M. Narayanaswamy vs State of Tamil Nadu and Another

Ratnam, J.—- In this writ petition, the petitioner, who was formerly a Special Honorary Magistrate, has prayed for a declaration that

Sections 13 and 18 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ''the Code'') and the Rules framed thereunder by the High

Court are ultra vires the Constitution of India. Briefly stated, the complaint of the petitioner is that while under the system of Honorary and Special

Honorary Magistrates which prevailed before the coming into force of the Code, all citizens from all walks of life were considered for conferment

of powers and appointment as Honorary and Special Honorary Magistrates, Sections 13 and 18 of the Code did away with that and confined it

only to those, who hold or have held a post under the Government and that is opposed to Art. 14 of the Constitution of India. The petitioner has

also challenged the Tamil Nadu Special Judicial Magistrates and Special Metropolitan Magistrates Qualification Rules, 1974 (hereafter referred to

as ''the Rules'') that have been framed under Sections 13 and 18 of the Code read with S. 477(1)(d) of the Code on the ground that the Rules so

framed are invalid and have not been made with the previous approval of the Government of Tamil Nadu.

The State of Tamil Nadu is the first respondent in this writ petition, while, the Government of India has been impleaded as the second

respondent. In the counter-affidavit filed by the first respondent, it was stated that upon the abolition of the institution of Honorary Magistrates

under the provisions of the Code, Special Judicial Magistrates and Special Metropolitan Magistrates alone can be appointed, as and when the

necessity arose for such conferment of powers and appointment, from among serving or retired Government servants possessing such qualification

or experience, as may be prescribed in the Rules and this is valid. The Rules framed by the High Court in the exercise of the powers conferred

under Sections 13 and 18 read with S. 477(1)(d) of the Code with the previous approval of the Government of Tamil Nadu are also valid. It was

further stated that in the absence of any request to revive the system of Honorary Magistrates, the Government was considering the question of

appointing former Honorary Magistrates also as Special Judicial Magistrates under Sections 13 and 18 of the Code and that appropriate

necessary action was being taken by the Government and, therefore, there was no need for the issue of a writ as prayed for by the petitioner.

In the counter-affidavit filed by the second respondent, it was stated that the recommendations of the Law Commission in its Forty-first Report

on the Code incorporated in the Code of Criminal Procedure Bill, 1970, were referred to the Joint Select Committee of both the Houses of

Parliament and taking note of the criticism levelled against the system of Honorary Magistrates, it was felt that the appointment of a sufficient

number of stipendiary Magistrates would help to give relief to the other stipendiary Magistrate in the disposal of a large number of cases and since

the wholesale deletion of the system of Honorary Magistrates, would give rise to certain problems in certain States, it was suggested that the

power to appoint Special Magistrates should be retained and an enabling provisions be made for the appointment of Special Judicial Magistrates

and Special Metropolitan Magistrates with certain modifications and that recommendation was accepted, adopted and enacted as Sections 13 and

18 of the Code. Though Sections 13 and 18 of the Code made special provisions for the appointments of Special Magistrates, those provisions

were not hit by the vice of discrimination and that they are not violative of Art. 14 of the Constitution of India.

The petitioner appeared in person and argued the writ petition. His first contention is that the conferment of all or any of the powers as Special

Judicial Magistrate or Special Metropolitan Magistrate by or under Sections 13 and 18 of the provisions of the Code only on those persons, who

hold or have held any post under the Government and not others, is discriminatory and offends Art. 14 of the Constitution of India, as the

classification of persons for the purpose of conferment of powers as Special Judicial Magistrate or Special Metropolitan Magistrate into those who

hold or have held any post under the Government and those who did not, is arbitrary and there is no intelligible differentia distinguishing persons,

who hold or have held any post under the Government, from others who have been left out and such differentia has also no rational relation to the

object sought to be achieved by the statute in question. On the other hand, the learned counsel for the second respondent contended that the

object behind the classification is to utilise the rich experience of Government servants, who are well acquainted with the local customs, usages and

practices and in the administration of criminal justice, which would facilitate the satisfactory performance and discharge of their duties as Special

Judicial Magistrates and Special Metropolitan Magistrates and that such a classification has a rational relation to the administration of criminal

justice and, therefore no exception could be taken to the classification so made or conferment of powers of Special Judicial Magistrate or Special

Metropolitan Magistrate on that footing.

To appreciate these contentions, it would be necessary to take a look at the institution of Honorary Magistrate and its working. Originally, the

appointment of Honorary Magistrates in the disposal of petty cases, particularly relating to civic offences and also securing relief to the State, at

least to a limited extent, from financial burden. The State Governments appointed Honorary Magistrates from among all members of the community

who by their education, experience contact and touch with the people, were able to deal with and effectively dispose of cases of petty offences.

This also opened up to doors for the participation of citizens in the administration of criminal justice. The institution of Honorary Magistrates was

thus functional in character and was a useful and valuable adjunct to the regular Courts, particularly in the metropolitan cities. Responsible citizens

and persons of repute, who, by their position in society and the respect and regard which they command among their fellow citizens, were

considered as fit and proper persons to exercise a restraint on certain sections of the community, which were not sufficiently disciplined and to

discharge their magisterial functions resulting in the disposal of a large volume of criminal work, bringing to bear upon such disposals, their rich,

varied and valuable worldly experience of men and matters and sincerity and devotion to work. However, the institution of Honorary, Magistrates

was soon subjected to widespread and serious criticism. It was even described as an ""Ornamental institution created in order to confer a cheap

reward on local celebrities"". Often times, persons who helped the police or made available evidence or made contributions towards war fund were

made Honorary Magistrates and in some cases, such appointments were also justified on the ground that ""times were hard and the individual

concerned found it impossible to make to two ends meet"". Besides, it was also generally felt that such Magistrates had ""too much and too much

and too little of the true judicial temperament"". Irrespective of the contribution of Honorary Magistrates in relieving the work load of stipendiary

Magistrates, the criticism against the institution of Honorary Magistrates became so widespread, it led to a recommendation by the Law

Commission in its Forty-first Report on the Code for the appointment of Special Judical Magistrates and Special Metropolitan Magistrates (vide

Sections 13 and 18 of the draft Code). S. 13 of the draft Code provided for the appointment of Special Judicial Magistrate from among persons

who hold or held any judicial post under the Union or a State or possessed such other qualifications as may be prescribed by the High Court and

the conferment on them of all or any of the powers conferred or conferable under the Code on a Judicial Magistrate of the First Class or of the

Second Class in respect of particular cases or class of case or cases generally in any district, not being a metropolitan area, a recommendation was

made (under S. 19 of the draft Code) that persons who hold or held a judicial post under the Union or a State or possessed such other

qualifications as may be prescribed may be appointed as Special Metropolitan Magistrates and conferred with powers of a Metropolitan

Magistrate with reference to particular cases or particular class of case or cases generally in any metropolitan area. The aforesaid

recommendations of the Law Commission in the draft Code for the appointment of Special Judicial Magistrates and Special Metropolitan

Magistrates were considered by a Joint Select Committee of both the Houses of Parliament and it is seen from the report submitted by it on 4-11-

1972 that the Committee took note of the criticism against the working of the system of Honorary Magistrates and felt that though there was some

justification for the system of appointing Honorary Magistrates in that it helped in giving relief to the stipendiary Magistracy by disposing of a large

number of petty criminal cases, yet, the proper method in dealing with arrears would be (to) appoint sufficient number of stipendiary Magistrates.

At the same time, the Committee was not in favour of a wholesale deletion of the enabling provision for the appointment of Special Magistrates, as

that, according to the Committee, would give rise to problems as it did in the Union Territory of Delhi. Referring to the practice in some of the

States of appointing retired Government Officers as Special Magistrates with summary powers invested to dispose of a large number of petty

cases with expedition, the Committee opined that an enabling provision in this regard would be necessary, as such a provision could be invoked to

also cover cases, where the appointment of a full time Magistrate may not be justified. The practice obtaining in some States of conferring the

powers of a Magistrate on a local officer of Government to dispose of smaller number of criminal cases arising in such areas was also noticed by

the Committee, which, according to the Committee, obviated the need for the local inhabitants to travel a long distance to reach Magistrate''s

Court. Ultimately, the Committee expressed itself in favour of the retention of the enabling power to appoint Special Magistrate both in the

metropolitan areas and also elsewhere, but with the following modifications :

(a) The system of appointing Benches of Magistrates should be abolished.

(b) The persons to be appointed as Special Magistrates should be either persons in Government service or those who have retired from

Government service.

(c) The High Court should have power to prescribe qualifications or experience in relation to legal affairs, to be satisfied by a person before he is

appointed as a Special Magistrate.

(d) The appointment should be made by the High Court and should be for a period not exceeding one year at a time.

(e) The sentencing powers of a Special Magistrate should correspond to the powers of a Second Class Magistrate.

Accordingly, the committee suggested amendments to Clauses 13 and 19 of the Bill based on the draft Code with a view to give effect to the

aforesaid modifications and they were ultimately reflected in Sections 13 and 18 of the Code. S. 13 of the Code, as it finally emerged, enabled the

appointment of Special Judicial Magistrates and the conferment of powers of a Judicial Magistrate of the Second Class on them, but the persons,

who could be so appointed and on whom powers could be so conferred, were only those, who hold or have held, any post under the

Government. Likewise, S. 18 of the Code provided for the appointment of Special Metropolitan Magistrates with the powers of a Metropolitan

Magistrate, again from only among persons, who hold or have held, any post under the Government. In either case, the period of appointment

could not exceed one year. The persons, on whom such powers were to be conferred, had to possess qualification or experience in relation to

legal affairs, as the High Court may, by rules, specify. In the exercise of the powers conferred by Sections 13 and 18 read with S. 477(1)(d) of the

Code, the High Court with the previous approval of the Government of Tamil Nadu, framed the Rules. These Rules came into force on 1-4-1974.

R. 3 provided that no person shall be eligible for appointment and conferment of powers as a Special Judicial Magistrate under S. 18 of the Code,

unless he holds or has held under the service of or in the Department of Government of the Centre or the State a post not lower in rank than the

one specified under column (ii) thereof in relation to the Departments enumerated under column (i). That rule further provided that in the case of

persons who hold or have held posts under the Central or State Government other than those specified, they would also be eligible if they

possessed a degree in law or passed in full the Criminal Judicial Test or Civil and Criminal Judicial Test Part I conducted by the Tamil Nadu Public

Service Commission. A person who holds or has held the post of a Police Officer in any capacity was not eligible. Rule 4 prescribed that the

person to be appointed should not be less than 35 years of age and not more than 60 years of age. The minimum age limit of 35 years was held not

to apply in the case of persons from the Revenue Department posted for Magisterial training for satisfying the requirement of service rules. The

other rules required possession of sufficient knowledge of the official languages of the State and that the person should not have been convicted of

any offence or adjudged as an insolvent. An advocate engaged in active practice before a Court or a Tribunal was disqualified. Association with

and participation in the activities of a political party, movement or activity was also considered to be a disqualification. Possession of sound health

and active habits free from any bodily defect or infirmity were the other qualifications prescribed. Subsequently, on 11-11-1982, R. 3 was

amended. The amended rule provided that no person shall be eligible for appointment as a Special Judicial Magistrate under S. 13 of the Code or

as a Special Metropolitan Magistrate under S. 18 of the Code, unless he possesses a degree in law and holds or has held a post in a Department

or Service of the Central or the State Government in a scale of pay not lower than Rs. 750-50-1350. The ineligibility of a person who holds or has

held the post of a police officer in any capacity was, however, maintained.

It is thus seen that under the system of Honorary Magistrates which was in vogue, there was no restriction whatever with reference to the class

of persons, who could seek appointment as such Honorary Magistrates. In other words, persons of integrity and independence, reputation and

character, sincerity and devotion to work and possessing rich and valuable wordily experience from every walk of life, can reasonably expect to be

considered for appointment as a Honorary Magistrate. Earlier, we have noticed how there were serious criticisms against the institution of

Honorary Magistrates and its working as a whole and how by the enactment of Sections 13 and 18 of the Code, an enabling provision was made

relating to the appointment of Special Judicial Magistrates and Special Metropolitan Magistrates. However, while appointing and conferring

powers under S. 13 of the Code as a Special Judicial Magistrate or under S. 18 of the Code as a Special Metropolitan Magistrate, such

appointments and conferment of powers were limited only to persons, who hold or have held any post under the Government. Essentially, Sections

13 and 18 of the Code were based upon the recommendations of the Law Commission and the Joint Select Committee of both the Houses of

Parliament to which the Code of Criminal Procedure Bill, 1970, was referred. The Law Commission originally suggested that persons who were to

be appointed and conferred with powers as Special Judicial Magistrate or Special Metropolitan Magistrate should hold or have held a judicial post

to be eligible or possess such other qualifications, as may be prescribed by the High Court. Thus, experience gained in a judicial post was taken

note of for purposes of appointment and conferment of powers as a Special Judicial Magistrate or Special Metropolitan Magistrate and this is

understandable, when the object was to secure disposal of criminal cases with expedition. However, the Joint Select Committee was of the view

that the proper way to deal with arrears of petty criminal cases would be to appoint sufficient number of stipendiary Magistrates, as a wholesale

deletion of the institution of Honorary Magistrates, would give rise to problems in some of the States. Therefore, the Committee suggested that

provision be made for the appointment of Special Judicial Magistrates with the modifications set out earlier. However, it is by no means clear as to

why the recommendations with reference to the appointments and conferment of powers as Special Judicial Magistrates or Special Metropolitan

Magistrates, were confined only to those persons who hold or have held any post under the Government. In other words, we do not see any

pertinent principle of classification of those persons who hold or have held any post under the Government as the only persons who can be

considered for appointment and the conferment on them of powers either as Special Judicial Magistrates or as Special Metropolitan Magistrates

under S. 13(1) or 18(1) of the Code. We are also not able to see any intelligible differentia distinguishing persons who hold or have held any post

under the Government and those who do not so hold or have held, any such post, the classification is not based or even attempted to be justified

on exclusive or special qualities or characteristics, which can be found only in those who hold or have held any post under the Government, having

regard to the object to be secured an expeditious administration of criminal justice. A judicial temperament and a 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. Is it impossible to find

such qualities in the other persons left out. If the classification is to be justified on the ground of the so-called experience gained by a person who

holds or has held any post under the Government, it cannot be accepted that other persons who do not so hold or have held any post under the

Government are all inexperienced and unfit to discharge their functions as Special Judicial Magistrate or a Special Metropolitan Magistrate. The

requirement of a Special Judicial Magistrate or a Special Metropolitan Magistrate is an ability to understand, deal with and dispose of cases which

are brought up before him and from the point of view of competency to deal with and effectively dispose of such cases, the holding of any post or

even the holding of any post under the Government appears to be totally irrelevant and immaterial, especially when the object of the appointment

and the conferment of powers on persons as Special Judicial Magistrate or the Special Metropolitan Magistrate is with a view to relieve the

stipendiary Magistrates of their workload. Further, it may be that the post held by a person might have been in a Department of the Government

which is not in any manner concerned with the administration of criminal law. The kind of experience that is likely to have been acquired by a

person during the period when he holds or has held such an office would not in any manner assist him in effectively dealing with and disposing of

cases relating to offences in his capacity as a Special Judicial Magistrate or as a Special Metropolitan Magistrate. Therefore, the holding or the

past holding of any post under the Government does not bear any reasonable relation whatever to the object of the legislation. There is no rational

relation at all between the classification of persons, as those who hold or have held any post under the Government and the others and the object,

namely, the administration of criminal justice through the Special Judicial Magistrates or the Special Metropolitan Magistrates. We are, therefore,

clearly of the view that the classification is not only arbitrary, but is irrational and is totally unrelated to the object with which appointments as

Special Judicial Magistrate or as Special Metropolitan Magistrate are made and powers conferred upon them for discharging their functions as

such, namely, the administration of criminal justice with reference to petty criminal offences. We are also unable to appreciate how the argument

based upon the experience of Government service could be a justification for classification, for, as pointed above, such experience may be totally

unrelated to the sphere of the exercise of powers and performance of duties as a Special Judicial Magistrate or as a Special Metropolitan

Magistrate. We are, therefore, of the view that Sections 13(1) and 18(1) of the Code in so far as they confined the appointment of and the

conferment of powers of Special Judicial Magistrates or Special Metropolitan Magistrates to any person who holds or has held any post under the

Government, are arbitrary and violative of Art. 14 of the Constitution of India and have to be struck down.

We may observe that the words ""who holds or has held any post under the Government"" occurring in Sections 13(1) and 18(1) of the Code are

not so inextricably mixed up with the rest of the provisions that they cannot be separated from one another. In other words, that part of Sections

13(1) and 18(1) of the Code referred to above is distinct and separate to that even after striking out those words, the rest of the provisions under

Sections 13(1) and 18(1) of the Code, can still be worked out and enforced. We, therefore, hold that Ss. 13(1) and 18(1) of the Code have to be

struck down only to the limited extent indicated already.

An attempt was made by the petitioner to contend that the Rules referred to in the earlier part of this judgment have not been properly made

inasmuch as the previous approval of the Government had not been obtained. The petitioner in fact professed total ignorance of the amendment of

the Rules made in G.O.Ms. No. 2846, Home (Cts. V) Department, dated 11-11-1982. In order to ascertain whether these Rules have been

framed by the High Court with the previous approval of the Government of Tamil Nadu, we looked into the relevant files relating to the framing of

the Rules and we entertain no doubt that the proper procedure has been adopted in the framing of the Rules. There is, therefore, no substance in

the contention of the petitioner that owing to the non-obtaining of the previous approval of the Government, there is an infirmity attaching to the

Rules framed. However, inasmuch as we have earlier held that Sections 13(1) and 18(1) of the Code, in so far as they confined the appointment of

and conferment of powers of a Special Judicial Magistrate or a Special Metropolitan Magistrate to persons, who hold or have held any post under

the Government are arbitrary and violative of Art. 14 of the Constitution of India, the Rules framed, particularly R. 3 incorporating that requirement

under Sections 13(1) and 18(1) of the Code, should also be declared to be invalid, as the rule gives effect to the holding or past holding of a post

in a Department or service of the Central or the State Government in a scale of pay not lower than Rs. 750-50-1350. Therefore, R. 3 of the Rules

in so far as it prescribed the holding or the past holding of a post under the Government in a scale of pay not lower than Rs. 750-50-1350 as one

of the conditions for eligibility for the appointment of and conferment of powers of a Special Judicial Magistrate or a Special Metropolitan

Magistrate, would also be invalid and liable to be struck down. No other point was urged.

Consequently, the writ petition is allowed in part to the extent indicated earlier. There will be no order as to costs.

Petition partly allowed.