As per Section 156(3) of the Criminal Procedure Code, 1973, Magistrate means Judicial Magistrate who is empowered to take cognizance of a cognizable offence and not Executive Magistrate. Under Section 190 of the Code a Magistrate is empowered to order the investigation for the offence only when he is empowered to take the cognizance of such offence. The Magistrate can even exercise his power given under Section 156(3) before he takes the cognizance provided that the complaint discloses the commission of a cognizable offence. Thus, where the complaint did not disclose commission of a cognizable offence, the order directing investigation was held liable to be quashed.
POWER OF MAGISTRATE
According to Section 144 of the Code the Magistrate is conferred with the power to protect the public tranquility. A Magistrate is empowered to make any order either in case of nuisance or apprehended danger where such nuisance or danger causes disturbance to public tranquility or leads to riots or affray. It is to be noted that this section does not deal with the cases of the ordinary public nuisance but the cases where the urgency demands setting aside all the formalities to the making of an order.
The Magistrate has power to issue an order:-
- For the immediate prevention of public nuisance.
- For the speedy remedy of an apprehended danger.
In a recent case regarding the powers of the magistrate, it is decided that the application of extension of custody is not maintainable before regional magistrate. The facts of the case are:-
- An Amritsar court set aside the order of a lower court extending the detention of the two accused in Nirankari Bhawan’s grenade blast case, the state special operation cell(SSOC) wing of Punjab Police has presented a challan against the accused.
- The court of Additional Session Judge(ASJ), Amritsar, had set aside the order of regional magistrate saying that the order passed by regional magistrate is not sustainable in the eyes of law.
- The Deputy Superintendent of Police(DSP-SSOC) of Amritsar reported that they have presented a charge sheet against the accused in the ASJ court.
- After the challan was filed, the court of the ASJ has fixed the next hearing of the case.
- Earlier, the prosecution had filed an application seeking extension of time for presentation of challan in the Ajnala court, failing which the regional magistrate had ordered to grant extension of detention and investigation period of the accused from 90 days to 180 days.
- The counsels of the accused then filed revision petition in the ASJ court challenging the lower court’s order.
- Hearing the revised petition, the court ordered that the regional magistrate has no jurisdiction to entertain any application for extending the period of investigation or granting bail, and in view of the notification passed by government of Punjab, to deal with the cases of unlawful activities act, court of sessions or court of additional session judge in every district has been designated to try the said cases.
- So, the application for seeking extension of time for filing challan was not maintainable before Regional Magistrate.
- One of the counsel of the accused said that as the police presented the challan after the ASJ’s order, the possibility of getting bail of the accused is high.
- The 90-day detention period of the accused had completed and thus the accused had been under illegal detention afterwards.
This post is written by Dipti Prakash of Punjab University. Dial 99888-17966 for more info.