How are magistrates appointed?

How Are Magistrates Appointed?

In India, the District Courts are presided over by a judge who holds the proceedings of that Court. They take care of administering justice at the district level in India. These courts are under the judicial and administrative control of the High Court of that particular State to which the district is a part of.

The District and Sessions Judge hold their post in the highest court of the respective districts. This Court is called the principal court of civil jurisdiction. This Court is also a court of Sessions. Cases that are triable by sessions are tried in the Sessions Court. This Court contains with itself the power to impose a sentence of punishment including ones like the capital punishment.

There are many other types of subordinate courts to the District and Sessions Court. In India the system of Courts is in the nature of a three tier system. Coming to the civil side of cases, the court of Civil Judge is in the lowest level. On the criminal side the Court of the Judicial Magistrate is on the lowest level of Courts. The Civil Judge (Junior Division) contains the powers to decide civil cases of small pecuniary types. Judicial Magistrates possess the power to decide criminal cases with a punishment imposable with imprisonment of up to five years.

Terms:

Magistrate:

A candidate who has qualified in examinations from the Law Service Commission or State Public Service Commission will be held eligible for appointment as the Magistrate and Sub-Magistrate (Munsifs) of Courts in India. The Magistrates appointed in Courts preside over the criminal court and the Sub-Magistrate or the Munsif delivers judgment in relation to civil cases. 

A person appointed as judge in the Court system of India may be taken higher up to position of  sub-judge, District and Sessions Courts Judge and further (depending upon seniority and vacancy) to appointments in High Courts and the Supreme Court by promotion.

Provisions:

Art.234 – Appointing Authority: (Constitution of India)

Appointment of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State.[i]

Sec.11 – Courts of Judicial Magistrates: (Code of Criminal Procedure, 1973)

(1) In every district (not being a metropolitan area) there shall be established as many Courts of Judicial Magistrates of the first class and of the second class, and at such places, as the State Government may, after consultation with the High Court, by notification, specify

(2) The presiding officers of such Courts shall be appointed by the High Court.

(3) The High Court may, whenever it appears to it to be expedient or necessary, confer the powers of a Judicial Magistrate of the first class or of the second class on any member of the Judicial Service of the State, functioning as a Judge in a Civil Court.[ii]

Sec.12 – Chief Judicial Magistrate and Additional Chief Judicial Magistrate, etc. (Code of Criminal Procedure, 1973)

(1) In every district (not being a metropolitan area), the High Court shall appoint a Judicial Magistrate of the first class to be the Chief Judicial Magistrate.

(2) The High Court may appoint any Judicial Magistrate of the first class to be an Additional Chief Judicial Magistrate, and such Magistrate shall have all or any of the powers of a Chief Judicial Magistrate under this Code or under any other law for the time being in force as the High Court may direct.

(3) (a) The High Court may designate any Judicial Magistrate of the first class in any sub-division as the Sub-divisional Judicial Magistrate and relieve him of the responsibilities specified in this section as occasion requires.

(b) Subject to the general control of the Chief Judicial Magistrate, every Sub-divisional Judicial Magistrate shall also have and exercise, such powers of supervision and control over the work of the Judicial Magistrates (other than Additional Chief Judicial Magistrates) in the sub-division as the High Court may, by general or special order, specify in this behalf.[iii]

Appointment of Magistrates:      

In the lower level also called as the base level, the Courts are described variously as Munsif Magistrate or Civil Judge: Judicial Magistrate First Class. In certain States, the Munsif is also known to be called as the ‘District Munsif’. In some other States, there are other posts held by judges as Judicial Magistrates, Second Class but such posts have ceased to exist in these days.

At the present, in the base level, there is the court of Munsifs which is presided over by the District Munsif or Magistrate or Civil Judge. This Court, being at the base level is called the court of primary or initial jurisdiction. Most types of disputes are brought to these courts for their resolution initially subject to a pecuniary limit which decides the jurisdiction of such Court. In some States where the workload is too less to  justify for the existence of two separate cadres in the Court system, the Munsif is provided with the power of a Judicial Magistrate of First Class.   Mostly when the members of the cadre of a Magistrate are posted in huge urban areas, they are assigned work that is either exclusively of civil or exclusively of criminal nature. When they are posted as judges in Metropolitan areas as provided for under Sec. 6 and Sec. 8 of the Code of Criminal Procedure, 1973, they are then known as the Metropolitan Magistrates, and as the Chief Judicial Magistrate, as provided for under Sec. l2 of the Code of Criminal Procedure.

As laid down in the Code of Criminal Procedure, 1973 Magistrates could be classified and categorised into four types of magistrates in the Indian legal system. The Code  specifically provides that in every sessions district, there shall be

  • Chief Judicial Magistrates
  • Special Judicial Magistrates
  • Executive Magistrates

Chief Judicial Magistrate:

The Chief Judicial Magistrates also includes the Additional Chief Judicial magistrates. There is a Sub Divisional Judicial magistrate in each and every Sub Division although technically the powers vested with him are only of a Judicial Magistrate of First Class. Judicial Magistrates have jurisdiction only over criminal cases.

The Chief Judicial Magistrate is appointed by the High Court as provided for under the provisions of Sec.12 of the Code of Criminal Procedure. As per the provisions of the section, the High Court may have the powers to appoint a Judicial Magistrate of the first class to be the Chief Judicial Magistrate in every district that is not in a metropolitan area. As per clause 2 to the section, the High Court may appoint any Judicial Magistrate of the first class to dispose of duties as an Additional Chief Judicial Magistrate, and such Magistrate shall possess all such powers that a Chief Judicial Magistrate under this Code or under any other law for the time being in force as the High Court may direct.

Further, the High Court may give the designation of a Sub-divisional Judicial Magistrate to any Judicial Magistrate of the first class of any sub-division and relieve him of the responsibilities as provided for under the section as and when an occasion requires the High Court to do so. Subject to the control of the Chief Judicial Magistrate, every Sub-divisional Judicial Magistrate shall contain and exercise all those powers of supervision and control in the areas of work of the Judicial Magistrates, other than Additional Chief Judicial Magistrates of the sub-division as the High Court specifies or directs in this regard.[iv]

Special Judicial Magistrate:

As laid down under Sec.13 of the Code of Criminal Procedure, the High Court may appoint a person, preferably the Judicial Magistrate of first class or the second class with respect of a specific case or particular area according to the request of the Central or State Government.

The proviso to this section says that such power must be conferred only on a person who contains within himself, the qualifications or experiences with regard to legal affairs as specified by the High Court.

These persons exercising the power are called Special Judicial Magistrates and the person appointed as the Special judicial magistrate will hold the post for a period not exceeding one year at a time as the High Court may specify by rules.

Clause 3 to the section says that in some cases, the High Court within its powers, could confer upon a Special Judiciary Magistrate with regard to any particular metropolitan area outside the purview of his local jurisdiction.

Executive Magistrate:

The executive magistrate is essentially a local government official, who has been vested with the limited powers to execute some of the rights granted to the magistrates. Some of the government officials who are granted with these rights are 

1. Tehsildar, who is the highest non-uniformed civil servant in a tiny unit or locality

2. Revenue Divisional Officer also known as the RDO

3. District Collector

These officers do not have the power or jurisdiction to try an accused nor the powers to pass any judgement or verdict. However, they possess the powers to  take cognizance of a particular arrest of an individual, and also are authorized to set the bail amount for the arrested individual for avoiding police custody.

As per Sec.20 of the Code of Criminal Procedure, the State Government appoints as many persons as it deems fit as the Executive Magistrates and shall appoint one of them as the District Magistrate. As provided for further, in clause 4 to the section, the  State Government may appoint an executive magistrate as in charge of a particular sub-division and may relieve him of the other charges as and when an occasion calls for and the magistrate so placed in charge is called as the Sub-divisional Magistrate.

Special Executive Magistrate:

As per Sec.21 of the Code of Criminal Procedure, the State Government may appoint Executive Magistrates for such term as it deems fit, to be known as the Special Executive Magistrates for particular areas or for the performance of given specific functions and may confer on such Special Executive Magistrates the powers such as those that are conferrable under the Code on Executive Magistrates as it thinks fit.

Case:

A.N.Roy, Commissioner of Police v. Suresh Sham Singh:

The High Court after expressing its views, came to the following findings:

i) The DistrictMagistrateor the Additional District Magistrate can be appointed out of the Executive Magistrate so appointed under20(1) of the Code.

ii) The Additional DistrictMagistratecan exercise the powers of the District Magistrate to the extent directed by the State Government.

iii) Unless a person is appointed as an Executive Magistrate, he can neither be appointed as a District Magistrate nor an Additional District Magistrate.[v]

Conclusion:

It is therefore seen that the powers to appoint Magistrates of different nature, vests with the Higher Courts and the Governments of the respective States wherein such District is located. It is also seen that, although the Code of Criminal Procedure, 1973 provides for appointment of different magistrates in different states, the step by step procedure for appointment may vary from State to state depending upon the policies of such State Governments.

Edited by Pragash Boopal

Approved & Published – Sakshi Raje

Reference

[i] Constitution of India; https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf

[ii] Code of Criminal Procedure 1973; https://indiacode.nic.in/bitstream/123456789/6571/1/crpc.pdf

[iii] Provided in the Code of Criminal Procedure, 1973 https://indiankanoon.org/doc/1519768/

[iv] Provided for in the Code of Criminal Procedure, 1973 https://indiacode.nic.in/bitstream/123456789/6571/1/crpc.pdf

[v]Excerpt from the judgment; https://indiankanoon.org/docfragment/1253411/?formInput=appointment%20of%20magistrate

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I Reshmitha G. Sarma, a student pursuing IV Year, B.Com,LLB (Hons.) in SASTRA Deemed University. My areas of interest in law include Criminal law, Taxation laws and Intellectual Property Rights. I am always inclined towards doing every work with perfection and being an extrovertI always try to work with comfort when it comes to being a leader. I believe in team-work and my socializing skills help me work with people better. I love talking and hence I am always open to debates and group discussions on any persisting legal, social or other issues. My hobbies are writing poems, eating, singing and watching movies preferablycrime and thrillers.