New Delhi: Though a common feature in cases involving summary or preventive detention by police, the powers of special executive magistrates (SEMs) have come into focus due to their prominent role in deciding if those involved in recent protests rocking Delhi are released or remain behind bars.
A person not familiar with the rare, overlapping functions and powers of the executive and judiciary may conclude SEMs are a rung of the judiciary where a person picked up by police is produced within 24 hours. Under Section 15 of Bharatiya Nagarik Suraksha Sanhita (BNSS), state govts can appoint executive magistrates or police officers of at least superintendent of police rank as SEMs for specific areas, periods or duties. Under BNSS Section 9, the state govt establishes courts of judicial magistrates in consultation with HC, which appoints their presiding officers. Under the earlier Code of Criminal Procedure (CrPC), the corresponding provision for SEMs was Section 21.
However, the reality is more complex, since the law empowers govt officials, mostly police officers, to exercise magisterial powers in cases of detention, where they can even remand a detainee to judicial custody, as happened in the case of CJP’s Saurav Das and Ashutosh Ranka. Wednesday was the first time decisions taken by SEMs came under judicial scrutiny of any kind, when Delhi HC heard the CJP members’ plea. The court, however, refused to go into merits. Depending on state-specific notifications, these officers can also be deputy collectors or tehsildars or senior police officers of ACP rank. Judicial magistrates deal with criminal cases and trials while SEMs exercise executive powers, including initiating preventive proceedings. SEMs cannot conduct criminal trials or convict people through these proceedings, but are authorised to release or grant police or judicial remand.