Special Executive Magistrates (SEMs): Powers and Functions

A Delhi Special Executive Magistrate (SEM) ordered the release of two CJP activists after accepting their sureties, bringing the scope of SEM powers and preventive detention under scrutiny.

Who is a Special Executive Magistrate?

• Under Section 15 of the BNSS, 2023, a State Government may appoint Executive Magistrates or police officers not below the rank of Superintendent of Police or equivalent as SEMs for specified areas, periods or functions.
• SEMs exercise only those powers of Executive Magistrates that are specifically conferred on them by the State Government.

Main Functions of SEMs

• SEMs perform primarily preventive and administrative functions aimed at maintaining public order and preventing breaches of peace.
• They intervene where a disturbance is apprehended rather than conducting a criminal trial after an offence has occurred.

Peace Bond — Section 126 BNSS

• An Executive Magistrate may require a person likely to breach peace or disturb public tranquillity to show cause for executing a bond or bail bond for keeping peace.
• Such a bond may be imposed for a period of up to one year.

Inquiry — Section 135 BNSS

• The Magistrate must conduct an inquiry into the truth of the information on which preventive proceedings are based and may take necessary evidence.

Breach of Peace Bond — Section 141

• If a peace bond is proved to have been breached, the Magistrate may, after recording reasons, order the person’s arrest and detention for the unexpired period of the bond.

Preventive Arrest — Section 170

• Police may arrest without warrant to prevent a cognisable offence when it cannot otherwise be prevented.
• Detention under this provision ordinarily cannot exceed 24 hours unless further custody is otherwise legally authorised.

SEM vs Judicial Magistrate

Special Executive Magistrate	Judicial Magistrate
Appointed by the State Government	Courts established by State Government; presiding officers appointed under the judicial framework
Focuses on public order and prevention of breach of peace	Deals with criminal cases, trials, bail and remand
Cannot conduct criminal trials or convict persons through SEM proceedings	Can try offences and impose sentences as authorised by law
Powers depend on those specifically conferred by the State Government	Exercises powers prescribed by the BNSS and other laws

Judicial Review

• Orders of SEMs are subject to judicial review, ensuring legality, procedural fairness and protection of individual rights.
• An SEM order may be challenged before the appropriate court or authority depending on the nature of the order and available remedy.