STATE OF MAHARASHTRA AND ORSversusMOHAMMED SALIM KHAN AND ORS

                STATE OF MAHARASHTRA AND ORS.
A
                              v.
                MOHAMMED SALIM KHAN AND ORS.

                           NOVEMBER, 22 1990.

B     [K.N. SINGH K. JAGANNATHA SHETTY AND KULDIP
                         SINGH, JJ,]

         Criminal law: Code of Criminal Procedure 1973: Sections 20 and
    21-Interpretation and Scope of Section 21-Special Executive
    Magistrates-Powers of-Entitled to exercise the powers conferred by
    the Code much the same way as the Executive Magistrates-'Powers
c   conferred' and 'powers conferrable' -Distinction.

           A complaint was lodged by Respondent No. 7 against Respondent
    Nos. l .to 6 before the Senior Inspector of Police-Appellant No. 2.
    After investigation proceedings under Section 107 of the Code were
D   initiated before appellant 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 Government of
    Maharashtra whereby all Assistant Commissioners of Police in the
    Metropolitan area of Greater Bombay were appointed as Special Execu-
    tive Magistrate. These proceedings were challenged before the High
E   Court of Bombay by Respondents l to 6. While quashing these proceed-
    ings the High Court observed that the Special Executive Magistrate is
    not entitled to exercise the powers of Executive Magistrate and cannot
    be conferred with the powers of an Executive Magistrate under Section
    107 of the Code. The State Government has challenged this decision of
    the High Court.
F
          Disagreeing with the High Court on the scope and construction of
    Section 21, this Court while setting aside the judgment of the High
    Court and allowing the appeal,

          HELD: The aim of Section 21 as evinced in its language should be
G   ascertained and the provision so construed as to effectuate the purpose
    of the legislation. [345H]

         The purpose of empowering the State Government to appoint
    Special Executive Magistrates was evidently to meet the Special needs of
    a particular area or to perform particular functions in a given area.
H   Such appointments without adequate powers would be futile and the

                                      340
        STATE OF MAHARASHTRA v. SALIM KHAN [SHEITY, J.]            341

legislation without providing such powers would he pointless. Special
                                                                          A
Executive Magistrates are also entitled to exercise the powers of the
Executive Magistrates conferred 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 Magistrate        B
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 ou them though they may he
conferred on others like the Police Comtnissiouer 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,
                                                                          c
143 and 144 etc. These powers cannot be exercised by the Executive
Magistrate unless they are specially empowered in that behalf. [345F-G]

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 640 of 1990.                                                          D

     From the Judgment and Order dated 2.11.1988 of the Bombay
High Court in Crl. W.P. No. 955 of 1988.

      V.N. Ganpule and A.S. Bhasme for the Appellants.
                                                                          E
      N .A. Siddiqui for the Respondents.

      The Judgment of the Court was delivered by

     K. JAGANNATHA SHETTY, J. We grant special leave and
proceed to dispose of the appeal.                                         F

      The point raised in the appeal is a very short one, but neverthe-
less of general importance. It is with respect to the powers of the
Special Executive Magistates appointed under Section 21 of the Code
of Criminal Procedure, 1973 ('the Code').
                                                                          G
      Before narrating the facts, we may set out the relevant statutory
provisions bearing on the question. Section 20 and 21 of the Code
provide power to .the State Government to appoint Executive Magis-
trates and Special Executive Magistrates.

      Section 20•so far as material reads:                                H
    342         SUPREME COURT REPORTS               [1990] Supp. 3 S.C.R.

               "20. Executive Magistrates (1) In every district and in
A              every metropolitan area, the State Government may
               appoint as many persons as it thinks fit to be Executive
               Magistrates and shall appoint one of them to be the District
               Magistrate.

B              (2) The State Government may appoint any Executive
               Magistrate to be an Additional District Magistrate, and
               such Magistrate shall have (such) of the powers of a Dis-
               trict Magistrate under this Code or under any other law for
               the time being in force (as may be directed by the State
               Government).''"

c               (4) The State Government may place an Executive Magis-
                trate in charge of a sub-division and may relieve him of the
                charge as occasion requires; and the Magistrate so placed
                in charge of a sub-division shall be c;alled the Sub-Divi-
                sional Magistrate."
D
          In each District, the State Government under Section 20 may
    appoint as many Executive Magistate as it thinks fit. One of them shall
    be appointed as District Magistrate and another may be appointed as
    an Additional District Magistate. An Executive Magistrate may be
    placed in charge of a sub-division and he would be called as Sub-
E   Divisional Magistrate. These Magistrates except the Additional Dis-
    trict Magistrates are entitled to exercise all the powers and perform all
    the duties conferred and imposed by the Code. The Additional District
    Magistrate however, will have only such of the powers of the District
    Magistrate as may be direted by the State Government.

F         Section 21 provides:

                21. Special Executive Magistrate-The State Government
                may appoint, for such term as it may think fit, Executive
                Magistrates, to be known as Special Executive Magistrates,
                for particular areas or for the performance of particular
                functions and confer on such Special Executive Magistrates
G
                such of the powers as are conferrable under this Code on
                Executive Magistrates, as it may deem fit.

          The Special Executive Magistrate may be appointed for such
    term as the Government may think fit. They may be appointed for
H   particular areas or for the performance of particular functions. They
        STATE OF MAHARASHTRA v. SALIM KHAN (SHETIY, J.l               343

may be conferred with the powers that are conferrable under the Code
on Executive Magistrate.                                                     A

     The facts in the instant case are not in dispute and they fall within
a narrow compass. The Maharashtra Government by notification
dated 11th April 1974 appointed all Assistant Commissioners of Police
in the Metropolitan area of Greater Bombay as Special Executive              B
Magistrates. By another notification dated 20 October, 1976 the
Government conferred on them the powers of an Executive Magistrate
under Section 107 of the Code. The notification reads as follows:

            "No. XXI-SB/EXM. 0775.1-In exercise of the powers con-
            ferred by Section 21 of the Code of Criminal Procedure,
            1973rn (II of 1974) the Government of Maharashtra hereby. C
            confers the powers of an Executive Magistrate under
            Section 107 of the said Code on all Assistant Commissio-
            ners of Police, Greater Bombay, appointed as Special
            Executive Magistrates, by Government Notification,
            Horne Department No MSC 1274/V-C dated the !st April D
            1974 in relation to the metropolitan area of Greater
            Bombay."

      Respondent 7 lodged a complaint against a group of persons-
respondent I to 6 before the Senior Inspector of Police, Mahirn Police
Station-Appellant No. 2. The complaint was investigated and pro-             E
ceedings under Section 107 of the Code were initiated before the
Special Executive Magistrate-Apellant No. 3. But the Bombay High
Court has quashed the proceedings at the instance of respondents I to
6. The High Court on the structure of Section 21 and in the light of
other provisions in the Code has observed that the Special Executive
Magistrate is not entitled to exercise the powers of an Executive            F
Magistrate and cannot also be conferred with the powers of an Execu-
tive Magistrate under Section 107 of the Code.

      The State Government has appealed to this Court challenging
the decision of the High Court.
                                                                             G
     We may first have the history perspective of Section 21 of the
Code. The 37th Report of the Law Commission (1967 para 117-118)
recommended the creation of a class of Special Executive Magistrates.
The Law Commission in that Report also indicated a draft section to
be inserted while amending the Code. The draft Section 14-A as indi-
cated by the Law Commission provided that the State Government               H
    344         SUPREME COURT REPORTS               [1990] Supp. 3 S.C.R.

    may also appoint Executive Magistrates who shall be called as Special
A
    Executive Magistrates for particular areas or for the performance of
    par1tcufar functions and confer upon them such powers conferred or
    conferrable by or under this Code on an Executive Magistrate of the
    first or second class as it deems fit._The 41st Report of the Law Com-
    mission, however, did not approve the idea of creating a class of Special
B   Executive Magistrates. It has been pointed out that the functions of
    the Executive Magistrate under the new Code are going to be so
    limited that it would not warrant the creation of a separate class of
    Executive Magistrates for performing particular functions or in a
    particular area. The Bill introduced in the Parliament apparently did
    not contain a provision for appointment of Special Executive Magis-
    trates. The Bill was referred to the Joint Select Committee which upon
C   deliberation seems to have accepted the line of suggestion made by the
    Law Commission in its 37th Report. The Committee made a report
    dated 14th December, 1972 stating that a provision to enable the
    appointment of Special Executive Magistrates to meet Special needs in
    relation to particular areas or for the performance of particular duties
D   should be incorporated. Accordingly, the Parliament has enacted
    Section 21.

          The primary question for decision is, what, on its true construc-
    tion, does this provision mean?

E         The entire reasoning of the High Court is rested on the distinc-
    tion between "powers conferred" by the Code and "powers conferr-
    able" under the Code on the Executive Magistrate and the omission to
    use the term "powers conferred" in Section 21. The High Court has
    inter-alia expressed the views that the "powers conferred" by the Code
    are those powers which are exercisable by virtue of holding the post of
F   Executive Magistrate. The person appointed as an Executive Magis-
    trate gets automatically all the powers conferred by the Code and is
    entitled to exercise such powers. He is entitled to exercise all the
    powers and perform all the duties by virue of his being an Executive
    Magistrate. Such powers are not to be conferred on him since they are
    attached to the post. Bui it would be open to the Government to
G   confer on the Executive Magistrates the powers that are conferrable
    under the Code which powers are distinct and different. The High
    Court then dell with the structure of Section 21 and pointed out that
    the Special Executive Magistrate appointed under Section 21 can have
    only the powers which are conferrable, and not the powers conferred
    by the Code since the term 'conferred' has not been used in the
H   Section. And the Special Executive Magistrate cannot possess by vir-
        STATE OF MAHARASHTRA v. SALIM KHAN (SHETTY, J.]             345

tue of his appointment any of the powers of the Executive Magistrate
conferred by the Code.                                                     A

     Counsel for the appellant submitted that the view taken by the High
Court is not warranted by the scope and shape of Section 21 and that
would defeat the very purpose of appointing the Special Executive
Magistrates if they are held to have no power of an Executive Magis-       B
trate. He urged th&t the Special Executive Magistrates is also Execu-
tive Magistrate and the Court may ignore in the instant case the con-
ferment of power under Section 107 of the Code.

      These submissions do call for serious discussion. Section 21 may
conveniently be divided into two parts: (i) The State Government may
appoint, for such term as it may think fit, Executive Magistates, to be c
known as Special Executive Magistrates, for particular areas or for the
performance of particular functions; and (ii) the State Government
may confer on such Special Executive Magistrates such of the powers
as are conferrable under this Code on Executive Magistrates, as it may
deem fit. Part I provides power to the State Government to appoint D
Executive Magistrates to be known as the Special Executive Magis-
trates. It also sets out the terms of such appointment. Part II speaks of
the nature of the power to be conferred on the Special Executive
Magistrates. It refers only to the powers conferrable on the Executive
Magistrate under the code but not the powers conferred on them by
the Code. We agree with the High Court that there is a broad divide E
between the powers conferred and powers conferrable by or under the
Code on the Exe.cutive Magistrate. The powers conferred by the Code
on the Executive Magistrates are the powers which are attached to the
post of Executive Magistrate. Any person appointed as Executive
Magistrate is entitled to exercise such powers. The powers located
under Sections 107, 108, 109, 110. 129. 145 and 147 etc. are the F
instances of such powers. These are not the powers conferrable on the
Executive Magistrate though they may be conferred on others like the
Commissioner of Police under Section 20 sub-section (5). there are
other provisions in the Code such as Sections 133, 143 and 144, which
may be said to be conferrable powers under the Code, The Executive
Magistrate cannot exercise such powers unless they are empowered in G
that behalf.

      The attractiveness of this distinction by our meticulous contruc-
tion should not however, lead us astray in construing Section 21. The
aim of the Section as evinced in its language should be ascertained and
the provision should be so construed so as to effectuate the purpose of H
    346         SUPREME COURT REPORTS               [ 1990] Supp. 3 S.C.R.

  the legislation. The purpose of empowering the State Government to
A
  appoint Special Executive Magistrates was evidently to meet the
  Special needs of a particular area or to perform particluar functions in
  a given area. Such appointments without adequate powers would be
  futile and the legislation without providing such powers would be
  pointless. It can be assumed that the Parliament does not indulge in
B pointless legislation. Indeed, it has not done so in Section 21. A careful
  analysis of the Section indicates very clearly that the Special Executive
  Magistrates are also Executive Magistrates. Under part I of the
  Section, the State appoints Executive Magistrates to be known as
  Special Executive Magistrates. They are given a different appellation
  perhaps to distinguish them from the category of other Magistrates
  appointed under Section 20. But basically they are Executive Magis-
c trates. Their area of operation may be limited and the terms of
  appointment may be different, but nevertheless they remain as Execu-
  tive Magistrates. They do not cease to be Executive Magistrates by
  being called with different designation. Since they are appointed as
  Executive Magistrates. they are entitled to exercise the powers confer-
D red by the Code much the same way as other Executive Magistrates.

        It is true that the latter part or Section 21 speaks of the powers to
  be conferred upon the Special Executive Magistrates and it refers only
  to the powers conferrable on the Executive Magistrate. But the power
  to appoint under part I of Section 21 is not dependent upon or coupled
E with the power to be conferred under Part II of the Section. The
  appointment of Special Executive Magistrates is one thing and confer-
  ment of power on them is another. Each is independent of the other.
  Part II of the Section, in our opinion, speaks of additional powers to
  be confemed, depending upon the nature of the particular function to
  be performed. It has nothing to do with the power located under Part I
F of the Section.

        The significant difference can be discerned between the language
  of Section 13 sub-section (1); Section 18 sub-section (1) and Section 21
  of the Code. Section 13 sub-section (1) provides that the High Court
  may, if requested by the Central or State Government so to do, confer
G upon any person who holds or has any post under the Government, all
  or any of the powers conferred or conferrable, by or under the Code
  on a Judicial Magistrate of the first class or of the second class, in
  respect to particular cases or to particular classes of cases, in any local
  area, not being a metropolitan area. Section 18 sub-section (1) like-
  wise provides power to the High Court to confer on any person all or
H any of the powers conferred or conferrable by or under this Code on a
         STATE OF MAHARASHTRA v. SALIM KHAN [SHElTY, !.]            347

Metropolitan Magistrate. But he is not first appoined as Judicial          A
Magistrate or Metropolitan Magistrate. It is only the powers of such
Magistrates are conferred upon a person. Therefore, there was need to
use the term 'conferred' or 'conferrable' in Sections 13 and 18. But the
language of Section 21 as analysed earlier is quite different. Since the
Special Executive Magistrate are appointed as Executive Magistrates.
The draftsman seems to have purposely avoided to use the term "con-        B
ferred" in the latter part of Section 21. It would seem very odd indeed
to say that the State may appoint Executive Magistrate to be known as
Special Executive Magistrate and confer upon them the powers confer-
red by the Code on Executive Magistrate.

      We are, therefore, unable to agree with the High Court thai the      c
Special Executive Magistrates cannot exercise any of the powers of the
Executive Magistrate conferred by the Code. In our opinion, they are
also entitled to exercise those powers and it was therefore, unneces-
sary for the State Government to have conferred the powers under
Section 107 on the Special Executive Magistrates.
                                                                           D
     In the result we allow the appeal and set aside the judgment of
the High Court.

R.N.J.                                                 Appeal allowed.




                                                         I