1997 Supreme(SC) 518

1997(3) Supreme 193
SUPREME COURT OF INDIA
A.M. Ahmadi, C.J.I. and B.N. Kirpal, J.
Kadra Pahadiya & Ors. etc. -Petitioners
versus
State of Bihar etc. -Respondents
Writ Petition (Crl.) No. 5943 of 1980
With
Writ Petition (Criminal) No. 298 of 1994
Decided on 19-3-1997
Counsel for the Parties :
For the Appearing Parties : K.T.S. Tulsi, Additional Solicitor General, K.N. Shukla, Dr. Rajeev Dhavan, Tapas Ray, Sr. Advocates, Mukul Mudgal, Pramod Dayal, Ms. Shashi Kiran, B.K. Prasad, K.S. Bhati, Ms. A. Subhashini, Uma Nath Singh, B.S. Banthia, Ashok K. Srivastava, Yashank Adhyaru, I.M. Nanavati, Ms. H. Wahi, Ms. S. Hazarika, Ms. N. Mukherjee, Ms. S. N. Singh, Ms. Manjeet Kaur, D.N. Mukherjee, Ranjan Mukherjee, Gopal Singh, Kailash Vasdev, C.K. Sasi, D.M. Nargolkar, P. Parmeswaran, Y.P. Mahajan, V. Pahwa, A.N. Dawn, Dipti Choudhary, B.B. Singh, Aruneshwar Gupta, M.P. Jha, Shakeel Ahmad, K.R. Nagaraja, A.S. Pundir, R.K. Mehta, G. Prabhakar, T. Anil Kumar, Ms. Indu Malhotra, Advocates.

IMPORTANT POINT
States those who have not addressed letters of request to their High Courts for appointment of Special Judicial Magistrates/Special Metropolitan Magistrates u/ss 13 and 18 of the Code of Criminal Procedure are directed to do so within a month s time so that petty cases may be dealt with by them relieving the regular Judicial Magistrates/Metropolitan Magistrates of such petty cases to enable them to deal with more serious cases.

Headnote:CRIMINAL JUSTICE SYSTEM-Criminal Procedure Code, 1973-Sections 13 & 18-Appointment of Special Judicial Magistrates and Special Metropolitan Magistrates-Prolonged detention of prisoners in jails-Notices were issued to all State Governments, except J & K, to indicate whether or not concerned States had invoked these provisions-State Governments were also required to state how many traffic cases, or cases which fall in table I u/s 320 were pending in their States-Notices against States of Nagaland, Mizoram, J & K and Sikkim and Union Territories of Daman, Dui & Dadra Nagar Haveli discharged-Remaining States are directed to address letters of request to their High Courts within a month s time-Total number of such Special Magistrates needed to dispose of pendency of petty cases should be determined-High Courts will ensure that after regular Magistrates are relieved of petty cases, they would dispose of larger number of more serious cases.

       Held, if an adequate machinery of the type envisioned by Sections 13 and 18 of the Code is placed in position to ensure that cases do not pile up in future and then the cases are withdrawn with a view to placing the system on an even keel, it will achieve the desired objective to bring about discipline in society and eradicate crime. That is because the wrong-doer will know that he will be immediately hauled up before a Magistrate and would be punished if found guilty. If the load of such petty crimes is taken out of the regular courts, those courts would have time to deal with more serious crimes rather than have their time consumed by such petty cases. Besides, petty cases would also be disposed of with speed if sufficient number of Second Class Magistrates and Special Judicial/Special Metropolitan Magistrates are appointed. With such a huge pendency, it is difficult to understand the indifference in utilising this machinery envisioned by the Code. The decision to invoke these provisions was taken in 1993 at the Conference of Chief Ministers and Chief Justices which was presided over by the Prime Minister and was attended by the Chief Justice of India and yet there was almost halting progress. Even today the machinery has not been set up in some States, and where it has been set up, it is not in full strength as the status position indicated State-wise earlier would show. We, therefore, give the following directions:

        (1) The notices against the States of Nagaland, Mizoram, Jammu and Kashmir and Sikkim and the Union Territories of Daman, Diu and Dadra Nagar Haveli are hereby discharged.

        (2) Out of the remaining States, those who have not addressed letters of request to their High Courts for appointment of Special Judicial Magistrates/Special Metropolitan Magistrates, are directed to do so within a month s time so that petty cases may be dealt with by them relieving the regular Judicial Magistrates/Metropolitan Magistrate of such petty cases to enable them to deal with more serious cases.

        (3) The High Courts of all such States, on receipt of the letter of request, shall determine the total number of such Special Magistrates required to deal with the pendency of petty cases and take immediate steps to appoint them.

        (4) In cases where the High Court(s) has already received such a letter and has initiated action to appoint such Special Magistrates, it will, within one month, determine the total number of such Special Magistrates needed to dispose of the pendency of petty cases and ensure appointments at an early date, and

        (5) The High Courts will also ensure that after the regular Magistrates are relieved of petty cases, they would dispose of a larger number of more serious cases so that the offenders are brought to book at an early date and the innocent are not unnecessarily vexed for long spells. (Para 26)

       Criminal Procedure Code, 1973 -Sections 13 & 18-Constitutional validity of-Challenged-Whether these provisions are valid?-(Yes)-Discretion of High Court-Scope- High Court must be extremely careful in conferment of power and should do so based on qualification and experience of each appointee-1984 Cri.L.J. 1583 (Mad.) : Overruled.

       Held : 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 justified such continuance. We are, therefore, of the opinion that the High Court fell into an error in thinking that sub-sections 13(1) and 18(1) of the Code totally exclude appointment of members of the subordinate judiciary as Special Judicial Magistrates/ Special Metropolitan Magistrates. We, therefore, overruled the said decision. (Para 20)

       The basic idea in providing for the appointment of Judicial Magistrates, second class, is to ensure that petty cases do not occupy the time of the regular magisterial courts. So also the idea underlying the provision for the appointment of Special Judicial Magistrates/Special Metropolitan Magistrates under Sections 13(1) and 18(1) respectively, is to relieve the regular courts of the burden of trying those cases which could be disposed of by such Magistrates. Parliament has advisedly left the decision as to the choice of power to be conferred on such Magistrates with the High Court. Once a request is received from the Central/State Government by the High Court, the ball is entirely in the High Court, and it is the High Court and the High Court alone which has to decide on the number of appointments to be made, the choice of personnel to be entrusted with such power, and the extent of power to be conferred on such persons. It is the High Court which has to specify the qualification and/or experience that would be required for the discharging of duties by such Magistrates. As pointed out earlier, the period for which such appointments may be made must not exceed one year at a time, which shows that these are not appointments by way of regular entry into service, and are meant to be short-duration appointments to reduce the burden of pendency in regular Courts. 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 Sections 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. (Para 23)