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TMI Blog1997 (3) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of Special Judicial Magistrates and Special Metropolitan Magistrates in sufficient numbers and once these cases are taken out of the regular courts, the regular courts would be free to dispose of serious cases faster, and that would meet the requirement of speedy justice. He submitted that when cases are pending in such large numbers, there is no justification for not using a part of the system envisaged by the Code According to him, it betrays indifference and lack of concern for speedy disposal of cases. 3. At this stage, it would be proper to mention the facts of Writ Petition No. 298/94 - yet another public interest litigation - based on an article published in the magazine, India Today , in its issue dated 31.7.1994, with the caption Ordeal of Innocents by Sri Ruben Banerjee, narrating how rape victims are detained in Remand Homes for long periods, and are virtually undergoing imprisonment. Remand Homes are protective homes for women run by the State Government, in which inter alia, destitute victims of rape are received with a view to ensuring their safe custody, particularly where the victim is a minor and has no guardian who can be trusted with her custody. This a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused. There are various other instances of the same kind. This brings into sharp focus the unhappy state of affairs in the criminal justice system existing in the State. In the meantime other writ petitions received from various jails concerning prolonged detention of prisoners were in progress. This case was also taken up after those matters. 4. On 4.8.1995, the learned Counsel for the petitioners drew our attention to Section 6(4) of the Code which contemplates appointment of Judicial Magistrates of the IInd Class. Section 13 contemplates appointment of Special Judicial Magistrates by the High Court if requested by the Central or the State Government so to do, and Section 18 contemplates appointment of Special Metropolitan Magistrates by the High Court if requested by the Central or the State Government so to do. We may reproduce Sections 13 and 18 at this stage : 13. Special Judicial Magistrates. - (1) The High Court may, if requested by the Central or State Government so to do, confer upon any person who holds or has held any post under the Government, all or any of the powers conferred or conferrable by; or under this Code on a Judicial Magistrate of the first or of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aracter and was considered to be a useful and valuable adjunct to the regular courts, particularly in the Metropolitan cities. Unfortunately, the institution of Honorary Magistrates came in for widespread and serious criticism within a short time. The criticism of misuse and abuse of the system led to the Law Commission recommending the appointment of Special Judicial Magistrates and Special Metropolitan Magistrates, vide Sections 13 and 19 of the draft Criminal Procedure Code. Section 13 of the draft Code provided for the appointment of Special Judicial Magistrates from amongst persons holding or who had held any judicial office under the Union or a State or possessed such other qualification as may be prescribed by the High Court. Similar was the position in respect of Section 19 of the draft Criminal Procedure Code, which provided that a person holding or who has held as judicial post or any other person who possessed other qualifications as may be prescribed, could be appointed a Special Metropolitan Magistrate. The Law Commission had taken note of the experience of the judicial post for the purpose of appointment and conferment of power of Special Judicial Magistrates and Spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Territories. The Governments were given time upto 15.9.1995 to submit the required information and the matter was directed to be listed on 22.9.1995 for orders. 7. The Court carefully examined the information received from each State. So far as the State of Madhya Pradesh was concerned, it had not taken any action to request the High Court under Section 13 and 18 of the Code on the plea that it had forwarded a proposal to the Central Government to amend Section 13 of the Code. This explanation did not satisfy us. So far as Delhi was concerned, there were more two lakh cases pending in the Magisterial Courts which which had been distributed amongst 88 Metropolitan Magistrates who were required to work from 2.00 p.m. to 5.00 p.m. on every working Saturday. This would show that the time of 88 Metropolitan Magistrates had to be expended for petty cases. Despite such an arrangement, having regard to the huge number of traffic cases, a large number of them remained pending. We noted with disapproval the lack of initiative on the part of the administration in getting Special Metropolitan Magistrates appointed for clearing these petty cases and for placing the highly paid Metropolitan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder table-I of Section 320 of the Code and offences triable under Section 260 and 261 of the Code. We are told that the Chief Minister, Orissa had requested the High Court for appointment of Special Judicial Magistrates. In the Union Territories of Daman Diu, Dadra and Nagar Haveli, as well as in Lakshad-weep, since the amount of litigation was meagre, the Union of India submitted in an affidavit that there was no need to invoke the aforementioned provisions. The State of Sikkim took the same stand. The Government of Andhra Pradesh had already invoked the relevant provisions and the High Court of Andhra Pradesh had framed the necessary rules and notified the same on 28.3.1979. The State of Nagaland informed the Court that in view of the special situation in the State, where several other high ranking executive officers besides the Judicial Magistrates, were performing the duties of Judicial Magistrates, there was no need to invoke the provisions of Section 13 18 of the Code. The State of Mizoram informed the Court that the total member of traffic cases in the State was only 55 and that a good number of Enforcement Officers under the Transport Department and quasi-Judicial Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Special Judicial Magistrates till 28.2.1977, when they were merged with the cadre of Munsiffs. At present no Special Judicial Magistrates, except Executive Magistrates upon whom the powers of Judicial Magistrates of 2nd Class or 1st Class has been conferred from time to time by the High Court under Section 13, are functioning. 13. The State of Maharashtra informed the Court by an affidavit that the State had invoked the provisions of Section 13 Section 18 of the Code and that the Hon'ble Chief Justice and Judges had appointed within or for the local area comprised in greater Bombay, 43 Special Metropolitan Magistrates and 75 Special Judicial Magistrates in different districts of the State. 14. The State of Nagaland informed this Court by an affidavit that it had not yet appointed Special Judicial Magistrates in terms of Section 13 of Cr.PC and that besides Judicial Officers, the administrative officers in the rank of Deputy Commissioner and Addl. Deputy Commissioners are also exercising judicial powers for administering criminal and civil justice in various districts by virtue of their appointment in accordance with the Rules for Administration of Justice Police in N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecial Judicial Magistrate or a Special Metropolitan Magistrate. Therefore, the holding of any post under the Government, according to the High Court, does not bear any reasonable relation whatsoever with the object of the legislation. The High Court, therefore, held that the classification was not only arbitrary, but also irrational and totally unrelated to the object with which the appointments as Special Judicial Magistrate and Special Metropolitan Magistrate were to be made and powers were to be conferred upon them for discharge of their functions as such. The High Court expressed the view that Sections 13(1) and 18(1) of the Code, insofar as they confined the appointment and conferment of powers of Special Judicial Magistrates and Special Metropolitan Magistrates to any person who holds or has held any post under the Government, are arbitrary and violative of Article 14 of the Constitution of India. The rules framed to give effect to the provisions of the Code were also held to be violative of the Constitution. 19. We find it difficult to uphold this approach of the High Court because it is based on a narrow reading of the said two sub-sections. In the first place, it may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of members of the subordinate judiciary as Special Judicial Magistrates/Special Metropolitan Magistrates. We, therefore, overrule the said decision. 20. For the assistance of the Court, Shri Rajiv Dhawan made written submissions on the implementation of Sections 13 18 of the Code in which he traced the history of the lay magistracy in England, Canada, Italy and India and drew up a proposal for the lay magistracy in India including therein clauses for appointment, removal, training, allowances, formation of benches, clerks, power and jurisdiction. Mr. Mukul Mudgal, assisting the Court thereafter, drew up draft rules in this regard. These draft rules were circulated for comments of all the States/Union Territories involved. Comments were submitted by the State of West Bengal and by the High Courts of Himachal Pradesh and Madras. 21. The position that now emerges is that practically every State has paid attention to the provisions of Sections 13 and 18 of the Code and necessary steps have been taken by them for giving effect to these provisions by appointing suitable number of Special Judicial Magistrates/Special Metropolitan Magistrates. They have also initiated the proces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons who have retired or are about to retire from Government service to be appointed to help clear the pendency. Viewed from this angle it seems fairly clear to us that retired Judicial Officers, officers of the Registry of District Courts and High Courts, as well as other Government servants who have the specified experience and qualification, can be requested to accept appointments as part of social service and they may be paid a fee to meet their out-of-pocket expenses and honorarium. We are sure that the High Courts will find any number of public spirited, retired persons available to extend a helping hand to the Criminal Justice System in the country. The High Court, we must add by way of caution, must be extremely careful in the conferment of power and should do so based on the qualification and experience of each appointee. 23. Section 320 of the Code enumerates offences punishable under the Indian Penal Code which may be compounded with or without the permission of the Court. Generally speaking, the Code divides crimes into three categories namely (i) serious crimes which cannot be compounded and must be tried (ii) crimes which can be compounded but only with the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithdrawal of such cases, such measure will not serve any purpose but will, instead, send a wrong signal to the offenders that they can commit such infractions with impunity as nothing will happen to them, and ultimately the cases would be withdrawn. That will bring about more indiscipline in society rather than create a culture of discipline which is so vital for national growth. But, if an adequate machinery of the type envisioned by Sections 13 and 18 of the Code is placed in position to ensure that cases do not pile up in future and then the cases are withdrawn with a view to placing the system on an even keel, it will achieve the desired objective to bring about discipline in society and eradicate crime. That is because the wrong-doer will know that he will be immediately hauled up before a Magistrate and would be punished if found guilty. If the load of such petty crimes is taken out of the regular courts, those courts would have time to deal with more serious crimes rather than have their time consumed by such petty cases. Besides, petty cases would also be disposed of with speed if sufficient number of Second Class Magistrates and Special Judicial/Special Metropolitan Magist ..... X X X X Extracts X X X X X X X X Extracts X X X X
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