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PETITIONER: STATE OF MAHARASHTRA AND ORS.

       Vs.

RESPONDENT: MOHAMMED SALIM KHAN AND ORS.

DATE OF JUDGMENT22/11/1990

BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) SINGH, K.N. (J) KULDIP SINGH (J)

CITATION:  1990 SCR  Supl. (3) 340  1991 SCC  (1) 550  JT 1990 (4)   469        1990 SCALE  (2)1099

ACT:     Criminal law: Code of Criminal Procedure 1973:  Sections 20  and 21--Interpretation  and  Scope  of Section  21--Spe- cial 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  con- ferrable’--Distinction.

HEADNOTE:     A  complaint  was  lodged by Respondent  No.  7  against Respondent  Nos. 1 to 6 before the Senior Inspector  of  Po- lice---Appellant  No.  2.  After  investigation  proceedings under  Section 107 of the Code were initiated before  appel- lant  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 Govern- ment  of Maharashtra whereby all Assistant Commissioners  of Police  in  the  Metropolitan area of  Greater  Bombay  were appointed as Special Executive Magistrate. These proceedings were challenged before the High Court of Bombay by  Respond- ents 1 to 6. While quashing these proceedings the High Court observed that the Special Executive Magistrate is not  enti- tled  to  exercise the powers of  Executive  Magistrate  and cannot  be conferred with the powers of an Executive  Magis- trate  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  con- ï7 3 judgment of the High Court and allowing the appeal,     HELD:  The aim of Section 21 as evinced in its  language should  be ascertained and the provision so construed as  to effectuate the purpose of the legislation. [345H]     The  purpose of empowering the State Government  to  ap- point  Special Executive Magistrates was evidently  to  meet the Special needs of a particular area or to perform partic- ular  functions in a given area. Such  appointments  without adequate powers would be futile and the 341 legislation  without providing such powers would  be  point- less.  Special  Executive Magistrates are also  entitled  to exercise  the powers of the Executive Magistrates  conferred

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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 Magis- trate  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 on them though they may be conferred  on others  like the Police Commissioner 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]

JUDGMENT: