Power to alter functions allotted to Executive Magistrates in certain cases.
Section – 478. If the Legislative Assembly of a State by a resolution so permits, the State Government may, after consultation with the High Court, by notification, direct that references in sections 108,109,110,145 and 147 to an Executive Magistrate shall be construed as references to a Judicial Magistrate of the first class.
STATE AMENDMENTS
MAHARASHTRA
Substitution of certain words in clause (b)- For the words “to an Executive Magistrate shall be construed” substitute the words “to an Executive Magistrate in the areas of the State outside Greater Bombay shall be construed”—Vide Maharashtra Act No.1 of 1978.
COMMENTS
JOINT COMMITTEE OF PARLIAMENT
Power of State Legislature to alter arrangements for taking security proceedings in consultation with High Court- This Section is new. In connection with this section the Joint Committee of Parliament had observed:
“… relating to security proceedings the powers under those sections should be exercised only by the Judicial Magistrates as a safeguard against their abuse. Similarly, in respect of the disputes as to immovable property, . . . . the power should be exercised only by the Executive Magistrate as the main purpose is related to the maintenance of law and order. The present clause confers on the Sate Government the power to alter this arrangement by means of notification. The Committee was made to understand that this provision is necessary to enable individual State Government to have a choice in this regard. It was also stated that under the existing scheme of separation of judiciary from the executive in the various States, these powers have been allotted to the judiciary in some States, while in some other States they have been allocated to the executive and that to fit in with the existing arrangement this provision if necessary. The Committee feels that the Executive/Government should not have this power of disturbing the arrangement proposed in this Bill after due consideration by Parliament. The Committee agrees that the State must have a voice in the matter but the appropriate thing to do would be to leave it for the decision of the Legislature of the States concerned rather than to the Executive/Government only. . . . . This will be in addition to the safeguard already provided in the clause, namely, consultation with the High Court.