What are the powers and functions of Special Executive Magistrates? | Explained

The Delhi Police sought a three-day custody extension, citing law-and-order concerns. However, Assistant Commissioner of Police Ritu Raj, presiding as the Special Executive Magistrate, accepted the sureties and ordered Saurav Das and Ashutosh Ranka’s release. The activists had challenged the legality of their continued detention.

The SEM proceedings focused on alleged violations of earlier peace bonds, not the criminal cases linked to the October 13 Jantar Mantar incident. Their release came after the sureties were accepted. They also gave an undertaking not to call for protests at Jantar Mantar while it remained a denotified protest site.

The police’s request therefore did not result in continued custody. The case highlights that SEM proceedings are preventive and administrative. It also shows that a SEM may consider peace-bond allegations and custody, but the proceedings do not decide guilt in the separate criminal cases.

A Special Executive Magistrate, or SEM, is appointed to handle specified preventive or public-order responsibilities. Section 15 of the Bharatiya Nagarik Suraksha Sanhita, 2023, allows State governments to appoint SEMs and give them powers exercised by Executive Magistrates under the BNSS.

The appointment can be limited by time, geography or function. For example, an SEM may be assigned to a particular situation requiring preventive action or maintenance of public order. The powers available depend on what authority the State Government confers.

This makes an SEM different from a regular judicial magistrate. SEMs perform administrative and preventive work rather than criminal trials. Their role is to act when authorities foresee a possible breach of peace, nuisance, danger or public disturbance. Their decisions remain subject to judicial review and administrative oversight.

In this case, the SEM dealt with a preventive proceeding alleging that Das and Ranka had breached signed peace bonds. The SEM extended their custody on October 19 over public-peace concerns, then accepted their sureties and ordered release on October 21. The proceedings were separate from the criminal cases involving October 13.

Under the BNSS, an Executive Magistrate can require a person likely to breach peace to show cause and execute a peace bond. Executive Magistrates can also issue urgent orders under Section 163. The article states that SEMs may release people or grant police or judicial remand. Preventive arrest under Section 170, however, is a police power.

An SEM cannot conduct criminal trials or convict people through these proceedings. The SEM’s role is administrative and preventive. Its actions can be challenged before the appropriate court or authority, and courts can review their legality and protection of rights.

A peace bond is a commitment a person may be required to execute to help prevent a breach of peace. Section 126 of the BNSS allows an Executive Magistrate to require this bond when a person is considered likely to breach peace or disturb public tranquillity.

The Magistrate must follow the procedure established by law. Under Section 135, the Magistrate conducts an inquiry into the information received. In certain circumstances, security can also be required while that inquiry is pending, but the reasons must be recorded in writing.

The maximum period for a peace bond is one year. This time limit gives the preventive measure a defined duration. In the CJP case, the SEM proceedings concerned allegations that Das and Ranka violated earlier bonds through actions at Jantar Mantar. The proceedings did not determine the separate criminal cases connected to that incident.

An alleged breach of a peace bond can trigger a serious preventive consequence. Under Section 141(1)b of the BNSS, the Magistrate may order the person to be arrested or detained for the remaining period of the bond.

The mechanism applies when the person is accused of violating the undertaking made to prevent a breach of peace. In the CJP matter, police initiated preventive proceedings alleging that Saurav Das and Ashutosh Ranka had breached peace bonds through actions at Jantar Mantar. The SEM extended their custody on October 19, citing public-peace concerns.

Their later release shows that an allegation did not automatically mean continued detention until the bond expired. On October 21, the SEM accepted their sureties and ordered release. The activists gave an undertaking not to call protests at Jantar Mantar while it remained a denotified protest site. The proceedings concerned the bond allegation, not guilt in separate criminal cases.

Judicial magistrates and SEMs operate in different parts of the legal system. Section 9 of the BNSS provides for courts of Judicial Magistrates of the first and second classes. State governments determine their number and location, while the High Court appoints their presiding officers.

Judicial magistrates deal with criminal cases. Their work includes remand proceedings, bail applications and trials. They are independent and can impose sentences permitted by law. SEMs, by contrast, are appointed by State governments for particular periods, areas or functions and focus on prevention and administration.

An SEM cannot conduct a criminal trial or convict someone through preventive proceedings. The article states that SEMs can release people or grant police or judicial remand, but their proceedings are not criminal trials. In the CJP matter, the SEM addressed alleged peace-bond violations, while separate criminal cases over the Jantar Mantar incident remained distinct.

The law allows preventive action because authorities may need to intervene when a breach of peace or other danger appears likely. Executive Magistrates perform preventive and administrative functions aimed at maintaining public order. This approach addresses risks before authorities must respond to an offence or disturbance after it happens.

For example, Section 126 allows an Executive Magistrate to require a likely troublemaker to show cause and execute a peace bond. Section 163 allows urgent orders for nuisance or apprehended danger, including risks to human life, health, safety or public tranquillity. Police may also make a preventive arrest under Section 170 when necessary to stop a cognisable offence that cannot otherwise be prevented.

These powers are limited by legal procedure and oversight. The article notes that inquiries may be required and reasons recorded in writing. SEM actions can be reviewed by courts and challenged before the appropriate court or authority. The purpose is prevention, not punishment or conviction.