The powers of Special Executive Magistrates (SEMs) to order preventive detention have come under scrutiny following proceedings involving Delhi Police personnel in cases connected to recent protests. The issue has raised questions about how these magistrates exercise their authority and what legal protections are available to people facing detention.
Who Are Special Executive Magistrates?
Under Section 15 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), state governments can appoint executive magistrates or police officers of at least superintendent of police rank as Special Executive Magistrates for specified areas, periods or duties.
Depending on state-specific notifications, certain senior police officers may also exercise these powers.
Their primary responsibility is to maintain public order and prevent situations that could lead to a breach of peace. Unlike judicial magistrates, SEMs exercise executive powers, including initiating preventive proceedings.
They cannot conduct criminal trials or convict individuals. However, they can exercise powers relating to preventive proceedings, including ordering detention in circumstances permitted by law.
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How Are SEMs Different From Judicial Magistrates?
Judicial magistrates and Special Executive Magistrates perform different functions under the criminal justice system. Under Section 9 of the BNSS, state governments establish courts of judicial magistrates in consultation with the High Court, which appoints their presiding officers.
Judicial magistrates deal with criminal cases and trials, while SEMs primarily exercise preventive powers intended to maintain public peace.
An important distinction is that SEMs do not determine criminal guilt through trials. Their authority concerns preventive measures, including requiring individuals to furnish security for maintaining peace.
When Can Someone Be Asked to Furnish a Peace Bond?
Under Section 126 of the BNSS, an SEM can initiate proceedings when there is sufficient reason to believe that a person is likely to breach the peace or disturb public tranquillity.
The magistrate must issue a written order under Section 130 explaining the grounds for initiating proceedings, the proposed bond amount, its duration and the number of sureties required.
A peace bond may be required for a period of up to one year, and the amount must not be excessive. The person concerned must also receive a reasonable opportunity to explain why the bond should not be required.
The magistrate subsequently conducts an inquiry under Section 135 to determine whether the proposed security is necessary. Separately, Section 163 allows executive magistrates to issue urgent orders to prevent specified dangers or disturbances, including restrictions on public gatherings when legal conditions are satisfied.
Can an SEM Order Detention?
Detention is not an automatic consequence of preventive proceedings. The law provides different stages at which security may be required and circumstances in which detention may follow.
During an inquiry under Section 135(3), an SEM may require immediate security if necessary to prevent a breach of peace or danger to public safety.
If the person fails to furnish the required security, detention may continue until the inquiry concludes, subject to the applicable legal requirements.
After the inquiry, Section 136 allows the magistrate to order security if its necessity is established. Under Section 137, the person must be discharged if the need for security is not established.
Section 141 provides for imprisonment in specified circumstances, including failure to furnish security after a final order or breach of a qualifying bond.
Can an SEM Reject a Person’s Surety?
Under Section 140, an SEM can reject a proposed surety considered unsuitable. However, the magistrate must conduct an inquiry, give the parties a reasonable opportunity to be heard and record the reasons in writing.
The exercise of this power came into focus in proceedings involving Delhi Police personnel and the cases of Saurav Das and Ashutosh Ranka.
In these cases, the SEM rejected fresh sureties over reported discrepancies in identification documents and missing details.
One proposed surety’s photograph on the bond allegedly did not match the photograph on the Aadhaar document. Another reportedly failed to provide satisfactory identity proof and answers during questioning.
A further surety could not provide basic information, including the parentage and address of Saurav Das. Concerns were also raised about whether the proposed sureties had sufficient control over the individuals concerned to ensure their presence when required.
What Happened During the Court Proceedings?
The Delhi High Court examined the role of SEMs in connection with the detention proceedings involving the two individuals.
The court heard arguments challenging the exercise of these powers. However, it declined to examine the merits of the matter at that stage. The proceedings brought attention to the overlap between executive authority and preventive detention, particularly where police officers exercise magistrate-like powers.
The legal framework requires such powers to be exercised through prescribed procedures, including written orders, inquiries and opportunities for affected individuals to present their case.
The420 Insight: Why Do These Powers Matter?
Preventive proceedings are intended to stop disturbances before they occur, but they can also affect an individual’s liberty even without a criminal conviction. The distinction between judicial and executive magistrates is therefore important. Written reasons, fair inquiries, reasonable bond conditions and proper examination of sureties provide safeguards against arbitrary decisions.
For individuals facing such proceedings, understanding the grounds of the order, the security demanded and the opportunity to contest those requirements is essential to protecting their legal rights.
About the author — Ayesha Aayat writes on cybercrime, digital safety, and emerging online threats. Her work focuses on public awareness, legal clarity, and technology-driven risks.
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