate of Bhagalpur, a copy of which is annexure 9 to this writ application is legal and valid.

(2.) The facts giving rise to this writ application are as follows:

(3.) On 1-11-19-74 the Ordinance was promulgated. On 6-11-1974 the District Magistrate issued instructions which are contained in Annexure-9. This executive instruction inter alia, states that (a) in respect of the offence punishable with a fine/or imprisonment for three months, the cases were to continue in the court of Executive Magistrates till final disposal; (b) in respect of other cases i.e. case punishable with more than three months of imprisonment, the cases were to be entertained by the courts of Executive Magistrates till completion of investigation. Thereafter the charge-sheet/final report and other case records were to be forwarded along with the accused to the Judicial Magistrate empowered to take cognizance of the offence; (c) in respect of the aforesaid cases the Executive Magistrates could till the stage of cognizance exercise powers under Sections 61, 62, 68, 70, 71, 72, 79, 80, 82, 83, 85, 87, 88, 91, 93, 104, 172, 436 and 437 of the Criminal P. C. The Executive Magistrates were directed by this instruction to accept first information report (F.I.R.) in respect of all offences and exercise their powers of remand and other incidental powers.