How special executive magistrates play crucial role in deciding detentions

New Delhi: Though a common feature in cases involving summary or preventive detention by police, the powers of special executive magistrates (SEMs) have come into focus due to their prominent role in deciding if those involved in recent protests rocking Delhi are released or remain behind bars.A person not familiar with the rare, overlapping functions and powers of the executive and judiciary may conclude SEMs are a rung of the judiciary where a person picked up by police is produced within 24 hours.However, the reality is more complex, since the law empowers govt officials, mostly police officers, to exercise magisterial powers in cases of detention, where they can even remand a detainee to judicial custody, as happened in the case of CJP’s Saurav Das and Ashutosh Ranka.Wednesday was the first time decisions taken by SEMs came under judicial scrutiny of any kind, when Delhi HC heard the CJP members’ plea. The court, however, refused to go into merits.Who are SEMs?Under Section 15 of Bharatiya Nagarik Suraksha Sanhita (BNSS), state govts can appoint executive magistrates or police officers of at least superintendent of police rank as SEMs for specific areas, periods or duties. Depending on state-specific notifications, these officers can also be deputy collectors or tehsildars or senior police officers of ACP rank. Their primary role is to take preventive measures to maintain public order and stop anticipated breaches of peace.How are they different from judicial magistrates?Under BNSS Section 9, the state govt establishes courts of judicial magistrates in consultation with HC, which appoints their presiding officers. Judicial magistrates deal with criminal cases and trials while SEMs exercise executive powers, including initiating preventive proceedings. SEMs cannot conduct criminal trials or convict people through these proceedings, but are authorised to release or grant police or judicial remand. Under the earlier Code of Criminal Procedure (CrPC), the corresponding provision for SEMs was Section 21.When can an SEM ask someone to furnish a peace bond?Under Section 126, an SEM can initiate proceedings if there is sufficient ground to believe a person is likely to breach the peace or disturb public tranquillity.*Procedure: Under Section 130, the magistrate must issue a written order explaining the basis for the proceedings, the proposed bond amount, its duration and the number of sureties required.*Duration: A peace bond can be required for up to one year, and the amount must not be excessive.*Can it be challenged? The person must be given an opportunity to explain why they should not be required to furnish the bond. The magistrate then conducts an inquiry under Section 135.Separately, Section 163 allows an executive magistrate to issue urgent orders to prevent specified dangers or disturbances, including restricting public gatherings when legal conditions are met.When can an SEM order detention?Detention is not automatic once proceedings begin.*During inquiry: Under Section 135(3), an SEM may require immediate security if necessary to prevent a breach of peace or danger to public safety. If the person fails to furnish it, they may be detained until the inquiry concludes.*After inquiry: Under Section 136, the magistrate can order security if the inquiry establishes it is necessary. Under Section 137, the person must be discharged if the need for security isn’t established.*Failure to furnish security: Section 141 provides for imprisonment in specified circumstances, including failure to furnish security after a final order or breach of a qualifying bond.Who can stand as a surety?A surety undertakes responsibility under a bond to help ensure the person concerned meets its conditions. Under Section 140, an SEM can reject a surety found unfit, but must conduct an inquiry, give the parties a reasonable opportunity to be heard and record reasons in writing.In Das and Ranka’s case, the SEM rejected fresh sureties over reported “discrepancies” in identification documents and missing details.• “Photograph mismatch”: The first surety’s photograph on the bond allegedly didn’t match his Aadhaar• “Insufficient identity proof”: He reportedly failed to produce another valid ID and gave unsatisfactory answers during questioning• “Lack of basic details”: The second surety couldn’t provide basic information, including the parentage and address of Saurav Das, for whom she stood as surety• “Insufficient control”: The SEM concluded the sureties didn’t have sufficient control over the activists to ensure their presence when requiredYou Can Also Check: Gold Rate in Delhi | Silver Rate in Delhi | Bank Holidays in Delhi | Public Holidays in Delhi | Delhi AQI | Weather in Delhi | Petrol Price in Delhi | Diesel Price in Delhi | CNG Price in Delhi | LPG Price in DelhiStay updated with the latest Delhi news. Download the TOI App.