October 2, 2022

Explained: Section 13 and 18 of Criminal Procedure Code- Provisions for Special Magistrate

Explanation of Laws

Section 13 and 18 of the code

Section 13 contemplates appointment of Special Judicial Magistrates by the High Court if requested by the Central or the State Government so to do, and Section 18 contemplates appointment of Special Metropolitan Magistrates by the High Court if requested by the Central or the State Government so to do.

Bare Provisions

Section 13. Special Judicial Magistrates. –

(1) The High Court may, if requested by the Central or State Government so to do, confer upon any person who holds or has held any post under the Government, all or any of the powers conferred or conferrable by; or under this Code on a Judicial Magistrate of the first or of the second class, in respect to particular cases or to particular classes of cases, in any local area, not being a metropolitan area:

Provided that no such power shall be conferred on a person unless he possesses such qualification or experience in relation to legal affairs as the High Court may, by rules, specify.

(2) Such Magistrates shall be called Special Judicial Magistrates and shall be appointed for such term, not exceeding one year at a time, as the High Court may, by general or special order, direct.

(3) The High Court may empower a Special Judicial Magistrate to exercise the powers of a Metropolitan Magistrate in relation to any metropolitan area outside his local jurisdiction.

Section 18. Special Metropolitan Magistrates. –

(1) The High Court may, if requested by the Central or State Government so to do, confer upon any person who holds or has held any post under the Government, all or any of the powers conferred or conferrable by or under this Code on a Metropolitan Magistrate, in respect to particular cases or to particular classes of cases, in any metropolitan area within its local jurisdiction:

Provided that no such power shall be conferred on a person unless he possesses such qualification or experience in relation to legal affairs as the High Court may, by rules, specify.

(2) Such Magistrates shall be called Special Metropolitan Magistrates and shall be appointed for such term, not exceeding one year at a time, as the High Court may, by general or special order, direct.

(3) The High Court or the State Government, as the case may be, may empower any Special Metropolitan Magistrate to exercise, in any local area outside the metropolitan area, the powers of a Judicial Magistrate of the first class.

Both provisions are same in wording except the word of metropolitan. Both provisions prescribe the terms of special judicial magistrate or metropolitan magistrate, as the case may be, of one year.

Legislative History of Section 13 and Section 18

Before the enactment of the Criminal Procedure Code 1973, a system of Honorary Magistrate in addition to regular stipendiary Magistrates was available. These Honorary Magistrates came from all walks of life.

It was expected that, by virtue of their education, experience and contact with people, they would be able to deal with and effectively dispose of cases involving petty offences. This introduced the idea of participation of citizen in the administration of criminal justice.

The institution of Honorary Magistrates was, therefore, functional in character and was considered to be a useful and valuable adjunct to the regular courts, particularly in the Metropolitan cities.

Unfortunately, the institution of Honorary Magistrates came in for widespread and serious criticism within a short time. The criticism of misuse and abuse of the system led to the Law Commission recommending the appointment of Special Judicial Magistrates and Special Metropolitan Magistrates, vide Sections 13 and 19 of the draft Criminal Procedure Code.

Section 13 of the draft Code provided for the appointment of Special Judicial Magistrates from amongst persons holding or who had held any judicial office under the Union or a State or possessed such other qualification as may be prescribed by the High Court. Similar was the position in respect of Section 19 of the draft Criminal Procedure Code, which provided that a person holding or who has held as judicial post or any other person who possessed other qualifications as may be prescribed, could be appointed a Special Metropolitan Magistrate.

The Law Commission had taken note of the experience of the judicial post for the purpose of appointment and conferment of power of Special Judicial Magistrates and Special Metropolitan Magistrates with the object of securing the expeditious disposal of criminal case.

The Joint Select Committee also took note of the criticisms against the system of Honorary Magistrates and expressed the view that that proper way to deal with the arrears of petty criminal cases was to appoint sufficient number of stipendiary Magistrates as a wholesome deletion of the institution of Honorary Members would give rise to problems in some States.

The Joint Select Committee suggested that provision be made for the appointment of Special Metropolitan Magistrates and Special Judicial Magistrates with certain modifications in the earlier system. One of the suggestions was that the appointees should either be persons in Government service or those who have retired from Government service.

As a result of these deliberations, the two provisions, Sections 13 and 18 came to be enacted in their present form.

Constitutional Validity of Section 13 and 18

High Court

These two sections were challenged as unconstitutional before the High Court of Madras in M. Narayanaswamy v. State of Tamil Nadu, which declared Sections 13(1) and 18(1) to be unconstitutional inasmuch as they confined the appointments to persons holding or having held any post under the Government.

In the view of the High Court, the classification was arbitrary and not based on an intelligible differentia and was, therefore, violative of Article 14 of the Constitution.

The High Court felt that the judicial temperament and the disposition to render expeditious justice in criminal cases cannot be the exclusive virtue of only those who hold or have held any post under the Government. Further, the High Court pointed out that a Government servant, if he had not any connection with judicial work during his employment with the Government, would be inexperienced and unfit to discharge the function as a Special Judicial Magistrate or a Special Metropolitan Magistrate.

Therefore, the holding of any post under the Government, according to the High Court, does not bear any reasonable relation whatsoever with the object of the legislation. The High Court, therefore, held that the classification was not only arbitrary, but also irrational and totally unrelated to the object with which the appointments as Special Judicial Magistrate and Special Metropolitan Magistrate were to be made and powers were to be conferred upon them for discharge of their functions as such.

The High Court expressed the view that Sections 13(1) and 18(1) of the Code, insofar as they confined the appointment and conferment of powers of Special Judicial Magistrates and Special Metropolitan Magistrates to any person who holds or has held any post under the Government, are arbitrary and violative of Article 14 of the Constitution of India. The rules framed to give effect to the provisions of the Code were also held to be violative of the Constitution. 19.

Supreme Court

The supreme court had the occasion to examine the validity of these sections in Kadra Pahadiya v. State of Bihar (1997). The court overruled the decision and expressed its views for the reason of doing so.

The court said that the approach of High court is based on a narrow reading of the said two sub-sections. In the first place, it may be noticed that both the sub-sections confer power on the High Court to make the appointments and confer such of the powers as it deems proper from the whole bundle of powers conferrable by or under the Code on a Judicial Magistrate of the first or second class or conferrable on a Metropolitan Magistrate as the case may be.

The choice of power to be conferred on the appointees under these two provisions is left to the sole discretion of the High Court. The proviso to each sub-section makes it clear that the appointee must possess such qualification and experience in relation to legal affairs as the High Court may by rules specify.

Thirdly, the words “who holds or has held any post under the Government” do not necessarily exclude judicial officers belonging to the subordinate judiciary of a State/Union Territory. The sub-sections merely enable the High Court to appoint persons, other than judicial officers, who hold or have held any post under the Government and who possess the qualification and experience in relation to legal affairs as may be specified by the High Court. Parliament has taken care to leave the question of specifying the requirements for appointment to the High Court.

There is therefore, no warrant for placing a narrow construction on the words ‘who holds or has held any post under the Government’ to confine them to appointments of Government servants, present or past only, and to exclude members belonging to the subordinate Judicial Services. Special provision in the nature of an enabling provision had to be made because without such a provision, appointment of Government servants, past or present, could not have been possible.

Care has also been taken to ensure that the appointments are made of persons who have the necessary qualification and experience in relation to legal affairs which the High Court considers necessary for the exercise of power that may be conferred on the appointee.

Furthermore, the duration of appointment has been restricted to one year at a time which would give the High Court an opportunity to observe the work of the appointee to enable it to decide whether or not to extend the appointment for a further period, if the workload justifies such continuance.

The case of Kadra Pahadiya v. state of Bihar (1997)

In this case, the question of appointment of special judicial magistrate came for the consideration to Supreme Court. The petitioner in his petition requested the court to appoint special judicial magistrate for the disposal of petty offences.

The court admitted the petition and gave directions to the state government to active the machinery of special judicial magistrate for the speedy disposal of petty cases such as traffic matters.

The court advised to use Section 320 which enumerates the offences which may be compounded with the permission of the Court before which the prosecution is pending, to dispose of petty cases.

The court further suggested to dispose such matters by invoking the provisions of summary trials, the court said that,

“We may also refer to Section 206 of the Code which provides a special procedure for petty offences to be tried summarily. It further provides that the Magistrate may issue summons to the accused, requiring him to appear in person or through his lawyer, or if he desires to plead guilty, to transmit by post or messenger, his plea of guilt along with the fine specified in the summons.”

The court emphasised to use the machinery of section 13 and 18 and appealed the special judicial magistrate to consider their jobs as social obligations. The court said that,

“In our view, the appointees should view the call as a social obligation and not employment; indeed, as a social service to society. That is the spirit of Section 13 and 18 and every appointee must take the call in that spirit and not expect payment as if they are in the service of the concerned State/Union Territory.

That is the reason why the said two provisions expect persons who have retired or are about to retire from Government service to be appointed to help clear the pendency.

Viewed from this angle it seems fairly clear to us that retired Judicial Officers, officers of the Registry of District Courts and High Courts, as well as other Government servants who have the specified experience and qualification, can be requested to accept appointments as part of social service and they may be paid a fee to meet their out-of-pocket expenses and honorarium.”