Powers of Special Executive Magistrates

Source: The Hindu 

Introduction 

A Special Executive Magistrate (SEM) court in Delhi accepted sureties and ordered the release of Cockroach Janta Party (CJP) activists Saurav Das and Ashutosh Ranka, even though the Delhi Police had sought a three-day extension of their custody. The proceedings were presided over by Assistant Commissioner of Police Ritu Raj. The activists had challenged the legality of their continued detention. The case has drawn attention to the role and powers of SEMs and how they differ from Judicial Magistrates. 

What Happened in the Present Case? 

• The police initiated preventive proceedings against the CJP activists, alleging breach of peace bonds they had earlier signed. 
• On October 19, the SEM extended their custody, citing concerns about public peace. 
• Their sureties were later accepted, and they were released on an undertaking not to call for any protest at Jantar Mantar while it remained a denotified protest site. 
• The SEM proceedings related only to the alleged violation of the peace bond, through actions at Jantar Mantar, and not to the criminal cases registered over the October 13 Jantar Mantar incident. 

Who is a Special Executive Magistrate? 

• State Governments appoint SEMs for specific areas or purposes and confer on them powers exercisable by Executive Magistrates under Section 15 of the BNSS. 
• While Executive Magistrates perform continuing administrative and preventive functions, SEMs are appointed for a specified period, area or function, such as situations requiring preventive action or maintenance of public order. 
• Their powers also depend on the authority conferred on them by the State Government. 

What are the Functions of SEMs? 

• SEM powers are meant to allow intervention where there is a likelihood of disturbance, rather than a response after an offence has occurred. 
• They maintain public order and prevent breaches of peace through preventive and administrative functions. 
• Security for keeping the peace: An Executive Magistrate may require a person likely to breach the peace or disturb public tranquillity to show cause why they should not execute a bond to keep the peace for a specified period, subject to the procedure established by law (Section 126, BNSS). 
• Urgent orders: Executive Magistrates may issue urgent orders in cases of nuisance or apprehended danger, where such action is likely to prevent obstruction or injury to a lawfully employed person, danger to human life, health or safety, disturbance of public tranquillity, a riot or an affray. 
• Preventive arrest: Police officers may arrest a person to prevent the commission of a cognizable offence where it cannot otherwise be prevented (Section 170, BNSS). This is a police power and not exclusive to SEMs. 

What is a Peace Bond? 

• Section 126 of the BNSS allows an Executive Magistrate to require a person to execute a bond for keeping the peace for a period of up to one year. 
• Inquiry (Section 135, BNSS): The Magistrate inquires into the information received and may, in certain circumstances, direct the person to furnish security while the inquiry is pending, recording reasons in writing. 
• Breach of bond (Section 141(1)(b), BNSS): On breach of a peace bond, the Magistrate may order the person's arrest or detention for the remaining period of the bond. 

How are SEMs Different from Judicial Magistrates? 

Can the Actions of SEMs be Reviewed by Courts? 

• Yes, SEM actions are subject to judicial review and administrative oversight to ensure legality and protect citizens' rights. 
• Their orders may be challenged before the appropriate court or authority, depending on the nature of the order and the remedy available. 

Conclusion 

The release of the CJP activists highlights that SEMs exercise preventive and administrative powers under the BNSS, centred on maintaining public order through mechanisms such as peace bonds. Unlike Judicial Magistrates, they cannot conduct trials, convict persons, or grant remand. Their actions remain subject to judicial review, ensuring that preventive powers are exercised within the bounds of law and with due regard to personal liberty.