Section 3(4) of the Criminal Procedure Code lays down as under:
“(4) Where, under any law, other than this Code, the functions exercisable by a Magistrate relate to matters—
(a) which involve the appreciation or shifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any Court, they shall, subject to the provisions of this Code, be exercisable by a Judicial Magistrate; or
(b) which are administrative or executive in nature, such as, the granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution, they shall, subject as aforesaid, be exercisable by an Executive Magistrate.”
From this description, and from other provisions of the Cr.P.C., it should be clear that a Judicial Magistrate is basically concerned with the prosecution / trial of persons for offences, grant of custody or bail for such offences, and other matters related to investigation / inquiry in relation to offences.
On the other hand, an Executive Magistrate is mainly concerned with administrative matters, preventive matters, maintenance of law & order, etc.
For example, for obtaining security / bond for keeping peace or good behaviour under Sections 107, 108, 109 and 110 of the Cr.P.C., the power has been given to the Executive Magistrates. This is basically to prevent future offences. Likewise, power for dispersal of unlawful assemblies under Sections 129, 130 and 131 of the Criminal Procedure is also with the Executive Magistrates. Similarly, the power to deal with public nuisances, apprehended danger to public tranquillity, etc., under Sections such as 133, 143, 144 of the Cr.P.C. is also given to the Executive Magistrate.
However, power to grant custody (police custody or judicial custody) under Section 167, power to grant bail under Sections 436, 437, power to conduct trial for criminal offences under various provisions of the Cr.P.C., are given to the Judicial Magistrates.
Executive Magistrates are generally revenue department officers (such as Tehsildar, Deputy Collector / SDM, Collector / DM) and in some metropolitan cities (where Commissioner of Police system is introduced) even police officers may be appointed as Executive Magistrates.
On the other hand, Judicial Magistrates are regular judicial officers / judges who sit in courts and are controlled by the High Court on the administrative side.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
.
