When police officers wield powers of Special Executive Magistrate

The judicial custody and subsequent release of Cockroach Janta Party leaders Saurav Das and Ashutosh Ranka by a Special Executive Magistrate (SEM) have brought the powers of SEMs into focus.

The two were arrested for a security breach at Jantar Mantar, a denotified protest site, on October 14 and sent to five-day judicial custody by SEM Ritu Raj, an Assistant Commissioner of Police (ACP)-rank officer. Their custody was later extended by two days before the SEM ordered their release on Wednesday.

Powers under the BNSS

Under Section 15 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), the State government can appoint a police officer of at least Superintendent of Police rank, or equivalent, as an SEM for specific areas or functions.

The government determines the duration of the appointment and the powers of the Executive Magistrate (EM) to be conferred on the officer.

Section 163 empowers EMs to issue prohibitory orders against individuals or in areas on grounds of public safety, including orders banning unlawful assemblies, processions or gatherings of five or more people.

According to advocate Chaudhary Ali Zia Kabir, there is no difference between Section 163 of the BNSS and its predecessor, Section 144 of the Code of Criminal Procedure.

The question, he said, was whether these exceptional powers were exercised on recorded, situation-specific grounds and subject to meaningful hearings and judicial review, or had become “a routine device to suppress lawful dissent and harass individuals inconvenient to the ruling powers”.

Through preventive proceedings, EMs can exercise the powers assigned to them under Sections 126, 135 and 136 of the BNSS, which deal with maintaining peace and good behaviour.

“The EMs’ powers have been laid down in the law, but these powers are being weaponised now,” said advocate Rebecca John.

“The basket of statutes, Sections 163, 172, 126, 135, 140, 141 and 170 of the BNSS and Sections 28 and 36 of the Delhi Police Act, alongside Delhi Police Standing Orders (10/2018 and 48/2022), give extraordinary powers to the police and EMs as opposed to JMs. This parallel architecture of preventive action by the police makes a mockery of Article 19(1) of the Constitution, which gives every citizen the right to free speech and the right to assemble peacefully without arms,” she added.

What the law says

Under Section 126 of the BNSS, an EM can require a person to execute a bond, with or without sureties, to keep the peace for up to one year if a breach of peace is apprehended. A breach of the bond can result in forfeiture of the bond amount.

Section 136 empowers an EM to require a person to execute a bond if it is found necessary to maintain peace and good behaviour. Sections 140 and 141 empower EMs to reject sureties and order imprisonment.

Section 170 allows a police officer to make a preventive arrest without a warrant or a magistrate’s order if the officer has knowledge of a person’s design to commit a cognizable offence and believes the offence cannot be prevented otherwise. The detained person can be kept in custody for up to 24 hours.