6. EQUATION OF POSTS OF CHIEF METROPOLITAN MAGISTRATE AND
CHIEF JUDICIAL MAGISTRATE
6.1 The question of equation of posts of Chief
Metropolitan Magistrate (CMM) and Chief Judicial Magistrate (CJM) to an
equivalent cadre in the three-tier judicial service of every State and
6.2 We may first trace the structure of cadres
of Magistrates provided under the Code of Criminal Procedure 1898 ("1898
Code"). Thereunder, there were certain special arrangements in respect of
the cities of
6.3 One of the Presidency Magistrates was appointed as the Chief Presidency Magistrate and the other Presidency Magistrates were subordinate to the Chief Presidency Magistrate.
6.4 The Chief Presidency Magistrate had certain powers over his subordinates. He had inter-alia, powers to frame rules to conduct the business and constitution of appropriate benches for disposal of cases. He was paid higher emoluments.
6.5 The system of Presidency Magistrates with an overall supervision of the Chief Presidency Magistrate was found to be useful in the Presidency-towns, where crimes were sophisticated and the volume of work was heavy which required quicker disposal of cases.
6.6 Outside the Presidency-town and particularly in the district, there was no system of appointing Presidency Magistrate. Instead, there was District Magistrate. Section 10 of the 1898 Code provided that the Government shall appoint a Magistrate of the First Class to be called the District Magistrate in every District outside the Presidency-town. The State Government may also appoint any Magistrate of the First Class to be an Additional District Magistrate, who shall have all or any of the powers of a District Magistrate.
6.7 Under Section 12 of the 1898 Code, the State Government may appoint as many persons as it thinks fit as Subordinate Magistrates of the first, second or third class in any District.
6.8 The District Magistrate would be directly under the control of the State Government and other Magistrates appointed in the District would be under the control of the District Magistrate. These District Magistrates were exercising both executive and judicial powers. The performance of these dual functions of the nature of executive and judicial by one authority was the order of the day before coming into force of the Constitution of India.
6.9 But in Presidency-town, some of the functions, particularly of the executive nature, of the District Magistrate were discharged by the Commissioner of Police.
6.10 Article 50 of the Constitution directs
that the State shall take steps to separate the judiciary from the executive in
the public services of the State. The Law Commission of India in their 37th
and 41st Reports (paras 32 to 62 in 37th
Report and para 2.1 in the 41st Report)
recommended that there should be separation of the judiciary from the executive
on an all
6.11 In order to bring about complete separation of judiciary from the executive, the Code of Criminal Procedure, 1973 ("1973 Code") was enacted. This Code provides two categories of Magistrates, namely, the Judicial Magistrates and the Executive Magistrates. Broadly speaking, functions which are essentially judicial in nature are vested in the Judicial Magistrates and functions which are "police" or administrative in nature are the concern of the Executive Magistrates.
6.12 Section 6 of the 1973 Code provides for the constitution of the following classes of criminal Courts besides the High Court and the Courts constituted under any other law: (i) Courts of Session; (ii) Judicial Magistrates of the First class and, in any metropolitan area, Metropolitan Magistrates; (iii) Judicial Magistrates of the Second Class; and (iv) Executive Magistrates.
6.13 Section 8 of the 1973 Code specifically provides for the Constitution of the metropolitan areas. The Section so far as relevant provides:
"Section 8. Metropolitan Areas, -
(1) The State Government may, by notification, declare that, as from such date as may be specified in the notification, any area in the State comprising a city or town whose population exceeds one million shall be a metropolitan area for the purpose of this Code.
(2) As from the
commencement of this Code, each of the Presidency-towns of
(3) The State Government may, by notification, extend, reduce or alter the limits of a metropolitan area but the reduction or alteration shall not be so made as to reduce the population of such area to less than one million.
(4) and (5) xxx "
6.14 It will be seen that the then existing
6.15 The Magistrates posted in the Metropolitan area are called Metropolitan Magistrates. Section 17 confers power on the High Court to appoint a Metropolitan Magistrate to be the Chief Metropolitan Magistrate for a metropolitan area. The High Court may also appoint any Metropolitan Magistrate as Additional Chief Metropolitan Magistrate who will have all or any of the powers of the Chief Metropolitan Magistrate.
6.16 Section 11 provides for constitution of Courts of the Judicial Magistrates in every district (not being a metropolitan area).
6.17 Under Section 12 of the 1973 Code, the High Court could appoint a Judicial Magistrate of the First Class to be the Chief Judicial Magistrate and the High Court may also appoint any Judicial Magistrate of the First Class as Additional Chief Judicial Magistrate. The Additional Chief Judicial Magistrate shall have all or any of the powers of the Chief Judicial Magistrate.
6.18 The judicial powers of the Chief Judicial Magistrate are similar to the powers of the Chief Metropolitan Magistrate. The Chief Metropolitan Magistrate and the Chief Judicial Magistrate have similar control and jurisdiction over the Magistrates subordinate to them. Even their judicial powers are not different and indeed much the same. This would be clear from Section 29 of the 1973 Code which provides:
"Section 29. Sentences which Magistrates may pass.-
(1) The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or imprisonment for a term exceeding seven years.
(2) The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or of both.
(3) The Court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding one thousand rupees, or of both.
(4) The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court of a Magistrate of the first class."
6.19 Under Section 374, the appeals against the sentence passed by the Chief Metropolitan Magistrate and Chief Judicial Magistrate lie to the Court of Session.
6.20 In this context, Sections 15 and 19 may also be read:
Section 15 so far as relevant provides:
"Section 15 (1): Every Chief Judicial Magistrate shall be subordinate to the Sessions Judge; and every other Judicial Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate.
xxx xxx xxx."
Section 19 so far as relevant provides:
"Section 19(1): The Chief Metropolitan Magistrate and every Additional Chief Metropolitan Magistrate shall be subordinate to the Sessions Judge; and every other Metropolitan Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Metropolitan Magistrate.
xxx xxx xxx."
6.21 It will be seen that the CMM and Additional CMM are subordinate to the Sessions Judge and all other Metropolitan Magistrates are under the general control of the CMM and subordinate to him. Likewise, CJM has been constituted as subordinate to the Sessions Judge, but all other Judicial Magistrates are made subordinate to the CJM.
6.22 In the light of the aforesaid provisions, we may now proceed to determine the appropriate cadre to which CMM and CJM should be equated.
6.23 Before we consider the question, it may be useful to refer to the views and comments received to our Question No.(2) in the Questionnaire.
The Question No.(2) reads as follows:
"In States like
Tamil Nadu, Andhra Pradesh, and
6.24 The High Courts of Andhra Pradesh, Bihar,
6.25 The High Courts of Gauhati,
6.26 The High Courts of
6.27 The Governments of Goa, Gujarat, Kerala,
6.28 The Governments of Andhra Pradesh, Meghalaya, Nagaland, Tamil Nadu and Tripura have favoured equation of the post of Chief Judicial Magistrate / Chief Metropolitan Magistrate to that of District Judge.
6.29 Judicial Officers’ Associations of
6.30 The All
6.31 For a proper conclusion in the matter, we may begin with the definition of "District Judge" in the Government of India Act, 1935.
Section 254 (3) of the Government of India Act, 1935 reads:
" In this and the next succeeding section the expression "district judge" includes additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, sessions judge, additional sessions judge, and assistant sessions judge."
6.32 We may also read the definition of "District Judge" in the Constitution of India.
Article 236 (a) provides:
" The expression "district judge" includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge."
Both are inclusive definitions.
6.33 When we read both the definitions side by side, it will be seen that the Chief Presidency Magistrate is a common post found in them. Article 236 (a) of the Constitution includes even the post of Additional Chief Presidency Magistrate, judges of the City Civil Courts, Additional and Joint District Judges, Chief Judge of Small Causes Court and Sessions Judge etc..
6.34 It may be noted that Article 236 (a) of
the Constitution could not have referred to the post of CMM since the post of
CMM was introduced for the first time in the 1973 Code. In 1973 Code, the
6.35 Be it noted that it is just a change of designation. But there is no change in other respects. The powers, duties and responsibilities of the Chief Presidency Magistrate have been wholly inherited by CMM, even with higher sentencing power. CMM has now power to sentence upto 7 years imprisonment as against the power to sentence upto 2 years by Chief Presidency Magistrate.
6.36 It may be of importance to note that the
Chief Presidency Magistrate was in the cadre of District Judge. Adroitly, the
CMM and Addl. CMM in the Metropolitan Area of Delhi, Mumbai,
6.37 But those who have pleaded against the equation of CMM to the cadre of District Judges have strongly relied upon the provisions of Section 19 of the 1973 Code, which inter alia, provide that CMM shall be subordinate to the Sessions Judge. It is contended that when CMM is statutorily made subordinate to the Sessions Judge, it is not proper to equate the post of CMM to the cadre of District Judges.
6.38 We gave our anxious consideration to the problem presented. We do not consider that Section 19 of the 1973 Code is an impediment to equate the post of CMM to the post of District Judge. The High Court could issue necessary instructions making CMM as an independent Officer and not subordinate to Sessions Judge. Such instructions could be issued either at the time of appointing CMM under Section 17 of the Code or under the general controlling powers vested under Article 235 of the Constitution.
6.39 There is one more contention which needs to be dealt with. It was contended that the appeal against the conviction and sentence passed by CMM lies only to the Court of Session as provided under Section 374 of the 1973 Code, and, CMM cannot, therefore, be integrated to the cadre of District Judges. It seems to us that providing an appeal to the Court of Session under Section 374 cannot be a decisive factor to determine the equation of post of CMM.
6.40 It may be stated that the conviction and sentence rendered by the Metropolitan Magistrate are also appealable to the Court of Session under Section 374(3) of the Code. But, the Metropolitan Magistrates are not subordinate to the Sessions Judge. They are subordinate only to CMM subject to the general control of the Sessions Judge.
6.41 It may further be noted that in some High Courts, there is a provision for appeal to the Bench of two Judges against the order and judgment of the single judge of the same Court. Such a provision does not mean that the single judge of the High Court is subordinate to the Bench of two other judges. All judges of the High Court are of equal rank and status. The appeal is a right conferred on the litigant to enable the Court to have a second look over the matter.
6.42 The State of Haryana, relying upon the decision of the Supreme Court in M.L. SHARMA AND OTHERS v. UNION OF INDIA AND OTHERS*, has pleaded that the post of Chief Metropolitan Magistrate / Chief Judicial Magistrate should be integrated with the post of Civil Judge (Sr. Dn.).
6.43 We have perused the judgment. It does not support the argument advanced. The judgment is an authority for the proposition that even a category of post is included in the definition of "District Judge" under Article 236, it would be open to the State Government under appropriate Rules to classify such Officers as not District Judges proper and belong to a category different from that of District Judge category.
6.44 In the premise and for the aforesaid reasons, we equate CMM to the cadre of District Judges.
6.45 This takes us to the question of equation of the post of CJM. A cursory glance at the provisions of the Criminal Procedure Code, 1973 indicates that CJM outside the Metropolitan area is a counter-part of CMM in the Metropolitan area. Both have similar powers and duties. Both have similar control and supervisory powers over the Magistrates in their respective jurisdiction.
* WP (Civil) 442 of 1986 (1992 SCC (L&S) 1946 - 1992 Supp (2) SCC 430)
These then are the grounds urged for equating CJM to District Judge. But we cannot ignore the fact that CMM in a Metropolitan area functionally and legally stands on a higher footing. He has onerous duties and responsibilities.
6.46 Metropolitan area is an extensive area with population more than the District in which CJM is posted. Metropolitan area is of commercial importance unlike the Districts. The crimes committed in such city are of sophisticated nature, the disposal of which requires rich and special experience.
6.47 The Law Commission in its 37th Report has also recognised the importance and usefulness of the Presidency system of Magistrates and recommended the extension of it to bigger cities.
6.48 Besides, there are other aspects which distinguish CMM from CJM. Section 281 of the 1973 Code provides a simple procedure for recording memorandum of the substance of the examination of the accused by the Metropolitan Magistrates. The other Magistrates or a Court of Session has to record whole of such examination including every question put to the accused and every answer given by him.
Section 281, so far as relevant, provides:
"281. Record of examination of accused.- (1) Whenever the accused is examined by a Metropolitan Magistrate, the Magistrate shall make a memorandum of the substance of the examination of the accused in the language of the Court and such memorandum shall be signed by the Magistrate and shall form part of the record.
(2) Whenever the accused is examined by any Magistrate other than a Metropolitan Magistrate, or by a Court of Session, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full by the presiding Judge or Magistrate himself or where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence by an officer of the Court appointed by him in this behalf.
(3) to (6) xxx "
6.49 Again while rendering judgments, Metropolitan Magistrates need not write elaborate judgments in the manner required by the other Magistrate and Sessions Judge. It is sufficient if the Metropolitan Magistrates record only certain particulars in the judgment.
6.50 Section 355 reads as under:
"Metropolitan Magistrate’s judgment.- Instead of recording a judgment in the manner hereinbefore provided, a Metropolitan Magistrate shall record the following particulars, namely -
(a) the serial number of case;
(b) the date of the commission of the offence;
(c) the name of the complainant (if any);
(d) the name of the accused person, and his parentage and residence;
(e) the offence complained of or proved;
(f) the plea of the accused and his examination (if any);
(g) the final order;
(h) the date of such order;
(i) in all cases in which an appeal lies from the final order
either under Section 373 or under sub-section (3) of Section 374, a brief statement of the reasons for the decision."
6.51 This procedure is in addition to the common power provided under Sections 260, 262, 263 and 264 of the Code.
6.52 Incidentally, it may be recalled that the Supreme Court in All India Judges’ Association Case1 has specifically observed that the Chief Judicial Magistrate should be placed below the Sessions Judge. It was observed in para 14 as follows:
"14. . . .. . . . . . . . . . . .On the criminal side, there should be a Sessions Judge or Additional Sessions Judge and below him there should be the Chief Judicial Magistrate and Magistrates provided for in the Code of Criminal Procedure. Appropriate adjustment, if any, may be made of existing posts by indicating their equivalence with any of these categories."
6.53 For the reasons aforesaid, we are not
inclined to equate the post of CJM to the post of District Judge. It would be
more appropriate to include the post in the cadre of Civil Judges (Senior
* * *