The detention of Cockroach Janta Party (CJP) leaders Saurav Dass and Ashutosh Ranka and the extension of their judicial custody have brought the role of Special Executive Magistrates (SEMs) under scrutiny. SEMs exercise executive and quasi-judicial powers, including those relating to preventive action and proceedings to prevent breaches of peace.
According to lawyers representing the CJP leaders, the SEM in New Delhi handling the case arising from their preventive arrests had "mechanically extended" their judicial custody and rejected individuals who had offered to stand as sureties on "frivolous grounds".
AISA leader Neha Bora has also approached the Delhi High Court challenging a "mechanical notice" issued by the SEM under Section 126 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), seeking a bond to prevent an apprehended breach of peace. She has alleged that the notice was issued without reasons being recorded.
Under the BNSS, Executive Magistrates exercise quasi-judicial powers in matters that are administrative or executive in nature. These include granting, suspending or cancelling licences, sanctioning prosecutions and withdrawing from prosecutions.
WHAT ARE SPECIAL EXECUTIVE MAGISTRATES?
Section 15 of the BNSS allows state governments to designate officials of the rank of Superintendent of Police or equivalent rank in the police and other services as Special Executive Magistrates, with specified areas and jurisdictions. In Delhi, this translates to officers of the rank of Assistant Commissioner of Police (ACP) and above.
Executive Magistrates handle proceedings involving people detained for minor bailable offences under the Bharatiya Nyaya Sanhita (BNS), the Police Act and other statutes, including bail and bond proceedings. They are also empowered under Section 163 of the BNSS to issue prohibitory orders and are responsible for maintaining peace and tranquillity within their jurisdictions.
Depending on state-specific notifications, these positions may also be held by Deputy Collectors, Tahsildars and senior police officers, including those of SP or ACP rank.
An order passed by an SEM can be challenged before the District and Sessions Court through a revision petition.
Sections 126 and 130 of the BNSS deal with preventive proceedings and correspond to powers previously exercised under Section 107 of the Code of Criminal Procedure (CrPC). These provisions empower an Executive Magistrate to take preventive action when there are sufficient grounds to apprehend a breach of peace or disturbance of public tranquillity. Read alongside Section 151 of the CrPC, now Section 170 of the BNSS, which concerns preventive arrests, these provisions are intended to address imminent threats to law and order.
Under Section 135 of the BNSS, which prescribes the procedure for an enquiry, the SEM can examine the evidence and information provided by the police to determine whether preventive action is justified and whether the person concerned should be required to execute a bond for keeping the peace.
The Magistrate must conduct a detailed enquiry into the "truth of the information upon which action has been taken" by the police. The personal bond serves as an interim measure to maintain peace while the enquiry is underway.
The issuance of a show-cause notice under Section 130 of the BNSS for an apprehended breach of peace does not automatically establish a person's guilt. Rather, the person may be required to execute a bond undertaking not to violate the law or disturb the peace while the proceedings continue.
The procedure also allows a person to remain in custody until the bond or bail bond is executed or, if it is not executed, until the enquiry is concluded.
The CJP leaders had remained in detention pending the submission of surety bonds, with the SEM rejecting the sureties submitted so far. On Wednesday, the SEM accepted the surety bonds and scheduled further proceedings in the enquiry against Dass and Ranka.
However, allegations of misuse of powers by SEMs have raised concerns about arbitrary detention, procedural safeguards and the protection of constitutional rights.
Against the backdrop of the CJP lawyers' allegations concerning the rejection of sureties and the extension of judicial custody, India Today revisits a public interest litigation (PIL) before the Delhi High Court that questioned the alleged abuse of power by SEMs and led the court to issue a series of directions.
THE SCALE OF PREVENTIVE ACTION IN DELHI
In 2018, the Delhi High Court took note of allegations of abuse of powers by SEMs and issued detailed directions aimed at preventing their misuse.
Data submitted by the Delhi State Legal Services Authority (DSLSA) in October 2018, highlighted the scale of preventive proceedings in the national capital.
According to information compiled from 14 SEM courts in Delhi, a total of 14,529 kalandras (police report to initiate preventive proceedings) were received under Sections 107 and 151 of the CrPC between July 1, 2017 and June 30, 2018. These proceedings related to preventive action, including arrests and bonds intended to maintain peace.
The proceedings involved the arrest of 23,012 people. Of them, 6,944 were sent to judicial custody, while 3,603 were discharged during the one-year period.
The High Court noted that the figures highlighted the substantial number of people subjected to preventive action and the need for effective safeguards against unnecessary detention.
The bench also referred to the National Human Rights Commission's (NHRC) 2010 Guidelines for Police Personnel on Various Human Rights Issues, which drew on the Law Commission of India's consultation papers on arrest.
The NHRC had observed that preventive arrests and arrests for petty offences constituted a substantial proportion of all arrests, while undertrial prisoners frequently remained in custody because they could not furnish bail or sureties.
JUDICIAL CONCERNS OVER ARBITRARY DETENTION
In its 2018 verdict, the Delhi High Court emphasised that preventive powers must be exercised in accordance with constitutional and statutory requirements.
"The mere fact that numerous individuals are brought before SEMs following arrests under Sections 107, 111, 116 and 151 CrPC cannot justify overlooking the safeguards governing such proceedings," the court observed.
The court expressed concern that SEMs continued to rely on cyclostyled orders without adequately applying their minds to whether detention was necessary.
It stressed that preventive arrest provisions are intended for emergencies involving an imminent threat to law and order. Such measures are temporary and must not be used to keep individuals in custody for extended periods under the pretext of preventing future offences.
The court also recognised the vulnerability of economically weaker individuals who may be unable to furnish sureties. It emphasised that the amount fixed for a personal bond or surety must take an individual's financial circumstances into account.
DIRECTIONS ISSUED BY DELHI HIGH COURT
To prevent the misuse of these powers, the Delhi High Court issued a series of directions.
First, the Lieutenant Governor of Delhi was asked to consider establishing an oversight mechanism, potentially comprising retired District Judges, to periodically review the exercise of powers by SEMs under Sections 107 and 151 of the CrPC.
The court also suggested considering the designation "Special Executive Officers" instead of SEMs, as the existing title could cause confusion with Judicial Magistrates.
Second, the Lieutenant Governor was asked to consider directing prison authorities to provide separate spaces for people detained preventively, so that they would not be housed alongside individuals arrested for committing actual offences.
Third, the court directed that judicial custody under Sections 107 and 151 of the CrPC must not exceed seven days at a time. SEMs were also required to review the necessity of continued detention every week.
The court further directed that sureties should not be insisted upon when a person ordered to be released on a personal bond could not afford them.
If a person was not released within two days of the release order, the SEM was required to enquire into the delay and take further steps to secure the person's release. These could include accepting a personal bond or reducing the surety amount to an affordable level, where appropriate.
Before ordering judicial remand, the SEM must ensure that the arrested person has been informed of their constitutional rights under Articles 20, 21 and 22.
The SEM must ascertain whether the grounds of arrest have been explained in a language understood by the individual and record this in the order. The person must also be informed of the right to engage a lawyer and the availability of a remand advocate.
The advocate must be allowed to consult the arrested person outside the hearing of police officers and compliance with these safeguards must be recorded in the proceedings.
Recognising deficiencies in training, the court directed the DSLSA, in association with the Delhi Judicial Academy, to conduct a three-day workshop for at least 20 serving SEMs within two months.
The programme was to cover constitutional and statutory requirements, relevant judicial decisions, model orders and practical role-play exercises. ACPs were also to participate, alongside experienced legal and administrative professionals.
QUESTIONS OVER IMPLEMENTATION
The Bombay High Court has also expressed concern about the misuse of executive powers under Chapter VIII of the CrPC.
In the 2009 case of Pravin Vijaykumar Taware vs The Special Executive Magistrate, the court emphasised the need for judicial scrutiny, adequate time to furnish bonds and examination of detention orders by superior judicial officers.
However, questions remain over the implementation of the Delhi High Court's 2018 directions.
Speaking to India Today, advocate Aldanish Rein, who filed the PIL that led to those directions, said compliance had not been monitored and that no subsequent data was available to assess the outcome.
He also noted that a related PIL challenging the powers of SEMs had remained pending before the Supreme Court for nearly a decade before being withdrawn in 2024 following the enactment of the BNSS.
The effectiveness of preventive powers ultimately depends on their lawful, proportionate and transparent exercise. The Delhi High Court's directions sought to ensure that preventing breaches of peace does not come at the cost of constitutional liberty and procedural fairness.
The controversy surrounding the detention of CJP protesters has once again brought questions about the alleged misuse of SEMs' powers, the application of judicial mind and the adequacy of oversight mechanisms to the fore.
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