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The Indian Penal Code, 1860
Section 145 in The Indian Penal Code, 1860
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Law Commission Report
The Code Of Criminal Procedure, 1889 (Sections 1 To 176)
CONFIDENTIAL Log. xxxvu __'-_——"' I900 LAW COMMISSION Thirty-seventh Report ON The Code of Criminal Procedure, 1889 (SECTIONS 1 to 176) DECEMBER, I967 Price: (Inland) Rs. 4-00 (Foreign) 9s. 4d. or $1 44 Cents. _ 5, ]or Bagh, New Delhi-3 Dated 19th February, 1968 ` ]. L. KAPUR, __ My dear Minister, I have great pleasure in forwarding herewith the 37th Report of the Law Commission on the Code of Criminal Procedure, 1898, sections 1 to 176. 1. The circumstances in which the subject was taken up for consideration are stated in the first few paragraphs of the Report. After the subject was taken up, a study of the Code was undertaken. 2. A Press communique was also issued inviting sugges- tions on the existing Code. The suggestions received from the public, as well as various suggestions received through the Ministry of Home Affairs, were voluminous. 3 . Certain preliminary points were discussed and decided at the 29th meeting of the Commission. 4. Some points of detail were considered at the 39th meeting of the third Commission. As a conseqence of that discussion, preparation of a draft Report and Bill wasjthen undertaken under the directions of a member of the third Commission. The work at that stage proceeded upto section 176. 5. Further study of the subject was continued, and has been going on throughout. After consideration of the Code of Civil Procedure, Capital Punishment and other urgent matters was finished, the Code of Criminal Procedure (upto section 176) was, in the fourth Commission, discussed at several meetings held in 1967, namely, the 86th meeting held on 15th to 20th May, 1967, the 87th meeting held on 8th to 11the August, 1967, the 88th meeting held on 21st to 26th August, 1967, and the 89th meeting held from 25th September to 30th Septem- ber and 4th and 5th October, 1967. 6. In the light of the decisions taken at the various ~ meetings mentioned above, and on a consideration of the . (ii) suggestions received from time to time, and also incorp0ra» ting the studies made in the meantime, a fresh draft Report (up to section 176) was prepared. The rcsh draft Report was approved, with modifications, at the 90th meeting of the Commission held from 18th to 25th November 1967. 7. The fresh draft Report was revised in the light of the . decisions taken at the meeting held in November, 1967. 8. The draft Report was not circulated to State Govern- ments, High Courts etc. for comments, as the Report was to be urgently submitted. 9. In response to the suggestion made to usin this behalf, we are submitting this Report dealing with sections 1 to 176 of the Code, to be followed by recommendations relating to other sections. 10. Reports on some important topics under the Code have been separately submitted. These are enumerated in paragraph 10 of this Report. Q 11. I would like to say that in the preparation of this Report a great deal of labour and time had to be expended, by our Secretary Mr. P. M. Bakshi. The suggestions made; by various High Courts, lawyers, Executive Officers and others interested in law were received at different times. They had to be collected under various sections of the Code, and edited with comments. The case law which ran into a good few thousands of pages,'fand which had to be studied and condensed into the pages of the report, was a time and energy absorbing job. Then, historical and comparative study of the- materials had to be and was made, and extensive and intensive research. done, and the material was put and projected into the Draft Report. Mr. Bakshi has been of the greatest assistance- to us. I would commend his work and thank him for his cooperation, assistance and hard and intellgent work. i Yours sincerely,; i (]. L. KAPUR) Hon’ble Mr. P. Govinda Menon, y Minister of Law, A New Dun:. ` INDEX to the Report on Code of Criminal Procedure, 1898 (Sections 1 to 176) Para No. _ _ , . . Subject matter Page ...,... N0- 1 Genesis ofthe Report ........ 1 2-3 Objectives of revision _ . , ....... 1 4 Importance ,of the Code ....... 2 s 5-9 Object of the Code ........ 2 IO Reports submitted ........ 3 11-12 Materials studied ........ 3 13-16 Lines on which Code revised in the past .... 4 17 Historical survey ......... 6 18 Position before 1861 ........ 6 19 1861 Code .......... 7 2O 1872 Code . ........ 7 21-23 1,861 Code and other Acts upto 1872 ..... 7 24 Separate Acts for High Courts and Presidency towns . . 9 25-26 1882 Code .......... 10 27-29 1898 Code .......... 11 30 Special laws not dealt with in this Report .... 12 31 Major problems ......... 12 32-40 Problem of separation ........ 12 41 Classification of functions of Magistrates . . . . 15 42-44 Functions of Magistrates elaborate discussion .... 16 45 Questions raised by separation in relation to the Code . . 18 46 Legislation necessary for separation ..... 18 47-50 Separation whether to be by Central Law .... 18 51 Allocation of functions between Judicial and Executive Magis- trates. . . . . • . • • . . 20 52 Patterns of separation ........ 20 53-54 Allocation of powers in each pattern ..... ZG 55 Allocation under Bombay and Punjab schemes . . . 21 56-57 Allocation under Madras Scheme ..... 21 58 Essence of separation present in each pattern .... Z2 59-63 West Bengal Scheme ........ 22 64-71 Modes of trials and inquiries ...... 24 72 Section-wise discussion ....... 26 73 Section 1 ..... . . . . . 26 74 Sections 2 and 3 . . . . . . . . . 26 75 Section 4(I)-—‘*c0mp1aint". . . . . . 26 76-77 Section 4(I) and definition of Court . . . . . 27 78 Section 4(1)(i),-‘*High Court". . . . . . . 28 79 Section 4(l)(lc)-"inquiry". . . . . . . . 28 80 Section 4(1)(I)—"Investigation" . . . . . . 28 81-82 Section 4(1)(m)-‘*]udicia1 proceeding" . . . . • 28 iii iv Para No. Subject matter Page No. 83 Section 4(I)-Omcer-in·charge etc. ..... 29 84 Section 4(1)(q)-‘*Place". . . . . . • . 29 85-86 Section 4(1)-"p1eader" . . • • • . . 29 87-89 Section 4(1)(w)-"warrant case" . . . • • • 30 90 Section 4(1)(w)—De{·1nition "warrant cases"-Suggestion of High Court .... . • • . • . • 3 I 91 Section 4(Z) . . . . . . • o . . 31 92 Section 6 . . . . . . . . . . 31 “ 93 Section 6 and Third Class Magistrates ..... 31 94-95 Section 6A (New) and the pattern of Magistracy , , , 31 96 Judicial Magistrates in the Mofussil . . . . . 31 97 Executive Magistrates in the Mofussil . . . . . 37. 98 Magistrates in Presidency Towns .... . . 32 99 Scheme recommended regarding mofussil .... 33 100 Scheme recommended regarding Presidency towns . . 33 101-103 Other cities of special importance .... . . 33 104 Section 7 ..... . . . . • 34 1 105 Section 7(4) and Presidency Magistrates .... 34 ‘ 106 Section 8 .......... 35 ¤ 107 Section 9 and earlier Report ...... 35 108 Section 9(3) ....... . . 35 w 109 Section 9(4) ......... 35 110 Section 10 .......... 35 111 Section 10 and Mobile Courts ...... 36 112 Section 11 .......... 36 113 Section 12 .......... 36 114 Section 12 and suggestion regarding appointment . . . · 37 115 Section 13 ...... ` . . . . 37 116 Section 13(2A) (To be added') . ' . ` . ' . . . 37 117 Section 14 .......... 38 118 Section 14A(New) ........ 38 119 Section 15 .......... 38 120 Section 16 ......... . V 38 121 Section 17(1) ......... 38 122 Chief judicial Magistrat-proposal regarding . . . 39 123 Section 17(2) ......... A 39 124 Section 17(3) ......... 39 125 Section 17(4) '. '. ' ..... . . . 39 126 Section 17(4)-Suggestion regarding ..... 40 127 Section 17(5) ° . ' ........ 40 128 Section 17A(New) ' ........ ` 40 129 Section 17B(New) ‘ ........ 40 130 Section 18 ‘ . . . ' ....... 41 131 Section 18(5) ' . ` . ° ....... 41 ` 132 Section 18(1), and Police ofiicers ..... 41 133 Section 19 .......... 42 V Para No. Subject matter Page No. 134 Section 20 . · . · . · . · . - . · .... 42 135 Section 21(1)—-part relatingto powers of Chief Presidency Magis- s . tutes- ..... . . . . .... 42 136 Section 21(1)-part relating to rules ..... 42 137 Section 2L(2)—subo1·dination of Presidency Magistrates . 42 138 Section 22 . , ....... . . 42 139 section 22.A(N·=w) . . , . _ . _ . _ .... 43 140 Section 2ZB(New) _ . _ . _ . y . _ .... 43 141 Sections 2,3-Z4 . , . , . . _ . / . _ . . . 43 142 Section 25 . _ . , . , . . _ . , . . . . 43 143 Sections 26-27 . . . _ . V . V . 4 . . . 43 144-146 Section 28and original criminal jurisdiction o_f High Courts . 43 147 Section 29 . . . . , . _ . . . . . 44 148-149 Section 30 . , . _ . , . A ..... 44 150 Section 30 and conferment ,of powers . _ .... 45 151 Section 30 and utility of Magistrates appointed_ thereunder . 45 152 Section 30, and suggestion of a High Court ]udge . . . 46 153 Section 30 and serious offences triable by First Class Magistra tes 46 154 Section 30, and suggestion for restoring pre·1955 provision . 46 155 Section 31_ . _ . . , . _ ...... 47 156 Section 32 . _ . _ . _ ....... 47 157 Section 32(1)(a)_ . . 4 . _ . , ..... 47 158 Section 32,and suggestion _of U.P. Committee . . . 47 159 Section 32, and_ imprisonment upto 3 years . . . 47 160 Section 33, . . . , . , . . .... 48 I 161 Section 33 _and suggestion _to make it self-contained . . 48 162 Provision for consideration after section 33. Life imprisonment 48 163 Section 34, . , . , . , . . . , . . . . 49 164--168 Section 35_ . , . , . , . , . _ . _ . _ . . . 49 169 Section 35 and suggestion of U.P. Committee , . . . 51 170 Sections 36 to 38 . . . . . . . . . , . . . 51 171 Section 39 ...... . . . • 52 172 Section 40 . ,. -. . . . . , . . . . . 52 173 Section 41.. .. ,. ,. ,. . ,. _. . . 52 174 Section 42.. . . , . . . , . , . . . . . 52 175 Section 43 . .. , . , . .. .. ,. ,. . . 52 176 Section 44 . . , . . · . · . . , . • . • . 52 177 Section 44 and burden of proof. . ,. .• • . . 53 - 178 Section 44(1)and oifences undezgthe Railway Act . . 53 179-180 Section 45 . t . .. . . , . . . , . . . . 53 181 Sections 46 to 50 .. . . . . . . ;. . . . . 53 182 Section 51 . ,. ,. _ . ,. , . . .... 53 183 Section 51 and medical examination ofthe accused . . 54 184 Section 51 and articles of .daily, use ,. K . ,. . . 54 185 Section 52 ...._ . ,. ,. _. . . 54 186 Section 52A(New) . . ,. .. _. _. . . 54 vi Para Subject matter Page No. No. 187 Section 53 . . . . • . • . . . 54 188-189 Section 54 . . . • · . . . . . 54 190 Section 54, suggestion to Limit powers . • · . . 55 191-192 Section 54 and communication of grounds . . . . 55 193 Section 54 and arrest beyond jurisdiction . . . . 55 194 Section 54 and recording reasons of arrest . . . . 56 195 Section 55 . · . . · . • · • • • • . 56 196 Section 55(1)(b) . » • · · ~ . . . . . 56 197 Section 56 . · . - . · . . - . . . . . 57 198 Section 57 . - . — . — . · . · . .... S7 199 ·Section 58· . · . - . · . V . · . - .... 57 200 Section 59 . . . . . . . . . . 57 201 Section 59A(New) . . . · . - .... 58 202 Section 59B(New) . . . · . · . . . . 58 203 Section 60 . » . · . . . .... . SB 204 Section 61 . . . . . . .... 59 205 Section 62-Vfhether changes necessary for Presidency towns . 59 206 Section 62—Competent Magistrate (i.e. outside Presidency towns) 59 207 Section 63 .... . . . . . . S9 208 Sections 64 to 67 . V . . · . . . . . 59 209 Section 65 and issue of warrant - . . . . . . 59 210 Sections 66-67 . · . - . - . . . . . . 60 211-214 Section 68 and service . . . . . . . . 60 215 Section 68 and Corporations . . . . . . 60 216 Section 68 and Benches · . - . . . . . . 61 217 Section 69 . . . . . . . . . . 61 218 Section 70 . . . . . . . . . . 61 219 Section 71 . . . . . . . . . . 61 ZZO Section 72 . • • · • • • • • • . 61 221 Section 73 . . . . . . . . . . 61 222 Section 74 . . . » . ~ . . .... 61 223 Section 74A»(New)—Service of summons by post . . . 61 224 Sections 75- to 77 - . · • · . . . . . . 61 SBCt10'(\ - • · • • · • • • • • • . 226 Sections 79 and 80 • ·• • V • . · . . 61 227 Section 81 . . . — . - • • . . . . 62 228 Sections 82 to B6 ·. ·• • • • . . . 62 7 229 Section 87 · . -. • . • • . . . . » 62 230 Section 87(Z) • • . . . . . . . ” 62 231 Section 88(2) • » . · » • • . . . 62 232 Section 88(6) . . . . . . ...· 62 233 Section BB(6B) . . . · . . . . . _ 62 234 Section 8B(6C) . . . . . . . . . 63 235 Section 88 . . . . . . . . . . 63 236 Section 89 . . . . . ..... 63 237 Section 90 . . . . . . . . . . 63 vii Para Subject Matter Page No. No. 238 Section 91 .......... 64 239 Section 94 and the accused ....... 64 240-241 Section 94(1) and right of the defence to summon documents . 64 242-243 Section 94(3) and Banker’s Books ...... 65 244-245 Section 95 .......... 65 246 Section 96 . . . . . . . . . . 65 247 Section 96(1) and omcers to whom search·warrant should be directed- .......... 66 248 Section 97 .... . . . . . . 66 249 Section 98 . . . . . . . . . . 66 250 semen 9s(2) ......... 66 251 Section 98(2) and judicial Magistrate _ . _ . _ . . . 66 252 Section 99 . . . ....... 67 253 Section 99A . . . . ..... 67 254 Section 99A and obscene matter . . · · · · 67 255 Section 99A Descriptive portion . . . . . . 67 256 Section 99B · . · . - . . · . · . · . . . 67 257-258 Section 99C to 99F . . . ..... 68 259 Section 99G . . . . ..... 68 260 Section 100 . . . . . . . . . . 68 261-264 Section 100-Notice and procedure for inquiry . . . 68 265 Sections 101 and 102 • • • • • . . . 70 266 Section 103 . . . . . . .... 70 267-271 Section 103-Various other suggestions . - . . . . 70 272 Section 103 and search of the person . .... 72 273 Section 103 and list of respectable persons . . . . 72 274 Section 103 and suggestion of U.P. Committee . . . 72 275 Section 103(3) . . . . ..... 72 276 Section 104 . . . . . . . . . 72 277 Section 105 . . . . ...... 72 278 Section 105A . . . . . .... 73 279 Section 106 ~. ·. ·. ·. ·•. · . . . . 73 280 Section 106 and the oifences covered ..... 73 281-282 Section 106 and the words *‘oH`ence involving breach of peace". . 73 283 Section 106(3) and Sessions judges . .... 75 284 Section 106 and Magistrates empowered ..... 75 285 Sections 106 and 110—maximum period . . . . 75 286 Sections 107 to 110—Retenti0n of (general question) . . 76 287 Section 107 . . . • . . • • . 76 288-290 Section l07(1) and suggestion of a High Court ]udge . . . 76 291-295 Section 108-retention of jurisdiction under . . . 77 296 Section 108-changes required . . . . . . 81 297 Section 109—Suggestion regarding intention to commit crime . 81 298 Section 109-Powers under . . . . . . . 81 299 Section 109(a), and the words "to conceal his presence". . . 81 300 Section 109(b)-Constitutionality of ..... 82 viii Para Sub'ect matter No. J PIG? 301 Section 110(e) and 110(f) ....... 84 302 Section 110 and· illicit distillation ..... 84 303 Section 110-Magistrates to be empowered . . . . 84 304 Section 110 and other points ....... 84 305 Sections 111 to ·116 — . . . · . · . · . . . 84 306 Sections 112 and 117-(1)-Remand . · . · . . . 84 307-308 Section l17—Powers under ....... 85 309 Sections 118 to 122 ........ 85 310-312 Section 122 . ' . . ’ . . ' . ` . ` . . . 85 313 Section 123(2) and Magistrates empowered ° .... 87 4 314-315 Section 123 `and suggestion to delete confirmation by Sessions Judge- • • · • · • • • • • • . . 87 316 Sections 124 and 125, and separation · . . · . . . 87 317 Section 124 . . · . · . · . · .... 87 318 History of section 124 · ....... 88 319 Power, to release persons imprisoned for {ailing to give secu- 88 rity , _ . . . _ . _ . , . . . · 320 Section 125 . . . _ ...... 89 321 Section 126 . . V . _ . . _ .... 89 322 Section 126 A _ . . _ . _ . . _ . 4 . . . 89 323-324 Sections 127 to 132A ..... . . . 89 325 Section 127 and suggestion qf Madras Bar Council . . 90 326-329 Section 127(1) and suggestion of a_ High,Cour_t Judge . . 90 330 Section 133 _ . . . .... . . 91 331 Sections 133-34 and U.P. Committee’s suggestion . . . 92 332 Section 133(1) and Magistrates empowered . . . . 92 333 Section 133 and ]ury ....... . 92 334 Section 133 and_ summons _procedu1·e_ . _ .... 92 335 Section 134 . _ . _ . _ . _ . _ . _ .... 93 536 Section 135 . p . . _ . . _ . _ . . . 93 337 Sections 135-136 and U,P. Committee’s suggestion . . . 93 338 Section 136 . _. _. _. _. _. . . • . 93 339 Section 137 . _ ......... 93 340 Section 137A(New) ........ 93 341 Sections 138 to 139 and suggestion of High Court judge . 93 342 Sections 138-139_and U.P. Committee’s suggestion . . 94 343 Section 139A ......... 94 344 Section 139A and U.P. Committee’s suggestion . . . 95 345 Sections 140 to 142 _ . _ . _ ...... 95 346 Section 143 .......... 95 347 Section 143 and need for previous adjudication . . . 96 348 Section 143 and penalty and _procedure ..... 96 349 Section l44—Validity of ....... 96 350 Section 144 and Members of Parliament ..... 96 J 351 Section 144 and newspapers ....... 96 Y 352 Section 144(l) ....... . . 97 ix Para Subject matter Page N0. N0. 353 Section 144(1) and competent Magistrates . . . . 97 354 Section 144(3) and meaning ofthe expressions ‘*place" and "{re- quenting." ......... 97 355 Section 144(6) . . V ...... . 97 356 Section 144(6)—Suggestions regarding . . . . . 97 357 Section 145(1) ....... . . 98 358-363 Section 145(l) and date . 4. . _. . _. . . 98 364 Section 145(1) suggestion of a High Court judge _ . . . 100 365 Section 145(1) and date . . A . . • • • . 101 366 Section 145(1) and omission to record grounds _ . . . 101 367 Section 145(2) . . . . . . • • • 101 368 Section 145 and suggestion of U.P. Committee . . . 101 369 Section 145(6) and punishment by Magistrate I . . · • 102 370 Section 145( 1) and suggestion to exclude private complaints , 102 371 Section 145(1) and suggestion for service of afiidavits . . 103 372 Section 145 and resolution of Lawyers' Conference . • . 103 373 Section 145(3) . ........ 104 374 Section 145(4) . . . . . . . . . 104 375 Section 145(4) 3rd proviso ....... 104 376 Section 145(4A) New . _ . . . . . . • 104 377 Section 145(5) and restoration .... . . 104 378 Section 145(5) ...... . . . 104 379 Section 145(5) and release from attachment . . . . 104 380 Section 145(5A)(New) . . . . . . . . 104 381-384 Section 145(6) and penalty for disobedience . . . . 104 385-386 Section 145 (6) and restoration to party previously in possession . 105 387 Section 145(6A)(New) . . . . . . . . 106 388 Section 145(7) and (8) . . . A . . . . . 106 389-390 Section 145(9) . . . . . . . . . 106 391 Section 145(10) ..... . . . . 107 392 Section 146 . . . . . . . . . 107 393 Section 146 and view of High Court ]udge . . . . 107 394 Section 146 and suggestion ofthe U.P. Committee . . . 108 395 Section 146 and revision .... . . . 108 396 Section 147(1) ..... . . . . 108 397 Section 147(1A) .... . . . . . 108 398 Section 147(2) . - ........ 109 399 Section 147(2), proviso ....... 109 400 Section 147(3) ........ . 109 401 Section 147·A(New) .... . . . . 109 402 Section 148 ........ . 109 403 Sections 149 and 150 ....... . 109 404 Section 151 and seizure of subject of dispute, . _ . . . 110 405 Section 151 and breach`of peace I. · ..... 110 406 Section 152 .... . . . . . 110 407 Section 153 . . . . . . . . . 110 X Para Subject matter Page N°· No. 408-409 Section 154 and First Information Report by the accused . . 110 410-412 Sections 154 and 155 ........ 111 413 Section 155(1) ......... 112 414 Section 155(2) ......... 112 415 Section 155-—Bxplanat1on (New) ...... 112 416 Section 155(2) and cognizable offences ..... 112 B 417-418 Section 155. . ’. ’ ....... 113 419 Section 156· . . ........ 114 420 Section 156(3) and suggestion as to particular police omcer . 114 421 Section 157 ‘ . .... . .... 114 422 Section 157 and investigation in areas of other police stations . 114 423 Section 158(2) ......... 114 424 Section 159* . ` ......... 114 425 Section 160 and expenses ....... 114 426 Section 160 and attendance of women ..... 115 427 Section 160- and requiring attaendance for identification . . 115 428-434 Section 160 and applicability of section 160 to the accused . 116 435-436 Section 161 and obligation to speak the truth .... 118 437 Section 161 and points in 14th Report ..... 118 438 Section 161 and confessions . . . .... 120 439-440 Section 161 and sending of ·c0pies ..... 120 441 Section 161 and sending of · copies toMagistrates—Suggestion , of Madras Council ....... 121 442-445 Section 161 and identification parades . ..... 122 446-448 Section 161 and Judges Rules ....... 123 449 Section 162(1) ......... 125 450-451 Section 162 and cross-examination by the prosecution of defence ‘ witness- ` . ` . . ` ....... 125 452 Section 162 and suggestionitozsubstitute *‘cross·examinati0n" for - **contradiction’?. » . - .... . . . ' 126 453 Section 162(1) proviso, —and Court witnesses .... 127 454-455 Section 162(=1), proviso and omissions — ..... 127 456-45 B Section 162 (1) and suggestion regarding presence of Counsel . 127 4*59 Section 162-various suggestions. . K .... 129 460 Section l63(2) . . · ...... . 129 461-464 Section 16411) ......... 129 465 Section 164 and exclusion of police ..... 130 466 Section 164(2) and administration of oath .... 130 467 Section 164 and confessions made before investigation . . 131 468 Section 164(3)—-Suggestion of a High Court judge . . . 131 469 Section 164 and Identification linger prints etc .... l 132 470 Section 164 and retracted confessions ..... 132 471 Section 164 and recording statements at the instance of the ‘ accused. . . . . . • . • . . 134 472 Section 164(1) and suggestion to make recording of statements by _ Magistrate obligatory ........ 134 473 Section 165 ...· . ...... 135 xi . Para Subject matter Page No. No. 474 Section 165(5) . . . • . . . . . 135 475 Section 165 and recovery by police of abducted persons . . 136 476 Section 166 .......... 136 477—478 Section 167 and period of remand ...... 136 479 Section 167 and remand for more than 15 days . . . 137 480 Section 167 and Magistrates to be empowered . . . 137 481 Section 167(2) and military custody ..... 137 482 Section 167 and physical production of the accused. . . 138 483 Section 167(4) ......... 138 484 Section 168 .......... 138 485 Section 169 ......... 138 486 Section 170 ......... 138 487 Section 171 ...... . . . . 138 488 Section 172 .......... 138 489-490 Section 172(1) and suggestion regarding sending case-diaries to the Magistrate ...... . . . . 138 491 Section 172(2) and suggestion regarding sending diaries in capital . cases . ....... . . . 13 9 492--497 Section 172 and discretion to be given to court to allow inspec- tion. . . . . . . . • . . 13 9 498 Section 173(1)(a) . . . · . . . . , 141 499-502 Section 173(1)(a) and investigation after chalan , _ _ 141 503-504 Section 173(1) and suggestion for barring re-investigation _ 142 505 Section 173 and complaint cases .... , _ 143 506 Section 173(4) ....... , _ 143 507 Section 173(4) and suggestion of a State Government _ _ 143* 508 Section 173(4) and suggestion of a High Court judge _ _ 144 509 Section 173(4) and suggestion of Special Police Establishment O‘$.C€l’S• • • • • • • • • • • 510 Section l73(4) and suggestion of Public Prosecutor, Madras _ 144 511 Section 173(4) and suggestion of Commissioner of Police, Madras 145 512 Section 173(4), and copies left out through mistake . . . 1454 513 Section 173(4) and immediate supply of copies . _ _ 146_ 514 Section 173(4) Various other suggestions .... 146Y 515 Section 173 and cases of corruption ..... 147 516 Section 173(4) and section 202 ...... 147 517 Section 174 and suggestion regarding death in police custody 147 518 Section 174(5) ......... 147 519 Section l75(l) . . . . . . . . . 147 520 Section 175(1) and suggestion regarding copies .... 148, 521 Section 175A suggestion regarding consequence of failure to send copies- . . . . . . . . . . 148 522 Section 176 and information to relatives . . . . 148 523-524 Section 176(l) and death in police custody . . . . 148 525 Sections 177 to 565 . . . ..... 149 526 Appendices . . .... . . . . 149 LIST I List of Appendices APIGENDIX SEc*I'ION PAGE or ’I‘I·IE REPORT 0. APPENDIX 1 . . . Recommendations as shown in the form of draftamendments to the existing Code . APPENDIX 2 . . . Note on section 1. 180 APPENDIX 3 . . . Note on section 4- 182 APPENDIX 4 . . . Note on section l5(2) and Powers of Bench. 198 APPENDIX S . . . Note on section 18 200 APPENDIX 6 . . . Note on section 51. 203 APPENDIX 7 . . . Note on section 94 and the accu- sed. 208 APPENDIX 8 , , . Note on section 109(a)——‘*con· cealing”. 213 APPENDIX 9 . . . Note on section 144(3) and the expression "place" and fre- quenting. 216 APPEN1)IX 10 . • . Note on section 144(6)• 217 APPENDIX 11 . • . Note on section 161 (2) and the expression ‘·truly"· 219 APPENDIX 12 . . . Note on section 162. 223 p APPENDIX 13 . . . Note on section 163. 234 APPENDIX 14 . . . Note on section 164(3). 234 APPENDIX 15 . . . Neg? on section 167 and section 235 4. APPENDIX 16 . . . Recommendations in respect of other Acts. xiii THIRTY-SEVENTH REPORT ON THE CODE OF CRIMINAL PROCEDURE, 1898. (SECTION 1-176) 1. Revision of the Code of Criminal Procedure, 1898, G¢¤¤¤i¤¤f has been undertaken by the Law Commission in the follow- “h° '°P°"' ing circumstances. ‘ After the Law Commission submitted its report on the Reform of Judicial Administration} Government asked the Law Commission to undertake examination of the Code, not merely from the point of view of implementing the recommendations made in the Report referred to, but also with the object of attempting a general revision. Work on the subject was started immediately, and has been conti- nuously going on since then, The process of revision took time because of the vastness and importance of the subject- matter, the prolific case-law that had accumulated on the Code, the several important matters of constitutional im- portance that had to be considered, the voluminous sugges- tions received on the subject, the detailed study that was needed for examining the effect on the Code of the sepa- ration of the Judiciary from the Executive, and the pre- occupation of the Commission with certain other subjects which were urgent. 2. In the revision of the Code, as proposed here, we Obi•=<=¢iV¢¤ have proceeded generally on the lines usually followed in °f '°"m°” the Commission’s other Reports on the revision of statutes. Attention, however, should be drawn to some important aspects. First, a law of Criminal Procedure affects a larger number of persons than most other laws; secondly, criminal law is an instrument for the protection of society, and criminal procedure is its chief means. Criminal Courts are the main agencies for its administration. The ordinary citizen is, or is likely to be brought, directly or indirectly, into contact with the criminal law, more often than with most other laws. He may appear as a witness, a juryman, or, often, as an accused or a complainant. If he is the accused, he may be faced with the possibility of loss of personal liberty (and sometimes life) and in most cases, even if he is acquitted, a harm to his reputation. Beginning with arrest and ending with appeal to the highest appellate court, the stages of a criminal proceeding touch the indivi- dual in vital matters. A decision as to the policy to be adopted in the procedural law, therefore, often involves a nice balancing of conflicting considerations, a delicate weighing of opposing claims clamouring for recognition, and the extremely difficult task of deciding which of them should pre-dominate. The very nature of the subject-matter is, thus such, that human values are involved to a greater degree than in _ ` l- 14th Report ofthe Law Commission (Reform of judicial Administration). 1 2-29 Law]68 2 other laws. On any responsible body of persons, this work would impose considerable mental and moral strain. We hope that our recommendations as to the changes to be made or not to bg made in the existing law have done justice to the subject, though we do not expect that all of them will find universal or general acceptance. P 3. Some of the problems which we had dealt with are of a recurring nature; such as, the law of arrest; the ques- tioning of the accused; the use in evidence of statements recorded during investigation by the police; and so on. The consideration of speed and the demands of justice had to be harmonised, in dealing with these and similar problems. Often, the solution was not easy, as each of the alternatives had weighty arguments in support. What appears in this Report as our conclusion on some of the important matters was not arrived at without some hesitation. I¤11¤<>¤¤¤¤¢ 4. The importance of a Code of Criminal Procedure is °f ‘h° °°d° based on two considerations :— First, expense, delay or uncertainty in applying the best laws for the prevention and punishment of offences would render those laws useless or oppressive; secondly, the law relating to Criminal Procedure is more con- stantly used and affects a greater number of persons than any other aw. Object of 5. Very brieiiy stated, the object of Criminal Procedure *h° °°d° is the ascertainment of the guilt or innocence of the accused. Therefore, the matters dealt with in a Code of Criminal Procedure would mainly pertain to the various stages incidental to the process of ascertainment of the guilt. From the legal point of view, the law of Criminal Procedure is the law dealin with the process of applying the instrumemt of Criminal law—punishment——to the facts of a particu ar case. 6. The object of the Code of Criminal Procedure is, (to state it in a different form), to provide a machinery for the punishment of offences against the substantive law.’—‘ Thus, a Code of Criminal Procedure would mainly deal with the judicial process in so far as it pertains to the institution, conduct and disposal of criminal prosecu- tions. 7. If the law of Criminal Procedure had only tb deal with the chronological stages of a criminal trial, it would have been very simple and short. That is not so, how- ever, because human values are involved. ` 8. Because a criminal trial involves human issues, the right to a fair trial figures prominently. The requirements of a fair trial, speaking broadly, relate to the character of 1, Sg0kes,Anglo-lndian Codes, Vol.2, page 1. * "`"iT`€;2wn Mmm, (l889)I.L.R. 13`B¤m. 590,598. V 3 Q. E. v. Abdul Rehman, (1891), I.L.R. 16 Bom.580, 584. 3 the court, the venue, the mode of conducting the trial (parti- cularly trial in public), rights of the accused in relation to defence, and other rights} 9. Moreover, before the actual trial, there are stages of some importance, namely,- (i) investigation, which is the gathering of facts; (ii) the magisterial inquiry in important cases-which is the unfolding and testing of the prosecution case ;2 and (iii) the charge which is the final instrument giving a precise shape to the accusation. The law has to deal with them also. These matters. increase the field and volume of the inquiry to be embarked upon, when revising a Code of Criminal Procedure. 10. On some of the important sections of the Code, the Reports Law Commission has already submitted reports separately. S¤b¤¤i¤*¢d These Reports deal with some matters which required detailed and separate examination or urgent considera- tion.‘*—‘-‘ Besides these, the Commission also had to study the procedural provisions in various special laws, in connection with its report on Socio-economic offences} 11. The materials studied by the- Commission for the Materials revision of the Code may be briefly classified as- studied (a) case-law; <(b) local amendments; (c) law in other common-law countries, wherever prac- ticable and relevant, and the literature thereon: ~(d) effect of the constitutional provisions, particularly those dealing with fundamental rights; (e) Report of the Commission on the Reform of Judi- cial Administration (14th Report). righti., 7l;lar{gsi.é1I`4hé· gggpt toafair trial in criminal proceedings as ahuman 2. See Devlin, The C·iminal Prosecution in England (E.L.B. Edn. 1966), Page 111. 3. 25th Report, (Report on Evidence of Officers about forged stamps, currency notesetc.(Section 509A, Code of Criminal Procedure, as proposed) 4- 32nd Report (Section 9, Code of Criminal Procedure, lB98). , 5. Report on section 44 ofthe Code—Proposal to insert provision for disclo- sure of offences relating to bribery etc. (The Report is under submission). ‘OEm6éc€9;:t}};gl};l3ia(I1{R(;-glqgogelproposal to include Certain Social and Economic 4 (f) Suggestions received from time to time by the Commission being- <(1) suggestions forwarded by the Government of India or State Governments or High Courts; (ii) opinions or suggestions which were received by the Joint Committee which examined the Amendment Bill of 1954*; (iii) other suggestions relating to sections of the existing Code made directly to the Law Com- m1ss1on; (g) academic literature. 12. We have found that in many cases it was neces- sary to examine in detail not only the Codes of 1861, 1872, 1882 1(predecessors of the present Code), and the Code of 1898 as it stood before the amendments of 1923 and 1955, but also the debates and discussions relating to those Codes in the Legislature, and the suggestions and opinions which were considered by the various Committees which were entrusted with examining the Bills which ultimately led to the Codes of 1861, 1872 and 1882 and the present Code, and the Amendment Acts of 1923 and 1955. It may not, perhaps, be out of place to mention here, that the Amendment Act of 1923, which made important amendments in numerous sections of the Code, was the result of a long period of discussion and consideration, extending over a period of 12 years. Line, 0,, 13. Some idea of the lines on which the Code should which Code be revised may be obtained from the lines on which its &;v·¤¤d i¤ revision has been done in the past. The Code of 1861, was ° pm the first general 'Code“ of Criminal Procedure applijfble to the whole of British India (excepting the Presi 'ncy Towns and the High Courts), while the first revision’ was done in 1872, The revision attempted in 1872 appears minly to have been directed at a re-arrangement of the sectio in . more convenient and useful form, together with changes of substance in a few sections. Case-law on the preyious Code had not, at that time, accumulated to such a eat extent as to require detailed examination from the gint of view. 14. The primary object of the Code of 1882 was to re·cast the Code of 1872, and also to consolidate with it the substance of the High Courts Act and the Presidency Magis- trates Act, and to incorporate in it the numerous reported e t' s forwarded to the oint Committee were not embodied in th;•A§:1\d:hiigS`b€ll i>f0li954. The joint Committee stated, that some of theseraised important issues and opportunities for eliciting general opinion thereon had not yet been given. The ]oint Committee recommended these should be taken up for consideration after circulating them for public opiruon, and, if necessary, Govern- ment might bring before the House anot er suitable Amending Bill (Report ofthe loint Committee dated 3rd September, 1954, para. 55)- Z. Por detailed historical discussion, see paragraphs 17 et seq, infra. 5 decisions on its wording, and thus give to India "a single and complete Code of Criminal Procedure, and carry out, so far, the policy of providing a simple and uniform system of law for that country."' The language of the Code of 1872 was departed from in 1882 only so far as was necessary for the main purpose. The secondary object of the Code of 1882 was to consoli- date portions of certain special enactments (7 in number) dealing with the execution of process, the police, justices of the peace, inquiries into crimes committed abroad by British subjects etc. Thus, the process was in the nature of consolidation of statutes plus amendment. The Code of 1898 was mainly a revising measure, intended to- (a) incorporate changes made by several Acts which amended the law of criminal procedure; ,(b) deal with matters brought to the notice of the Government of India, in regard to necessary amend- ments of the law; and ’ (c) to remove defects and difficulties in administering the law and contradictory interpretations, as shown by the Law Reports? 15. The Amending Act of 1923 had its genesis in the Bill of 1914. In the Statement of Objects and Reasons} the object of the amendment was thus stated. "Since the existing Code was passed, a number of suggestions for the amendment of particular points have, from time to time, reached the Government of India, and the Police Commis- sion has also made various recommendations. The present Bill is the outcome of the examination of this accumula- tion of proposals, and is one of the series of revisions which experience of the actual working of the Code has necessi- tated from time to time." The Amendment Bill of 1955 was mainly intended to ensure speedy disposal of cases, and to make certain other amendments on certain matters of importance. 16. Thus, the process began with consolidation in 1882. After consolidation, the main revision of the Code has been in the direction of re-arrangement, incorporation of case- law and changes on certain matters of policy. After the Amendment of 1923, a lot of case-law has accumulated. It may also be stated, without meaning any disrespect to those 1. Stokes, Anglo-Indian Codes, Vol. 2, page 4- 2. See Statement ofObjects and Reasons tothe Bill of 1897. 3. Statement of Objects and Reasons to Bill No. 3 of 1914, Gazette oflndia, 1914, Part V, page ll9· 6 who framed the Amending Act of 1923, that on certain sec- tions, fresh controversies have arisen by reason of some of the amendments introduced in 1923} The task of revision now is a stupendous one, involving, as it does, a study of- (i) hundred years of case-law ; (ii) the geneology of many sections of importance ; and (iii) local amendments, particularly of the field of sepa- ration. Histmical 17. A historical survey of the Code itself is not out of S“"°Y place before we deal with the major changes. History of the Code seems to represent four stages- (a) The period of formation; ‘(b) The period of consolidation; (c) The period of revision; and (d) The period of refinement. Position 18. An idea of the diversity in the structure of criminal b°*°¤f° 18** courts and their procedure, in 1855, can be had from the fact that in their First Report? the Commissioners on the Reforms of the Judicial Establishment had to prepare as many as 8 parts, outlining the Constitution and procedure of the various Courts as follows :—— "Appendix B 1. Outline of the Constitution and Procedure of Her Majesty’s Supreme Courts of Judicature at Cal- cutta, Madras, and Bombay. { 2. Outline of the Constitution and Powers of the Justices of the Peace and Magistrates of the Presi- dency Towns of India. 3. Outline of the Constitution and Procedure of the East India Company’s Courts of Civil Judicature in the Presidency of Bengal. 4. Outline of the Constitution and Procedure of the East Indian Company’s Courts of Criminal Judi- cature in the Presidency of Bengal. 5. Outline of the Constitution and Procedure of the East India Companys Courts. of Civil Judicature in the Presidency of Madras. 6. Outline of the Constitution and Procedure of the East India Company’s Courts of Criminal Judicia- ture in the Presidency of Madras. 1. The controversy regarding definition of "complaint" is one such example- 2. See First Report ofthe Commissioners on the Reform of Iudicial Establishment nindia, (1855), page 208 (AppendixB). - 7 7. Outline of the Constitution and Procedure of the East India Company’s Courts of Civil J udicature in the Presidency of Bombay, 8. Outline of the Constitution and Procedure of the East India Company’s Courts of Criminal Judica— ture in the Presidency of Bombay." 19. The Code of 1861 was the result of long labours 1861 Code. spread over a number of years. We quoted from Stokes‘,— "So long ago as the 20th March, 1847, the President in Council instructed the Indian Law Commissioners to prepare a scheme of pleading and procedure with forms of indictment adapted to the provisions of the Penal Code, and such a scheme, together with several forms, was prepared by Messers Cameron and Elliott, and submitted with a report dated 1 Feb. 1848.2 Their draft was examined and considered by a new set of Commissioners appointed in 1854 under 16 and 17 Vict. c. 95, section 28, and comprising Sir John Romilly M. R., Sir John Jervis C. K., Sir Edward Ryan, and Messrs Cameron, Ellis, Lowe (now Lord Sherborne), and Millett. These Commissioners produced a draft Code which was presented to Parliament in 1856, and was in the following year introduced into the Legislative Council by Mr. (now Sir Barnes) Peacock. It ulti- mately was passed by the Legislative Council as Act XXV of 1861. This Code came into force on 1 Jan. 1862: it applied in the first instance only to the terri- tories subject to what were called the general regu- lations, but was gradually extended to the rest of British India except the Presidency-towns. It was amended by Acts 33 of 1861, 15 of 1862, 8 of 1866, and (very largely) by Act 8 of 1869." 20. In 1872, the principal Code and its amending Acts 1872 Cede. were repealed and replaced by Act 10 of 1872, The Code was drawn partly by Mr. (later Sir Fitzjames) Stephen (who framed the sections corresponding with sections 221-240 of the present Code)” ‘ and partly by Mr. H. S. Cun- nigham,5 but chieily by Captain Newbery, Personal Assis- tant to the Inspector General of the Punjab Police.° 21. The history of the Code of 1861 and other Acts upto 1861 Code 1872 was thus’ traced by Sir James Fitzjames Stephen (then ¤¤d <>*h°* Mr. Stephen) while presenting the Supplementary Report {gc.}; “p*° of the Select Committee on the 1872 Bill. l. Stokes, Anglo·lndian Codes, Vol. 2, pages 1-2. 2. There was aprevious report dated 4Nov. 1843 regarding the qualifications, SlllT\l'1'lO1’111’1g, {Ind challenging ZISSSSSOYS and j\.1l'O\'S. I have HOT SBCD. 3. Stephen, History ofthe Criminal Law, iii. 337n. 4. Mi·. Stephen also drew Chapters Il-VII, XXIII (chief) and XXXVI. 5. Mr. Cunningham drew section 90, most of Chap. XIX, and Chap. XXXIV. 6. See Stokes, Anglo-Indian Codes, Vol. 2, pages l-2. 7. Speech of Mr. Stephen, Proceedings of th: Governor General in Council' dated 16th April, 1872. 8 "I may perhaps be allowed to give, in a very few words, the history of the Code. It has been built up by slow degrees by the labours of successive generations of legislators ever since legislation first began in this country. The very earliest Regulations of 1793 provide for the estab- lishment of a system for the administration of criminal jus- tice. This system was repeatedly altered, varied and re- adjusted, so as to meet the varying wants of the country and to supply the requirements which were shown by experi- ence to exist. The mass of legislation which thus accu- mulated was very large, and when the Penal Code was passed in 1860, it was considered a matter of pressing im- portance to prepare a Code of Criminal Procedure as quick as possible, in order to act as a companion to it. Act XXV of 1861 was the result. It threw together all the existing law on the subject to which it related, and so consolidated an immense mass of Re lations and Acts. I will not say how many, but I think gey were counted by the hundred. Act 25 of 1861 was drawn by men thoroughly well acquaint- ed with the system with which they were concerned; but I am inclined to doubt whether they did not know it rather too well, for they certainly threw the various provisions together with very little regard to arrangement, and with- out any general plan. Various Acts for the amendment of the Code became necessary after it had been passed. These were consolidated by Act XVIII of 1869. The result was rather to increase than to diminishthe confusion which had previously existed. Act VIII of 1869 was not regarded as a final measure, and a correspondence on several points con- nected with it, and with the further reform of the system of criminal procedure took placebetween the Government of India and the Indian Law Commissioners, who gave their opinion on various matters submitted to them in one of their very latest reports. This report was the cause of · the present Bill. I must now say what appears to be neces- sary upon its provisions." ' 22. Mr. Stephen then proceeded to make some obser- vations as to the chan es introduced. "I wish, in the first place, to state distincdy my own position with regard to the Bill. Of course, I am fully responsible for it; but at the same time I must observe that I have not been so presump- tuous or foolish as to attempt Q0 introduce modifications of my own devising into the working of a system gradually constructed by the minute care an vast practical experi- ence of many successive generations of Indian administra- tors and statesmen. I have carefully avoided that fault. I have regarded myself, rather as the draftsman and secre- tary of the Committee, by whom all the important working details of the Bill have been settled, than as its author; and to them, rather than to me, is due any merit which may attach to the practical improvements which I hope this Bill will be found to have introduced in the administration of criminal justice, and in the general maintenance of the public security. I am the more anxious to say this, because, 9 when I last addressed the Council on this subject, I made various criticism from the point of view of an English lawyer on the administration of justice in this country." 23. Continuing his speech, Mr. Stephen then stated, "I ·do not wish to retract or to modify what I then said. I shall feel that the system of criminal justice in this country is open to serious objection, and would admit, in course of time, of considerable improvement. I think I could suggest means by which those improvements might be brought about quickly and gradually; but the task of the critic differs essentially in my opinion from that of the legislator. The task of the critic is to form and express his opinion as pointedly as possible, in order that they may form the subject of public discussion and gradually produce whatever effect may properly belong to ·them. The task of the legis- lator, in reference to an existing system like that of Indian Criminal Procedure, is much more like that of the editor of a law-book. It is his duty to re-arrange, to explain what experience has proved to be obscure, to supply defects, and to make such alterations as harmonize with, and carry out, the leading idea of the system with which he is con- cerned, The notion that any one could, if he would, or that he ought to wish, if by any accident he had the power, to make a new set of laws for his fellow—creatures out of his own head, and without reference to existing materials, is, to my mind, altogether wild and absurd. This I believe to be true everywhere, but it is emphatically and peculiarly true of India. It is simply impossible to make extensive changes in the administration of this country suddenly. The reason is obvious, though I think people in England are apt not unnaturally to overlook it. It is, that the number of officers is so small, their duties so unremitting, and the nature of the engagements between them and the Government which ·employs them so stringent, that the whole administration would be thrown into confusion by any change which greatly altered the duties, or involved any serious modi- fication in the position, of the officers concerned." 24. The Code of 1872 did not extend to the Courts estab- $¢P=¤¤*¢ `lished by Royal Charter in Calcutta, Madras and Bombay. m The position, as stated by Stokes} was as follows :—- ,,,,,1 p,;,, dency towns "For these Courts, as well as for the High Court at Allahabad and the Chief Court at Lahore, provision was rmade by Act 10 of 1875 (to regulate the procedure of the High Courts in the exercise of their original crimi- nal jurisdiction), which reduced the number of jurors to nine and the number of pre-emptory challenges to eight, dispensed with the necessity of a unanimous verdict, codified the law relating to habeas corpus, pro- vided a simple substitute for the writ of certiorari, 1. Stokes, Anglo-Indian Codes, Vol.2, pages 2-3. 10 and repealed and re-enacted in an improved form the seven Acts; by which the Legislature had from time to time amended the criminal procedure of the Supreme Courts, or their successors the High Courts. This Actz was drawn by the writer and carried by Mr. (now Lord) Hobhouse. The Code of 1872 was also inapplicable to the Magistrates Courts at Calcutta, Madras, and Bom- bay. For these, provision was made by Act 4 of 1877 (to regulate the procedure and increase the jurisdic- tion of the Courts of Magistra-tes in the Presidency Towns)._ This Act, which increased the jurisdiction of the Presidency Magistrates, assimilated their procedure to that of the provincial Magistrates, and made many other improvements, was drawn by the writer and carried by Mr. (now Sir Theodore) Hope." 1882 Code 25. The position before 1882 has been thus stated:—" "It thus appears that, before the present Code of. Criminal Procedure was passed, no less than three such Codes were in operation in British India: Act 10 of 1872, amended by Act 11 of 1874, which was in force _ throughout the Mufassil; the High Courts Act, 10 of 1875, which was in force in the Presidency-towns, 1 Allahabad and Lahore; and the Presidency Magistrates (Act 4 of 1877), which, also, was in force in the Presi- dency-towns." "l\/lany of the provisions of these Codes rrierely repeated one another; many of their rules, though- . dealing with the same subjects, unnecessarily varied in language; and the result. was that the bulk of the Indian Statute-book was far greater than it needed to be, and that the Courts when construing one Code were often deprived of the guidance of prior decisions on another." 26. The object of the 1882 Code has been thus described by Stocks:-—“ , "The primary object of the present Code, which was framed by the writer at the suggestion of the Secretary of State in his despatch (Legislative), No. 44, dated 26th October, 1876, was to recast the Code of 1872, combining with it the substance of the `High Courts" Act and the Presidency Magistrates Act, and incorpo- rating in it the numerous reported decisions on its 1. Acts 31 of 1838, ZZ of 1939, 4 of 1862 (except sections 26-35, 47-53), and Act 13 of 1865, a useful measure, carried by Sir H. Maine, with (inter alia) abolished grand juries. Certain other provisions relating to the criminal procedure of the Supreme Courts were contained in9Geo.4 c. 74, which was repealed by Act 10 of l875» with the exception of section 1, 7, 8, 9, Z5, 26 and 56. It also repealed certain enact- ments (in Acts 24 0i` 1866 and 13 of`1869) relating to the High Court for the NW. Provinces. 2, Except sections 97 and 98 (Act 10 of 1882), section 305, which were drawn by Mr. Hobhouse. 3. Stokes, Anglo-Indian Codes, Vol. 2, pages 3-4. 11 working, and thus at last give to India a single and com- plete Code of Criminal Procedure, and carry out, so far, the policy of providing a simple and uniform system of law for that country, The language and arrange- ment of Act 10 of 1872 were, for obvious reasons, departed from only so far as was necessary for the main purpose of the Code. But it was obviously im- possible to reproduce the inartiiicial wording of many of the sections, and an arrangement according to which, for example, the provisions for the prosecution of crimes came before the provisions for their prevention. and the change (i.e. the written accusation of an offence) was dealt with after trials, appeal and execution." 27. The Code of 1898 was a revision proposed for these 1898 C<>d¢ reasons} "It has been usual to consolidate and amend the law relating to Criminal Procedure at the end of suc- cessive decades. Thus, the first Code of Criminal Pro- cedure Act. 25 of 1861, was succeeded by Act 10 of 1872 and the latter was followed by Act 10 of 1882. "Since 1882 there have been passed sixteen Actsz all relating to Criminal Procedure and many of them expressly amending the Code of 1882. "In addition to this, several matters have been brought to the notice of the Government of India in regard to necessary amendments of the law, which have been deferred until the periodical amendment of the Code shall have been undertaken. The Law Reports also have shown many defects and difficulties in ad- ministering the law and occasionally contradictory interpretations by the High Courts in giving it effect. "On these considerations the Government of India have determined again to consolidate and amend the law relating to Criminal Procedure. Such alterations as have been made in the present law are printed in italics, and the material amendments it is proposed to introduce are referred to in the notes on clauses given below. Where changes have been made in the num- bering of existing sections. their former numbers have been given on the margin." 28. The 1898 Code has been amended by numerous Acts of the Legislature. Of these, the most important were two Acts of 1923. the Criminal Law Amendment Act (12 of 1923) and the Code of Criminal Procedure Amendment Act, 1923 I 971. Statement of Objects and Reasons to the Code of Criminal Procedure Bill, 8 . 2. Act} of 1884; Act 10 of 1886, Act 5 of 1887; Act 15 of 1887: Act I of 1889: Act 5 of1889; Act 13 of`1889; Act 3 of`1891; Act 4 of 1891; Act 10 of 1891; Act 12 of189l; Act3 of 1894; Act 10 of 1894; Act 4 of 1895;Act 5of l89S;Act S of 1800 and Act 17. of 1896. 12 (18 of 1923). The genesis of Act 18 of 1923 dates as far back as 1914. In 1914, a Bill (No. 3 of 1914) was introduced in the Imperial Legislative Council, and was thereafter referred to the Local Governments and Administrations. Their opi- nions raised numerous queries. Meanwhile, in 1916 the Government referred this Bill and the opinions received thereon to a Select Committee !(known as the Lowndes Com- mittee). The Bill (as revised by this Committee) was again introduced in the Imperial Legislative Council in 1917. Some further suggestions for the amendment of -the Code were received by the Government in the meanwhile. After the termination of the war, a new Bill was prepared in 1921, which was substantially the same as the one introduced in 1917. This Bill (No. 3 of 1921) was introduced in the Council of State on the 21st February, 1921, and was referred to a Joint Committee. 29. The Joint Committee submitted its report after a year (in September, 1922); and the Bill as revised by this Committee, with certain alterations made during the dis- A cussions in the Council of State in September, 1922 and in the Legislative Assembly in January and February,' 1923, . ultimately passed into law, and was enacted as Act 18 of 1923. The other major amendment was in 1955, which is too recent to require detailed discussion at this place. SP°€j“]v 30. We would like to make it clear, that though various gx; Mfxfh special laws contain provisions relevant to criminal proce- in th;} dure, this Report does not purport to deal with revis on of . Report those provisions. M=¥>* 31. We shall now set out some of the major problems P'° l°"" to which we had to devote considerable attention. We shall here merely enumerate them. These issues are- .(a) separation of the judiciary and the Executive; (b) abolition of the jury trial; (c) simplification of the various categories of trials ; (d) Magistrates in Presidency Towns ; 4(e) abolition or retention of the ordinary original criminal jurisdiction of High Courts; (f) the law of arrest; (g) the law of search and seizure; (h) the duty to give information about offences. `Pf¤bI¢¤9 0* 32. The problem of separation has assumed both theora- °°p""°'°“ tical and practical importance in India during the last 20 j years or so. The Constitution directsl that the State shall 1. Article 50 ofthe Constitution. 15 , 13 take steps to separate the Judiciary from the Executive in the public services of the State, As introduced originally} article 39A of the Constitution sought to provide that the State shall take steps to secure that within a period of three years from the commencement of this Constitution, there is separation of the Judiciary from the Executive in the public services of the State. But later,2 the time limit of three years was deleted, in view of the fact that it might not be possible to bring about the desired result within three years in the States which were not former Indian provinces. The Prime Minister also explained, that while Government was entirely in favour of separation, a time limit may pro- duce enormous confusion in some parts of the country where it was very difficult to bring about separation. 33. In the field of criminal law, separation of the judi- ciary from the Executive broadly means the administra- tion of the criminal justice by members of the judiciary who are independent of executive control. This general princi- pal involves two consequences; first, that a Judge or a Magistrate who tries a case must not be in any manner connected with the- prosecution or interested in the prose- cution, and second, that he must not be in direct adminis- trative subordination to anyone connected with the prose- cution.° 34. So far as the first aspect is concerned, the principle is already recognised, to some extent, by section 556. The Explanation to that section, however, in so far as it provides that a Judge or a Magistrate shall not be deemed to be a party or personally interested, to or in any case by reason only that he is concerned in a public capacity, modifies the provision to some extent. Cases where the Magistrate has himself direct-ed the prosecution,`} and cases where the Magistrate had taken a direct part in the investigation} apart, section 556 does not bar a Magistrate from trying a case merely because he has the slightest official dealing in the case. In fact, the Explanation seems bo be intended to meet the consequences arising from the unavoidable in- cidents of the executive and the magisterial duties being united in one and the same person'. 35. Read with the illustration, the Explanation to sec- tion 556 seems to emphasise two aspects, namely, if a person has directed the prosecution of a person for an 1. Constituent Assembly Debates, 24th November,Vl94B, page 582. · 2. Constituent Assembly Debates, 25th November, 1948, page 585. 302 3. Cf.the speech of Mc. justice Meredith, quoted in (1949)2 Indian Law Review 4. See illustration to section 556. _ 75 See also In re Het Lal! Roy, (1874) 22 Sutherland Weekly Reports, Criminal, 6. Sudhama v.Q.E., (1895)I.L.R. 23 Cal. 328, 334. 7. Cf.Emp. v.Basrmt Ram, (l883)Al1 Weekly Notes 181. I 14 offence, he is disqualified" and so also he is disqualified if he otherwise takes an active part, for example, by dis- persing an unlawful assembly and arresting its members? But, 1f h1s participation is merely formal,‘ he is not dis- ·qualified. Thus section 556 is subject to certain limitations, some of which may be usefully elaborated. 36. In particular, courts seem to have made a distinc- tion between "directing" a prosecution on the one hand, and merely "authorising" a prosecution on the other hand."’ Thus, a Magistrate in charge of the opium and excise administration of a district is not "personally interested" in the observation of the provisions of the Opium Act, merely because it is his duty to see the law relating to sale of opium enforced and maintained in his district; he is, therefore, not precluded from exercising jurisdiction in res- jpect of offences against the said Act, because the words "personally interested" must refer to "some particular and immediately personal interest in the case and its results."’ A District Magistrate is not precluded under this section from trying an offence under the Police Act, merely be- cause he is the head of the police' The fact that the Dis- trict Magistrate controls the police does not, of itself, dis- qualify him from trying or inquiring into cases investigated by the police of his district? 37. But, where the Magistrate as president of the octroi ·sub—committee directed the prosecution of an accused for evading the payment of octroi, the Magistrate was debarred from trying the case, even though the accused had con- sented to be so t.ried.‘° A Magistrate is not disqualified from trying a case based on a private complaint which has not been filed under his direction and sanction, merely and solely on the ground that the validity of certain orders passed by him in his capacity as an Executive or Revenue Officer is directly put in issue and is likely to be challenged before him, and that the innocence or guilt of the accused considerably depends on the effect of such orders." 1. Kharak v. Tamck, (1883) I.L.R. 10 Cal. 1030. 2. Girish Chundra Ghose v. Q.E., (1893) 1.L.R. 20 Cal. 857, 865 (Trevelyan Sn Rampini _]].). _,_ 3. See, further , Q.E.v. Chenchi Reddi, I.L.R. 24 Mad. 238. 4. Cf. Dasmzh Rai, (1909), I.L.R. 36 Cal. 869,872. 5. See Rameshwar Bhartia, A.I:R. 1952 S.C. 405. 6. See. also Lorinda v. the Crown, (1919) I.I..R. 1 Lab. 35,38. 7. Inre Ganeshi, (1893) 1.L.R. 15 A11. 192, 194 (F.B·)· 8. Q.E.v. Namm Singh, (1900) 1.L.R. 22 A11. 340. 342. 9. Maung Lat, 1 Cr. 1..]. 477. 10. Emp.v. Bisheshar, I.L.R. 32 A11. 635. 11. Mohandas, 27 Cr. L.]. 1333, 1334; scc also 'Md. Abdul Khan Ahmed. A.I.R. 1946 Cal. 303. 15 38. The observations of the Judges in the under- mentioned case‘ stress the evils of a combination of functions. Separation would eliminate many of the controversies under section 556, by removing the functions of initiating or sanctioning prosecutions from the province of those who try the case. 39. The second aspect is the more important one, namely, a person administering criminal justice must not be subordinate to the Executive. 40. Some of the important aspects of the principle of separation were spelt out in the amendment moved by Mr. A. C. Dutt on the resolution of Babu Kishori Mohan ~Chaudhari on 4th April, 1922 in the Bengal Legislative =-Council. The Resolution was as follows :— "This Council recommends to the Government that early steps be taken for the total separation of the judicial from the executive functions in the adminis- tration of the Presidency? Mr. A. C. Dutt moved an amendment that the follow- ing words be added at the end- "That the said separation be affected in consonance with the following principles :— (1) Officers appointed to perform executive duties in no case to perform judicial duties and vice versa. (2) Officers appointed to perform judicial duties to be in no way subordinate to executive officers. (3) The entire control and manage-ment of criminal judicial service, including the powers of promotions, transfers and punishment of judicial officers, be vested in the High Court." The amendment was lost, but the original resolution was put to vote and passed? 41. The usual way’ of classifying the functions of Magis- Qlassiica- trates under the Code of Criminal Procedure and various :.*:1 do gof other statutes is to divide them into three broad categories, Qagistmtu namely- ‘*(a) Functions which are "police” in their nature, as for instance, the handling of unlawful assem- blies; 1. Lopuri Dominiv. the Assam Rly.a.m1 Trading Co., (1883) l·I..R· 10 Cal- 915- 2. See Government of Maharashtra, Report ofthe committee on the Separation of ]ucliciary from the Executive, (1947), page 9, para. 28- ` 3. See Government of Madras, Public (Separation) Department, G.O.Ms. N0. 2304 dated the 24th September, 1952. 16 _ (b) functions of an administrative character, as for instance, the issue of licences for firearms, etc. etc ; and _ (c) functions which are essentially judicial, as for instance, the trial of criminal cases." _ The essential feature of the scheme for separation .(it is stated)‘ would be, that "purely judicial functions coming under category (c) above are transferred from the Collector and magistrates subordinate to him, to a new set of oiiicers who will be under the control not of the Collector but of the High Court. Functions under (a) and (b) above will ‘ continue to be discharged by the Collector and the Revenue Officers subordinate to him." Functions of 42. In order to obtain a more concrete picture, hozwever, g;‘f;_?t*:°s it is, necessary to deal with the functions of Magistrates discussion more elaborately. An idea of the variety of their functions can be obtained from the numerous statutory powers and duties of the District Magistrate ('and other Magistrates). In most of these cases, he acts as an "of`ficer" or "authority", and not as a "court". These functions could be liroadly grouped as :—— ° (a) functions of the District Magistrate as head of the police, or otherwise in connection with the police force, (e.g. an order passed) under section 44 of the Bombay Police Act.“ (b) order by the District Magistrate prohibiting certain petition writers from carrying on their business within the precints of the district court,’ s(c) order by a Magistrate under section 17, Police Act, 1861, appointing special constables‘, or order sanc-- tioning prosecution under section 4 of that Act‘; (d) order by an Additional District Magistrate as persona designata, e.g. an order in exercise of special powers conferred by an enactment, to carry out its; provisions and untrammelled by any inquiry} (e) other Executive orders, e.g.- (i) order by District Magistrate for registra-· tration of a Sarai under section 3, Sarais Act (*22 of 1857).* "The District, Magistrate as the chiefofficer charged with the executive administration of a district in criminal matters can under no stretch of 1. See Government of Madras, Public (Separation) Department, G.O. Ms. No- 2304 dated the 24th September, 1952. 2. In re Pandurang, (1910) 11 Cr. L.]- 705; 8 LC. 747; 12 Bob. L.R. 1029. 3. Sukdeo Prasad, (1902), A.W.N. 175- 4. Parmeshar v. Emp., A.1.R. 1917 Oudh 170. 5. Chotey Lal v. Chliedi Lal, A.I.R. 1923 All- 149 (Mears C.]. and Piggott ].). 6. Hazari v. Emp., A·I.R· 1939 All. 124, 127, and cases cited therein. ¢ 7. Ghulam Sadid-uddin v. Emp., A.I.R. 1941 Lab. 71, 72 (Din. Mohamed ].). 17 language be treated as a court. His functions as an executive officer are poles asunder from his func- tions as a judicial ofi°icer." (ii) order of requisitioning} (iii) order under section 45(B} of the Code of Criminal Procedure, appointing a person as head- man of a village.?-“ (f) licensing, for example- (i) order by the District Magistrate under the rules for licensing and controlling places of public entertainment framed under section 39A, Bombay District Police Act, 1890* (ii) similar functions of the District Magistrate, e.g. under the Police Act ; (g) powers concerning law and order, e.g.·— (i) tendering pardon ,5 (ii) orders for deposit of security by a news- paperf or orders of forfeiture of security; “* 43. It is in this background that the concept of sepa- ration has to be understood. In its essence. separation means separation of judicial and executive functions in such manner that the judicial functions are exercised by the judiciary which is not controlled by the executive. This would ensure that influence of the executive does not pollute the administration of criminal justice. 44. Since the broad question of separation is no longer a controversial issue, it is unnecessary to deal in detail with its history. An excellent historical discussion is contained in the Report of the Bombay Committee}" Developments that have taken place since the submission of the Report of that Committee (apart from the adoption of the Constitu- tion) are mainly in the nature of Reports of Committees or Commissions appointed in several States on the subject, and legislation or executive orders passed or proposed as a 1. Ujamshiv. Emp., A.I.R. 1946 Bom. 533, 535(F.B.). 2. Salet Singh, A.I.R. 1948 All. 114. ’ 3. Damma, (1907) I.A.R. 29 All. 563,564 (P.C. Banerji ],). 4. Manghanmalv. Emp.,A.l·R- 1939 Sind. 340,341. 5. Section 337(1), main paragraph. 6. Agasyed Iczlauddin v. K.E. (1913) 17 C.W.N. 1245- 7. See section 3(I) (proviso, Indian Press Act, 1910 (1 of 1910) considered in Annie Besantv. Government ofM¤dras, (1916) I.L.R. 39 Mad. 1085, 1106, 1111. S. Guitar v. Emp. A.l.R. 1918 Lab. Z19. CJ)9. See also Mahomed Ali, (1913) I.L.R. 41 Cal. 466, 484, 485 (F.B.). (jenkins 10. Government of Bombay, Report of the Committee on the Separation ofthe judiciary from the Executive, 1947 (1964 Reprint), pages 3-13. 3-29 M of Law{68 18 result of such Reports or otherwise. It is not necessary to encumber this part of the Report with a discussion of those developments. Case-law on the subject is also developing} %*£$*°¤§ _ 45. For the purpose of considering the question of sepa- scpumony ration ms-a-ms revision of the Code of Criminal Procedure, in m,.,,,.,,., one has necessarily to consider certain questions, namely, *° 'h° C°d° (i) should separation be effected by legislation or by executive orders; (ii) if it is to be effected by legislation, should it be done by a Central legislation, or should it be left to the States ; » .(iii) what should be the authority to exercise con- trol over Magistrates exercising judicial functions; (iv) what powers under the Code should be given to the Magistrates exercising judicial functions and what should be left to others, and what powers, if any, should be allotted to both. Lcgisjatgon 46. On the first questionf we think that legislation necessary must be resorted to for achieving separation. We are aware £°’ . that separation has been effected in some States by execu- °°pmm°° tive orders. But this method suffers from certain draw- backs. The legislature would have no opportunity of discussing the scheme, The executive orders can have no legal force, so that if an "Executive" Magistrate decides, say, to exercise judicial powers, complications may arises. As an experimentation, separation by executive orders has certain merits, no doubt. But once the stage of experimen- tation has passed, separation must take legislative shape. The trend of recent developments in some States has also been in that line, as evidenced by the Punjab Act,‘ and by the Bill which was introduced for the Union Territory of Delhi} and by the Bill recently introduced in West Bengal.° $et>¤¤*i<>¤ 47. The second questionl is more difficult one. The g’;‘°'h°,; ‘° Law Commission had, in an earlier Report, expressed° its C,,,,,,,,, L, view in these words :-— "We are of the view that this is a matter on which legislation by Parliament is necessary. Such legisla- 1. Cj. paragraph 46, supra. ' 2. Paragraph 45(i), supra. 3. See the decisions in- (i) A.l.R. 1959 Ker. 46. (ii) State v. G.Subbegowela, (1962) 2 Cr. L.]. 711 (Mysore). 4. The Punjab Separation etc. Act, (1964) (Punjab Act 25 of 1964). S. The Delhi and Himachal Pradesh Separation Bill, 1966 (Lok Sabha Bill of 1966). The Bill lapsed on the dissolution ofthe Lok Sabha. 6. The West Bengal Separation etc. Bill (August 1967). 7. Paragraph 45 (ii), supra. 8. 14th Report (Reform of judicial Administration), Vol. 2, pages 859-860, para Z2. 19 tion will have the advantage of bringing into operation throughout: the country a uniform system of s·eparation and force the pace of its introduction in States which have delayed and fallen behind." 48. In deciding the question whether separation should be introduced by Central Law or by States, we were faced with various considerations. Three important aspects were considered in favour of State Legislation_ First, separation involves changes in the magisterial set up and in the number of courts, and neces- sitates several administrative arrangements. Secondly, separation entails the amendments of Central Acts (besides the Code of Criminal Procedure-, 1898), and some State Acts, and it would not be possible to carry out those amendments by Parliamentary legislation, particularly because some of those Central Acts and most of the State Acts fall within the State List. Thirdly, a decision was taken at the Law lVlinister’s Confere-nce‘ in 1960 that whatever measures are suitable to local conditions be adopted, and Parliamentary legislation is not needed. 49. We gave our anxious consideration to these aspects? It appeared to us, that though the actual implementation of separation may involve many administrative arrangements, yet it would be desirable to have a uniform pattern of magistracy and control over them, for all the areas to which the Code applies Amendment of other Central Acts and State Acts will, of course, have to be undertaken by the States? Further, in the States where separation has been already introduced but on lines different from those which we are recommending, the process described will have to be undergone again. The demands of uniformity are, in our opinion, paramount to these difficulties, and it should be possible, by nxing a sufficiently late date for commencement of the Bill which may be introduced on the subject, to give the States sufficient time to plan the administrative arrange- ments as well as the legislative amendments referred to above. 50. As regards the third questi0n—that is, the authority that will exercise control over the Magistracy—there are several patterns} from which we have to choose. 966. Proceedings ofthe Law Ministers' Conference, held at Srinagar on 28th June 1 . 2. Paragraphs 47-48, supra. 3. Paragraph 48, supra. 4· See discussion relating to section l7(l). 20 ;\}l?;;g?§nS 51. As regards the fourth question—powers 'of each between category of Magistrates and the pattern of the Magistracy—— ‘ judieialand the Law Commission had, in an earlier Report} recom- Executive mended adoption of the Bombay pattern (subject to certain M"g‘S“""S modifications). After that Report was submitted, the Punjab Act has been passed? While the Punjab Act follows certain provisions of the Bombay Act, it differs from the Bombay Act in certain other respects, both as regards the nomen- clature of and control over the magistracy, and as regards the allocation of functions between Executive and Judicial Magistrates. 5;*;;;*5Ozf 52. Thus, at present there are three main patterns of P separation (introduced by statute, or otherwise), namely,— (1) The Bombay pattern; (2) The Madras pattern; (3) The Punjab pattern. g(The Bombay and Madras patterns have been described in the earlier Report? The broad features of the Punjab pattern will be indicated wherever necessary)_ AU<>¤=**i¤¤ 53. The allocation of powers between the Executive fn e§;’1:"°'S Magistrates and Judicial Magistrates is a matter which has PMC", been tackled in different vvaysl in difhgerét Stages. Tip give one example, the powers of or ering t e urms ing o secu- rity under sections 108 to 110 of the Code have been assigneld in Bombay and Punjab to Executive Magistrates. In Ma - ras} they have been assigned primarily to Judicial Magis- trates, but Executive Magistrates have been given a concur- rent power, only to provide for all contingenciesf To take another example, powers under section 164 of the Code are assigned, in Bombay, to both classes of Magis- trates, and, in Punjab, to Executive Magistrates only, while in Madras they are assigned to Judicial Magistrates only. 54. These divergencies are understandable; it is not always easy to classify a function as judicial or executive, even theoretically. Moreover, even where a classification is in theory possible, practical c0nsi)derati}c;rc1s (ipcht asa the need for urgent action in emergency , mig ma e i a vis- able to give concurrent jurisdiction to both classes of Magistrates. 1. 14th Report,Vol. 2, pages 859-869, para.2Z. 2. The Punjab Separation etc. Act., 1964 (Punjab Act 25 of 1964). 3. 14th Report, Vol. 2, pages 851-852, paras·6and 7, and Annexure at pages 861-863, showing allocation of functions. 4. Cf. the views expressed in 14th Report, Vol. 2, page 859, para 22. 5. See Government of Madras, G.O. Ms. No. 2304 dated 24th September, 1952. paragraph 19(3) and Schedule, Item 18. 21 55. The broad considerations which weighed with the Al§°°‘=‘”i°“ framers of the Bombay Act seem to be, that powers other ggnfgay and than those of trial of offences should be left to Executive Punjab Magistrates, even where the recording and sifting of evid- s¤h¢¤¤¢¤ ence and a decision thereon are required} The Punjab Act also seems to proceed on the same patternz as is illustrated by the amendments made in the Punjab in sections 107 to 110, 127 to 132, 133, 143, 144, 145, 147, 155, 190 etc. It is true that both in Bombay and in the Punjab, certain powers are kept with both categories of Magistrates, such as powers under sections 94, 95, and 96(2). But the principal reason for adopting this course seems to be, that most of these powers are in the nature of "ancillary" powers, which may be needed by any Magistrate, whatever be the function he is performing? ‘ That is because Magistrates who are "Executive" Magistrates, nevertheless, continue to be "Courts"5 for several purposes. The distinction between such concurrent powers under the Bombay and Punjab Acts (on the one hand), and the concurrent jurisdiction under the Madras pattern u(0n the other hand), is this :—in Bombay and Punjab, the concurrent powers would not be exercised in the same case, so that there is no conflict of jurisdiction? The Madras pattern is somewhat different. 56. The Madras scheme has been designed as to operate Allocation within the frame work of the Code without statutory ¤¤d¤r amendment, and without much change in the nomenclature l`g;d’°° of Magistrates. The broad principle’ on which the Madrass °m° scheme is based. is that matters which involve the recording and sifting of evidence are strictly within the purview of Judicial Magistrates, But concurrent jurisdiction is provid- ed in for some cases. Thus, powers under Chapter 9, (sec- tions 127 to 132A) and Chapter 11 (section 144) are kept with both Judicial and Executive Magistrates but judicial Magistrates shall exercise them only in emergency and only until an Executive Magistrate is available. Conversely, powers under sections 108 to 110 are assigned to Judicial Magistrates, but Executive Magistrates are given concurrent jurisdiction to provide for all contingencies. Again, in cases under section 145, the initiation of proceedings will be before an Executive Magistrate, but, if it is necessary to hold an inquiry, proceedings will be transferred to Judicial Magis- trates.“-’ 1. Section 164 as amended in Bombay is an exception to this. 2. Section 88 (6c) as amended in the Punjab is an exception to this. 3. Sections 98 and 100 are possible exceptions to this. 4. Sections 60 and 61 are also left undisturbed for the same reason. 5. Sections 6, 6A and 17B, Bombay and Punjab. 6. Section 10 as retained in Bombay and Punjab and section 98 as retained in Bombay and as amended in Punjab are exceptions to this. 7. Government ofMadras G.O. Ms.No. 2.304 dated 24th September 1952, para- graphs 3 and 17, and Notes thereto, para . 2(l). 8-9. Government of Madras, G.O. Ms. No. 2304 dated 24th Septemoer, 1952 para 20 as amended by G.O. Ms. No. 2993 dated 30 August 1961. 22 _ 57. Another special aspect of the Madras scheme is that, with reference to section 155, in non—cognizable cases, both Executive and Judicial Magistrates can order an investi· gation, and the final Report is sent to the Magistrate- (Executive or Judicial); who ordered the investigation} The "charge-sheet", however, can be sent only to the Judicial Magistrate, who alone can take cognizanc-ez on the report of the police officer (or on complaint). Lastly, Executive (as well as Judicial) Magistrates can take cogmzcmce under section 190(1)(c),° though the former are not competent to hold trial of oifences. Essence of 58. Notwithstanding these points of difference, it must ¤=P¤¤¤¤i9¤ be stated, that the essence of separation is present in all ;f:;°“° m the patterns. The primary object with which a Magistrate pmm, 1S constituted, is the trial of offences (under section 28). That power has been assigned in all the patterns to indepen- dent Magistrates. It is unnecessary at this stage to discuss the position in detail as to how far se aration has been implemented by statute in each State or lllnion Territory} 'West Bengal 59. While this report was under preparation, a Bill was Scheme introduced in the West Bengal Legislative Assembly. for carrying out separation} The broad principle on which separation is proposed in that Billl seems to be this; that only those powers which relate to inquiry into or trial of offences should be assigned to the Judicial Magistrates, and other powers be left to the Executive Magistrates. 60. The West Bengal Bill also gives a list of concurrent powers? Some of these powers are incidental to the main powers respectively allocated to each category of Magis- trates. But sorne——such as those under sections‘ 164 land 167-are "concurrent" in the rea] sense. e ` l- Government of Madras, G.O. Ms. No. 2304 dated 24th September l952" para. 21(2) and Schedule, Item 24. . 2. Government of Madras G.O. Ms. No. 2304 dated 24th September, l95Z,, paragraph 2l(1), and Schedule, Item 24- 1 Bigovernment of Madras, G.O. Ms. No. 2304 dated 24th September, Schedule tem . 4. Cf.Emp.v. Noor Mohmed,A.I.R- 1928 Sind 1,4- 5. Separation has been introduced in Mysore bythe Code of Criminal Procedure (Mysore Amendment) Act, 1965 (Mysore Act 13 of 1965). ‘ 6. The West Bengal Separation of ludicial and Executive Function Bill, *1967 (Calcutta Gazette Extraordinary, dated August Z3, 1967). I 3 7. See the Statement of Objects and Reseaons, to the West Bengal Bill, para 8. The First Schedule, as proposed tobe inserted by the West Bengal Bill shows ataglance the powers of each category of Magistrate. 23 61. The scheme of allocation of functions proposed in West Bengal has been thus described :—‘ "The Judicial Magistrates will primarily deal with cognisance, investigation, inquiry into and trial of any offence under the Indian Penal Code or under any other local or special law, while the Executive Magistrates will be mainly concerned with prevention of offences and other executive and administrative functions." 62. Another interesting legislative device· adopted in the West Bengal is, that while certain sections of the Code have been specifically amended by prefixing the word "J`udicial" or by proposing similar verbal amendments, at the same time the First Schedule (as proposed to be added to the Code by the Bill) contains a list of sections, powers whereunder are given to each category of Magistrates or to both categories. The third feature is the provision“ for Sub-divisional Magistrates, both Executive and Judicial. 63. Another major change to be considered is the aboli- tion of jury trial. This question has been considered by the Law Commission in an earlier Reportf wherein a recom- mendation has been made for abolition of the system. The principal reasons for recommending abolition were- (a) The verdicts of the jury were often influenced by extraneous considerations. They did not satisfy the test of fairness, and did not ensure justice in its true sense. .(b) It was difficult to get jurors who could objec- tively evaluate the evidence for arriving at a fair and unbiased verdict. (c) Many persons got themselves chosen as jurors only for the sake of remuneration and illegal grati- fication. (d) An accused convicted on a trial by jury had only a limited right of appeal. (e) Trial by jury took longer time than trial by a Judge. Being untrained persons, jury-men were natu- rally slow in appreciating the evidence and in following arguments. (f) Practical experience of the system was not favourable. It is unnecessary to discuss this matter further at this stage. The changes to be made can be considered when the relevant sections‘ are considered. 1. Statement of Objects and Reasons to the West Bengal Bill, para 3. Z. Sections 13 and 13A, as amended or inserted by the West Bengal Bill. 3. 14th Report, Vol. 2, page 873. 4. Sections 267 et seq, which are outside the scope of this Report. Z4 ggifsj 64. At first sight, the modes of trial as provided in the inquiries Code may appear to be numerous. Proceedings by way of, or preliminary to, the trial of offences could be enumerated as follows :-— A. Magistrates Courts- Preliminary inquiries-- (1) Committal proceedings instituted on a police report (Chapter 18). (2) Committal proceedings instituted otherwise than on a police report (Chapter 18). B. Magistrates Court—Trials in the Mofussil (1) Trial of summons cases (Chapter 20), (2) Trial of warrant cases instituted on a police report (Chapter 21). (3) Trial of warrant cases instituted otherwise than on police report (Chapter 21). (4) Summary trial, with some variations in appeal- able and non-appealable cases [Chapter 22). [Note:-—Magistrates empowered under section 30 have higher powers, but there is no special procedure prescribed for them. They follow the same procedure as would be followed by ordinary Magistrates of the first class in the trial, except that by virtue of their higher powers, they can themselves dispose of many cases which otherwise would require to be committed.] C. Magistrates Courts—~Presidency Towns Trials in the Courts of Presidency Magistrates, with variations in appealable and non-·appealable cases. (Chapter 25). D. Courts of Session » (1) Trial in the Court of Session by jury (Chap- ter 23). = (2) Trial in the court of Session by the Judge alone (Chapter 23). - E. High Courts 5 (1) Trials before the High Court with the aid of jury (Chapter 23), and (2) Trials before the High Court of cases trans- ferred to it, which may be tiried without jury (Chapter 23). ` 65. The multiplicity of modes of trial is, however, more r apparent than real} Commitment proceedings tor an ` oilence and trials of that offence are really two different 1- See also 14th Report, Vol. 2, page 719, para 16. 25 stages of the same case. Most High Courts do not exer- cise ordinary original criminal jurisdiction. And the distinc- A tion between cases instituted on police report and cases instituted otherwise is a recent innovation, introduced by the Amendment Act of 1955. In practice the kinds of trials usually met with in the Mofussil are trial of warrant cases instituted on police report, trials before courts of Session, and trial of summons cases, The difference in procedure (in these three cases) is attributable mainly to the gravity or nature of the offence to be tried. 66. The question of Magistrates in Presidency towns requires some discussion. It is sometimes argued, that the institution of Presidency Magistrates should be abolished. In earlier Report of the Law Commission} the view had been expressed, however, that the institution of Presidency Magistrates had been a useful one. 67. The question of abolishing the distinction between Presidency Magistrates and other Magistrates was raised by non-official members before the Joint Committeez which considered the 1922 Bill. The Committee did not think it proper to alter the provisions, It, however, expressed a hope, that at a later date a special Committee might under- take a full inquiry into the status, powers and procedure of Presidency Magistrates? 68. It should also be noted, that all the Judges of the Calcutta High Court and the majority of the Judges of the High Court of Madras had expressed their view when the Bill which led to the Act of 1923 was on the anvil, (and this was noted by the Joint Committee of 1922 also) that the system should be maintained} though some of theno did say that recruitment should be improved. 69. It may be noted, that the Constitution‘ makes special provisions regarding appointment of the Chief Presidency Magistrates and Additional Chief Presidency Magistrates. As regards other Presidency Magistrates, it is only a ques- tion of time before the power ultimately pass to the High Courts? Only persons of special merit would be appointed as Presidency Magistrates. For these reasons, we do not recommend abolition of this special category of Magistrates. 1. 14th Report, Vol. 2, page 801, para. 11- 2. Report ofthe ]oint Committee dated 26th ]une, 1922, under clause 94 (scc- tion 364)- 3. No such Committee seems to have been appointed. 4. Legislative Department, Assembly Sv. Council-A, Proceedings, October, 1923, No. 1-54, Opinions dated 5-3-1918 and 14-12-1917, Paper No- IV, Opinion No. 13 (Clause 89), and Paper No. IV, Opinion No. 16. 5. Article 233(l) read with Article 236(a), Constitution of India. 6. Cf. section 18(5) of the Code as amended in Bombay, and also article 237 ofthe Constitution of India. 26 (Certain changes regarding recording of evidence etc. by Pres1dency Magistrates were recommended, in an earlier Report} But these are matters of detail)? 70. In fact, there may be certain advantages in having a special class of Magistrates even in places other than Presidency towns—a matter to which we shall advert later} 71. Another matter of im ortance is the ordinary ori- ginal criminal jurisdiction of Pljigh Courts. The· subject was discussed in an earlier Report of the Commission,‘ and, for the reasons set out in that Report‘ at another place, it was suggested that the ordinary original criminal jurisdicion of the Calcutta High Court be abolished. (The High Courts of Bombay and Madras no longer exercise this jurisdiction). The matter requires careful consideration, and will be dealt with under the appropriate section} $<=¤¢i<¤ywiS¤ 72. We shall now proceed to an examination of the Act di°°“”'°“ section by section. S°°*i°¤l 73. Under section 1 of the Code, the main question to be considered is the territorial application of the Code in relation to excepted persons. We do not recommend any changes in this respect although we examined the matter in some detail} Segmgm 2 74. Section 2 is already repealed. Rh Section 3 has two sub-sections, containing rules for the construction of certain expressions which are used in old enactments and which refer to Magistrates or Judges under the phraseology used in the pre-1898 Codes. Since the nomenclature of Magistrates is proposed to be altered} it will be desirable to add a similar provision for the construction of expressions used in the existing enactments, where those expressions refer to Magistrates by their existing nomenclature} I Section 4(I) 75. In view of the coniiicting decisions and uncertainty ·C¤mp1a1m··prevailing1" in respect of certain matters relating to? the definition of "comp1aint" and the connected provisions in sections 173, 190(1) (b), 207-A, 251-A, it is desirable to clarify 1. 14th Report, Vol. 2, pages 827-828. 2. See section 362. 3. See paragraphs 101-103, infra. 4. 14th Report, Vol. 2, page 714, para,2. 5. 14th Report, Vol. 2, page 1201, para. 7, last sub·para. 6. See discussion regarding section Z8. 7.Por detailed discussion, see Appendix Z. 8. See section 6, as proposed and section 6A, as proposed. 9. See section 3, as proposed. 10. For detailed discussion, see Appendix 3. 27 the position as far as possible. (Some parts of the contro- versy are due to a misreading of the sections, and cannot be cured by amendment). The solution which we recom- mend is- (i) to clarify in section 4 (in the definition of "com- plaint") that reports made by the police on an authorised investigation of non—cognizable cases are complaints, thus solving the pointsl relating to the definition of "complaint" and section 200, and the points relating to section 190 in respect of non—cognizable offences; l(ii) to keep sections 251-A and 207-A as they are, as the observations in Pravin Chandra’s case“ must be read along with the facts of that case; and (iii) to amend section 190(1) (b) (if necessary) to cover specifically reports under other sections of the Code or under other laws} 76. With reference to definition, the following sugges- S°°'i°*h‘*§l) tion‘ has been made by the Bar Council, Madras :— “" "The Indian Penal Code defines ‘C0urt of Jus':ice’ C°‘"° and the Evidence Act defines ‘Court’. The word Court occurs in section 195d(‘1) (b) and (c). The question as to how far a tribunal created under various statutes is a court within the meaning of section 195 crops up quite often. In 1956 S.C.J. 155, the Supreme Court has given a judicial meaning of Court as a body which gives a definitive judgment. An offence of perjury or forgery of a document produced before a Tribunal in relation to a proceeding before it cannot be proceeded against by the Tribunal, but can be done only by the individual constituting the Tribunal. "This anomalous position may be rectified by defin- ing the word ‘Court’ in conformity with the definition in the Evidence Act." 77. We -examined the case-law on the subject. The deci- sions of the Supreme Court on the point are noted below:—"' 1 Certain decisions of High Court also review the case- aw. 1. For the various points, see Appendix 3. 2. Pravin Chandra v. State, A.I.R. 1965 S.C. 1185. 3. To be considered under section 190(1)(b). 4. F.No.F.3(2)/55-L.C. Pt. III, S. No. 52. 5. Brajnandan, (1955)2S.C.R. 1955; A.I.R. 1956 S.C. 68. 6. Jagan Nmh, (1963) s.C.R. 416. 7. Virinder v. State of Punjab, (1955)2 S.C.R. 1013; A.I.R. 1956 S.C. 153. . 8. Haricharan, 44 C.W.N. 536. 9. Emp.v. I-layat Fatah Din, A.I.R. 1948 Lah. 184, 189, para. 18. 28 Recently, the cases as to the expression ‘Court’ have been reviewed by the Supreme Court in the context of the Contempt of Courts Act} We think, that the definition in the Evidence Act may not be appropriate for the Code of Criminal Procedure. Case—law shows the elasticity of the expression ‘Court’. A neat and precise definition may not be possible. No change is, therefore, recommended. zfffgwfli 78. ln section 4(1)Z(i) the definition of "High Court" ex- Cmmn pressly mentions the Calcutta High Court in relation to the Union Territory of Andaman and Nicobar islands. There are now, apart from those islands, many Union territories to which the jurisdiction of the High Courts of neighbouring states has been extended? It does not appear to be correct to mention only one Union territory, without mentioning the others. The portion referring to the Andamans should be omitted? The definition also includes such an "ofTicer" as the State Government may appoint in this behalf, in areas in respect of which under law the highest court of criminal appeal has not been established. This part of the definition was added in 1882 to empower the Governor-General in Council to ap- point such officers in outlying territories where no such court had been established by law.‘ It does not appear necessary to disturb it. Section 4(1) 79. In section 4(1) (k) the definition of "inquiry" is ik); "}¤· slightly ambiguous, It is the word "inquiry" which should be qu"? linked with the words "conducted under this Code". The inter-position of the words "other than a tria1" creates an ambiguity; these words require to be segregated, from the word "conducted", by a suitable amendment? Section 4(1) 80. Section 4e(1) (2) defines "investigation". lt appears (I)·_"I*;"°*“‘ unnecessary to add the word "Judicial" before the word g“"°“ *·Mag1mste**, in this definition, Swim {U) 81. Section 4(I) (m) defines a "judicial proceeding? The importance of this definition decreased after the deletion of dm; the word "judicial" in section 476(1). (In the Code of 1872, section 297, it was used in relation to revision also.) 82. The expression "judicial proceeding" has again been used in section 479-A(1). No change is necessary in this definition. K. Iugal Kishore v. Sitamarhi Central Coop. Bank,A.I.R. 1967 S.C. 1494 (October ISSUE · Z. Cj'. 32nd Report ofthe Law Commission, paragraph 35, for details. 3. See section 4(I), definition of ‘*High Court", as proposed. 4. Stokes, Anglo-Indian Codes, (1888), Vol. 2, page 5. 5. See section 4(I) definition of "inquiry", as proposed. . . 29 83. Section 4(1) (p) defines an "officer in charge of a S=¤*i°¤ {(1) police station". It has been suggested by the Inspector- `,?Hi°°' ‘",, General of Police of a State} that a proviso should be added ° me °t°' to the effect that a Sub-Inspector on duty in the interior (i.e. while he is away on tour from the police station) is an officer in charge. It appears to us, that such a change is not practicable, as it would mean duplication of "Officer in charge of police station". The scheme of the Code is, that there is only one oiiicer in charge of the police sta- tion. As the scheme stands, when the officer in charge is out, some person must be in charge of the police station. He has to maintain a record of the First Information Re- port“ and other records. Declaring some other officer as "officer in charge" might create complications. We may also note, that the question of police strength was discussed in an earlier Report? But no legislative amendment is necessary. 84. Section 4(1) (q) defines a "place" as including a$¢¢*i<>¤‘l Q) house. building, tent and vesse1.‘ It does not include a vehi- (**2* ‘°pl*‘°° cle. It has been held by the Supreme Court,5 that a motor vehicle is not a "place" within the meaning of sections 102 and 103 of the Code, so that the formalities laid down by those sections need not be observed when a motor vehicle is to be searched. The decision has revealed a lacuna in the definition of "place", because, as a motor vehicle is not a place, the power of search under various other sections which autho- rise searches of a "place"°. would not authorise searches of motor vehicles. We, therefore, think that it is desirable to include vehicles in the definition of "place".’ 85. With reference to section 4(1) (r) which defines Section jd) "pleader", a suggestion to prohibit unlicensed persons from “`P1°°d°‘ ‘ "pleading"*’ was considered by us. This does not require a change in the law. It is a question of enforcing the law as to Advocates and the law prohibiting touts? 86. The definition of "pleader" can, however, be sim- plified;‘° it is unnecessary to enumerate the various classes of practitioners. 1. F. 27/3/55-judl. II, (Home Ministry), Appendixl, Item No. l. 2. Section 154. 3. 14th Report, Vol. 2, Page 737, Paragraph 14. 4. As to *‘vessel", see section 48, Indian Penal Code. 5. Bhagwanbhai v. State, (1963) 3 S.C.R. 386, 392. 6. For example, sections 98(l) and 165(1). 7. See section 4(l)(q), as proposed. 8. F. 27/3/55·]udl.ll(Home Ministry File) Appendix 1, Item No. 2. 9. As to how far the definition of "pleader" in the Code applies to section 126 Sygdepce Act, see note in (1898) 2 CW. N. (]ourna1) 245, 246, discussing history of section 3 SO. 10. See section 4(1)(r), as proposed. 30 ?;;f’°¤ *0) 37. Section 4(1) (w) defines a "warrant case" as a case Hwmm relating to an offence punishable with death, imprisonment em" for life or imprisonment for a term exceeding one year. Cases relating to other offences are summons cases. In an earlier Report} a recommendation was made for the subs- titution of "three years" for "one year" in this definition, that is to say,. as a general rule, all offences which do not carry punishment of imprisonment for more than three years should (according to that recommendation) be triable under the summons case procedure. 88. The reasons for which this recommendation was made (as stated in that Report) can be thus summarised- (i) The procedure of summons cases leads to ex- peditious disposal of cases. (ii) The creation of numerous statutory offences during recent times which are, for the most part tech- nical in nature and involve nothing more than a viola- tion of or a noncompliance with a rule or regulation, calls for a speedier determination of those cases. (iii) Even under the Indian Penal Code there are several offences of the same kind, but differing in degree, which at present have different modes of trial. (iv) The distinction between summons cases and warrant cases is arbitrary. An example of this arbi- trary distinction is the position regarding offences under sections 168 and 169, Indian Penal Code. Another example is furnished by section 342 on the one hand, and sections 343 and 344, Indian Penal Code, on the other. The essential ingredients of wrongful confine- ment are the same in all these cases; only the duration varies. Yet, the offence under section 342 is a summons case, while the offences under sections 343 and 344 are warrant cases. (v) There is no prejudice to the accused by the expanséon of the category of summons cases as recom- mende . 89. We have, however, reached a different conclusion. In the first place, expansion of category of summons cases, as recommended in the earlier Report, would bring in numerous offences, of which some are really serious,-for example, offences under sections 136, 153A, 295A, 419, 465 etc., Indian Penal ·Code—and we are not convinced that there will be no prejudice to the accused in such cases. Secondly, the objection that the division is at present arbitrary would survive even if the limit is raised to three years, because the dividing line will still be depenent on an arbitrary period (period of maximum imprisonment). Thirdly, some of the offences——such as those under sections 1. 14th Report, Vol. Z, Pages 723-724, paragraphs 30 to 32. 31 153A, 2951% and 465, Indian Penal Code—involve nice ques- tions of mtention or interpretation of facts, and the war- rant case procedure, whereunder a precise charge is to be formulated, 1S,. in our view, preferable for such offences. We are not, therefore, carrying out the recommendations made in the earlier Report. 90. With reference to "warrant cases" following sug- section 4(I g€St1ODl has been made by a High Court- (W) Deh- "The definitions of summons cases and warrant Rlvgigane cases should be re—classified, bearing in mind the gra- °¤S°j’ $**8}, vity of the offences in terms of punishment, and the §f;l:°3Oi’m extent to which the mens rea or moral turpitude is in- volved. (See the recommendations of the Law Com- mission)." This point has already been considered? 91. In section 4(2), the portion referring to definitions $¤<=¢i<>¤ +0) in the Indian Penal Code is not in line with recent usage. But, as the whole Code is not being re-cast and only an amending Bill is being proposed, we would not disturb it. 92. Section 6 is proposed to be shortened} so as to deal Swicn 6 with Magistrates separately. 93. It has been suggestedf that Third Class Magistrates S¢cti¤¤_6 should be abolished. We are unable to accept it. The insti- gd Third tution may be necessary for purposes of training. Mggfmms 94. At this stage, the question of the pattern of the $¢¤¤i<>¤6A Magistracy falls to be considered? ilfggtigfn of Magi- stracy 95 In an earlier Report‘ the Bombay pattern of separa- tion was recommended to be adopted in general. But, so far as the specific topic of structure of the Magistracy is concerned, we have to take into account several matters. We discuss below the position with reference to the Mo- fussil and Presidencey towns. 96. In Bombay, (section 6A), the Judicial Magistrates ludiqiai of the three classes, as in the Code, are retained without }‘:‘;€;"a'°s a change of nomenclature. Judicial Magistrates appointed Mommy under section 14 are designated in Bombay as Special Judicial Magistrates. The District Magistrate is no longer a Judicial Magistrate, in Bombay. 1. F. 3(Z)/55·L.C. Pr. III, S. No. 3l. 2. See discussion relating to section 4(1)(w) ‘*Warrant cases". 3. See sections 6 and 6A (as proposed). 4. F. 3(2)/55-L.C. Part I, S. No- 49, and F. 27/3/55 Iudl. II (Home Ministry File). Appendix 1, Item No. 3. 5. See section 6A, as proposed. 6. Cf. 14th Report, Vol. 2, Pages 859-860, Para. 22. 32 _ In the Punjab scheme (section 6A), the Chief Judi- cial Magistrate (who takes the place of the District Magis- trate in this respect) is added. Magistrates of the first class and second class are retained, but the word "Judicial" is prefixed to them. There are no Magistrates of the third class in the Punjab scheme. Special Judicial Magistrates are mentioned in Punjab, as in Bombay. In the Madras scheme, the District Magistrate is re- tained as a Judicial Magistrate. The Sub-divisional Magis- trate is also retained as a Judicial Magistrate of the first class. Besides, there are the three classes of Magistrates in the Judicial category. Where necessary, "Additional, First class Magistrates" can be appointed under the Madras scheme. Executive 97. In Bombay (section 6A), the District Magistrate, ;*’l*€S*’*"°S the Sub-divisional Magistrate and the Taluka Magistrate Ijofsssil are the Executive Magistrates. But there are no "classes" amongst them. There are no Executive Magistrates of the first and second classes. The Bombay scheme also provides for "Special Executive Magistrates". In the Punjab scheme (section 6A), the District Magis- trate and the Sub-divisional Magistrate are retained as Executive Magistrates of the first class and second class respectively. But, besides them, there can be appointed other Executive Magistrates of the first or second class. Two "classes" of Executive Magistrate are, thus, contem- plated in the Punjab. There are no "Special Executive Magistrates" in the Punjab. In the Madras scheme, the Collector, the revenue offi- cers and many of the Tashildars are also designated as Executive Magistrates of the appropriate class. (The Col- lector retains some of the powers of the District Magis- trate, but is called the Additional District Magistrate). Thus, under the Madras scheme, the present nomenclature of the Code has been retained, and the dichotomy of Executive and Judicial Magistrates has been introduced without alter- ing that nomenclature} (It is unnecessary to discuss, at this place, the provisions regarding subordination of Magis- trates in each scheme). Masisemes 98. In the Presidency towns, there are no District gm;-esi- Magistrates, even now. Moreover, the Collector was never ,:::1; a Magistrate in the Presidency towns. Therefore, secpara- _ tion does not present the same problems in the Presi ency towns as elsewhere. In Bombay (section 6A), Presidency Magistrates have been retained under "Judicial Magistrates", without, how- ever, prefixing the word "Judicia1", and such Presidency Magistrates as are "specially empowered by the State Gov- ernment" fall under the category "Executive Magistrates". l. Control over and subordination of Magistrates is a topic falling under section 17. 33 The Madras scheme contains no special provisions for Presidency towns (as regards separation). 99. Having considered the various patterns, we have $¤b¢¤¤¤T come to the conclusion that a combination of the Bombay '°°°‘““‘°‘; and Punjab Scheme is the best for being adopted as a£;°,g§f°E?;Sg,; model. The "District Magistrate", in practice, does not ‘ perform judicial functions himself at present, and there- fore, it would not be necessary to retain him as a Judicial Magistrate. His place as a controlling officer should be taken by the Chief Judicial Magistrate, as in the Punjab} As far as possible, it is better to keep separate nomen- clature for the two categories of Magistrates, in the Mufas- sil, as has been done in Bombay and Punjab. Regarding Executive Magistrates, the Bombay scheme abolishes classes. But, here again, a division into two classes may be worth preserving (as in the Punjab), particularly when there are executive officers of varying status in the same district. Bombay has provided for Special Executive· Magistrates, and we think that this may be adopted as a· provision useful for emergencies, when it is necessary to· appoint Executive Magistrates for a particular class of cases or for areas which are not co-extensive with the limits of a district,—an arrangement which is outside sec- tion 12 and is not covered by section 14 as amended in the Punjab. 100. In the Presidency towns, the Bombay scheme fur- Scheme inishes a good example of a scheme which has worked r¢¤<>¤¤¤¤¢¤· well, and may be adopted. No doubt, that scheme uses El°dP’°g”}§d‘ the same expression, "Presidency Magistrate" for both the fg categories (with the addition of the words “specially em- powered by the State Government" to describe Executive Magistrates), and this might be open to objection. But, in practice, it has not led to any confusion. 101. Besides the Presidency towns, there are other Other emu cities which have assumed special importance now, in view of ¤p=¢i¤¥. of their population, commercial importance etc. It is our I‘”P°"‘°”°° view, that the institution of Presidency Magistrates has proved to be a useful one, and that t e system can be extended to other cities which may be comparable to Pre- ._ sidency towns. To achieve that object, it is desirable that . provisions of the Code of Criminal Procedure applicable to Presidency towns be extended to such cities, after con- siderati-on of their importance, population, degree of urba- nisation, level of the bar, feasibility of attracting good _ judicial talent etc. We may, in this connection, state here, that in respect of the city of Ahmedabad, by a Gujarat · Act,2 the system of Magistracy has been equated to that 1. As to control over Magistrates, see discussion regarding section 17. 2. The Ahmedabad City Courts Act, 1961 (Gujarat Act 19rof 1961), sections 13 to 16- 4-29 M of Law/68 34 in force in the Presidency towns, and the city of Ahmeda- bad has (for the purposes of the Code of Criminal Pro- cedure) attained the status of a Presidency town‘ by vir- tue of the amendment made in the Code by that Act. 102. There is, however,. one very important aspect which has to be taken care of, before any city is brought within the above scheme. In the Presidency towns, there is no District Magistrate. There is a Commissioner of Police appointed under the Police Act in force in the particular presidency town, and he has certain special powers. There are also certain special powers conferred on the Chief Presidency Magis- trate by the Police Acts in force in the Presidency towns. The Police Acts, thus, contain provisions supplementing (and, sometimes modifying) the Code. The biatus that would be caused in Presidency towns by the absence of a District Magistrate (and other relevant provisions) is, thus, met by suitable provisions in the local le `slation. An example of such local legislation is furnishedi by the provisions in the Bombay Police Act? Thus. suitable legis- lative and other action has to precede or accompany the application of provisions applicable to Presidency towns to a particular area. It is for this reason, that we ourselves are not proposing the amendment in each section of the Code in this respect? 103. Certain powers will, even after the scheme of ·separation, continue to vest in both categories of Magis- trates. It is, therefore, expedient to have a provision‘ t at will ensure that the word "Magistrate", used without quali- fying words, includes both. This finishes our consideration of section 6. Swion 7 104. We now come to section 7. The power under sec- tion 7(2), to alter the limits etc. of sessions divisions,. should be exercised in consultation with the High Court. We ·re- commend that section 7(2), be a·mended‘ accordingly. Section'!7(4) 105. We discussed at length a suggestion° to abolish the ¤¤d P=°¤i· instituton of Presidency Magistrates. Though one 'State €;;‘°{_mt” Government has no strong views in the matter, another gl State Government has stated that the abolition of Presi- dency Magistrates would increase appeals to the High Court.’ We ar not in favour of recommending the aboli- 1. For a detailed discussion of the `diderences between Presidency towns and other Places, see Appendix 5. 2. The Bombay Police Act, 1951 (Bombay Act Z2 of 1951), section 96, and also sections 2(5), 2(6), 7(a), 36, 37(1), 38(1), 39, 55 and 95. ‘ 3. At one stage of our consideration ofthe subject such amendments had been thought of, but later, they were abandoned. 4» Cf. section 6A(2), as proposed. 5. See section 7, as proposed. 6. F. Z?/3/55-judl. II (I·Iome Ministry) Appendix I, Item No. 4. 7. The views of State Governments on certain suggestions were obtained by the Ministry of Home Affairs, which had forwarded to us the suggestions as well as the views. 35 tion of Presidency Magistrates. In fact, we regard the institution as a useful one} and are inclined to recommend the extension of the institution to other big cities? 106. No changes are needed in section 8. $°°“i°¤ 8 107. Section 9 deals with the Court of Session, ap- $¢¢*i<>¤? pointment of Sessions Judges etc. We have already sub- ;‘,’;d;::1‘°' mitted a report“ on this section, recommending the changes P that appeared to be necessary in view of the constitutional provisions as to "control", as interpreted by the Supreme Court} The section may be amendedi accordingly. 108. With respect to section 9(3), some points regard- $¢¢ti<>¤ 90) ing Assistant Sessions Judges are discussed below.' 109. With reference to section 9(4), it has been sug— $¢<=¤i¤¤ 9(4) gested’ that the Sessions Judge appointed as the Additional essions Judge of another Sessions Division should sit at the headquarters of the Sessions Division of which he is the Additional Sessions Judge. This would mean abolition of the discretion which the Sessions Judge has at present regarding venue. No such change is, in our view, required. 110. Section 10 deals with the District Magistrate and Section 10 Additional District Magistrate. Following changes are need- ed in this section— (i) An Executive Magistrate of the first class should be appointed as a District Magistrate? Compare the Punjab amendment, section 10(1). (ii) Further, an Executive Magistrate of the first class should be appointed as an Additional District Magistrate. Compare the Punjab amendment, section 1G(2). (iii) Provision for appointment of a Chief Judicial Magistrate° should be made. Compare section 10(1A), Punjab. Necessary changesm are recommended. 1. Paragraphs 66 to 70, supra. 2. Paragraph 70, supra. 3. 32nd Report of the Law Commission (Appointment, Transfer ctc. of Sessions ]udges)· 4. See State ofA.csam v. Runga Muhammad, A.I.R. 1967 S.C. 903. 5. See section 9, as proposed. 6. See discussion regarding section 30, infra. 7. F. Z7(5)/54-Judl. II (Home MinistfY). Appendix ll, Item 3. 8. See discussion under section 6A. 9. See also discussion relating to section 6A and section 12. 10. See section 10, as proposed. 36 Eggigyoége GOVll1l}nIéhxe·fmlowing suggestion‘ has been made by a State Courts ‘ ‘_‘A provision should be made for the creation of Mobile Courts in large cities, with a view to punishing persons committing breach of traffic regulations and offences pertaining to the Motor Vehicles Act and Municipal Laws" (The suggestion states that such courts are in existence in big cities like Calcutta and Madras). We may note, that the matter was referred to in an earlier Report“ also. In our view, however, an amendment of the Code is not appropriate for the purpose. It may be left to the particular laws. We may, incidentally, note that, the matter seems to pertain to section 352 also. Further, questions of right to counsel under section 340 are also involved} Section 11 112. No changes are needed in section 11. Section 12 113. Section 12 deals with the "appointment" of "sub— ordinate Magistrates", and needs the following changes:- (a) In view of separation, it becomes necessary to deal separately with Judicial and Executive Magis- trates; (b) Executive Magistrates will continue to be ap- pointed by the State Government, and their area will be defined by the State Government, or by the District Magistrate, subject to the control of the State Govern- ment; y (c) Judicial Magistrates should be "appointed" by the High Court. Ii separation is to be introduced affec- tively, the conferment of Mazgisterial powers—wh h is the matter to which sectionl mainly pertains——must be- longlto the High Court. Compare section 12 as amended in t e Punjab. . (d) The definition of the local area of Jujlicial Magistrates should be made by the High C0tu·t, o sub- ject to its control, by the Chief Judicial Magistrate, as in the Punjab. The Bombay amendment gives this power to the Sessions Judge, but, as our scheme‘ coritem- plates the appointment of a Chief Judicial Magis rate, he should have this power. (e) Both under the Punjab and under the Bombay amendments, section 12 contains a provision to the effect that the power of "appointment" of (Judicial) Magistrates shall, on the issue of a public notifidation 1. 1:. 3(2>/55.1..c. Pt. 111, s. No. 49. 2. Cf. 14th Report, Vol. 2, Page 787, Paras. 27-28. · 3. Cf. Rem Dayal v. Corporation of Calcutta, A.I.R· 1953 Cal. 76, 78. · 4. See discussion relating to sections IO and 17. 37 under article 237 of the Constitution, be exercised sub- ject to the terms of the said notification. The "app0int- ment" to which article 237 relates is recruitment and we do not think it necesary to insert such a provision in section 12,. which can be taken as confined to the conferment of Magisterial powers on persons appointed to the appropriate cadre in conformity with the constitutional provisions that may be applicable." . (f') A provision regarding the transitional period may be made (Compare the Punjab Amendment). Necessary changes are recommended? 114. With reference to section 12, the following sugges- - 12 new bee been made by e High Court Judge ;- E§§”Q‘f,‘§ge.. "Section 12 may be amended to provide that the ;i°“a'°g;‘;$Q power of appointing Magistrates may be conferred upon Qgmpp the High Court instead of State Government." This has already been covered, in substance} 115. Section 13 relates to Sub—divisional Magistrates. Swion 13 It will be necessary to add the word‘ "Executivc" here. Compare section 13, as amended in the Punjab. The Bombay scheme is different. Under section 13 (as amended in Bombay), there are no "classes" of Executive Magistrates, and the Sub-divisional Magistrate appointed under section 13 is a sui generts. Further, section 13 (as amended in Bombay), speaks of "Taluka Magistrates" also,- a provision which may not be needed in the whole of India. 116. We have accepted the suggestion of a State Gov- swim, 1; ernment’ to provide for the appointment of an Additional (ZA) (To be Sub-divisional Magistrate. added) Necessary provision be added. We may note, that a similar suggestion has been made in the Report of the U.P. Co-mmittee for Investigation into corruption in subordinate courts? As it has been held’ that the present section does not contemplate an Additional Sub—divisional Magistrate, an amendment would be re- quired}" 1. See also the 32nd Report (Section 9 ofthe Code——Appointment etc. of Sessions ]udges). 2. See also discussion relating to section 9. 3. See section 12, as proposed. l 4. F. $(2)/55-L.C.Pt.1I1, s. Nb. 49(e). 5. See paragraph 113, supra. 6. See section 13, as'proposed. . 7. F. $(2)/55-L.C. Per: II, S. Ne. 33. 8. F. $(2)/55·L.C. Part VII, S. No- 449 (Suggestion ofthe U.P. Committee for Inves- tigation of Causes of Corruption in subordinate Courts in Uttar Pradesh) (1963), Report, Pages 37-38 (Bill at Page 223). . 9. See Lakshmi v. State, A.I.R. 1962 All. 165, Para. 5. ' 10. Compare section lO(2)· 38 Section 14 117. Section 14 deals with Special Magistrates. In view of separation, special Magistrates can be of two categories- (1) Special Judidical Magistrates, and (ii) Special Executive Magistrates. The latter are dealt with separately} Section 14 can deal with Special Judicial Magistrates. So far as Judicial Magistrates are concerned, the con- ferment of powers under section 14 should be by the High Court.? And, if the High Court takes this action, then the 4 provisions contained in section 14(3) and section 14(4) be- comes unnecessary, and can be omitted. Necessary changes are recommended? section 14A 118. A new section should be inserted' to deal with (NW') special Executive Magistratesf $¢¢*i¤¤ 15 119. Section 15 deals with the constitution of Benches of Magistrates. The following points may be noted : —— (i) The word "Judicial" has to be added before the word "Magistrate": (ii) For the "State Government", the High Court should be substituted, as it is the latter that should deal with the matter, in view of separation. Compare the Bombay and Punjab amendments. Necessary amendment is recommended.? Section 16 120. In section 16, the following changes are neces- sary:- (i) In place of the State Government, the High Court with the approval of the State Government should be given the power to make rules, in view of separa- tion.' (ii) The word "Judicia1" may be added before the . word "Magistrate". Compare the Punjab amendment. Necessary changes are recommended} See1;iqm17(l) 121. Section 17(1) is an important provision from the point of view of separation. It provides, that the Magistrates appointed under sections 12, 13 and 14 and the Benches constituted under section 15 shall be "subordinate" to the District Magistrate, and the latter may give orders as to the distribution of business amongst them. This "subordina.tion" is both judicial and executive} 1. See section 14A (proposed), regarding special Executive Magistrates. ' Z. See discussion regarding section I2. 3. See section 14, as proposed- _ 4. See section 14A, as proposed. 5. See discussion relating to section 6A and section 14- 6. See section 15, as proposed. 7. Cf. existing section 554- 8. See section 16, as proposed. 9. Cf. Gut Dayal, (l879)I.L.R. 2 All. 205, 207 (F.B.). _ 39 _ So far as Judicial Magistrates are concerned, it is ob- vious that they cannot (after separation) be made subordi- nate to_the District Magistrate, unless the District Magis- trate himself is a Judicial Magistrate. It becomes neces- sary to consider the principal patterns of separation, in this context. According to the Madras pattern the District Magis- trate, who is a Judicial Magistrate is the Principal Magis- terial officer in the district and, as such, has general admi-- nistrative superintendence and control over the other Judi- cial Magistrates in his district. He himself is subordinate to the High Court. According to the Bombay pattern, control over Judicial Magistrates is exercised by the Sessions Judge. The District Magistrate (in the Bombay scheme) is not a Judicial Magis- trate, but an Executive Magistrate. The Punjab scheme contemplates the appointment of a Chief Judicial Magistrate, to whom all Judicial Magis- trates are subordinate. The Chief Judicial Magistrate him- self is subordinate to the Sessions Judge. In the Punjab, the District Magistrate is an Executive Magistrate. 122. In our opinion, if administrative control over Judi- Chie£]udi· cial Magistrates is to be effectively exercised, it can best ¢i¤I M¤zi· be done by the creation of a post of Chief Judicial Magis- “i“° P";P°' trate as in the Punjab. In an earlier Report} the Law Com- Sa mg" mg mission had recommended adoption of the Madras pattern. The Punjab pattern, in this respect, follows the Madras pattern, though in Punjab the nomenclature is different and the change has been effected by statute We recommend that section 17(1) be amended accordingly? 123. Section 17(2) deals with the subordination of Swim, 17 Magistrates to the Sub-divisional Magistrates and has to be (Z) omitted, as the Sub-divisional Magistrate in our scheme is an Executive Magistrate? In lace of the existing sub-sec- tion, a provision dealing with die subordination of the Chief Judicial Magistrate to the Sessions Judge may be inserted} Compare section 17 (2) as amended in Punjab. 124. Section 17(3) needs no change. Sgction 17 125. In section 17(4), instead of "District Magistrate", Section 17 we have to substitute "Chief Judicial Magistrate", in view (4) of separation. Compare the Punjab amendment. 1. 14th Report, Vol. 2, page 858, para. Z1, and page 860, Item (5). 2. See section l7(l), as proposed. 3. See section I3 as proposed. 4. See Section l7(Z), as proposed. 40 126. With reference to section 17(4), it has been sug- ,,0,, ,.,ga,d, gested that the limitation expressed by the words "un· ang avoidably absent or incapable of acting should be removed. After some discussion, we have decided to retain these words, which have caused no serious diiiiculty. ?;;"°“ 17 _ 127. Section_17(5) is a_negative provision, which pro- vides that the District Magistrate, and the Magistrates and the Benches appointed under section 12 to 15, shall not be subordinate to the Session Judge, except as expressly pro- vided? This provision has to be omitted, in view of separa- tion. (Compare the Bombay and Punjab Amendments). One effect of the deletion of section 17 (5) would be, that the provision that the District Magistrate is not sub- ordinate to the Sessions Judge, also disappears. Since the District Magistrate, in our scheme} is not a Judicial Magis- trate, this provision is not needed. The District Magistrate will, of course, continue to be an "inferior criminal Court", in relation to the Court of Session and the High Court} ?1‘§g;v°“ 17A 128. A new provision regarding subordination of Exe- ) cutive Magistrates may be inserted, on the lines of section 17A as inserted in the Bombay and Punjab Amendments? $°¢*i<>¤ UB 129. In view of separation, it is desirable to insert a (N"') provision as to the courts which shall be inferior ' the _ High Court and the Court of Sessions. Such a provisigk has been inserted by section 17B under the Punjab and B t bay Amendments. In fact, the Explanation to section &35(1) already provides that all Magistrates, whether exercising original or appellate jiurisdiction, shall be deemed to be in- ferior to the Sessions udge for the purpose of section §35(1) and section 437. The provision which we recommend em- bodies the following propositions :‘— I (a) Courts of Magistrates in Presidency towns will ge inferior to the High Court, but not to the Court of ession; · » (b) Courts of Magistrates elsewhere will be inferior to the High Court as well as to the Court of Session} (c) Courts of Session shall be inferior to the High Court. 1. F. 27/3/55-]udl. II(Hom: Ministry File), Appendix 1, Item No. 5. · 2. An excellent discussion of the question how far Magistrates are subordinate to the Sggsi opséludge is found in the Judgement of Spankie ]· in Gur Dayal, (1879) I·L·R,· 2 All. 3. See section 10, as proposed. l V in ` 4. See section 17B, as propos .1. l _ 5. See section 17A, as propr s .1. ·· 6. Se: section 17B (propo el) V 7. See also para. 127, sup u. . · _· 41 130. Section 18, which deals with Magistrates in Pre- S°°¤°¤ 18 sidency towns, requires amendment in so far as it deals rwith appointment to a particular court. Both in relation to the Chief Presidency Magistrates and in relation to Presi- dency Magistrates, appointment to the particular court should be made by the High Court. In view of the provi- asions of articles 233 to 235 and 236(a) of the Constitution as interpreted by the Supreme Court} the appointment to the particular court of the Chief Presidency Magistrate, being a part of "control" under article 235, can only be made by the High Court. If that is the position regarding Chief Presidency Magis- trates, it should not be different for other Presidency Magis- trates, even though the constitutional provisions do not apply to them until a notification under article 237 is issued. 131. Section 18(5), as amended in Bombay, contains aS;°°i°¤ 18 provision that when a notification under article 237 of the( ) Constitution is issued, the appointment of Presidency Magistrates shall be made according to the terms of the notification. The "appointment" to which article 237 relates is recruitment, and we do not think it necessary to insert such a provision in section 18, whereunder the emphasis is on the conferment of magisterial powers in relation to a particular locality.” The designation "Presidency Magistrate" may be re- tained, in respect of Presidency towns. 132. With reference to section 18, the following sug-Semen 18 gestion* has been made by a High Court : - gziicznd "A proviso should be added to sub·section (1) of O$°°” section 1 to the effect that no police officer of any rank shall be appointed as Presidency Magistrate. The ano- malous position of the Commissioner functioning as a Magis- trate and performing judicial duties like remanding has been adversely commented upon in judicial decisions. It is not in consonance with the scheme of the separation of judiciary from the Executive. Hence a proviso is recom- mended". We considered this suggestion in detail} The matter, it appears to us, falls within the State List as provisions con- ferring Magisterial powers on Commissioners of Police are usually contained in enactments relating to the police. The States can take action to delete the provision in the Police Act concerned. Thus, for example, section 13, Bombay Police Act, 1951 was deleted by Bombay Act 21 of 1954. 1. Sec 3Znd Report of the Law Commission (Section 9 of the C0dc—App0intment etc. of Sessions judges). . 2. Cf. discussion relating to section 12. 3. See also paragraph 130, supra. 4. F.3(2)/55·L.C.Pt.lII,S.No.52. 5. Compare section 5, Police Act, 1861 (5 of 1861)- ` 42 S°¤*i<>¤ 19 133. No changes are needed in section 19. Section 20 134. No changes are needed in section 20. Section 21 135. In section 21 (1), in the part relating to the powers (1)»71>¤¤= of the Chief Presidency Magistrates, we are recommending zzaféff certain verbal changes. Chief Presi- dency Magistrates Section 21 136. In section 21(1), in the part relating to rules, verbal ;3·?P‘"; changes,. in order to bring the provision in section 21 in ,ul;S'“g ° line with section 16, are recommended. Rules under section 21(1) must be made with the sanc- tion of the High Court (instead of the sanction of the State Government, as at present). Necessary change is recommended. Section 21 137. Section 21(2) leaves it to the State Government to (2),5su}¤- define the extent of subordination of Presidency Magistrates ‘ °;d*¤*=‘°*°¤ to the Chief Presidency Magistrates. Our views in this res- Qmidmcy pect are as follows:- M"‘g‘“"‘"°s (a) In so far as the subordination of the Additional Chief Presidency Magistrate to the Chief Presidency Magistrates is concerned, we think that the power to define their subordination should be given to the ,High Court, and not to the State Government} ` (b) So far as Presidency Magistrates generally are concerned (including their Benches), they should be sub- ordinate to the Chief Presidency Magistrate. For the sake of uniformity, a provision to that effect should be substituted. Necessary changes are recom.mended.” Secc1¤¤22 138. Section 22 deals with the appointment of Justices of the Peace. Following changes are recommended in sec-- tion 22:- (i) The appointment of Justice of the Peace should be made in consultation with the High Court; (ii) They should be citizens of India} V With reference to section 22, a suggestion to define the. powers and duties of Justices of the Peace has been re- ceived} We have dealt with the matter separately} 1. Cf. discussion relating to section 18- l 2. Cf. section 21, as proposed. 3. See section 22, as proposed. 4. F. $(2)-55-L.C., Notes, pages 30-34. 5. See discussion regarding powers of]ustices of Peace (New section 22A etc.). 43 139. After section 22, we recommend the insertion of S°°*i°¤ 225 a new section, to deal with the powers of the Justices of (N"') the Peace, which are not defined under the present law. The provision which we propose‘ has been framed after studying section 22A of the West Bengal Amendment and section 539D of the Bombay Amendment. 140. Another section may be insertedz regarding the S<=¢¤i<>¤ ZZB power of the Justice of the Peace to record a dying declara- (N") tion. Section 22B as inserted by the West Bengal Amend- ment lays down a number of "duties" to be performed by the Justice of the Peace, but we think that it would not be desirable in an All India Code, to impose all these duties on a Justice of the Peace, and it will suiiice to give them the power to record a dying declaration. We also think, that the function should be described as a "power", and not as a "duty". The expression "dying declaration" is really a loose word for a statement which, on death, becomes relevant under section 32(1) of the Indian Evidence Act. Hence the description of the statement to be recorded should conform', as far as possible, to the language of secti-on 32 of the Indian · Evidence Act, 1872. 141. Sections 23 and 24 are already omitted. Sections 23· 142. Section 25 may be retained, (though it has been Section 25 omitted in West Bengal) as "duties" are not being imposed on Justices of the Peace in our Scheme} But we recom- mend‘ that Judges of the Supreme Court may be included in the section. 143. Sections 26 and 27 are already omitted. Sgeeiens 26- 144. In connection with section 28, the question of re- Section 28 tention of ordinary original criminal jurisdiction of the ¤¤1d9¤izi¤¤F High Court (wherever it exists) was considered at great length by us. The matter was discussed in an earlier Re- of High port,‘ the view expressed there being that the ordinary Court original jurisdiction of the Calcutta High Court in respect of murder should be abolished. We have, however, come to a different conclusion. In our opinion, it is better to have justice from a court of superior jurisdiction than from a court of inferior jurisdiction, and where justice from a superior court is available under the existing law (as in Calcutta), strong reasons should be needed to disturb the law. 1. See section 22A, as proposed. 2. See section ZZB, as proposed. 3. See discussion relating to sections 22A and 22B (proposed). 4. See section 25, as proposed. 5. See 14th Report,Vol. 2, page l20l. para. 7, and page 714,paru·2· 44 _ 145. We may point out, that it is the judgments of the High Courts on the original side that have enriched not only our C1v11 law, but also our criminal law. To illustrate this, it will suffice to refer to only one judgment‘ dealing with section 302, Indian Penal Code. No better or more lucid exposition of the distinction between culpable homicide and murder can be found than in this judgment. We are aware, that the recommendation in the earlier Report was made after recording evidence. Nevertheless, we think that there are cogent reasons for not disturbing the existing position. That will be too big a price to pay for uniformity. t 146. Regarding the original Criminal jurisdiction of High Courts, we would like to refer to the remarks which Mr. Justice Mathew made in England while addressing the Lord Mayor, in connection with a suggestion that the crimi- nal business of the country should be handed over to the Court of Quarter Sessions : “ "I think you will agree with me that the respect and the confidence which attaches to the administra- tion of the criminal law is largely due to the fact that the judges attend the assizes. It is an old constitutionali prin- ciple and rule that when the liberty of the humblest sub- ject of the Queen is imperilled, his trial should be presided over by one of the high officials of the law. The traditions of the Bench and their obligations are well understood by ‘ the country; and it is expected that the accused man should ( have one protector in Court, and that is the Judge. It is expected that every precaution that experience can sug- gest should be taken to prevent the greatest of all tragedies- the conviction of an innocent ma.n." _ Section 29 147. Section 29 has been amended in Madras? In subs- tance, the Madras amendment assimilates the procedure in the High Court to that in the Court of Session. The matter really pertains to Chapter 23 (section 266 et scc.)‘ _ Section 30 148. Under section 30, the following points require to be considered- 1 (a) In view of separation, mention of the District Magistrate may be omitted, and the Chief Judicial . Magistrate may be added.eCompare the Punjab Amend- ment. » ’ (b) In earlier Report,“ a recommendation was imade for amending section 30,, sb that all first class agis- trates with five years’ ekperience may be giv the power to impose sentences of imprisonment u to 4 years, after separation of the Judiciary. 2. See (1897) 2 C.\X/.N. (journal) 33. 3. Madras Act: 34 of 1955. . 4- To be considered under section 266. (Madras Amendment to section 29). 5. 14th Report, V0]. 2, page 721, para. Z3. 45 On this change being made, the list of offences triable concurrently by the Court of Session and the Court of such Magistrates would have been enlarged, and the need for a provision for specially empowering specified first-class Magistrates under section 30 would (it was contemplated). have disappeared. 149. We have given our anxious consideration to this matter. But we are compelled to differ with the recommen- dation of the 14th Report on this point. The recommenda- tion was based on the assumption that any Magistrate of ` jive years’ standing would be fit to impose the heavier sentence. We are not sure if the general standard of Magis- trates justifies this assumption. Instead, the existing provi- sion in section 30, which provides for a selection of the m-ore capable amongst the senior Magistrates, seems to be preferable. We, therefore, think that section 30 should be allowed to continue at least for the present. 150. With reference to section 30, it has been suggested‘ Section 30 that enhanced powers under section 30 of the Code of Cri— and j°')f°" minal Procedure should be conferred on Magistrates with gfxcrg the concurrence of and not merely in consultation with the _ High Court. The changes which we are recommending in the sec- tions relating to appointment of, and conferment of powers on Magistrates, achieve the object in view.’ 151. Regarding the respective utility of Assistant Section go Sessions Judges appointed under section 9 and Magistrates ¤¤t}d ¤’i}¤'Y appointed under section 30, conflicting views have been ex- :’cs€'i"“;’Q;°' pressed in the various suggestions received by us. ted Qin. Thus, the suggestion° of two High Court Judges is that under section 30 should be deleted, and Assistant Sessions Judges should be appointed. There should (according to them) be a separate cadre for Assistant Sessions Judges, as the entrust- ment of work of Assistant Sessions Judges to Civil and Sessions Judges only leads to delay. 'I'he suggestion‘ of the Administration of a Union Terri- tory is, that until separation it is not desirable to enlarge the powers of Magistrates to dispose of cases at present tried by Assistant Sessions Judges. The view of a Public Prosecutor is,‘ that there is little difference between a Magistrate empowered under section 30 and an Assistant Sessions Judge, that Assistant Sessions Judges do not usually pass sentences for more than two 1. F. 3(Z)/55·l..C. Part VII, S. No. 449 (Suggestion of the U.P. Committee for Investi· gation of Causes of Corruption in Subordinate Courts in Uttar Pradesh (1963), Report page 39, (Bill at page 224). 2. See section 12, 36 and 37 as proposed. A 3. F. 3(2)/S5·L.C. Pt. II, S. No. 33(b). 4. F. 3(Z)/55-L.C. Pt. Il, S. No. 34. 5. F. $(2)/55-I..C. Pt. II, S. No. 34(b). 46 gears, and that the cases now committed to Assistant essi-ons Judges can be adequately dealt with by a Magis- trate with enhanced powers. No change need, we think, be made in the statutory provisions. The Code leaves the matter elastic, because it is open to the State Government to provide for the required nunrber of posts of Assistant Sessions Judges, or to resort to section 30. $¢¢*i<>¤ 30 152, The following suggestion‘ has been made by a High ““d ‘“gg°s' Court Judge·- tion of a ‘ . E§;cC°“" "There are hardly any Magistrates exercising powers under section 30. Section 30 may, therefore, be suitably amended to confer on experienced first class Magistrates power to punish offences with impri- sonment which may extend to 3 years and to bring with- in their jurisdiction offences punishable with rigorous imsprisonment of 5 years." We think, that it is better to keep the matter elastic, by retaining section 30. Section 30 153. Regarding section 30, it has been stated' that there ¤¤é,dS¢¥i<>¤¤ is an anomaly regarding powers of a "S.30 Magistrate" to gijgfssb try offences under section 326, 382,. 392, Indian Penal;Code, First Cla; as these offences are punishable with imprisonment for Magistrates more than 7 years. We do not —think that such an anomaly exists. A Magistrate invested with powers under section 30 does not, in our opinion, gereby lose his powers as 0. First Class Magistrate to try e offences that are otherwise triable by a first Class Magistrate. The anomaly is more ap-parent than real. Whether, in such cases, his enhanced powers of sentencing under section 34 are also attracted, is another matter. Our view is, that in such cases, his powers as to sentencing are only those conferred by section B2. In such cases, if the Magistrate thinks that a punishment higher than imprisonment for two years is needed, he has to com- mit the accused to the Court of Session. It is that position , which is, in our view, anomalous. To remove that anomaly, it is better to substitute the words "ten years" for ‘*seven years", in section 30, so that the provisions of section 34 will be attracted. The 7 year’s limit in section 34 should not, however, be increased. . Section 30 154. The following suggestion' has been made by a Dis- ‘*‘}‘d S“gg°S‘ trict Judge. tion for g ’°S*°’i¤g "Section 30 be amended so as to restore it to the lgfgggggfn position it had before the amendment made by Act XXVI of 1955. Several cams which are committed to the Court of Sessions are petty, and can as well be tried by experienced Magistrates." 1. F. 3(Z)/55»L.C. Pt. III, S. No. 49(a). 2. F. $(2)/55-L.C. Part I, S. No. 83. 3. F. $(2)/55-L.C. Pc. III, S. No. 49(b). I . 47 A suggestion made by another District J udge‘ may also be noted. "Section 30 has to be suitably amended by em- powering the experienced magistrates to try all offences not punishable with death as was under the old pro- vision. The amendment made by Act XXVI of 1955 has tended to increase the work considerably in Sessions Court? We are not, however, inclined to accept the sug- gestion in toto, though we are recommending certain other mlodiflcationsf 155. No change is necessary in section 31. Section 31 156. In section 32(1), opening line, the word "Judicial"5m;O¤ 32 need not be added before the word "Mag1strate". 157. The following suggestioni has been made by a High Section 32 Court. (U?) "The Judges of the High Court feel, that as a result of the separation of the judiciary from- the executive, and with the experience gained by the Magistracy, first-class Magistrates with 5 years experience may be given the power to impose a sentence of imprisonment upto 4 years. See the Law CommLission’s recommenda- tions, in this respect} This question has been already considered? 158. With reference to section 32, it has been suggested Section 32 by the U.P. Committee that Magistrates who have exercised ¤¤d S¤fz2¢=· first class Magisterial powers for more than five years may g°';1° ' be invested with power to impose sentence of imprison- ° ml ment up to four years. We have already considered a similar suggestion made in the earlier Report of the Law Commission? ’ 159. We have considered suggestionsgm to increase the Section 3} powers of a first class Magistrate to punishment of impri- ;L*€m";$"' sonment up to 3 years, but we are not inclined to accept upto 3,,,,,,,,, them. It is true, that in many recent sP€Cial laws, the maxi- mum p-unishment of imprisonment laid down is three years, 1. F. No. F. 3(Z)/55·L.C. Pt. lll, No. 49(e). 2. See section 30 (as proposed). 3. F. N0. F. 3(2)/55·L.C. Part Ill, S. N0. 32. 4. The reference seems to be to the 14th Report, Vol. 2, page 721, para. 23. 5. See discussion relating to Section 30. 6. F. 3(2)/55·L.C. Part VII, S. No. 449, suggestion ofthe U. P. Committee for lnvesti· gation of Causes of Corruption in Subrodinate Courts in Uttar Pradesh (1963, Report pages 39-40. 7. See discussion relating to section 30. 8. F. $(2)/55-L.C. Partl, S. N0. 36 and 49. 9. F. $(2)/55·L.C. Part II, S. No. 33 (Suggestion ofa State Government). IO. F. 27/3/55·]ud]. ll (Home Minist1·y’s Hle), Appendix I, Item No. 6. 48 and,_1n such cases, as_ the position now stands, a First class Magistrate (1f he thinks that a sentence of two years is not enough), was to commit the case to Sessions. But we do not see anything seriously unsatisfactory in that position. Section 33 160. In section 33, the following points have been con- sidered-— _ (a) Before the word "Magistrate", the word "Judi-· c1al" need not be added. (b) It is unnecessary to increase the limit of im- prisonment in default from one fourth to one half. The increase in the Magistrate’s powers regarding the maximum amount of {ine was due to rise in prices, and was not the result of any decision to increase the powers of Magistrates as such. Section 33 161. With reference to section 33, the following sugges- and suggcs- tion‘ has been made by a High Court Judge. ‘ tion to make · the section "Section 33 relating to imprisonment on default of S°l§‘°°¤““· fine, may be amended so as to make it self-contained, "° by including the provisions in sections 64 to 68, Indian Penal Code". We studied the statutory provisions re- ferred to. With great respect, we are unable to accept the suggestion. ~ The attempt to combine section 33 of the Code of Criminal Procedure with sections 64 to 68 of the Indian Penal Code is, it seems to us, likely to make section 33 cumbersome. Moreover, the topics dealt with in the _ two sets of provisions, though connected, are diffdrent. The Code of Criminal Procedure focusses att ntion on the powers of particular classes of Courts, whée the Indian Penal Code deals generally with the liabi `ty of the offender to the punishment of imprisonment in dee fault. Provision for 162. With reference to life imprisonment, certain] State considua. Governments brought it to the notice of the Govemment tion after of India} that owing to the repeal of section 58 of the ndian *E?*°¤ 33·_ Penal Code by the Code of Criminal Procedure (Amend- s0¤‘;ne:;p"‘ ment) Act, 1955, there is a lacuna as to how the persons sentenced to imprisonment for life should be treated =while in jail. Attention has also been drawn to the following ob- servations’ in criminal appeal No. 120 of 1956 (Keralaf High Court). · "Section 302 as amendedby the schedule to they C—ode of Criminal procedure (Amendment) Act, 1955 (Central Act 26 of 1955) only states that alternative punishment for murder shall be ‘imp1·isonment for life’ and not rigorous 1. 1=. 3(2)/55-L.C. P:. III, s. N0. 49(a). . 2. F. N0. 1=. 3(2)/55·L.C. P:. VU, s. N0. 272. - 3. The decision is reported in AYLR. 1957 Kerala 102, 103. 49 imprisonment for life or simple imprisonment for life ...... The court passing sentences have however to keep in view the provisions of section 60 of the Penal Code and choose one or the other from in view of all circumstances. Recent- ly we had another instance where the Sessions Judge had failed to specify whether imprisonment for life awarded by him was rigorous or simple. In that case the Inspector- General of Prison has sought our direction as to what des- cription of imprisonment the prisoner should be "made to undergo. Here we clarify the position by stating that the imprisonment for life in this case shall be simple imprison- ment and not rigorous". Now, it has been suggested, that considering the nature of offences for which imprisonment for life is awarded, it is desirable that the imprisonment for life should be rigor- ous, and should only be amenable to such concessions in special case of illness, old age, etc., as the Prisoners Act and the Prison Rules may permit. We have examined the sug- gestion. We think that the matter pertains to the Indian Penal Code} and can be more conveniently considered under that Code? 163. It is unnecessary to add the word "Judicial" before $¢¤*i¤¤ 3* the word "Magistrate" in section 34, having regard to the context. 164. Section 35, inter alia, contains a provision as to S°¤*i°¤ 35 sentences of imprisonment, to the effect that such sentences (when passed on conviction for several offences at the same trial) shall run consecutively, unless the Court directs that they shall run concurrently. Now, a High Court Judgei has suggested the insertion of a provision to the effect that the normal rule should be that the punishment of imprisonment is cumulative and not consecutive. We have given anxious thought to this sug- gestion. The matter, we are afraid, cannot be made so rigid. History of the section and the case law on the subject were gone into by us. We are of the view that, on principle, the matter should be elastic, and that is the true import of the existing provision. lf the court does not direct that the sentence shall run concurrently, then it is to be regard- ed as consecutive, under the existing provision. But. the main question—i.e. in what cases the Court can give a direc- tion is left-—and rightly so—to the discretion of the Court. 165. In section 35(1), the words "unless the court directs Semen 35 that such punishment run concurrently" were added at the Select Committee stage in 1898, for these reasons} ` l. See also `Urlikia v. State A.l.R. 1964 Orissa 149 in this connection 2. To be considered under the lndian Penal Code. . . . . ` . 3. F. No. $(2)/55·L.C. Part II, S. No- 33(a). . ' ` ` 4- Report ofthe Select Committee,dated 16th February, l89B.· I . 5-29 Law/68 SO "15. Clause 35.-On the recommendation of the High Court, _North-Westem Provinces, we have empowered Courts in India, as in England, to pass concurrent, as well as con- secutive, sentences of transportation and imprisonment. The effect of this change will probably be to mitigate sentences and at the same time also to discourage frivolous ap- peals ...... " 166. The High Court of North—Western Provinces made the following suggestion when the Bill of 1897 was under consideration 1* "28. Section 35. Under this section concurrent sen- tences cannot be passed. This Court is strongly of opi- nion that a court Should have the power, when a per- son is convicted at one trial of two or more distinct offences in respect of each of which a sentence of imprisonment or transportation is passed, to order that the sentences shall be concurrent or consecutive, as to the court may seem right. This could be effected by the addition to sub-section; (1) of section 35 of the words "unless.the court directs that such punishment shall run concurrently". The power to pass co-n- current sentences is frequently used by the courts in Eng- land, and it is a useful power. Section 240 provides a cum- brous and dilatory procedure in the case of two charges." 167. As the Code stood before 1882, concurrent sentences could not be passed} In the Code as it stood before 1898, the power to pass concurrent sentences was absent, and the Allahabad High Court, in a very early case} regretted this omission. Hence, in the 1898 Code, this provision was inserted. 168. The point now to be considered has been elaborated by Desai J. thus‘— "Then the learned Magistrate has passed concur- rent sentences without giving any reason and apparent- ly without even applying his mind to the question. I find that Magistrates invariably make the several sen- tences concurrent wi.1:h0ut—exercising any discretion in the matter. It is laid down in section 35 of the Code that one "sentence of imprisonment will commence after the expiration of the other sentence of imprisonment,,unless the Court directs that such sentences shall run concur- rently. Obviemsly the normal rule is that the sentences should be consecutive, and they may be made to run concurrently only if there is some reason. Whether the sentences should run consecutively or concurrently is 1. Letter dated 13thIDecember, 1897 ofthe Court of N0rthNVestern Piovinces to the Secretary to Government, NorthWestern Provinces and Oudh, Part II, para. Z8 (Legislative proceedings, April, 1898, Nos. Z4-128, in the National Archives, rehting to the Code of Criminal Procedure, 1898). 2. Emp. v. Vazir Ian. l.L.R• 10 All. 58. C 3. Ishri, (1897) I.L.R. 20 All. l’(F.B.). 4. Khuda Bux v. The State, A.I.R. 1951 A1?. 637, 649. 51 left to the discretion of the Court, but the court must exercise its discretion judicially. It must not exercise it arbitrarily, and must not on every occasion blindly order the sentences to run concurrently as if there were no alternative; but this is done by nearly every Magis- trate. I scarcely remember even one instance in which a Magistrate ordered two sentences to run consecutive- ly. In the present case there was no justification for ordering the sentences, which themselves were inade- quate, to run concurrently; the applicants should have been punished cumulatively for the "difl’erent offences committed by them. I would have very much liked to make the sentences consecutive, but I am not sure if I can do so without a notice of enhancement having been given to the applicants. I am inclined to the view that making the sentence run consecutively instead of con- currently does not amount to enhancement. But this question was not argued at the Bar, and as I am not quite certain that it does not amount to enhancement. I would refrain from making the alteration." Sentences are usually ordered to run concurrently when the two offences are akin or intimately connected with each other} Sentences passed in separate trials cannot, of course, be ordered to run concurrently? 169. It has been suggested by the U.P, Committee} S°§°i°“ that sentences should normally run consecutively, and they i;:ms:€gU_p_ should be made to run concurrently only for good reasons Committee to be recorded by the Court. We have already expressed our view while considering a similar suggestion made by a High Court Judge} 170. In sections 36 to 38, which deal with the conferment Sections 36 of Magisterial powers, the following changes are necessary:- ”° 38 (a) Mention of the Chief Judicial Magistrate should be added, after ‘District Magistrate’. (b) Further, in view of separation, the conferment of powers should be by the High Court, which should be substituted in place of the State Government. (c) For abundant caution, and for covering confer- ment of powers under other laws. it would be desirable to adopt section 38A, Punjab Amendment which has fol- lowed section 38A, Bombay Amendment, with suitable modifications. 1. N. N. Burjoriji v. Emp., A.I.R. 1935 Rangoon 456, 458. ` 2. King Emp. v. Nag sein, A.I.R. 1923 Rangoon 198. 3. F. 3(Z)/55-L.C. Part VII, S. No. 449, Suggestion ofthe U.P. Committee for Investi- gation ofthe Causes ot'Corruption in Subordinate Courts in Uttar Pradesh (1963), Report page 40, Bill at page 224. 4. See discussion relating to section 35. 52 S°°*i°¤ 39 171. In section 39(1), mention of the High Court may also be added} Compare the Punjab amendment. S°°*i°¤ 40 172. In section 40, after the words "State Government" occuring for the second time, the words "or the High Court as the case may be" should be added, in view of separation. Compare the Punjab amendment. Section 41 173. In section 41(1), the High Court has to be addr-rd. Compare the Punjab amendment. In section 41(2), the mention of the Chief Judicial Magistrate subject to the control of the High Court should be added. Compare the Punjab amendment Section 42 174. No change is needed in section 42. ' Section 43 175. No change is needed in section 43. swim, 44 176. Section 44 imposes an obligation to report certain offences, Following points require to be noted in connec- tion with this section :· (i) Regarding a proposal to insert a provision re- quiring reporting of offences relating to bribery, we have submitted a separate Report? (ii) The scope of the corresponding offence in England——misprison of felony—has been narrowed down by a recent Act.'-‘. (iii) Section 44 does not apply to the offender. The Madras decision‘ apparently expressing a view to the contrary, can, in our view,. e taken as confined to sec- tion 203, Indian Penal Code, though it refers to section 44, Code of Criminal Procedure, and section 202, Indian Penal Code. (iv) It is unnecessary to accept the suggestion° for extending section 44 so as to impose an obligation to report "1oss of public property". (v) Whether sections 431 to 433 and 437 to 439, Indian Penal Code should be added (in section 44) was considered by us. An objection was raised before us that sections 435436, Indian Penal Code are mentioned in section 44 because they relate to mischief by fire where urgent action is required, while the other sections (now considered for inclusion) do not possess that feature. 1. Cf. sections 36 to 38 (as proposed)- 2. See the Report on section 44 of the Code of Criminal Procedure, 1898 (33rd Re· )- M port 3. The Criminal Law Act, 1967. 4. See the 33rd Report and Appendix 1 thereto. 5. In re China Cgangappa, A.I.R. 1930 Mad. 870. g 6 Suggestion made in the resolution of Shri Dwivedi, removed in the Lok Sabha in 1961 { the point was referred for Law C0¤1¤\iSSi¤I1rS· C0nSidefati0n. See F. $(2)/55 Pnl-; [V, s.r.. No- 69. 53 We have, however, decided to add the above mentioned sections (sections 431 to 434 and 437 to 439, Indian Penal Code), primarily with object of encouraging detection of offences of mischief in respect of embamkments etc. 177. It has been suggested‘ that the burden of proof Section 44 under section 44 should be removed. We are not inclined wpd b¤f?¤¤ to accept the suggestion. Ordinarily, only the accused will ° P“’° be aware of the existence of an excuse. and therefore the present provision is justifiable. 178. With reference to section 44, the following sugges- S°¤*i°¤Ff‘f tion has been made by a Public Prosecutorz in Andhra Pra- d€Sh• under the "In section 44(1), after the figures "400", the words R“1“’aV|A°* "or any section of the Indian Railways Act", should be inserted. The (proposed) amendment is intended to include per- sons who have knowledge of sabotage of railway tracks and other offences. Sabotage of the railway tracks and other offences under the Indian Railways Act are on the increase." We think, however, that this is a matter which can be more conveniently dealt with in the enactments rela- ting to Railways? 179. It has been suggested} that the words “non—bail- S°¤*i<>¤ 45 able" in section 45(1) should be removed. We cannot accept this. That would unduly widen the scope of the section. 180. Under section 45, a number of other points were considered by us. (i) In section 45(a), the words "or is a member of such village Panchayat" should be added, in view of the amend- ment already made in section 45(1), main part, in 1955. (ii) The question whether the delegation of powers con- templated by section 45(1) (f)—particularly the words "pre- vention of crime"— confers (on the District Magistrate) too wide a power, was raised before us. Our view is, that the delegation is valid. No change is needed on this point. 181. No change is needed in existing sections 46 to 50. Scagon 46 to 182. Section 51 is an important section, and has been Section 51 considered by us at length. We may first note a small l. F. 27(5) 54-]udl. (Home Ministry file), Appendix III, Item (S). 2. F. No. F. $(2)/55»L.C. Part III. S. No. 50(v), 3. Cf. Law Commission’s Report on section 44 of the Code of Criminal Procedure 1898-—Proposalto insert provision requiring reporting of bribery (33rd Report) and Appen- dices 2-3, thereto. 4. P. $(2)/55·L.C. Part I, S. No. 72. _ 54 point, namely, whether it is necessary to replace the ex- ception by a provision that the wearing apparel shall not be removed unless a substitute is provided. We think that no such change is needed. Section 51 183. The question whether a provision authorising medical examuwtton of the accused at the stage of in- 0{ the vest1gat1on_was_ needed, was considered by us in detail. accused The provisions in the Identification of Prisoners Act, 1920 ` and the Prisoners Act,. were examined, and the scope of article 20¤(3) of the Constitution also discussed. Our conclusions on the subject are as foIlows1:— ‘ (i) The existing law does not authorise medical or physical examination of the accused in aid of investi- gation (except to the limited extent provided for in the Identification of Prisoners Act or other special law). The provision in the Prisoners Act is intended for a different purpose, namely, check-up of a prisoner for contagious diseases etc. (ii) It is desirable to amend the Code of Criminal Procedure by inserting a provision on the subject,2 (iii) The second part of section 259, Queensland Criminal Code, which appeared to be a useful prece- dent, should be incorporated in our Code, with suitable adaptation,. (iv) The provision proposed to be added would not violate article 20(3) of the Constitution. (v) It is unnecessary to provide for matters not provided for in the Queensland section. Section 51 184. With reference to section 51, it has been suggested“ and articles that articles of daily personal use and books etc. should be °f d*“lY “$° added in the Exception to section 51. We think, however, that it is unnecessary so to widen the section. Section 52 185. No change is needed in existing section 52. Sgqtign 5zA 186. As to section 52A (New), the matter has been dis- (New) cussed already} Section 53 187. No change is needed in section 53. gccecn 54 188. Slection 54 is a very important section, dealing as it does with the law of arrest. e most important part of the section is that which gives power of arrest in rgspect of cognizable offences. Whether an offence is cogniza, le or not depends on the relevant entry in the Second Schedule. 1. For detailed discussion, see Appendix 6. 2. See section 52A (as proposed). 3. F. 27(5)/54-]udl. (Home Ministry File), Appendix Il, Item (4)- 4. See discussion relating to section 51 and medical examination. 55 Here we shall note only the points whereon a change in the section itself is required or has been urged in the sugges- tions. 189. Section 54, clause Ninthly, needs to be amended by adding the Words "whether such requisition is in writing or not", as there is a controversy on the point} 190. We are not inclined to accept the suggestion’ to Section 54 limit the various clauses of section 54, or to provide fo1·S“g$°$Fi°¤ investigation of the (grounds of) arrest by a judicial officer. 191. With reference to section 54, the suggestion of a $¢¤¢i¤¤ 54 State G0vernment’ to give to the arrested person full parti- “‘?d t?°‘““}“‘ culczrs of the offence for which the arrest is made,"‘ has ;g*:,,:'j`Q° appealed to us. But we do not think that a writing is neces- sary. A suitable provision on the subject is recommended} There is a somewhat similar provision in section 80, which is confined to arrest under warrant? 192. The law of arrest without warrant was considered at length in England in a judgment of the House of Lords. The propositions relevant for the present purpose may be quoted from that judgment :—° "(1) lf a policeman arrests without warrant on reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordi- nary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the rea- sons to himself or to give a reason which is not the true reason. In other words, a citizen is entitled to know on what charge or on suspicion of what crime he is seized.'° (2) If the citizen is not so informed, but is never- theless seized, the constable, apart from certain excep- tions, is liable for false imprisonment." 193. With reference to section 54, a question regarding Section 54 a police oHicer’s power to effect an arrest beyond his ¤¤d ¤¤¤¤¤ jurisdiction, has been raised by the Inspector General of fjgigggtion Police, Orissa in his suggestion on the Code.“ 1. S:e(i) State v. Ramchandra, A.I.R. 1955 All. 438, 440. (ii) Roshan Lal, A.l.R. 1950 M.B. 83. 2. F. Z7(5)54-]ud1. (Home Ministry File), Appendix lI,Item 5. 3. F. $(2)/55-L.C. Par: II, S. No. 33. 4. Cf. article 22(1), of the Constitution. 5. See also Madhu Limaye v. State, A.I.R. 1959 Punj· 506. 6. As to English Law, see (i) Archbold, Criminal Pleading etc. (1966) paragraph 2809. (ii) Cwristie v. Lycainsky, (1947)- 7. A.C. 573;(1947) 1 All E.R.567 (H.L.). 8. As to section 46, see Q.E. v. Basanta Lal, 4 CW. N. 311 and comment thereon in 8 C.W.N. (]ournal) 298- 9 and 10. Christie v. Lcachinsky, (1947) A.C. 573, 586, 587: (1947) 1 All. ER. 567* 572, 573 (H.L.). I1. F. Z7(3)/S5-]ud1.I1 (Home Ministry File), Appendix I, Item 9. ` _ 56 The assumption that a police oiiicer can, under the present law, effect an arrest beyond his jurisdiction in ano- ther State, (which is made in the suggestion), may not be correct. A police oi·licer’s powers are ordinarily limited to the general police district, under the Police Act} Apart from special provisions (such as section 58 of the Code of Crimi- nal Procedure), he cannot exercise powers beyond the gene- ral police district. This is the position, and no amendment thereof is necessary. We do not think that it is neces- sary (as has been suggested by the Inspector General of Police, Orissa) to insert a provision as follows: "A Police Officer authorised to arrest under this section may effect the arrest at places beyond the juris- diction of the Police Station to which he is attached, but should generally do so with the knowledge of the local police." §:§‘;‘;‘0i‘;_ 194. It has been suggested} that the reasons for arrest ing masons by a police oiiicer, should be recorded. This would not be for arrest practicable, in our opinion, and the suggestion cannot, therefore, be accepted. $¢¤¤i¤¤ $5 195. Under section 55, the following points have been considered : - (i) It is unnecessary to replace the words "in the like manner" by the words "without an order from a Magistrate and without a warrant". That, no doubt, is the meaning} but it is unnecessary to disturb the language. (ii) In clause (c), it is unnecessary to add the words "within the limits of such station" which appear in sec- tion 55(a) and in section 55(b). The omission of these words in clause (c) may not necessarily be inadvertent. (iii) For the words "fear for injury", the words "fear of injury" may be substituted. In section 55, certain other changes are desirable. in view of the changes proposed in section 109(a).* swim, 55 196. It has been suggested‘ “ that section 55(1) (b) should (1) (by be deleted. We are unable to accept the suggestion. Proper- ly construed, sectiqn 55(I) (b) is not meant to deal wit _ a mere case of poverty. It is a power vested in high police oflicers for purposes of arresting and sending up persons sus- pected of living by unlawful means. 1. See section 22, Police Act, 1861- 2. F.3(2)/55-L.C.II,S.No.20. · 3. Nepal I.L.R. 35 All. 407. ` 4. See discussion relating to section lO9(a). 5. F.7.7(5){54·]udl.(HomeMinistry Pile),Appendjx. II, Item 5- 6. F. 27(5)/54-ludl. (Home Ministry File), Appendix III, Item 6. 57 197. There is an apparent conflict of decisions on the $¤¢fi0¤ 56 relationship between sections 54 and 56. The correct position appears to be this. Where a police oiiicer acts on a requisition sent to him under section 56, his powers are naturally confined by section 56. But, where the police officer is in independent possession of information, and purports to act under section 54, his action is legal‘ _ The matter was explained at great length by the Madras High Court also.’ The amendment which we are rec0mmending3 only re- states the law laid down in the judicial decisions as pro- perly understood, and is intended to obviate unnecessary controversy. 198. In section 57, the following points have been con- Section 57 sideredz- (i) In sub—section (2), the words "having jurisdic- tion" may be added after the word "Magistrate". Com- pare the Bombay amendment. (ii) In section 57(2) and in section 57(3), the word "Judicial" need not be added, as in Presidency towns the Magistrates performing judicial functions are not proposed to be described as "Judicial" Magistrates. 199. No change is needed in existing section 58. Section 58 200. Regarding section 59, a number of points have Section 59 arisen:- (i) The question whether it is necessary to replace the words "in his view" by "in his sight or presence" was considered} Observations of Page J. in one casef that the section is not happily worded, have been noted; and the other decisions relative to these words in the section have been considered by us. We think, that no change is necessary to disturb the language. (ii) The question whether the words "cause him to be arrested" should be added in section 59 has also been considered: In view of the case-law° which shows an obscurity on the subject, we think that it is desirable to add these words. 1. See Sulaiman v. State ofKeraZa, A.I.R. 1964 Kerala 185 (Reviews case law). 2 . Gurcharan Kaur v. Province 0fMadras, A.I.R. 1942 Mad. 539, 546. 3. See section 56 (as proposed)- 4. Cf. Nazir v. Rex. A.1.R. 1951 All. 3 (F.B.). 5. Qouri Prasad v. Chartered Bank,I.L.R. 52 C8]- 615;A-1·R· 1925 CBL 884, 885 (Page 6. See- (i) Nazir v. Rex, A.I.R. 1951 All. 3, 7 para. 15(F.B.). (ii) Fakiro v. Emp., A.I.R. 1947 Sind 107, 109, para 7. (iii) Graham v. Henry Gidney, A.I.R. 1933 Cal. 708, 714 (Ameer Ali].). 58 $°°**<>¤ 59A 201. A new section is proposed regarding giving to the ~ (N"") arrested person full particulars of the oifence} Section 59B 202. The following suggestion° has been made by a High (Nm) Court. "Arrests of_respectable Agriculturists and men in other walks of life are made in connection with prohibi- tion offences etc. It has been found that the people have ·• been practically condemned to remain in police custody w1thout_ getting themselves released on bail promptly. Also, this 1S done very often to degrade these persons . in the eyes of the public and for other unlawful reasons * which need no specification but can readily be guessed. The abuse can be prevented only if it is made obliga- tory on the part of the police officer to give reasonable time for arrangements to be made for bail before the arrested person is removed etc. Much of the discoun- tentment against the lower ranks of police will be re- moved if this provision is enacted." Accordingly, the High Court has suggested the insertion of the following sectionsz- "54A(1): Where a police officer effects an arrest without a warrant of any person accused of a bailable offence, it shall be obligatory on the part of the officer to inform the person arrested that the offence with which he or she is charged is bailable and that the accused may arrange for sureties to oyfer bail on his or her behalf. (2) The police-officer shall wait for a reasonable time for such arrangement to be made, before removing the concerned person to the station." The State Government concerned found the reasons con- vincing, and supported the amendment. We discussed the suggestion at length. In our view, only the first part of the suggestion may be accepted. provi- sion requiring the police to wait may create complications. We also think, that the proposed provision should be placed after section 59. Necessary amendment is recommended? Section 60 203. As to section 60, the "Magistrate" referred to in the section will be- (a) the Judicial Magistrate, in the case of arrest for an offence; (b) Executive Magistrate, in other cases. It is not, therefore, necessary to qualify the expression wN[8g1S- trate". 1. See discussion under section 54. supra. 2. F. No. 3(2)I55-L.C. Pc. III, S. No. 252. 3. See section 59B (Proposed). Q 59 204. In section 61, the following points have been con- S°°*i°¤ 6l sidered·- (i) The opening part of the section should be changed so as to begin—"No person who has been arrest- ed without warrant shall be detained." This change appears to be desirable, in order to bring the section into conformity with article 22(1) of the Constitution. (ii) It is unnecessary to add the word "Judicial" be- fore the word "Magistrate" in the middle part of sec- tion 61. Whoever is the Magistrate competent under section 167 will be the "Magistrate" referred to in this section. 205. Section 62 requires the police to send certain re-8*:**;** 62 ports. The section need not be extended to Presidency towns. gaze;' In these places, the matter would be taken care of by the nccessaw local Act relating to police} for presi- dency towns 206. In other places (i.e. outside Presidency towns), the Section 62 reports under section 62 should be sent to the District Magis- C°*"{P°*°¤* trate etc. The object of the report is to keep the District ;’3§§;"‘° Magistrate etc. informed of the situation regarding gravepmsidency offences. It is, therefore, unnecessary to substitute "Chief cowns Judicial Magistrate". (We find, that no such changes have been made in Bombay and Punjab). A suggestion to keep the power under section 62 with J udical Magistrates,2 has been considered by us, but we are unable to accept it. 207. In section 63, after the word "Magistrate", the words Session 63 "having jurisdiction" should be added, as in the Bombay and Punjab amendments. 208. No changes are needed in sections 64 to 67. Section 64 to 67 209. Regarding section 65, certain changes have been Section 65 suggested by two Judges of a High Courtz-3 which, in effect, and issus of would empower a Magistrate to issue a warrant without“'°"““‘ taking cognizance of the offence. This, we are afraid,. would conflict with section 204(1). Taking cognizance of an offence must precede the issue of a warrant. There may be provi- sions to the contrary which usually appear in special laws} But, in the absence of such special provisions, the scheme of the Code seems to contemplate cognizance as a step prior to the issue of a warrant by a Magistrate. We are aware, that there is a decision to the contrary,5 but we regret that we are, with great respect, unable to 1. Cf. section 96, Bombay Police Act, 1951. 2. F. 3(2)/55·L.C. Par: I, S. No. 49. 3. F. 3(Z)/S5-L.C. Parr ll, S. No. 33(b). 4. Cf. R. R. Chari v. State of U. P. (1951) S.C.R. 312, A.I.R. 1951 S. C, 207. 5. L. Ram Narain Singh v. A. Sen A.I.R. 1958 All. 758, 760. 60 agree with the view that a Magistrate can issue a warrant (for the arrest of the person who could be arrested with- out warrant under sections 54 and 55) without taking cog- mzance. ggctions 66- 210. Sections 66-67 need no change. Section 68 211. The suggestion of a State Government (which has ami endorsed th_e suggestion of the High Court for State) is to sgrfficc by permit service by a party, with leave of the Court} Accord- pm,. ing to the suggestion, a proviso should be inserted in sec- tion 68(2) as follows :— "Provided that a summons under this section may, by leave of the Court, be served by the- party or his agent applying for the same on the witness by personal service. If such service is not effected and the Court is satisfied that reasonable diligence has been used by the party or his agent to effect such service, then the sum- mons shall be served in the usual manner." We regret, that we are not able to accept the sug- gestion, as we are not certain if a provision suggested, may not be abused. 212. Another State Government” has suggested that a provision authorising the service of summons by registered post be inserted. The suggestion is as follows 1-- "In addition to the existing provision in section 68, Cr. P. C. a sub-clause be added providing that the sum- mons may, in addition, be also sent though registered post and acknowledgement of the same deemed as suffi- cient service." 213. There is also a suggestion by the Delhi Administra- tions for authorising service of summons by post, in order to curtail unnecessary delay, As the law stands now, service by post is not validf We considered these suggestions at length. 214. We are recommending a suitable provision, for witnesses only.5 We do not think that postal service should be adopted, as a general rule, for summoning the accused. V Section 62 215. A State Government° has raised the question about “ and Corpo- the procedure to be followed where, after service on a muon Corporation, its representative does not appear. The matter 2 seems to pertain to the Chapter on General provisions in Inquiries and Trials.' I 1. F. $(2)/55-L.c. Pm I, s. No. 80. 2. F. $(2)/55-L.c. Pm II, S. NO. 33. . 3. F. 3(Z)/55-L.C. Pm VII, s. NO. 386. 4. Cf. A.l.R. 1950 E.P. 20. ` 5. See section 74A (proposed). 6. F. 27(3)/55-Jud]. II (Home Ministry File) Appendix I, Item No. 14- _ 7. To be considered after section 340· 61 216. In section 68, regarding Benches, a provision may S°¢*i<>¤ 68 be added OD the imes of section vs. M Bcmhcs 217. No change is needed in section 69. S°°*i°“ 69 218. In section 70-- $¢¢¤i<>¤ 70 (a) provisions regarding service on the servant in Presidency towns should be omitted. There is no such provision in the Code of Civil Procedure} and, in our opinion, having regard to changed social conditions, this provision should not continue. (b) Consequently, it will be desirable to add a pro- vision that a servant is not "a member of the family" within the meaning of this section? 219. Section 71 may be amended on the lines ofthe cor- Section 71 responding provision in the Code of Civil Procedure? 220. No change is required in section 72. Section 72 221. With reference to section 73, the suggestion of a Section 73 State Government‘ to require the complainant to deposit reasonable expenses of the accused residing in another dis- trict, has not found favour with us. 222. No change is required in section 74. S°°“°¤ 74 223. A new section——·section 74-is proposed, for the S°<=*i<>¤ 7*7A service of summons by post.‘ of summons by POSIC 224. No change is needed in sections 75 to 77. Semjons 75 C0 225. In section 77(I), the following amendments are Section 78 necessary :— (i) Instead of "Magistrate of the first class", we have to substitute "Judicia1 Magistrate of the first class". (Compare the Punjab amendment). (ii) "Chief Judicial Magistrate" may be added, Compare the Punjab Amendment. (iii) Instead of the words "district or sub-division", the words "area of jurisdiction" may be substituted, in view of the above changes. 226. No change is needed in existing sections 79 and 80. Scstiggs 79 all 1. Cf. Order 5, Rule 15, Code ofCivil procedure, 1908. 2. Cf. Order 5,Rule 15,Explanatio'n, Code of Civil Procedure, 1908. 3. Cf. Order 5, Rule 19, Code of Civil Procedure, 1908. 4. F. N0. $(2)/55-l..C. Part Il, S. N0. 33. 5. See discussion under section 68, supra. .' 62 S°°**°¤ 81 _227. With reference to section 81, the provisions of article 22 of the Constitution have been considered. As sec- t1on_ 81 is confined to arrest under warrant, it is unnecessary to disturb the language of the section. §§?g°“s 82 228. No change is needed in sections 82 to 86. Section 87 229. With reference to section 87, the question whether section 87 applies to attachment for contempt has been examined. The Supreme Court judgment‘ holding that sec- tion 87 does not apply to such attachment has been consi- dered by us. It was felt, that as the matter relates to the law of contempt of court, it could be dealt with better in the rules to be made by the High Courts. It is unnecessary to add that reasons should be re- corded before action is taken under section 87. A manda- tory provision, however, to that effect may render a procla- mation issued without recording the reason void? This would be particularly so, as courts construe sections 87-88 strictly? ?§°“°¤ 87 230. With reference to section 8'h(2), the following sug- ) gestion‘ has been made by the Chief Presidency Magistrate, Madras. "Section 87(2) prescribes the procedure for the publication of the proclamation to serve on an accused person. The suitability of making a provision for the publication in a daily 4(that a particular person is wanted in a particular case in a particular court) either as an additional or an alternative mode of secur- ing the accused, could be usefully considered." We think that publication in the daily newspapers, in addition to existing modes under section 87(2), as an optional mode where the court thinks fit, should be added. (Question of expense of publication can be dealt with by a suitable provision in the rules). Section 88 231. In section 88(2), after the words "District Magis- (2) trate", the words "Chief Judicial Magistrate" should be added. Compare the Punjab Amendment. Section 88 232. In section 8876), reference to the 1908 Code of (6) Civil Procedure may be substituted. Swim, 88 233. In section 88(6B), after the words "District Magis- (6B) trate", the words "Chief Judicial Magistrate" should be added. Cf. the Punjab Amendment. l. Mrs. Peterson v. Forbes, (1963) Suppl. 1 S.C.R. 40; A.l.R. l£63 S.C. 692. 2. Cf. the case-law as to section 90. 3. Cf. Pal Singh v. State, A.l.R. 1955 Punj. 18. 4. F. 3(2)l55·L.C. Part llI,S. No. 52. 63 234. In section 88(6C), proviso, after the words "Dis- $¢¢*i<>¤ 88 trict Magistrate", the words "Chief Judicial Magistrate", (GC) should be added, though the Punjab amendment does not make this change. It is unnecessary to provide—as has been done in the Punjab amendment to section 88(6C),—— that a claim or objection made before a District Magistrate or other Executive Magistrate should be referred to the Chief Judicial Magistrate (who may then refer it to a Judicial Magistrate subordinate to him). There is no harm if claims or objections made before an Executive Magistrate (in respect of property attached under his orders) are investigated by him, as the rights of aggrieved parties are suiliciently protected by the right of suit which is pre- served by the section} 235. A suggestionz to exempt subsistence allowance from Section 81 attachment under section 88 has not been found acceptable by us. 236, Under section 89, the following suggestions has Section 89 been made by a High Court Judge: "It should be provided that if the absconding person does not appear within 2 years or so, the attached pro- perty may be sold and the proceeds credited to the State Government." In our view, existing section 88(7) gives this power by implication. We are not, therefore, recommending any amendment in this respect. 237. As to section 90, there is a conflict of decisions on Section 90 the question whether the provision for recording of reasons is directory or mandatory."! It would not, however be convenient to resolve the conflict by an amendment of sec- tion 90, as the- matter really relates to application of the provisions saving irregularities_ We may, however, state here, that the object of this requirement is to draw atten- tion to the consideration that a warrant ought not to be issued where a summons can serve the purpose, and that care should be exercised by the court to satisfy itself that upon the materials before it, it was necessary to issue a warrant} l. See Section 88(6D). 2. F. $(2)/55-L.C. Part II, S. N0. 48. 3. F. No. $(2)/55-LC. Part III, S. N0. 49(a). 4. I.L.R. 38 Madras 1088. 5. Sabebulla, I.I..R. Sl Cal. 1 (F.B.). 6. Indra, A.l.R. 1955 Punjab 81. 7. Cf.Sahebulla,l.L.R.51Cal.1 (P.B.). · 64 S°“’°“ 91 238. With reference to section 91, it has been suggested‘ that the sect1on_ may be amended so as to give power to a court to require execution of a bond in such terms as could make it obligatory for the person to either appear in the court which took the bond or in any other court to which the case may be transferred. We have studied the law _on the subject. The point is also of interest’ in con- nection with section 514(1), and Fifth Schedule, Form N0. 42 (Generally as to section 91, the under-mentioned case’ may be seen)? We see no objection to the su gested amendment being made, and we recommend accordingly. 94 p 239. It has been held by the Supreme Court,‘ that sec- accused tion 94 does not apply to the accused. Where it is intended to require an accused person to produce a document etc., a summons cannot, therefore, be issued under section 94; nor can a warrant for search be issued under the first two paragraphs of section 96. But section 96, last paragraph, can be used. We considered the question whether any change in the language of section 94 is needed to codify the proposition that it does not apply to the accused. We came to the conclusion that it was not necessary? Section 9_4 240. With reference to section 94(1), a suggestion has Qtizd **9h* been made by the Markapur Bar Association, Andhra defence to Pradesh} to amend the section so as to provide for sum- summen moning documents in the possession of the prosecution at documents the instance of the accused even before he has entered into defence (being documents useful for cross-examination). The suggestion refers to a decision in Yusuf Sahib v. Havo- gtvenderf holding that this right is restricted to a stage after the accused has entered on defence. The suggestion says, "If this view is correct, proceedings are unnecessarily prolonged even in cases where there could have been a discharge? Hence, before the words "such Court may issue a summons", the words "at any stage of the proceedings" should be inserted. 241. We have examined the entire case-law in this respect. 1. F. $(2)/55·L.C. Part VU, S- N0· 449, Suggestion of the U.P. Committee for lnvestigation of Causes of Corruption in Subordinate Courts in Uttar Pradesh (1963), Report, pages 40-41, Bill at page 225. 2. To be noted under section 514(l)· 3. Vasu Deo, A.I.R. 1958 A11. 578. 4. State ofGujarat v. Shyam Lal, A.1.R. 1965 S.C. 1257, 1259, paragraphs 29to 32. 5- For a detailed discussion, see Appendix 7. 6. F. $(2)/55-L.C. Pt. III, s. Ne. 50(O). 7- Yusuf Sahib v. Hayogi Vendor, (1955), l Andhra Pradesh W.R· 409 (Subha Rao C.]. ). L 65 As has been pointed out, "the words of section 94 are very large, and, it seems, advisedly so."‘ The section is wide enough to empower the court to exercise this power at the instance of the accused even before he enters on his defence?-’-‘ This is clear from the word "whenever" used in the section. No change is now necessary. 242. The position regarding applicability of the Ban- S3°°”i°;,‘ 94 kers’ Books etc, Act‘ to a summons issued under section 94 §3,,iI;,s. of the Code was examined by us in some detail. Our views Books. are as follows :— (a) as regards inquiries or trials, there is uncer- tainty as to whether the Bankers’ Books Evidence Act overrides the general provisions of section 94. This uncertainty should be removed. (b) as regards investigations, the Bankers’ Books etc. Act does not, at present, apply at all. There is no reason why it should not extend to investigations. 243. We, therefore, recommend that- (i) Section 94(3) be amended so as to provide that nothing in the section shall affect the Bankers’ Books etc. Act. (ii) In the Bankers’ Books etc. Act, a new sec- tion—section 6A should be inserted to extend that Act to ·Lnvestigat·ions.° 244. With reference to section 96, it has been suggested’ Section 95. that powers be given to the Superintendent or Commissioner of Police to require delivery of postal articles, and that power be given to the Deputy Superintendent of Police to order detention, of such articles. We are not able to accept the suggestion. The District Magistrate,.being the head of the administration, should have this power, but it is not desirable to give the power to police oiiicers. 245. In section 95, it will be necessary to add "the Chief Judicial Magistrate." 246. Under section 96, the question of its applicability S¢¢=i¤¤ 96. to the accused has been already discussed? 1. Nizam ofHyde·rabad v.A.M.]acob, (l892),I.L.R. 19Ca1.52,64 (Ameer Ali j.). 2. ln re Dr. Raghotham, A.I.R. 1963 A.P. 362, 363, para. 4 (D.B.). 3. Hari Charan v. State, A.I.R. 1955 Pun. 17, 18, para. 4. Q 4. Armugam v. State, A.I.R. 1961. ° 5. The Bankers’ Books Evidence Act, 1891 (18 of 1891). 6. To be carried out under the Bankers’ Books etc. Evidence Act, 1891. 7. F.27(3)/55-]udl.II(Home MinistryFile),AppendixI,Item No. 15. 8. See discussion under section 94, supra. 6-29 Law/68 66 In section 96(2), it is necessary to add the Chief Judi- cial Magistrate. $¢¤¤i<>¤ 96 247. The following suggestion‘ has been made by the ggjgg to Administration of a Union Territory. Y7Q;‘;‘ni°°'°h' "Section 96(1) may be amended to specify the should be status or the rank of the officers to whom search-warrant directed. is to be directed, and that officer should not be below , the rank of Inspector of police." We have considered the suggestion. From the Fifth Schedule, Form No. 8 (Form prescribed · for seach—warrant under section 96), it would appear, that the warrant under section 96 can be given to any "p0lice officer or other person or persons." Section 98(1), and Fifth Schedule, Form No. 9 may be contrasted, under which the search warrant can be issued only to a police officer above the rank of constable. We, however, think that no such rigid provision is called for, in relation to warrants under section 96. $¢¤¤i<>¤ 97- 248. No change is needed in section 97, Section g8_ 249. In section 98, the following points have been considered: (i) After "District Magistrate", "Chief Judicial Magistrate" be added. (ii) Amendment of section 523 is necessary} to provide for the action to be taken on articles seized under section 98. (iii) The question whether, in section 98 (1) (d) and (e), it is necessary to add, after the word "Magis- trate", the words "issuing the warrant", was considered, with reference to the form in the Fifth Schedule (Form of "Warrant of search of suspected place· of deposit"). That is the intention of the section. But there may be cases where it may be necessary to take the property to a Magistrate other than the Magistrate issuing the warrant, where the circumstances so require. In such cases, it would be possible to adapt the warrant. The section need not be made rigid in this respect. Swim, gg 250. In section 98,(2) (a), reference to the new Customs (2). Act, 1962, may be substituted. Swim 98 251. The power under section 98 should be given to (2) and both Judicial and Executive Magistrates, because section 98 Judicial does not necessarily contemplate a pending judicial pro- Magistrate. ceedingff U 1. F. No. 3(2)/55·L.C. Part III, S. No. 21. 2. To be considered under section 523. 3. See S. KZ Sribastava v. Gajanand, A.I.R. 1956 Cal. 609, 612. . 4. Sec also Mohammed Scrajuddin, A.I·R. 1962 S.C. 759, 762, para. 12. lL‘ A 67 252. No change is needed in existing section 99. S¤¢¤i<>¤· 99· 253. Certain points relating to section 99A have been $¢¤¤i<>¤ 99A- considered. The conclusions arrived at by us are as follows :— (i) It is unnecessary to require that an order of forfeiture should be issued only on the certificate of the Advocate General, or other principal law officer} The existing safeguard—review by the High Court—is enough. (ii) Section 99A refers to certain sections of the Indian Penal Code. In this respect, the constitutional validity of section 99A will depend on the validity of those sections. 254. We recommend that section 292, Indian Penal Code Section 99A (obscene matter) should be added in section 99A. This re- ¤¤<1t°bS°°¤° commendation is independent of the suggestion" made by me °° the Ministry of Home Affairs, asking us to consider the question of making certain amendments to section 292, Indian Penal Code, and other connected amendments in the Code of Criminal Procedure. In the course of our discussions on the subject, it was . urged that section 292, Indian Penal Code- l(obscene matter) does not stand on the same footing as seditious or other matters mentioned in section 99A. Seditious or other mat- ters (it was stated) might require urgent action from the point of view of maintenance of law and order, while obscene matter would not ordinarily aifect law and order. Further, it was stated, it is not fair to throw on the author the burden to move the High Court, as would be the posi- tion if section 99A is applied to obscene matter. The view taken by us, however, is that, in order to check the growing evil of obscenity, it is necessary to amend section 99A, to add obscene matter. But, it is not, in our view, necessary to mention speci- fically indecent or obscene matter contained in reports of judicial proceedings (as has been done in the Bombay Amendment). 255. It is not necessary to omit the descriptive portion in - section 99A, even though it amounts to a repetition of the description of the offending matter as given in section 124A portion. etc. of ·the Indian Penal Code, 256. No change is required in section 99B, H 'r$cctiOn ggB_ l. Contrast The Young persons (Harmful Publications) Act, 1956. . . i 2. F. 3(9)/56-L-C- Pt· I. S· No· 31 (suggestion of the Ministry of Home Ag,;,,} 3. F. $(2)/SS-I..C. Part IV, S. N0. 97. 4 ' A {V 68 ·E°°;g;gS·99C 257. Section 99C requires decision by a Bench of three ° ‘ Judges of the High Court. In relation to Courts of Judicial Commissioners composed of less than three· members, this requirement cannot be fulfilled. But, as difficulty has not arisen in practice, and, as the problem may not occur often in practice, no change is required for the present. lt has been suggested by two High Court J udges,‘ that the hearing under section 99C should be allowed by two Judges. We regret that we are unable to accept the sug- gestion, as the proceedings under section 99-C are important enough to justify the present provision, which requires that the application should be heard by a Bench of three Judges. 258. No change is needed in sections 99-D to 99-F. swim, 99G‘ 259. Under section 99-G, we have considered the ques- tion whether an amendment is needed with reference to the words "otherwise than in accordance with section 99-B". These words may or may not have the effect of barring an application under article 226_ of the Constitution, in a fit case. It is, however, unnecessary to disturb the language to provide for that. swim, 100. 260. In section 100, the following points have been con- sidered :— (i) No changes have been made by the Punjab or Bombay Amendments to confine the power under sec- tion 100 either to Judicial or to Executive Magistrates. Having regard to the fact that concurrent jurisdiction may be convenient for emergent action, no change is required in this respect. \(ii) It is unnecessary to replace, in section 100, the word "coniined" by the words "believed to be so con- fined", though that is the meaning? §°°*_i°¤ 100- 261. An important point which was brought to our p$Q;§f;d notice in the course of our discussions in connection with forinquiry, section 100 was, that the section does not provide f r the issue of a notice to the opposite party, and injustice, (lt was stated, resulted from this position. The facts in a Calcutta case illustrate the possible hardship? In that case, an application under section 491 of the Code was made by one J ogendra Nath Shaw Chowdhury on the allegation that he had been duly married to the infant girl, but that the gir1’s father had lodged a false complaint before the Presidency Magistrate of the Northern Division that the girl was being wrongfully detained by the Appli- 1. F. No. 3(Z)/55-LC. Parr II, S. No. 33(b). 2. Kallan Beg v. Emp., A.l.R. 1936 All. 306, 308. 3. In the matter of section 491, Criminal Procedure Code and in the matter of Shoibalini Dassee, (1898), 2 CV/.N. 333 (Notes of cases) Gerldns I-). L. 69 cant and obtained a search-warrant from the said Magis- trate under section 100 and that, subsequently, the said Magistrate had made over possession of the girl to her said father. He also alleged, that the father’s application to the Magistrate was without notice to him, and that he got no opportunity of showing cause against the orders made as above stated. The search-warrant had been issued on the • 30th August, 1898, the order for possession also having been made on the same day. s 262. The observations which Jerkins J. made while granting a rule on behalf of the alleged husband are interesting. "JERKINS J.: How is it that the Magistrate came to make that order without notice to the Applicant? He undoubtedly had a right to appear and show cause and in fact it seems strange that an order of this kind under section 100, Cr. P. C., should have been made without notice, or even a search-warrant issued without such notice." (Ultimately, the rule was discharged, as the High Court was not satisfied on the affidavits that there had been a marriage. This was, however, without prejudice to any suit which the applicant might bring). 263. Our attention was also drawn to other cases which show how Magistrates sometimes‘ misuse sections 100 and 552, or which stress the need for a proper inquiry.“’ We are not, however, inclined to recommend an amend- ment of the section. 264. It has also been suggested} that an elaborate proce- dure for the inquiry under section 100, be provided for. Some of the points made in the suggestion are :— (a) to require that a statement on oath of tlre informant, and of at least one witness, should be put in before issuing a search-warrant; _(b) to provide for temporary custody pending .. hearing; (c) to fix a date and hold an inquiry in the pre- sence of the opponent. ‘ We are not, however, inclined to recommend any such elaborate procedure. l. Lalmani Devi v. State, A.I·R. 1958 Pat. 689, 691, para. S. 2. Lilabai, A. I. R. 1958 M.B. 24, 25, para. 8. 3. See, however, Chepa Mohton, A.I.R. 1928 Pat. 550 (Warrant could be issued on A mere petition). 4. F. No. 3(Z)/55·L.C. Pm I, s. No. 70. . 70 Egg'?)'; 101102 265. No change is needed in existing sections 101 and Scction103#. 266. The recommendation in the 14th Reportl to delete the words "(inhabitants) of the locality" in sec- tion 103 was considered. We think that it is not safe to make such a change. Practical difficulties notwithstanding the principle on which this requirement rests is a salutary one. Its deletion will mean that in practically every case witnesses from any locality will be brought to be present as a search. §,;*;Ei<>¤103· 267, Various other suggestionsz relating to section 103 Othéfus were considered by us. s“gg“*‘°“S‘ Thus, a Deputy Inspector General of Po1ice“ has stated, that respectable inhabitants do not like to associate them- selves with searches against their neighbours. This require- ment of the law should (according to his suggestion), there- fore, be dispensed with, when a raiding party is headed by a Police of the rank of Inspector of Police or above. We are not in a position to accept the suggestion. The condition of "respectability" ought not to be dis- pensed with, even where the search is carried out by any Inspector or higher officer etc. Section 103 is intended to safeguard the rights of a house-holder, and also to ensure that the search conducted by the police should be honest and genuine} Its object is to ensure that it may not be possible to bolster up a false cases-°. 268. The legislature has made this provision to ensure fair dealing and a feeling of confidence and security amongst the people, and in order to give effect to this object, it is necessary that the witnesses to search should be absolutely unprejudiced and uninterested in the result’. "It is only when Panch witnesses are independent that the liberty of the subject can be safeguarded, as far as searches are concerned."“ 269. It has been suggested by a State Government} that in section 103(1) after the words "tn which the place to be searched is sltuated" the words "ov· if no inhabitant of 1- 14th Report, Vol. 2, pages 755-756. 2. F. No. 3(Z)/55-L.C. Part II, S. No. 33 and 34(cl). 3. F. No. $(2)/55-L.C. Part I1, S. No. 34(d). 4. Nirmalsingh v.Emp.,A.I.R. 1919 A11. 41, 42. » 5. LachmiNa·rain v.Emp., A.I.R. 1919 Pat.452,453. 6. Emp. v. Balai Ghosh, A.1.R. 1930 Cal. 141, 143. 7. In re Rajalvather, A.1.R. 1959 Mad· 450, 452, 6, 7, where Ramaswami]. has summarised the law and reviewed the case-law. » 8- S. K. Fernandez v. The State, A.I.R. 1951 Bom. 468, 469, para. 3 (Chagla C.]. and Gajendragadkar ].). 9. P. $(2)/55-L.C. Pm II, S. No. 33. 71 the locality can be procured, any other two or more wit- nesses" should be added} We cannot accept the suggestion. The proposed relaxa- tion, if enacted, is likely to be resorted to in all cases, thus robbing the section of its utility. 270. A High Court Judge has suggested'! the insertion. • of a provision that a finding or sentence shall not be altered on account of non-compliance with section 103. We regret that we are unable to accept this suggestion. It is the law (speaking broadly),3 that such non-compliance by itself • does not justify the reversal of a conviction or sentence. But a pointed provision to that effect would be unwise. 271. In this connection, we would like to state below, in brief, some of the main points that emerge from the case-law. (a) Where the witnesses are not respectable inhabi— . tants of the locality, that circumstance would not invalidate the trial, but would only affect the weight of the evidence in support of the search and recovery ;‘-5 (b) At the same time, the necessity of due compli- ance with the provisions regarding searches should be emphasized. See the object of the section as explained in the under-mentioned case° holding that the object is to ensure fair dealing and a feeling of confidence and security amongst the public, in regard to a some- what necessary invasion of a private right. The provisions of the section designed are for greater certainty and security}-8 and its object is pre- sumably to obtain as reliable evidence as possible of the search and to exclude the possibility of any mal- · practice of any kind. (c) There may be cases where the accused would be prejudiced by non-compliance. In one case,’ the High Court had to make th-ese observations- "It appears to me that it is high time that steps should be taken to stop this wanton disregard of statutory provisions by the police of these provinces".‘° • 1. Compare 14th Report, Vol. 2, pages 755-756, para. 48. 2. F. 3(Z)/55·L.C. Part ll, S. N0. 33(a). 3. See paragraph 240, infra. • 4. Sunder Singh v. The State, A.I.R. 1956 S.C. 411, 415. 5. Radhakishen v. State of U.P. (1963)Supp. 1 S.C.R. 408; A.I.R. 1963 S.C.8ZZ· 6. In re Govindan, A.I.R. 1959 Mad. 544, 547. 7. Emp. v. Ma Thein, A.I.R. 1936 Rang. 15, 17. 8. Emp. v. Balai Ghose, A.I.R. 1930 Cal. 141, 143. 9. Bishnath Rai v. Rex, A.I.R. 1950 A11. 147, 148, para. 3 (S. No. Seth].). - 10. See also Dr. Jai Nand v. Rex, A.I.R. 1949 All. 291, 299. 72 _ (d) It is not, therefore, advisable to put a provi- sion in a pointed form, saving such irregularities, Since the tr1al is not vitiated even now,] no provision is needed. Section 103 272. A suggestioni to extend section 103 to search of ;‘1}°1§;""°h the person was considered by us. But we could not accept person it. Search of the person had usually to be made imme- diately on arrest, and ordinarily there would be no time to call witnesses. $9*100103 273. The following suggestions has been made by a Bar and list of Council respectable ' *’°"°‘“· "The Bar Council ............ feels that for every vil- lage a list of respectable persons, known as Justices of the Peace or some other suitable and dignified name, may be prepared, Such an honorary office may attract respectable men. The power to search may be vested in the Justice of the Peace and the right of drafting the panchnama should be invested in him." The comment of the State Government concerned on this suggestion is, that creating a sort of "cadre of search witnesses" etc. will create more problems than it will solve. The State Government was not in favour of this proposal, as it would lead to abuses and bring the entire system into disrepute. We agree with the State Government’s comment. No change is required. Section 103 274. We may note the suggestion‘ that search witnesses ;‘Pd sjggfb should be respectable persons but not necessarily the égQ.,2.,,,,é€; inhabitants of the locality in which the place to be searched is situated. We have already statedf that we are not in favour of any amendment of section 103 to that effect. Section 103 275. A suggestion° to allow the search list under sec- (3)- tion 103(3) to be given afterwards, was considered, but rejected by us, The present provision is intended to safe- guard the right of the occupant, and is a salutary one. Swim 104. 276. No change is required in section 104. S•=¤¢1<>¤ 105- 277. No change is required in section 105. 1. Kochan Vilay, I.L.R. 1960 Ker, 916, A.I.R. 1961 Ker. 8 (F.B.) 2. F. $(2)/55-L.C. Pau I, S. No. 28. 3. F. No. 3(Z)/55-L.C.Pt.III, S.No. 52. 4. F. 3(2)/55»L.C. Part VII, S. No. 449, Suggestion ofthe U.P. Committee for Investi- gation of causes of Corruption in Subordinate Courts in Uttar Pradesh (1963), Report page 41, Bill, page 225 middle. 5. See discussion regarding section 103. 6. F. 3(Z)]5$·l..C.Part I, S. No.17. 73 278. No change is required in section 105-A. §£°”i°“ 105 279. In section 106, the following points have been con- Section 106- sidered in relation to separation. (a) Mention of the following Magistrates may be added--Chief Judicial Magistrates. s(b) Before the word "Magistrate", the word "Judi- cial" need not be added, as in Presidency towns, the prefix "Judicial" is not used. 280. Case-lawl as to the applicability of section 106 to Swign 106 cases of conviction under section 149, Indian Penal Code gzgscei has been considered by us, and the history of the 1923 cOVm,d_ Amendment (as a consequence of which a controversy has arisen) also gone into. An amendment is proposed to settle the law on this point. As section 106 stands at present, security cannot be required on conviction for abetment of criminal intimida- tion. An amendment is proposed to set this right. 281. The words "or other offence involving a breach of $¢¤*i<>¤ 106 the same" in section 106 have given rise to conflicting :£§Q° interpretations? The views expressed in the decisions on ..Og€,,Cc the subjectcan be broadly grouped as follows :-3 Lnvolging {`CHC (a) The word "involve" connotes the inclusion, not °;;;‘E, only of a necessary, but also of a probable feature, cir- P ' cumstance, antecedent condition or consequence} If the offence is such an offence that it is, as a matter of experience, often followed by breaches of the peace, and if the evidence shows that the accused would have accomplished their object by breach of the peace, it is enough, Thus, an offence such as the removal of a landmark under section 434, Indian Penal Code is often followed by serious riots. and, therefore, where the evid- ence shows that the accused were prepared to commit the act of removal by breach of peace (and was pre- vented from doing so only because the other side ran away), the offence falls within the words "involving a breach of the peace."‘ 1. Contrast- Ramjan v. Jawaluddin, A.I.R. 1944 All. 272. with In re Mekrai, A.I.R. 1939 Mad. 787- 50 2. The various views are criticised in The King v. Maung Kyi Nyc, A.I.R. 1940 Rang. 3. The earlier cases are collected in Note "Criminal Cases of l903" (1904) 8 C.W.N, Warrants, at pages 141, 143, 153 and in the Editorial note 8 C.W.N. (journal, 210). 4 St 5. Emp.v. M¤nikRai,(1911)I.L.R. 33 A11. 771,772 (Knox j.). 74 Same is_th€ position regarding criminal trespass} where there lS an intention to commit a breach of the peace. h(b) Not only are offences in which breach of the peace is an essential ingredient included, but also offences in which an evident intention to commit a breach of the peace is expressly found." (c) Breach of the peace must be an ingredient of the offence." ‘” Thus, acts of immorality in seducing married women may provoke or lead to a breach of the peace, but they do not "involve" a breach of peace.’ In an earlier Madras case,” White C. J. had raised query as to whether, where a breach of the peace had been in fact committed, an order could be passed though the offence did not "involve a breach of peace". (Compare the language of section 522-an offence at- tended by criminal force). For a slightly wider view, the under-mentioned case° may be seen. In that case, the High Court observed"' that the words "breach of the peace" are the anti-thesis of the other set of words "keeping the peace". The words "keeping the peace" connote preservation of the public peace, and are the direct opposite of the words "breaking the peace". Therefore, the court has to examine whether the offence brought home to the individual necessarily includes or im- plies breach of the peace or constitutes or amounts to a breach of the peace. If it does, the section applies. Then followed an elaboration of the section, in these words. "Is it intended by the section that each of the offences described in the Indian Penal Code should fall under the category of either "offences involving a breach of the peace" or offences of the opposite descrip- tion. I do not think either is desirable or possible. The facts constituting an offence must be looked at for determining whether the offence comes within the sec- tion or not, The present case is in point and strikingly illustrates what I mean. Wrongful confinement per se is not an offence involving a breach of the peace. If, 1. Dharam Raj, (1920) l.L.R. 2 All. 345. ' 2. Abdul Gafulv. Mad. Mirza, l.L.R. 59 Cal. 659; A.l.R. 1931 Ca]. 645 (D.B.) (Reviews cases). 3. Asoka v. Emp., A.I.R. 1930 Cal. 802. 4. Anukul Saha, A.l.R. 1939 Cal. 484 (D.B.). 5. Abdulla v. Crown, l.L.R. 2 Lab. 279; A.1.R. 1921 Lah. 98. 6. Mithiah Chetty, (1905) l.L.R. 29 Mad. 190 (Section 143, Indian Penal Code). 7. Arun Samanta, (1903) 1.L.R. 30 Cal. 366, 368 (Prinsep and Mitra ]]) (Case under section 110). 8. Kannokaran v. Emp., (1902) I.L.R. 26 Mad. 469- 9. In rc Kuppa Reddiar, (1924) l.L.R· 47 Mad. 846; A.I.R· 1924 Mad. 808- I 10. Kuppa Reddiar, In re, A.l.R. 1924 Mad. 808, 809 (Venkatasubha Rao j.). 75 for example, a person happens to be in a room in his own house and another by locking the room on the outside, confines the person within the room and makes egress impossible, all the elem-ents necessary for constituting the offence of wrongful confinement are present. But this involves no breach of the peace but on the con- trary if, as has happened in th-e present case, the offen- , ders in a coconut garden using violence seize another and tie his hand, I am clearly of the opinion that the offence as proved does involve a breach of the peace." ; (e) The expression "offences involving a breach of the peace" covers two- classes of cases—The first class is where a breach of the peace in fact has occurred. The other case is where the definition of the defence involves a breach of the peace, as in one of the two classes of cases under section 504, Indian Penal Code} . 282. An amendment of section 106 is proposed to settle the law on the point, so as to replace the words "involving a breach of pe·ace" by a different phraseology_ 283. The question whether the Sessions Judge should Scction 106 also be added in section 106(3)——which refers to the High Q) *‘Pd Court exercising the "powers of revision", can be consi- jjj;j,‘;f‘s dered after the question of revisional powers of the Sessions Judge is considered? 284. It has been suggested,3 that the power under sec- S€¢¤ 106 tion 106 should be given to Second Class Magistrates (parti- f;‘:c];_’i*‘g‘s‘ cularly for riot cases). We are unable to agree. The €mp,.,Wc,cd_ maximum period of security under section 106 is 3 years, and, for that reason, it is better that the power is con- fined to Magistrates of the highest class. 285. With reference to sections 106 and 110, it has been Sections 106 suggested* that the maximum period for binding down ¤¤d11<> persons to be of good behaviour under sections 106 and 110 Exgglum should be reduced from three to two years. ` The reason given in support of this suggestion is, that the period of three years was "too long and often caused harassment to citizens who may have, had the misfortune of having incurred the displeasure of the police". If a per- son does not change his ways within two years, there are · (it is stated), other methods of dealing with him. I ) 1. Emp. v. Yacoob Sayed, (1918) I.L.R- 43 Born- 554; AIR- 1919 Bom. 150 (Heston, Z. Amendment ofsection 106(3) to be considered when section 435 is considered. 3. F. 27(3)/55-]udl. Il (Ministry of Home Adairs File) Appendixl, Item No. 18. 4· F. 3(Z)/55-L-C. Part VII, S. No. 449, Suggestion of the U.P. Committee for Investi· gation of Causes of Corruption in Subordinate Courts in U.P. (1963), Report page 42,. Bill at pages 225·226. . .. 76 We have considered the suggestion carefully. But we may point out, that security for the period of three years can be demanded only after confirmation by the Sessions Judge, who has to go into the case on the merits} This safeguard being there, we do not regard the suggested change as necessary. _ Sections 107 286. Sections 107 to 110 deal with preventive action. iftilfg; They are vitally connected with the preservation of the 0f(;n;°;;'l public peace and the maintenance of law and order. This qu€mO,,)_ is the first duty of every State. The duty cannot be effec- tively carried out without some provisions designed to give sufficient powers. Some safeguards are needed no doubt, and the law provides for them. However, omission of these sections appears to be out of question, S°°**°“ 107- 287. The power under section 107 should be given to Executive Magistrates, being concerned with the mainten- ance of law and order} The power may be assigned to— (i) Presidency Magistrates specially empowered by the State Government in this behalf (Cf. the Bombay amendment) ; (ii) District Magistrates and Sub-divisional Magis- trates (see the existing section) ; (iii) Executive Magistrates of the first class (Cf. the Punjab amendment). Section 107 288. With reference to section 107(1), the following sug- glgzgion gestion“ has been made by a High Court Judge. g*°¤H*8h "Sections 107-110 relate to security for keeping peace. °“" ]“dg°‘ The words "is informed" occurring in section 107(1) lead to the presumption that the information may be lodged by private persons. It may be made clear by necessary amend- ment, that these sections should be confined to cases. where information is lodged by the police (and not by private persons) that a breach of peace is apprehended." 289. We examined the existing law on the subject. As the law stands at present, the Magistrate can draw up proceedings—— _ (a) on a police rep0rt,‘ (b) on a report of a subordinate Magistrate} (c) information given by a private individual} 1. Sections 1Z3(2) and 123(3). 2. As to subsequent proceedings, see discussion relating to section 117- 3. P. 3(Z)/5S·I..C. Part III, S. No. 49(q). 4. Laxmi Narain v. Emp., A.l.R. 1932 All. 670. 5. R. v. Iamppa, (1871) 8 B.H.C.R. Cr. 162, 163. 14--. 77 (d) on private petition ;‘ t(e) information gathered from a previous trial.’ It may be noted, that under section 106, even the orders of the High Court in revision are sufficient} 290. The sine qua non for the institution of a proceed- ing under section 107 is, that the Magistrate shall be of opinion that there is sufficient ground for proceeding! We are, with great respect, unable to recommend an amendment on the lines suggested. There may be cases where the Magistrate may have to act on information from sources other than the police. 291. It has been suggested} that section 108 should be 1S;’°‘i°t'} IOS}. omitted. We are not in favour of deletion of the section. CI', We would, however, like to draw attention to the fact un that the jurisdiction under section 108 is preventive, and not punitive. The test is, whether there is (i) dissemination of seditious matter; and (ii) fear of repetition? "To take proceedings under section 108, there ought to be evidence that, if not prevented, the person accused would continue to act in the way in which he had done."’ We may quotei the observations of Rankin J'.: "The most important thing in the end is the ques- tion under section 108, Cr. P. C., whether it is necessary to order the person summoned to enter into a bond. It may sometimes happen that the contention on the part of the editor in such circumstances is so extra- vagant that the Magistrate may be justified in thinking that unless effective steps are taken, the editor intends, notwithstanding the decision of the Court, to go on as before. Merely because a person has insisted upon putting his case before the Court and taking its deci- sion, to infer that it is necessary after the decision has been given to bind him down in or to prevent him from doing the same thing again is, I think, unwarranted, 1. Sanjivi v. Koneri, A.l.R. 1926 Mad. S21, 524- 2. K. E. v. Cjobardlmn, A.I.R. 1922 Oudh 273. 3. Emp. v. Muhammad (1881) I.L.R. 3 All. 545, 548, 553. 4· Deoballam v. Gorakhanath, 48 Cr. L.]. 703, 704 (Patna) (Agarwala _].). 5. F. 27(S)/54-judl. (Home Ministry File), Appendix U, Item No. 10 (suggestion of a Member of Parliament). 6. Emp. v. Vaman, 11 Bom. L.R. 743. 7. ChiranjiLal,v. K.E.I.L.R. 50 All. 854;A.1.R. 1928 A11. 344, 345 (Dalai J-)- 8. Chakravarty, v. K. E. I.L.R. 54 Cal. 59; A.I.R. 1926 Cal. 1133, 1137 (Rankin _].). 78 p The following observations show the scope and object of section 108 :—‘ "The provisions of Chapter VIII of the Code are no doubt preventive in their scope and object; and are obviously aimed at persons who are a danger to the public by reason of the commission by them of certain offences. The test under section 108 is whether the person proceeded against has been disseminating seditious matter and whether there is any fear of a repetition of the offence. In each case that is a question of fact which must be determined with reference to the antecedents of the person and other surrounding cir- cumstances." 292. The circumstances inwhich section 108 was inserted in the 1896 Code are interesting Alongwith the Bill of 1898, amending the Indian Penal Code, for the purpose of dealing with the law of sedition, Government decided to insert section 108. The reasons were thus explained :-2 "For the present, at any rate, we have no further amendments to suggest in the substantive law, and I now wish to refer to two amendments which the Gov- ernment propose to move in the Select Committee on the Code of Criminal Procedure Bill. Section 109 of that Code provides that in certain cases people who misbehave themselves may be bound over and required to find sureties to be of good behaviour for a term not exceeding twelve months. We propose to apply a simi- lar procedure to the case of people who either orally or in writing disseminate, or attempt to disseminate, obscene, seditious or defamatory matter, A man who disseminates, that is to say, who sows broadcasts or scatters abroad, such matter is obviously a dangerous public nuisance. It is immaterial whether he chooses, as his means of dissemination, an oral address, or a book or a pamphlet, or a newspaper. We are bound to check such obnoxious conduct. But as a rule the per- sons who are guilty of it are small and insignificant individuals. They may do enormous mischief among uneducated, foolish and ignorant people, but in them- selves they are deserving of very little notice. It is absurd to deal with them by an elaborate State prosecution. We think that in most cases no prosecu- tion at all will be required, It will be sufficient to A give them an effectivewarning to discontinue their evil practices, and we think that the machinery we have devised will operate as aneifective warning. The gene- ral power of revision possessed by the High Courts will secure that that machinery_will not be usedin any way I ) 1- Emp- v· Vaman, (1909) 11 Bom· L·R· 743, 744 (Chandavarkar, Ag. C.]. and _l—leam¤ 2. Proceedings of the Governor-Generalin-Council, Dec. 12, 1897; speech of Mr. Chalmers Law Member. _ _ {__, . 79 oppresively; and we further propose that this new power should only be exercised by Presidency or Dis- trict Magistrates, or specially empowered Magistrates of the first class." 293. The necessary clause was approved in substance by the Select Committee} The Committee stated, that it had confined jurisdiction to certain Magistrates, and pro- vided that the bond may be with or without surety, and removed reference to obscene matter and made certain other changes. It had also provided that the order shall be subject to revision. The amendment, however, evoked serious protests? 294. In the proceedings of the Select Committee on the 1898 Code,3 one of the· members, Shri Bishambar Nath, stated, that insertion of the new clause would virtually mean the revival of that "retrogressive and noxious legis- lation in the Vernacular Press Act." Answering the criti- cism, Sir John Woodburn explained the real object of sec- tion 108 thus :— "In the interests of good government it is always better that crime should be prevented than that it should be allowed to come to a head, however, exem- plary and effective the subsequent punishment may be. The lamentable riots, which were yesterday reported from Bombay, furnish fresh proofof the suddenness and iierceness with which passions may be roused in this country in an ignorant imob and of the imperative necessity of arming the executive with all the powers of prevention which possible forewarning may render it expedient to use. "I am myself perfectly willing that even this preventive jurisdiction shall be exercised only under the express authority and sanction of Govern- ment. This will give assurance thalt it will be exercised with moderation and prudence; but that provision should exist for the use of preventive measures, when occasion requires, is the opinion of every responsible Government in India and of every High Court without exception, The only dissentients in the High Courts were Justices Ghose and Banerjee, Judges of a sobemess and soundness of judgment which must always carry weight and even they accepted the measure now before Council with the proviso which will be agreed to ' l. Report ofthe Select Committee on 1898 Code, 16-2-1898, Legislative Proceedings, April, 1898, No. 24 to 128, Appendix A·5O (National Archieves). 2. See the various articles and notes in (1898) 2 Calcutta Weekly Notes Oournal sec- tion), pages 51, 73, 75, 85, 87, 88 (representation of the Calcutta Bar) and 95 (Report of the Select Committee on the amendment to the I.P.C.) and page lll. 3. Proceedings of the Governor General "in Council, llth March, 1898, Legislative Pro ceedings, April, 1898, N0. 24-128, Appendix A-60 (National Archieves). 80 today. I can add nothing to this unanimous opinion of all that is responsible for the peace and order of India-1." 295. One of the amendments moved by Sir Griffith Evans was accepted in the Council. He moved this amend- ment :— "No proceedings shall be taken under this section against the editor, proprietor, printer or publisher of any publication registered under or printed or publish- ed in conformity with the rules laid down in the Press and Registration of Books Act, 1867, except by the order or under the authority of the Governor-General in Council or the Local Government or some officer empowered by the Governor-General in Council in this behalf." He thus explained the amendment "The last words of the amendment are taken from section 196. The effect, roughly speaking, is to require the same sanc- tion of Government when proceedings are instituted under section 108 against the Press as is required in all cases of a prosecution under section 124A. The result will be that Magistrates will be able to take proceed- ings without Government. sanction in all other cases, but will require Government. sanction before taking proceedings in respect of a newspaper article. It may be asked why this distinction should be made between oral and written sedition. One reason is that oral incitements to a mob of ignorant people are apt to lead to immediate disturbances and may require immediate action without waiting for sanction, Another is that many seditious preachers are migratory and must be caught at once if they are to be stopped, whereas news- paper editors and publishers have a Hxed address and a fixed occupation and can be found at any time. But the main reason is a different one. A portion of the Vernacular Press has been allowed to drift into a very lamentable condition for many years, and the curb which it is proposed to put upon them by this section will have to be ap lied with great discretion and judg- ment. I mean no disrespect to the Magistrates in India when I say that I do not think this power can be safely entrusted to them. Able and conscientious as they are, the comparatively isolated lives that they lead in the several districts are not favourable to the wide outlook and sense of proportion which are necessary to deal effectively with this evil. Many of them are also too young. It is, I think, essential that this power should be exercised by persons of the ripest judgment, living in a serener atmosphere, away from local feeling and excitement In fact, I do not think that any one but the Government ought to use this power with any prospect of the good results which are intended." I 81 296. Power under section 108 should be assigned to S;°*i°¤ WS Executive Magistrates, the power being of a preventive nature. It may be given to — ' (a) Chief Presidency Magistrates (See existing section); (b) District Magistrates, (see existing section); (c) Presidency Magistrates specially empowered by the State Government in this behalf (see the Bombay Amendment); (d) Executive Magistrates of the first class (see the Punjab amendment). Mention of section 295A, Indian Penal Code, should be added in section 108, as the offence under that section is similar to the offences already mentioned in section 108. _ 297. A suggestion‘ to extend section 109 to cases of Sc¤¢i<>nl109 intention to commit a crime was considered, but rejected $“¥€°SF*°¤ b us. F°ga’d¥°g y intention to A suggestion’ to omit section 109 totally was also considered, but we are unable to accept it.’ 298. The power under section 109 should be given to S°°”i°¤ 129 Executive Magistrates, the power being of a preventive p°w°'“" "' nature. These will be- (i) Presidency Magistrates specially empowered by the State Government in this behalf (see the Bombay amendment); (ii) District Magistrates (see the existing section); (iii) Executive Magistrates of the first class (see the Punjab amendment); 299. Under section 109(a), there is a conflict of decisions $<=¢ri<>¤ 109 as to the interpretation of the words "to conceal his presence Sjgtjizf Q: within the local limits of the Magistrates jurisdiction. We wnmum considered the controversy at some length} We recom- presence". mend, that the wider interpretation be adopted, that is to say, it is not necessary that the person against whom action is to be taken should have come from outside the Magis- trate’s jurisdiction. To achieve this object, section 109(a) should be amended so as to read-— (a) that any person within the local limits of such Magistrate’s jurisdiction is ......... " It will also be desirable to amend section 55, as it is couched in similar phraseologyi 1. F. 27(3)/55-]udl.1l (Home Ministry File) Appendix I, Item N 2. F. 27(5)/54-judl. (Home Ministry File), Appendix II, Item No. 11. 3. See also discussion relating to sections 107-110, supra- 4. For detailed discussion, see Appendix 8. 5. To be carried out under section 55- 7-29 M. of Law/68 82* _ ,300. With reference to section l09(b), the following mtiomhw suggestion has been made, by the Minister for Justice of Og a State Government} . "For a correct understanding of the changes which have taken place in consequence of the promulgation of the Constitution of India, it is necessary to look to the background—the context of bureaucratic rule. It cannot be denied that the position of a citizen in law before independence has drastically changed in the wake of freedom on the promulgation of the Constitu- tion of India. Consequently, there has been a corres- ponding change in the rights of citizenship. The relevant question is what were the rights of a citizen of India before the Constitution of India came into force and how these rights stand now after its promulgation ....... The old rights of citizenship created under foreign rule were of such a character and extent the exercise of which would not in any way interfere with the strengthening of the position of British rule in India and the foreign Government was too vigilant to protect its interests. Thus, the interests of the people were sacrificed for the benefit and welfare of British admi- nistration in this country. It will be appreciated that the old conception is now entirely changed. Whatever ` rights of citizenship are provided under the Constitution they have been created for building up and consolida- tion of the freedom of the country in the first instance and secondly for providing opportunities of free natural development to citizens of this country with an intense irresistible urge to vivify and resuscitate the dead- stagnant life of its people. To examine the position in law of section 109(b), Cr. P. C. we should look at it from the angle of vision of the new conception of citizenship as adopted and enshrined in the Constitution. Under ’ section 109(b), Cr. P.C. the question of public peace is also involved. Public peace under the old British regime was undoubtedly a public peace of a graveyard, but an _ attainment of freedom this conception of public peace has undergone a drastic change. Now the conception of public peace is pregnant with its significance of the public peace of free citizens which will lead to the strengthening and consolidation of freedom in the country and to the awakening of a growing dynamic life of its citizens. From the above, it is crystal clear that under the new set-up of democratic Government we have to examine it in the light of the provisions of the rights of citizenship contained in the Constitution of India and that of public peace in its new context of the free sovereign state. If for interpretation of the provision of the Constitution we base out examination on the same old outdate conceptions of the rights of citizenship and public peace, which we can honestly say are left behind as most disgraceful, insulting and 1. P. 3(2)]55-L.C. Part VII, S. No. 152. l; 83 degrading remnants of the slavery of British rule in ~ India, we will only misguide our endeavour and chase “ the wild goose in so far as the correct understanding of the above subject is concerned. Naturally as follows :— , (1) Whether the conceptions of the rights of citizenship and that of public peace have under- gone a change in consequence of the promulgation of the Constitution of India ? If so, how the above conceptions as they stand now after attainment of freedom, are materially different from the old ones ? In case a material change is found, how does section lO9(b), Criminal Procedure Code affect the provi- sions of Constitution of India ? (2) Whether the responsibilities of the Free Sovereign State of India for moral and material progress and peace and prosperity of the citizens of this country are the same as that of old regime of Britishers in this country, or this responsibility has further fully developed into a complete responsibility of a Sovereign State? If so, is an action under section 109(b), Criminal Procedure Code justified and maintainable ? (3) Whether any classification of the people of this country based on the ground of their fortunes is countenanced by the provision under the Consti- tution of India. (4) Whether in view of the great changes mentioned above section 109(b), Criminal Procedure Code stands repugnant to the provision of article » 14 of the Constitution ? _. (5) Whether section 109(b), Criminal Procedure Code is void by reasons of its inconsistency as provided under article 13 of the Constitution? So far as the provision of section 109(b), Cr. P. C. is concerned, it apprehends breach of public peace from a class of people who have no ostensible means of subsistence—have nots. This is obiously creating a class by itself to be dealt with differently by the law of the land from the class of the people who are the haves. Is such a position tenable according to the Constitution of India ?" We considered the suggestion. Our view is this—Section 109(b), cannot be employed against a person merely because he is a pauper or he is unemployed. It is requisite that the demanding of security must be necessary to ensure good behaviour. There must, ordinarily, be a suspicion that dishonest means are resort- ed to} That being the position, we do not think that the section needs alteration because of the constitutional provisions. 1. See Victor,l.L.R. 53 Cal. 345. $•=¢¤1¤3Hg _301. We have been unable to accept a suggest1on‘ to; ““ omit section 110, clauses *(e) and·(¢f). Section 110 302. The suggestion, of a State Government“ to add, in 3E*<:_#f*' section 110, persons who habitually commit illicit distilla-» " ‘ ° ‘°“‘ tion etc. was considered by us at some length; but we are- not in a position to accept it. These are offences by virtue- of local laws, and it would not be correct to put them in. a provision applicable to the whole of India. Section 110 303. Power under section 110 may be given to Executive M=?¤¤¤'¤¤¢S Magistrates, as it is vitally concerned with the maintenance ;fnp‘;wmd_ of law an order. These will be- (a) Presidency Magistrates specially empowered (See the Bombay Amendment); (b) District Magistrates (See existing section 110);. (c) Sub-divisional Magistrates (See existing section 110); and (d) Executive Magistrates of the first class (See the Punjab amendment). Section 110 304, We have considered a suggestion” to put various ****4 ;’*h°’ restrictions on the power under section 110 and to provide °°‘" s‘ for compensation for false information leading to proceed-. ings under section 110 etc. In our opinion, these changes would not be practicable. Sections 111 305. Section 111 is already omitted, no changes are ¤<>116- needed in sections 112 to 116. Seee1¤¤s112 306. With reference to sections 112 and l17(1), it has {*6 117,0) been suggested} that the courts should have power to °"““‘ ' remand to custody persons arrested under section 55 of Code for being proceeded against: under Chapter·V“III of the Code of Criminal Procedure. We would, however, point out, that section 55 is meant for urgent cases. A remand should not be necessary in such arrests. Arrest under section 55 should be followed p·ron}ptly by proceedings for obtaining orders under section 109, i` the case so justi es. ` As to remand in cases’ under section 107‘(3‘), section 107(4) may be seen. AL; to mud pending inq,u.iry under Chapter 8, section 117(3), also the undermentioned cases," may be seen. 1. F. No. Z7(5)/54-]ud1. (Home Ministry File); Appendix II, Item 12. 2. F. No. 3(Z)/55·I..C. S. No. Z5. 3. F. 27(5)/54·]udl- (Home Ministry File), Appendix IV, Items 2, 3, 4. 4. F. 3(Z)/55-L.C. Part VII, S. No. 4491 Suggestion of the U.P. Committee for Investi- gation of Causes of Corruption in Subordinate Courtsin Uttar Pradesh, (1963), Report, pages 42-43 Bill at page 226- 5. See Shravan Kumar A.I.R. 1957 Al]. 189, 192 (V._Bhargava and Sahijj.) (Case under section 107)- 6. 1.L.R. (1960) 2 A11. 792. 7. C. Kabui v. Union Territory of Manipur, AIR. 1963 Manipur 12, 14“, para- 9.. i 85 We do not think, that any change isnecessary. 307. The detailed inquiry under sections 117-to 119 S°°**°" H7 rshould be left to Executive Magist·ra.tes,‘ who would have °°w°r md"' -1ssued the initial 0rder.’ _ In an earlier Report,‘ a recommendation was made for leaving the actual inquiry under sections 117 et seq. to ·Judzc·u1l·Mogistrates. Under the Madras pattern jurisdiction under section 107 is exclusively with the Executive Magis- ftrate. But, in regard to proceedings under sections 108 to 110,_ where the proceedings are initiated (as almost in- variably _they are) on information from the police the information can be laid directly before the Judicial .Mag1strate, and if a private person seeks to initiate proceed- ings} he can be referred to the Judicial Magistrate. Thus, it is the Judicial Magistrate who conducts the proceedings, under the Madras pattern. No question of emergency (it is stated)‘ can arise under sections 108 to 110; but, to provide for all contingenies, concurrent jurisdiction is given to both ·classes of Magistrates 308. We have considered the Madras pattern“ and also the recommendation in the 14th Report for leaving the actual proceedings to Judicial Magistrates (connning the powers of Executive Magistrates to such immediate action as is necessary). In our opinion, such a procedure would not be convenient for adoption for the whole of India, particularly when separation is to be introduced by law. ' he sections are preventive, and, though recording and sifting of evidence are required, yet.the proceedings are witally concerned with the maintenance of law and order. l309. Sections 118 to 122 need no change. UB 310. The suggestion of a High Court Judge,’ with $¢¢*i<>¤ IU- reference to section 122, is as follows :— In practice, many Magistrates refuse to accept any surety offered without first getting it verified. This is not strictly in accordance with the provisions of section 122. The principle that whatever surety is offered must be accepted by the Magistrate though he can, after an inquiry, reject him, is unsound, and the section needs to be suitably amended. ?1. This, however, involves no verbal amendment in section 117. 2. See discussion regarding sections 107 to 110. 3. 14th Report,Vol. 2, page 859, para. 22. 4. Government of Madras, Order No- G.O. Ms- 2304, dated 24th September, 1952. paragraph l9(3), and Schedule, entry 18. 5. Government of Madras, Order No. G.O.Ms. 2304, dated 24th September, 1952; paragraph 19(3), and Schedule, entry 18. 6. The West Bengal Bill also assigns these powers to Executive Magistrate. See the first Schedule to the Code, as proposed to be inserted by the West Bengal Separation ctc. Bill, 1967. 7. F. $(2)/55·L.C. Part II, S. No. 33(¤). 86 (i) The Magistrate should be empowered to refuse to accept a surety if he has reason to believe that he is not fit to be accepted; . _ (ii) In such a case, he should be required to hold an inquiry into the fitness and then decide whether to accept him or not; . (iii) It may be advisable to prescribe a limit within which the Magistrate should complete the inquiry; (iv) If he cannot complete the inquiry within the time prescribed, he can be compelled to accept the surety, with liberty to reject him later on his being found to be unfit after the completion of inquiry. This would be an adequate safeguard against bogus sureties. 311. Of the four points made in the suggestion} the first two are, in substance, covered by section 122(1), main paragraph, and the proviso. The Magistrate, no doubt, can exercise the discretion to refuse to accept a surety only after a satisfactory enquiry." Reasons must be recorded for rejecting a surety} Rejection of a surety cannot be perfunctory. It has been recognised for long, that the "ground on which a Magistrate has power to refuse to accept any surety must be a valid and reasonable ground."’ 312. The third and fourth points contemplate a time limit, for completing the inquiry. But it is doubtful if it would be workable. To insert a rigid rule, that if the in-— quiry is not finished within the prescribed time-limit, the surety must be accepted, may not be advisable. It may even induce some Magistrate to hold a very perfunctory inquiry in order to comply with the time-limit, thereby substituting another evil in place of any evil in the form of delay that may be existing. It is true, that it is desirable that the order rejecting etc. the surety should be passed within a reason- able time} This would enable the accused to furnish fresh sureties. The matter, however, seems to require administrative action rather than legal amendment. Having regard to the fact that attempts are sometimes made to sue Magistrates for detaining a person in alleged ° violation of the procedure provided by the section] it ap-- pears to be desirable to avoid a categorical provision. 1. Paragraph 310, supra. 9 2. In re Abdul Khan, (1906), 10 C.W.N. 1027, 1028 (Ormond and Gupta]]). 3. Akbar Ali v. Emp., (1914) I.L.R. 42 Cal. 706. 4. Rayan, (1916) I.L.R. 43 Cal. 1024, 1026, 1027 (Mookerjee and Sheepshan1¤ 126- power of discharge to the court by which security was order- ed. Compare the Bombay and Punjab amendments. 322. In section 126A, after the word "Magistrate", the Section words "or court" should be inserted} 126 A. 323. Sections 127 to 132A deal with the dispersal of un- Sections 127 'lawful assemblies. These powers have been kept only with °° BM- Executive Magistrate, in the Punjab. In Bombay, the sec- tions have not been amended, which means that both classes of Magistrates can exercise the powers. In Madras, the scheme is as follows. Primarily and normally, these func- tions devolve on Executive Magistrates. But, when for some reason or other, the Executive Magistrate is not available on the spot, the officer for the time being in charge of a police station, or any higher police officer, may seek the zassistance of the Judicial Magistrates. The Judicial Magis- *trate should act as though he were the Executive Magis- trate, pending the arrival of the latter. "The moment the Executive Magistrate comes on the scene and is able to take charge of the situation the Judicial Magistrate will efface lhimself. But, before withdrawing from the picture, the Judicial Magistrate will, if so requested by the Executive Magistrate having territorial jurisdiction, modify or cancel whatever directions he may have issued, so that the Exe- ·cutive Magistrate will be able to act unhampered by orders znot of his own making."“ 324. While we recognise the utility of a scheme (as in Madras) giving concurrent powers to deal with emergencies, we felt, that, to avoid confusion and also in view of the ·fact that separation is now to be introduced by legislation, it would be better to confine the power to only one set of Magistrates, namely Executive Magistrates. Any practical 1. Cf. discussion regarding section 124. 2. This is consequential on the changes proposed to section 126. Sisiovernment of Madras, G.O.Ms. No. 2304, dated the 24th September, 1952, p3l’3· · 90 V difficulty could be solved by appointing more Executive- Magistrates. ( Section 127 325. The following su gestionl h s b d · b the- $:;*1 S;‘t¥g°S‘ Madras Bar Council ;— g 3 een ma »€ . g’;‘j;gflF’a' "Chapter_ IX—Unlawful Assemblies-—may be omit-· ted. Appropriate legislation for the dispersal of an un- lawful assembly by police and military authorities should be made. Courts and Magistrates should not be invested with any powers to disperse unlawful assem- blies, as such power is purely executive in character. It is necessary that Magistrates should not be made to feel that they are part of the executive. If this Chapter is to be retained, the Magistrates may be divested of the power given to them under this Chapter by appropriate. deletion and amendments." We think, however, that this power must be retained,. for dealing with emergencies. We do not see any need to disturb the structure of the Code, by putting these provisions: in separate legislation. S¢¤¤i<>¤ I2? 326. With reference to section 127(1), the following gbggfion suggestion“ has been made by a High Cort Judge :— glblaiftglludge. "The power to command any unlawful assembly to- disperse is rather wide. The real object would be served only by retaining the power to disperse an unlawful assembly of five or more persons likely to cause breach of peace. The words "any unlawful assembly" may be~ omitted." 327. We are, with great respect, unable to accept the suggestion} for the reasons given below. Primarily, the power is to disperse an "unlawful assembly", The power to disperse other assemblies likely to cause a disturbance of the peace etc} is only an extension of the first power. The extension is considered necessary, because such assembliesr are potentially unlawful assemblies. . Section 127(l) of the Code runs thus- "127. (1) Any Magistrate or officer in charge of a police station may command any unlawful assembly or any assembly of five or more persons likely to cause a disturbance of the public place, to disperse ......... " The omission of the words "unlawful assembly" (as: suggested)* would give a wrong colour to the section. 1. F. No. F. $(2)/55-L.C. Part III, S. No. 52 (Page 281, correspondence). 2. F. 3(2)/55·L.C. Part lll, S. No. 49(a). (Page 188, correspondence). 3. Paragraph 326, supra. 4. See also section 151, Indian Penal Code. 91 328. If section 127 is altered so as to confine it to an unlawful assembly of five or more persons likely to cause breach of the peace, it will be much narrower than the existing section but. then it will become vague, because "breach of the peace" is a test diiiicult to apply. It may be added, that armed forces can be employed only when public security so requires} The section (section 127) now covers- (i) unlawful assemblies- section 141, Indian Penal Code; (ii) other assemblies which are potentially unlaw- ful—section 151, Indian Penal Code. It cannot be confined to only one category-Le. (i) above. 329. Generally, as to the Crown’s right, undermentioned case may be seen? 330. Under section 133, the following points have been Section 133. considered :— (i) Powers under section 133 may be assigned to Executive Magistrates, the section being designed to afford a rough and ready procedure for removing public nuisances. Further, primarily the section is intended to be used in urgent cases,3‘“ though of course, long user cannot legalise a public nuisance.’ (ii) Under section 133(1), opening paragraph, the Executive Magistrates empowered will be- (a) Presidency Magistrates specially empower- ed; (Compare the Bombay Amendment); (b) District Magistrates and Sub-divisional Magistrates (as in the existing section); (c) Executive Magistrates of the first class see the Punjab Amendment). (iii) In section 133(1), concluding paragraph, for the words "Magistrate of the first or second class", it is necessary to substitute the words "Executive Magistrate of the first or second class" (compare the Punjab amend- ment). (It is unnecessary to add some other Presidency Magistrate specially empowered etc., in the concluding paragraph). 1. See sections 129 and 131, Code of Criminal Procedure, 1898. 2. Chanappa v. Emp., I.L.R. 55 Bom. 263; A.I.R. 1931 Bom. 57 (F.B.). 3. Mir Imam Abdul Aziz v. Emp. (1897) 4 P.R. Cr. 4. Basanti Devi v. Rex., A.I.R. 1949 A11. 650. 5. Rameshwar Prasad v. State A.l.R. 1958 Pat. 270. 6. Kedar Nath v. Satish Chandra A.I.R· 1940 Oudh 75, 77. 7. State v. Manji Raghu, (1964) 2 Cr. L.], 94. s 92 (iv) In section 133(I), concluding paragraph, in place of the words “move to have the order set aside or modified" the words "show cause why the order should not be made absolute" should be substituted. The existing language is not in harmony with the langauge of section 135(b) and sections 136, 137 etc. 7§g§¤i¤réSé31$`;· 331. With reference to section 133, the U.P. Committee' .C0n;‘;meé,é has suggested that, to remove changes of misunderstanding, suggm,0,,_ sections 133 and 134 of the Code may be amended suitably. We are already recommending certain verbal changes? Section 133 332, With reference to section 133(1), it is the suggestion Qa;;‘;_am of a High Court .Iudge“ that_powers under the section be éempowcrd limited to the District Magistrate and to Sub—divisional Magistrates specially selected. We have given our anxious consideration to this suggestion. But, since the Legislature has, in 1923, delibemtel expanded the category of Magis- trates who could act under section 133, we hesitate to make a recommendation for reverting to the old position. [The reason given in the Bill of 1914 which ultimately led to the Amenment Act of 1923 was that instead of Magis- trates specially empowered, all First class Magistrates were empowered to act under the section whenever necessary.'] [Section 133(1), as enacted in 1898, was confined to the District Magistrate, Sub-divisional Magistrate, and First Class Magistrates specially empowered. In 1923, it was ex- tended to all First Class Magistrates. Second Class Magis- trates (unless they are also Sub-divisional Magistrates) are not mentioned.] "Section 133 333. A suggestion to abolish jury in proceedings under and Jury. section 133 has been made by a State Government} But we are unable to agree with it, Orders under section 133 are of a far-reaching nature. Jury is a good safeguard for such orders, as affording an indication of what is considered reasonable and proper.“ ‘S¤¤¤i¤¤ 133 334. A suggestion to insert a provision that the summons and procedure be followed in cases under section 133 et seq was considered. No such change is necessary! 1. P. 3(2)[55·l..C. Part VII, S. N0. {49, Suggestion ofthe U.P. Committee for investi- gation of Causes of Corruption in Subordinate Courts in U.P. (1963), Report, pages 4344 ·(Draft at pages 227 to 230). 2. See section 133, as proposed. 3. P. $(2)/55-LC. Part ll, S- No. 33(li). 4. See Gazette of India, Part V, 28th March 1914, Statement of Objects and Reasons to the Amendment Bill, under clause 19. 5. F. 3(2)l55-I..C. Sl. No. 28. 6. See also para 341, Infra. 7. See section 137(1), which already provides that evidence shall be taken as in a sum- HXOHS 0856- 93 335. No change is needed in section 134. $=¤¤i¤¤ Uk 336. As regards motion 135, certain points have been Section [35.. considered? under section 139A. 337. The following suggestion has been made by the Sections 135-. U.P. Committeef with reference to section 135 and 136. Q6 *****1 U-? ommrreees , Trial by jury having been abolished, sections 135 and S¤¤€°*“°¤· 136 of the Code (which still retain the provision for ap- pointment of jury) should aslo be amended suitably. _ We have already expressed our views in the matter? 338. No change is needed in section 136. $¢¤¤i¢>¤ 136- 339. Section 137, may be amended as follows:-` Section 137. (i) for the word "he" in section 137(1), the words "such person" should be substituted. A section should not, ordinarily, use a pronoun referring to a noun used in a previous section; (ii) in section 137(2), the Magistrate should have power to modify the order} 340. The suggestion of the U.P. C·ommittee for investi- Section 137· gation into_ Corruption etc." to the effect that in proceedings A (NW)- under section 133 et seq. the court should have a power to direct a local inquiry or to summon and examine an expert. has been found acceptable to us. A section to that effect may be i·n.se*rted.‘ 341. The following suggestion' has been made by a High $¤§¢£¤;l38d_ . an .an Court Judge.- mgggcétgn "The procedure regarding appointment of a jury in ° “ i public nuisance cases is cumbrous. The matter should C°°" ]°dg°" e left for determination by the Magistrate. An appeal p may be provided." We would, however, emphasise, that the function of the jury is to decide whether the measures directed by 1. See discussion under section 139A- I 2. P. 3(Z)/55-L.C. Part VII, S. No. 449, Suggestion of the U.P· Committee for Investi·. gation of Causes of Corruption in Subordinate Courts in U.P. (1963), Report, pages 43-44 (Draft at pages 227 to 230). 3. See discussion regarding section 133 and jury (Paragraph 333, supra). 4. As to existing law, see- (1) Sadammd. A.I.R. 1958 A11. 174; (ii) Iuje D Silva. A.I.R. 1943 Mad. 335. (iii) Secretary, Rate Payer’s Committee A.I.R. 1952 Cal. 127. 5. F. $(2)/55-L.C. Part VII, S. No. 449, Report of the Committee, (1963), page 44,_ and draft at page 230. 6. See section 157A (as proposed). 7. F. 3(2)[55·I..C. Part III, S. No. 49(a). 94 the Magistrate are reasonable and proper} As the powers given are of an exceptional nature,“" we think that the jury may be retained. These provisions are in- tended to operate as a check on the exercise of the "summary and arbitrary dealing with right of pro- perty."‘ ‘ S°°“°“s 342. The following suggestion has been made b the 3 {5139 and Committee° for the Investigation of causes of Co}irup- Commitree’s t1On* suggestion. The reasons given by the U.P. Committee are as fol- lows:—— "The provision relating to the appointment of a jury appears to be unnecessary. Experience over years has shown that very rarely did a party ask for the ap- pointment of a jury; further, whenever a party did ask for the appointment of a jury the request was not made in order to have a proper decision of the cause but was made mainly for the purpose of delaying the proceed- ings. ‘ ¥"°Vi$i°E* “Trial by juries having been abolished in the State, ,Q;:f’g’,$’;‘"' it appears that the retention of a jury under this Chap- jury Should ter was not justified. The Committee, therefore, recom- be deleted mends the deletion of that provision which entitled a from these party to ask for the appointment of a jury. SCCUOD$· "Sections 138 and 139 of the Code may be deleted? We are unable to accept the suggestion, as we think that the system of jury ought to be retained for these pro- ceedings.’ - $¢¤ri¤¤ 343. With reference to section 139A, diliiculty is caused 139* because the language of section 135(b) is not clear enough to indicate that the provisions of section 139A are saved. It is, therefore, desirable to amend section 135(b), so as to make it clear} that the provisions of section 139A are not affected by section 135(b). 1. See section 139(1)· 2. Gokal Chand v. Crown, (1919)I.L.R. 1 Lah. 163, 168. 3. Basanti Devi v. Laxmi Chand, A.I.R. 1949 A11. 650, 651. 4. Reg. v. Dajsukh Ram, (1864-68) 2 B.H.C.R- Cr. 384, 386, 407, 412 (Sausse C.].). 5. See also para. 333, supra. 6. F. 3(Z)/55·L.C. Part VII, S. No. 440, Suggestion of the U.P. Committee for Investi- gation of Causes of Corruption in Subordinate Courts in U.P. (1963), Report, pages 43.44, (Draft at pages 227 to 230)- 7. See para 333, supra. 8. To be carried out under section 135(b). 1. 95 344. With reference to section 139A, the U.P. Committeel S-gi¤¤1gJ91¤;— has suggested that a new section containing the same pro- ‘§0mmm€é,é vision as is contained in section 139A should be added as Suggestion, segtion 136A, and the existing section 139A should be dele- te . _ The reason given is that section 139A is not at its ap- propriate place, and should come after section 136. The changes which we are recommending° will remove the misunderstanding caused at present. 345. No changes are needed in sections 140 to 142. Seedgns 140 to • The question was raised in the course of discussion before us whether, the jurisdiction of Civil courts to set aside the order under section 133 et seq was ousted by rea- son of the provisions of section 133(2) and section 140(3), and (if so), whether the position was satisfactory. It ap- pears, that such jurisdiction is not taken away, at least so far as the fimzl order is concerned? As has been observed, the procedure of the Magistrate is more or less summary, and “his decision goes so far as to hx upon the party who must go to the civil court to get a civil dispute decided".‘ Nor does claim for the appointment of a jury estop a person from asserting his rights} No change is necessary _ on this point. What section 140 means is, that if a Magis- trate causes the act ordered to be performed, that order can- not be questioned in the Civil court, and no suit can be maintained to prevent the Magistrate from carrying it into eifect.‘ t 2346. In section 143, the following points require to be Section 143. no e :— (i) Presidency Magistrates especially empowered should be added in section 143. Cf.ithe Bombay Amend- ment. (There is also a suggestion of a S'tate Govern- ment to that eifect).’ (ii) Before "other Magistrate", the word "Execu- tive" be added. Cf. the Bombay Amendment. 1. F. 3(Z);'S5-L.C. Part VII, S- No. 449, Suggestion of the U.P. Committee for Investi- gation of Causes of Corruption in Subordinate Courts in U.P. (1963), Report, pages 43-44 (Draft at pages ZZT230)- , 2. See paragraph 343, supra. 3. Secretary of State v. jethabhai, (1892), I.I.,.R. 17, Bom. 293, 299, agreeing with Cham Lal, I.L.R. 15 Ca]. 460, 467, 470 (F.B.). 4. Dulichrmd v. Emp., I.L.R. 51 A11. 1025 A.1.R. 1929 A11. 833 (Da]al].). S. Mutty Ram v. Molni Lall, (1880) I.L.R. 6 Ca]. 291, 301 (Field ].). 6. Cf- Ram Narain, A·I.R. 1940 Oudh 75, 76- 7. F. N0. 3(Z)/55-LC. Part I, S. N0. 18. 96 $:g•i<>¤;t3 347. With reference to section 143, it is the suggestione gfevfgss °' of a High Court J'ud—ge‘ to clarify that an order un er sec- ,,djud,c,,d°,,_ tion 143 may be passed only in respect of a public nuisance held to be so by a competent court. That is the legal posi-- tion under the case-law, as the order under section 143 can be passed only if the matter has been adjudicated by a- competent court.““‘ But, in our opinion, it is unnecessary to codify that proposition. . Section 143 348. It has been suggestedi that a penalty should be gif, P°°°l“Y prescribed for disobedience of an order under section 143. procedure. We think that the provisions of section 291, Indian Penal Code are eonugh." It is also stated in the same suggestion, that in section 143 there should be a provision similar to that contained in section 140(2)(3). The object of the suggested change is, perhaps, to empower Magistrate to deal speedily with re-- petition of the nuisance, that is to say i.e. without under- going the formalities of section 133. We would not, however,. like to go that length. Section 144 349. The question of the validity of section 144 general-- Validitv °f· ly, was considered by us with reference to the discussion in the Allahabad case of Raj Narain’ and the Supreme C0urt’s judgment in Babulalf The view taken by us was,. that the section as a whole is valid. In any case, it is not possible to split up the section without creating confusion? Section 144 350. A suggestion" not to prosecute a Member of Parlia-- gffjmbcrs of ment etc. for offences under section 188, Indian Penal Code- pa,1,,,,,,,.,,t_ for the violation of an order under section 144 of the Code· of Criminal Procedure has been considered by us. Blut we· are not inclined to recommend a general exception by statute, on this point. Section 144 351. A suggestion" not to pass orders under section 144- ¤nd news- in respect of newspapers has been made, but the matter P"P°'· cannot be governed by a general and imperative provision. It has also been suggested" that newspapers be exempt- ed from orders under section 144 prohibiting the assembly of live persons. This concerns the actual orders passed, and does not need an amendment of the law. 1. F. 3(Z)/55-L.C. Part II, S. No. 33(an). 2- Jogendm Lal v. Sheikh, A.I.R.. 1935 (Cel. 108(2). 3. Ram Sahai v. Uttama Debi, A.I.R. 1935 All. 79, 80. 4- Iagdish v. Dhanushdhari, A.I.R. 1940 Pat. 305. 5. F. 3(2)/55-L.C. Part II. S]. No. 33(a). 6. As to section 291, see Q.E. v. Jokhu, I.I...R· 8 All. 99. 7. Raj Narain v. District Magistrate, A.I.R. 1956 All. 481 . 8. Babulal Parate v. State, A.I.R. 1961 S.C. 884. 9. As to section 144(6), see paragraph 355, supra. 10. F. 3(2)/55-L.C. S. No. 15. 11. F. $(2)/55-L.C. S. No. 7. 12. F. $(2)/55-L.C. S. No. 7. it____ 97 352. It has been suggested by a High Court Judge} that $<=¤¢i<>¤ 144 some parts of section 144 are unconstitutional. The point (1* has been already dealt with} 353. ln section 144(1), before the word "other Magis- Semen144 trate". the word "Executive" may be added. (1) Md §“i§€’§EZ.‘2§.; 354. The suggestion, made in the Report of the U.P. Semen 144 Committee to investigate into causes of corruption in Sub- (3) md ordinate Courtsa to add the words "or area" after the word ;';;aQ;“$e‘f "place" in section 144(3) was considered by us in detail. SiO,,..$1,,cc» The case-law on the subject was examined, and the exami- and ··fre- nation revealed that there was a conflict not only on the <1¤¢¤¤i¤s"- question whether the word "place" covered an area—a mat- ter referred to by the U.P. Committee-, but also on the question whether the expression "frequenting" included the act of residing} We recommend that a clarification may be made on both the points, and that the wider views should be adopted by an amendment of section 144(3). 355. Regarding secion 144(6), the case-law as to its vali- Section 144 dity was considered in detail by us.5 Our view is, that since (6)· the State Government’s power to extend the duration of the order of the Magistrate is limited by the consideration that the extension should be "in cases of danger to human life, health or safety, or a likelihood of a riot or an affray", it is a valid provision. It is not necessary to lay down anyr - . maximum. duration—for example 6 months, in this respect. But, in our opinion, it is necessary to give a right of repre- sentation, to the person affected, after the duration is ex- tended. 356. Various suggestions° under section 144(6) are noted Section 144 b€1¤W=— $$.2.%:3.1 (a) Suggestions to increase the initial period to 3 or ins- 6 months were considered, but not accepted by us. (b) A suggestion to empower the District Magis- trate to extend the initial period, was considered, but did not find favour with us, as such a power would turn out to be risky. (c) A suggestion to give power to the State Gov- ' ernment to revoke the order was considered; but we felt that the present position, under which only the · 1. F. 3(Z)/$5·L.C. Part ll, No. 33(sn). v_ .· I .· · · 2. See discussion regarding validity of section l44, supra; T U l 3. F. $(2)/55-L.C. Pt. Vll, S. No. 449, Report ofthe U.P. Committee, (1963), page 44, and draft at page 230. . _ 4. For detailed discussion, see Appendix 9. S. For detailed discussion, see Appendix 10. —. . 6. F. 27(3)/55-]ud]. ll (Home Ministry File). Appendix l, ltems 23-24, and F. 3(2)]$5» I..C. Part I, S. N0. 69. ‘ . 8—29 M Oi l.aw[68 I 98 District Magistrate could revoke the order, is proper. Primarily, it is the District Magistrate who is respon- sible for maintaining law and order in the district under his charge, and the power should vest in him. Section 145 357. The power under section 145(1) should be assigned (I). to the following Executive Magistrates :— (a) Presidency towns- Chief Presidency Magistrates (Compare the Bombay Amendment). [It is unnecessary to empower other Presidency Magis- trates.] (b) Outside the Presidency towns etc. the power may be given to- (i) District Magistrates (see existing section); (ii) Sub-divisional Magistrates (see existing sec- tion); (iii) any other Executive Magistrate of the first class (compare the Punjab amendment); Date of receipt of the police report etc. should be mentioned in the order issued, under section 145(l). Swim, H5 358. Section 145(4), second proviso, creates a legal fic- (1)]and date. tion by providing that if it appears to the Magistrate that any party within two months next before the date of "such order"—that is to say, the preliminary order under sub- section (1)-has been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession from such date. This proviso was introduced in 1898 by the Select Com- mittee‘ for the following reasons :— "As the law stands at present, the date of the order under sub—section (1) of this clause is taken as the cri- tical date for the purpose of determining actual posses- sion. This appears to give an unfair advantage to a per- son who has forcibly dispossessed another. But difli- culties arise when the test of actual possessiom at the time of the institution of the proceedings is departed from. We think that the proviso we have added .to sub- section (4) goes as far as is possible to meet thel evil in question without involving the Magistrate in an inquiry into title or right to possession, which is the function of a Civil Court."'-' 1. Report of the Select Committee dated 16-2-1898, Legislative Proceedings, April ` 1898, No. 24 to 128, Appendix A·5O (National Archives). Z. For the law before 1898, see Katvas Ihcmhh Coal Co. v. Subkvishta Daw and Co., (1894) I.L.R. 22 Cal. 297, 303. 3. For history of section 145, see the cases cite Athippa Goundev, A.l.R. 1967 Mad. 445 para 5(F)• 99 359. Now, a difficulty has arisen as to the computation of the period of two months, i.e. as regards the starting point for counting the period. The period of two months has to be counted backward. But the question is, whether the period is to be counted from the date of the actual passing of the order by the Magistrate, or whether it can be count- ed from the date of the receipt of the police report or other information by the Magistrates. The need for an amend- • ment in this respect has been emphasised judicially} What may be described as the "narrower interpretation" has been put in several decisions}-3-‘-‘ On principle, however, the wider view should be pre- _ ‘ ferred, because no litigant ought to suffer for the delay that takes place in court.° 360. We made an attempt to find out if the legislative materials threw any light as to why the starting point was so framed as it now stands. The proviso was inserted in 1898 at the Committee stage} In the discussions on the 1898 Bil1" and in the pro- ceedings of the Council of the Governor General of India dated 11th March, 1898, several. points (including the history of the law and the provisions of Act 4 of 1840, section 2 of which corresponded to section 145), were considered. But this particular point was not adverted to at that time. There is a long speech by Sir Henry Prinsep in the discussions (after the Select Committee Report of 1898), in the proceed- ings of the Governor General-in-Council, objecting to the proviso. But he also does not seem to have discussed this aspect. 361. In his speech, the Law Member° thus explained the object of inserting the proviso :—- "The Magistrate under this clause is not to decide questions of title but is to confirm existing actual possession. But then when we came to consider the mat- ter in Select Committee, this objection was pointed out to us. The Magistrate will probably not be put in motion and will not hear the case until the ordinary possession 1. Gangadhar v. Shyam Sunder, A.I.R. 1958 Orissa 150, 157- M-_—— 2. Ganga Bux, A.l.R. 1959 All. 141 (F.B.). 3. Tolan v. Duben, A.I.R. 1951 Assam 161. ‘ 4- State v. Ram Iiwan, A.I.R. 1962 Bom. 8. 5. Kampati, A.I.R. 1961 Andhra Pradesh 208. 6. . the reasonin in C. Nara am v. Kesa a, A.I.R. 1951 Mad. 5 , recentlycin Athiappa Gofnder, A.I.R. 1,967 Mad. 44I5p(F.B.). 00 overruled · 7. See paragraph 358, supra. 8. See, particularly,the Minute of dissent of Sir Henry Prinsep in the Select committee Report dated 16-2-1898; Legislative proceedings (April 1898), No. 24 to 128, Appendix A-50 (National Archives). 9. See the speech of Mr. Chalmers, Law Member, in Proceedings of the Governor ·General·in-Council, dated llth March, 1898, Legislative Proceedings April, 1898, Nos 4 to 128, A-60 (National Archives). 100 has been disturbed. When a man has been evicted that is the time when he runs off to the Magistrate for pro-. tection, and if the section remains as it was originally drafted the Magistrate would be obliged to confirm him in possession. In Committee we saw the difiicultie& off both views and we came to the conclusion that facie the duty of the Magistrate was not to go into ques-. tions of title, but to confirm the party in possession. If, however, it turned out that any part had been wrong- fully and forcibly dispossessed, it was thought that the- Magistrate "ought to take cognizance of such a case,_ . and give back the actual possession to the party who had been so ousted, but it was thought undesirable that the Magistrate should go into a long roving inquiry and we, therefore, fixed the period at which we might re- place the party forcibly dispossessed in possession at two months." The proviso was then adopted. 362. In view of the controversy‘ on the subject it is desirable to make the law clear by substituting the start- ting point as the date of the receipt of the police informa-. tion etc. in section 145, sub-section (4), second proviso. In consequence, to ensure that the date is recorded, the order- under sub-section (1) should also record the date of receipt of the information etc. 363. The anomaly caused by the present provision in section 145(4), second proviso, is illustrated by the view ex- pressed by a High Court Judge in his suggestion : ” "Sometimes on account of a serious defect in the preliminary order the High Court may quash all the. proceedings and dlJ§`QCl2 the Magistrate to issue a fresh order under sub-section (1); in such a case not only the provision would be rendered useless, but also it would do injustice to a party. A party might have been put in the possession of the property by the Magistrate on passing of the final order under sub-section (6), with the result that he would be in possession on the date on which the Magistrate passes a fresh order under sub- section (1) in accordanee with a remand order of a High Court, and the benefit of the proviso would be 1ost." . Section 145 364. With reference to section 145(1), the suggestion“ of (1)-SuggeS. a High Court Judge raises three points, namely:-· §fI';‘h‘g*‘“ (i) The section should be restricted to4District Judgg °° Magistrates and Sub-divisional Magistrates specially selected. (ii) the affidavit procedure (inserted in 1955) should be removed; l. See paragraph 359, supra. 2. Suggestion in F. 3(Z)/55-LC. Part ll, S. No. 33(a). 3. F. 3(2)/55-L.C. Part II, S. No. 33(a). ii,. 101 _` (iii) the mode of calculating the time limit under section 145(4), second proviso, should be altered. The third point is separately dealt with} As regards the iirst point, our view is, that it is not desirable to restrict section 145 to the specified Magistrates as proposed. It may be, that the object of section 145 is sometimes defeated by a resort thereto in cases not within its intendment. From this point of view, the power should be confined to the higher Magistracy. Nevertheless, having regard to the need to preserve the public peace—which is the main justification for section 145-we would not recom- mend any change that would render its use in emergency more difficult than at present. As regards the second point, without further experience of the provision regarding affidavits (introduced in 1955), we would not recommend a change. 365. Date and time of attendance should also be men— Section 145 tioned in the order under section 145(1). (1) and date. 366. There appears to be a controversyi-3 on the question Section 145 whether the omission to record grounds under section 145(1) (1) _¤¤$1 vitiates the order. The matter. however, really pertains to °““”‘°“ °° . . . , record section 537, and no provision on the question can be con- g,0\mds_ veniently made in section 145. . 367. No chage is needed in section 145(2). ?§ction145 368. The U.P. Committee* has made several sugges- Seccion145 tions with reference to section 145 : - wd $¤!2¢=`·· _ _ _ _ _ tion of U.P. (1) Evidence by putting in aiiidavits in proceed- Committee. ings under section 145 of the Code should be replaced by the oral examination of witnesses and their being cross-examined by the other. (2) If, after an attachment has been made, the pro- ceedings under section 145 are dropped, then, the court should be empowered to restore the attached property to the person from whose possession it was taken at the time of attachment. (3) The period of two months contemplated by the second proviso to sub—section (4) of spction 145_of the Code should be reckoned back from t e date on which l. See paragraphs 358 to 362, supra. _ _ _' _ 2. See case-law discussion in-- V (i) KhudiRa1n v.]itendm Nath, A.I.R. 1952 Cal. 713,715 to 717. ` ` ` (ii) Sri Ram v. State, A.l.R. 1958 Pun}- 47· (iii) KapomCham1,I.L.R. 55 Ali. 301; A.I.R. 1933 Al1.264 (F,B.). 3. Some of the earlier cases are reviewed in Note *‘Criminal cases ot'1903”, 8 C.W.N. (lournal) 139, l54·· ` 4. F. 3(Z),155-L.C. Parr V1], S. No. 449, Suggestion ofthe U.P. Committee for Investi- gation of Causes of Corruption in Subordinate Courts in Uttar Pradesh (1963), Report, pages 45 to 47, (Draft at pages 230-232)- 102 Magistrate got the infomation about wrongful dis- possession and apprehension of breach of peace, (and not from the date on which the Magistrate passed the pre- liminary order). (4) A Magistrate exercising jurisdiction under sec- tion 145 of the Code should have a discretion to take the disputed property under his management, by ap- , pointing a Receiver. Our views as to these suggestions are as followsz- Point (1)-No change is necessary, for the present, as it is rather early to restore the pre-1955 position. Points (2), (3), (4)-These points are covered by the discussion at other places in this Report} relating to sec- tion 145. Smion 145 _ 369. It has been suggested“ that sub—section (6) of sec- (6) and tion 145 of the Code should be amended so as to confer a punishment power on the Magistrate to punish a party who disobeys an bv _ order made thereunder. Magistrate. We regret that we do not iind this to be acceptable. The very Magistrate who issued the order should not punish the person violating it. Section 145 370. The following suggestion“ has been made by a High (1) and Court Judge :·— suggestion _ to exclude "It should be specified in sections 145-147 that cases 1>riV¤1=¢_ should be started only on the report by the police re- °°‘“pl”‘““· garding breach of peace. Private complaints should be excluded co·m.pletely." We have considered this suggestion in detail. Its ac- ceptance would mean omission of the words "other infor- mation" in section 145(l). At present, there is noilimitation as to the source of information, on which the Magistrate can act under section 145. The Magistrate may even act on information gathered at a local inspection, if he records his grounds" for acting. We are not inclined to limit the section in the manner suggestedf Of course, prudence may require care before acting on a private report} But there should be no restriction so far ’ as law is concerned. 1. See various points discussed under section 145. 2. F. 3(2)/55·L.C. Part VII, S. No- 449, Suggestion of the U.P. Committee for Investi· { L gation of Causes of Corruption in Subordinate Courts in Uttar Pradesh (1963), Report page 48, top, and draft at page 233. ` 3. F. No. F. 3(Z)/55·L.C. Pm 111, S. Nu. 49(a). ` 4. Nityanand, v. Paresh Nath, (1905), 1.L.R. 32 Cal. 771. p 5. Moher Kunbi v. Tilak Singh, A.I.R. 1934 Nag. 194, 195 (Vivian Bose],. 6. Sec also discussion relating to section lO7(1).) · 7. See Obhoy v. Mohammed, I.L.R. 10 Cal. 78 and ll C.W.N. (journal) 223. r 103 371, With reference to section 145(1), the following S°°’i°¤ 145 suggest1on‘ has been made by a Bar Council. Qlzgggion “Provision should be made for service of affidavits if $§"‘°F and copies of documents on the opposite side, so that ° a °ms' if any counter aflidavits are necessary or production of further documents is essential, they may be permitted to be filed; the Magistrate will thereby have a com- plete,picture of the case to enable him to give just deci- sion. The State Government concerned has opposed the sug- gestion, as in its view, in the normal course, written state- ments of the parties are enough, and there is no need for ’ counter affidavits. We agree, in substance, with the State Government’s view. No change is therefore necessary. 372. The resolution of a Conference of lawyers? is as $¢¢¤i¤¤` 145 follows ; - ·.¤<* =<==·<>1¤· tion of "This Conference reiterates its opinion that the I6;"?" party aifected by any affidavit presented to the Court ° °r°°°°‘ for consideration in a roceeding under section 145 of the Code of Criminal lgrocedure should have the right to subject the person swearing the afidavit to cross- examination, and in that view of the matter this Con- ference recommends that two provisos be added to sub-section (4) of section 145 of the Code of Criminal Procedure. "Provided that if the party adversely affected by an affidavit so desires the Court shall summon the person swearing the affidavit for cross-examination", and "Provided further that in case the person so sum- moned fails to appear for cross-examination, the afidavit sworn by him shall be excluded from co#nsideration". This Conference further reiterates the opinion that orders passed under section 145, Criminal Procedure Code should be subject to appeal, and in that view of the matter sub-section (II) be added to section 145, Criminal Procedure Code worded as follows:- "An a peal shall lie against the order passed by the Court undier this section which shall be heard and dis- posed of in the same manner as is provided in this Act for appeals from order of conviction . - We have considered the matter. We feel, that a right of appeal, as suggested, would unnecessarily prolong the pro- ceedings, and may defeat the object of the law, which is to prevent an imminent breach of the peace. The inquiry into possession is incidental to the proceedings, and should not be l. F. No. F. 3(2)/55·L.C. Part Ill, S- No- 52- (pages 281-282, correspondence). 2. F. $(2)/55·L.c. Pm VI. S. Na. 271. 104 prolonged beyond reasonable limits. Nor do we think that an absolute right to cross-examine is desirable, so far as pro- ceedings under section 145 are concerned, so long as the present scheme is maintained. giction 145 373. No change is needed in section 145—(3). A Section 145 374. In section 145(4), main paragraph and second oro- (4). viso, the date of receipt of the police report or other infor- mation should be substittued} Section 145 375. In section 145(4), third proviso, it should be made (4) Third clear that the attachment can be ordered at any time after P’°"‘S°• the order under section 145(1) is passed. Section 145 376. We have accepted the suggestionz of a High Court (4A)(N¢W)- Judge, to make some provision for looking after the pro- perty attached under section 145 in emergencies. Necessary amendment is recommended? S;ctio51 145 377. A High Court J udge‘ has suggested, that it may be Lzgtgfation provided that where the Magistrate stays further proceed- ` ings under section 145(5), he should release the property without restoring any one to possession over it. We are, however, inclined to take a different view. We feel, that in an appropriate case, the Magistrate should have the power to restore possession. It is desirable to amend the section,5 so as to make a specific provision to that effect. Section 145 378. The provision in section 145(5) that the order shall (5). be "fma1", need not be disturbed. Section 145 379. Where the proceedings are cancelled under section 3L;;: from 145(5). the attachment should. in our view be withdrawn. attachment An amendment to that effect is rec•ommended.° S°°*i°¤ 145 380. In section 145, a new sub-section (5A) is proposed, GA) (N"')' to provide for withdrawal of attachment} Section 145 381. The suggestion of a High Court Judge“ makes the (6) ¤¤d point that section 188, Indian Penal Code is attracted to an 5?‘;’g;’éii°Ifcc order under section 145(6). We are in agreement with the is view. That is the view of most High Court also. The controversy on the subject is only within the Allahabad High Court. A view was expressed by Melirotra J. in one case° that an order under section 145(6) was not 1. Cf. discussion regarding section 145(1). ` Z. F. 3(Z)/55-LC. Part ll, S. N0. 33(ca). 3. See section l45(4A) (proposed)- " 4. F. 3(Z)/SS-L.C. Part Il, S. No. 33(a). _ >_ 5. See section l45(5A), as proposed- I 6. See under section l46(5A), infra. ` 7. See discussion under section l4S(5),»supra. S. F.3_(2)/55-LC, Part II, S. N0. 33(a). . ` ` 9. State v. Sm:. Tugla, A.l.R. 1955 All. 423, 427, 428, para 24. I 105 one which the Magistrate "promulgated" within the mean- ing of section 188, Indian Penal Code. It was only a declara- tory order, coupled with an order forbidding disturbance ·of possession and served upon the party concerned alone. According to him, section 188 was confined to orders pro- mulgated to the whole public. The other Judge—Desai J. did not agree with this view, and pointed out,‘ that an interpretation (that it was not covered by section 188) would emasculate section 145(6) completely. On a difference of opinion between the two Judges, the matter was referred to Agarwala J. who he1d“ that, qua the parties to the litigation in the criminal court, the order, having been passed in their presence, must be deemed to have been duly "promulgated". He also pointed out, that under Form No. 22 in the Fifth Schedule, an order under ~ section 145 was intended for the public at large also. (On the fact, however, he held that there was no such disobedience . as was punishable under section 188). 382. An earlier decisions of Desai J. had pointed out, that under section 188 of the Indian Penal Code, it is not necessary that annoyance must be actually caused; infringe- ment with a tendency to cause annoyance etc. is enough} 383. The Assam High Court in a cases decided that inter- ference with an attachment under section 145(4), third pro- ' viso, did not fall under section 188, Indian Penal Code, be- cause the attachment did not forbid any person to do any act. But it also observed, that under section l45(8) the Magistrate was competent to pass such an order. Other High Courts'" have held that an order under section 145(6) falls within section 188. The Assam decision to the contrary“ is under section 145(4)—(attachment). 384. The controversy being a limited one as above, we »do not consider an express provision to be necessary. 385. It has been suggested by two High Court Judges° Swion 145 that the power of the court to restore possession to the party (6) ““S1 ’°‘ who is deemed to be in possession under the fiction of two ;?,;;°‘°;:; -months’ previous possession, should be provided for. viously in _ possession. 1. Paragraph 12 in the A.1.R. ` 2. Paragraph 45 in the A.1.R. ` 3- Jaswant v. State, A.I.R. 1951 A11. 828, 829, para 2. 4. As to section 188, Indian Penal Code inthis connection, see also Ejaz Ahmad v. Maheshwar, A.1.R. 1953 All. 257, 259 (Misra &Beg _]].). · 5. Dibakar v. State, A.I.R. 1961 Assam 94, 95, paragraph 4. · 6. Ambika Thakur v. Emperor, A.I.R. 1939Pat. 611, 618, right-hand. _ 7. Dulal Chandra v. Sheo Kumar, A.I.R. 1948 Cal.- 474, 482, para 19 (P.B. Chakravarty ·C.]. and S.C. Lahiri ].). . . _ 8. Atar Khan v. State, A.I.R. 1960 Assaml 109, 111, 7- . V 9. F. $(2)/55-L.C.Part11, S. Ne. 33(b). _ 106 386. This raises an important point, namely, whether the- Magistrate can simply "declare" who is entitled to posses-- sion, or whether he can pass an operative order restoring possession. The answer seems to be clear in view of the last portion of section 145(6). Case-law on the subject be·— fore the 1923 Amendment‘ is no longer good law. Pre-» sumably, every case under the second proviso to section 145(4) would attract the jurisdiction to restore possession under section 145(6). Of course, if the forcible and wrong- ful possession has continued for more than two months, the— partysdispossessed cannot get the benefit of the second pro-- v1so. In fact, it has been he1d,‘ that the order of restoration can be made even subsequent to the order of declaration. We think, therefore, that no change in the language of the section is required, on this point. Sg°**°¤ 145 387. A new provision for publication of the final order ( A) (N°“’)· under section 145(6) in the same manner as the order under section 145(3), may be added} Incidentally, this will have the effect of emphasising that a prosecution under section 188. Indian Penal Code, can be instituted if such order is: violated} Section 145 388. No changes are needed in section 145(7) or in sec--» f (7) ¤¤d <8>· tion 14s(a). 389. With reference to section 145(9), there appears to- be a conflict of decisions’ on the question whether the first proviso to section 145(4) bars the powers of the Magistrate to summon a person who has not put in an afiidavitf An amendment, to make it clear, that the first provisoto sec·— tion 145(4) does not affect that power, is recommended.° 390. It is, of course, expected that the Magistratewill exercise his power to summon a witness for examination only when there was a satisfactory reason for not putting: in the affidavit of the person sought to be summoned. 1. Emp. v. Rameswar, (1904) I.L.R. 27 Al]. 300, 301. 2. Shri Ram v. The Statc,A.1.R. 1958 Pun. 47, 52, para 23. 3. Ram Naresh, A.I.R. 1949 All. 97, 98, para 5. 4. Khudiram v. Iitendra Nath, A.I.R. 1952 Cal. 713, 718, 719, 725 (paragraphs 22 to 24* 27,61 and 62). 5. See section 145(6A), as proposed. 6. As to section 188, Indian Penal Code, see these cases- (1) State v. Shreemai Tuglati, A.I.R. 1955 All. 423. (ii) Emp. v. Zahirus Saved, A.1.R. 1934 Nag, 114. (iii) Rasi Goundcr v. Muthu Gounder, (1964),1.M.L.]. 440. 7. See- (i) Bhagwat Singh v. State, A.I.R. 1959 All. 763, para 3 (Desai].). (ii) Challamulhu v. Rajavel, A.I.R. 1964 Mad. 263, 265, para 7. (iii) Jodh Singh v. Bhagambar Dass, A.I.R. 1961 Punj. 187, 189, 190, para 8. 8. For previous law, see Tarapada, (1906) I.L.R. 32 Cal. 1093. 9. As to section 540, see Bahori v. Ghur¢,A.1.R. 1960 Raj. 15. B. 107 The matter is in the Magistrate’s discretion. And, in exercising that discretion he should certainly have regard to the object of proceedings under section 145,-an object‘ which has been lucidly dealt with by Rampini and Moker- gee JJ. in Tarapadas‘ case as follows:- "Section 145 was intended to provide a speedy remedy for the prevention of breaches of the peace arising out of disputes relating to immoveable property. The code contemplates a determination of this question without any reference to the merits of the respective claims of the disputing parties to a right to possess the subject of dispute. The question of possession, moreover, has to be determined with reference to a specified point of time, namely, the date of the initial order or, in the case of forcible dispossession, a date within two months next preceding such order. The Legislature could hardly have contemplated an elaborate and protracted investi- gation, the result of which might, in man instances, be to defeat the very object in view, namely, an effec- tive prevention of a breach of the peace. The whole object might obviously be defeated, if the Court could be compelled to summon and resummon witnesses at the choice of the parties}'. 391. No change is needed in section 145, sub-section (10). gzgion 145 392. We think that the amendments made in 1955 in Section 146. section 146 (reference to a civil court), instead of shorten- ing the proceedings, tend to lengthen them. Further, the main object of proceedings under section 146 should be to take steps for immediately preventing breach of the peace. Once these steps are taken, proceedings under the Code should come to an end. Reference to a Civil Court, as a part of the proceedings under the Code, is an anomalous procedure. The aggrieved party can take proceedings -of his own in a civil court. But a criminal court should not be required to make such a reference. The position before 1955 should be restored, so far as section 146 is concerned. 393. With reference to section 146, a High Court Judge“ Sec:iq¤146 has also expressed dissatisfaction with the existing posi- **59 **6** °f tion. For the present, our recommendation“ to restore theage °“" pre-1955 position is enough. ' l. Tarapada v. Nurul Huq (1906) 1.L.R. 32 Cal. 1093, 1099, 1100. Z. F. 3(Z)/55-L.C. Part II, S. No. 33(a). 3. See discussion as to section 146. 108 S°°'i°¤ 146 394 It has been suggested b ‘ * _ _ - y the U.P. Committee, that :£)‘1s;gg[?P‘ section 146 of the Code of Criminal Procedure may be Committee. amended so as to restore the position as it obtained before the amendment of 1955. We have already dealt with the matter? Section_146 395. With reference to section 146, we may refer to ¤nd.t¢vrS¤¤¤e Resolution, No. 22 passed at the Bihar Lawyer’s Confer- ence" (12-13-14 April, 1963), which is as follows :—~ "This_ Conference reiterates its opinion that review and revision should lie against orders passed under sec- tion 146. Criminal Procedure Code and in that view of the matter this Conference recommends that the words "nor shall any review or revision of any such finding be allowed" be deleted." [The words in question appear in section 146(1D)]. We are recommending reverting‘ to section 146 as it stood before 1955. Hence, this suggestion need not be con- sidered. U Section 147 396. Under section 147(1), the following points were (l)· considered :— (a) The power may be given to- _ (i) Chief Presidency Magistrate (To be added). (ii) District Magistrate and S.D.M. (as in exist- ing section). (iii) Executive Magistrates, iirst class. (Cf. the Punjab Amendment). (b) The order must mention the date of receipt of police report etc., and that should be crucial date} (c) The order must also specify the date and time for appearance} (d) Affidavit procedure need not be inserted, under this section. Necessary amendment is recommended. -5mim ,4-; 397. With reference to section 147(1A), certain points ·(1A). arise’ by reason of its wording, in relation to the power to order interim attachment in cases to which section 147 applies. But no change appears to be practicable without making the section extremely cumbersome. gation of Causes of Corruption in Subordinate Courts in Uttar Pradesh, (1963), Report, page 48, draft Bill, pages 233-234. ‘ 2. See discussion under section 146. l 3..F. $(2)/55-LC. Part VI, S. No. 271. 4. See recommendation regarding section 146. S. Cf. discussion relating to section l45(l). ' ·· 6. Cf. discussion relating to section 147(l). ` 7. Cf. suggestion of a High Courtjudge, F. N0. 3(2)/$5-LC. Part II, Sl. N0- 4-5. I 109 398. The conflict of decisionsl as to the scope of the S€°*i<>¤ 147 words "prohibiting an interference with the exercise (2* of such right" in section 147(2) has been considered by us. The history of the amendment made in 1923 (with reference to the 1914 Bill and the Lowndes Report etc.) has also been gone through. It is desirable that the position in this respect should be clarified, so as to empower the court to order removal of an obstruction, in a proper case. 399. Section 147(2), proviso, should now mention the S°°“*°“1f*7 date of receipt of the police report etc? (2)* P'°V‘$°‘ 400. No change is needed in section 147(B). gcftiop WL 401. A new provision, allowing the conversion of pro- Section ii?. ceedings under section 147 into those under section 145 and A (N"')- vice versa, is required for the following reasons. It might happen, that a party makes an application under section 145. but it turns out in the proceedings that what is in question is not a right to possession to a land or water, but a right to its user—in which case the party should have resorted to section 147 instead of section 145. The converse situation may arise, where a party resorts to sec- tion 147 in a case where section 145 was applicable. There has been a controversy3" whether, in such situations, it is Q competent for the Magistrate to convert the proceedings, brought under one of these sections into a proceeding under _ the other relevant section. It is desirable to empower the · Magistrate to proceed under the provision which is found to be really applicable. ’ Necessary amendment is recommended} 402. In section 148, the words "·Chief Presidency Magis- Seem, me trate" be added. (Cf. the Bombay amendment). 403. It has been suggested’ that in section 149 "breach Sections 149 of peace" should be added. We do not favour it. It may md I50· 1. Contrast- " (i) Hem Chandra, A.I.R· 1942 Cal. 244 (F·B·)· (ii) Slumtilal, A.I.R. 1954 Bom. 368. (iii) Ram Ishwar, A.I.R. 1965 Pat. 17- with (ii) Abdul \Vahab,A.1.R. 1951 All.238 (F.B.). (b) Angappa,A.l.R. 1959 Mad. 28. (c) Chumtmda, A.I.R. 1914 Lah. 210- Z- Sec discussion relating to section 147(1). ’ 3. K.E.v.AbdulZah, A.I.R. 1949 Nag. 275, para4 (Reviews cases). 4. Tamb Ali, A.I.R. 1933 Lah. 145. 2 . 5. Amzth v. Wahid Ali, A.I.R. 1925 Cal. 1022. . 6. Section 147A (proposed). - 7- F· 27(3)/55-Judk II (Home Member), Appendix I, Item Ne. 35, 110 prove t-0 be vague. Most of the offences affecting peace are even now cognizable, and therefore fall under the general power of arrest} No change is needed in section 150. Semen 151 404. _Under section 151, a suggestion° has been made to ;'tEds;§;‘;°Of allow seizure of the animate or inanimate matter which is dispmq the subject-matter of dispute, leading to a breach of peace. But the suggestion has not found favour with us. The pro- posed power may turn out to be very wide and sometimes embarrassing. $¢§*L¢>¤ ig! _ 405. A suggestion* to add in section 151 a design to com- :'} peg? mit a breach of peace has been made, but has not found ‘ favour with us.‘ $¢<=fi<>¤ 152- 406. No change is needed in section 152. Section 153. 407. The power under section 153 may be allocated to both kinds of Magistrates. Hence no change in the language is necessary. Esstggspf 408. The following suggestiorf has been made by a High gformagon Court Judges:-- .¤?;;ta,y "It may be provided that a first information report made by an accused is admissible in evidence. "There are already conflicting decisions under this section, and much valuable evidence is shut out, on account of legal difficulties in admitting such report." - The suggestion has been made under section 162, but seems to pertain to section 154. 409. We studied the case-law on the subject. Decisions during the last few years show, that there is no conflict or uncertainty so far as section 154 is concerned. The un- certainty arises by reason of the difficulty of determining whether a particular statement is a "confession" and there- fore excluded by section 25 of the Indian Evidence Act, 1872. We do not, therefore, recommend any change in section 154 in this respect. 1. Section 54- 2. P. 3(2)I5S·L.C. Part I, S. No. 72. 3. F. 27(3)/55•]udl. II (Home Ministry File), Appendixl, Item No. 26. 4. Cf. discussion regarding section 149. 5. F. 3(2)]55·L.C. Partlll, S. No. 49(a). 111 410. With reference to sections 154 and 155, it has been S°§°ig;° 154 ·statcd‘ that a large number of complaints regarding the "‘ ° malpractices by police in recording the First Information Report were brought to the notice of the U.P. Police Com- mission, 1960-61, some of which are as under :— (i) Non-recording of the First Information Report, i.e. "concealment". I (ii) Distorting of facts with a view to lessening the gravity of offence, i.e. "minimization". (iii) Introduction of new facts and distortion of facts, in order to create evidence against the accused or · for implicating innocent persons. (iv) Demand of money or other consideration for recording or prompt recording of report. The Police Commission appointed by the Government of U.P. recommended, that a new Reporting Centre under the direct supervision of the Superintendent of Police should be set up at district headquarters, in order to decrease "concealment", or "minimisation" or other defects. The U.P. Police Commission felt, that these defects could be reduced by the exercise of more intimate and closer super- vision by Circle Officers. The Superintendent of Police (it is stated) should per- sonally see that complaints concerning the First Informa- tion Report are properly enquired into, and exemplary punishment given to wrong doers. The First Information Report should contain:- (1) the name of the complainant; (2) the nature of crime; (3) approximate time of occurrence, and (4) place of occurrence. Immediately after the First Information Report has been recorded, the Investigating Officer _sh0uld interogate the complainant with regard to the motive of crime, names of witnesses etc. and the record of this information should be entered in the Case Diary. This change would, (in the ·opinion of the U.P. Police Commission) ensure a more im- partial and better type of investigation. 411. The Government of U.P., while forwarding these recommendations, has suggested that the amendment of sec- : tions 154 and 155 of the Code may be considered on an All India basis. The proposal of the State Govemment was brought to the notice of the Law Commission, for its con- sideration. l 412. We have examined the proposed scheme, in the light of existing provisions. It appears to us, that it is possible to work the suggested scheme—at least the subs- tance thereof—wi1:h0ut amending section 154. The proposed hi. F. 3(2)/55-L.C. Parr VII, S. No. 464, Suggestion of the Government of Uttar Pm. des . 112 "Rep0rt1ng Centre" can be declared to be a "police -station"Q.. and the Superintendent in charge thereof could be declared. the "officer in charge" thereof. semm.155 413. In section 155(1), after the word "Magistrate", the (I)- words "having power to try such case etc." should be add-- ed, as in the Punjab amendment. Smm,155 414. In section 155(2), no changes regarding the Magis- (2). trates empowered are necessary. E°¤¤li<>¤ {55 415. Under section 155, a question‘ has arisen occasional- (,’f]§;;""”‘°“ ly as to what should be the procedure followed by a police- ' officer when a. case involves not only a non-cognizable offence but one or more of cognizable offences as well. Sub- section (2) lays down an absolute prohibition against the police officer proceeding to investigate a non-cognizable ‘case’ without the order of a Magistrate. But the definition of a ‘non-cognizable case’ in section 4(1)(a) is co—extensive` with the definition of a ‘non-cognizable offence’. Hence, the problem remains, notwithstanding the definition, as to what _ to do where the case is a composite one. It is somewhat anomalous that where a police officer starts investigation into a cognizable offence without a Magistrate’s order he will have to run to the Magistrate for his order, in the course of the same investigation, if another minor offence which is not cognizable also appears to have been committed. We, therefore, think that where the case is of this nature and involves also one cognizable offence, it should not be treated as a non-cognizable case for the pur-- pose of sub-section (2) of section 155. While the Code was under our consideration, the posi- tion in this respect was clarified by a judgment of the Supreme Court. The amendment which we are recommend-- ing} will codify the law now settled by the Supreme-· Court? S¢¤*i<>¤ 155 416. With reference to section 155, the following sug-- ggzgblc gestion‘ has been made by the Government of `UQP. :-— °g°“°°S· "The Uttar Pradesh Police Commission 1960-61 in para 138 of their Report inter alia suggested that the State Government should have the power to declare certain types of non-cognizable offences as cognizable, when in any area the law and order situation exhibits a tendency to deteriorate. The State Government has accordingly suggested the amendment of section 155(2) of the Code of Criminal Procedure, on the following lines :—— J ‘ W 1. Vadlamudi, v. State, A.1.R. 1961 A.P. 448; Ram v. State, A.l.R. 1958 Punj- 172- 2. Section 155, Explanation (as proposed)- 3. Pravin Chandra v. State, A.I.R. 1965 S·C· 1185. 4. F. 3(Z)/55-L.C. Part Vll, S. No. 377. 113 "At the end of sub-section (2), the following proviso shall be added, viz.- "Provided that the State Government may by notification in the Gazette direct in relation to any local area that any class of non·cogni- zable cases may during such period as may be specified in the notification be investigated without the order of a Magistrate. As a consequential change, it was suggested that in sub-section (3) of section 155, for the words "any police officer receiving such order" the words "any police officer acting under sub-section (2)" should be substituted. 417. The relevant portion of the Report of the U.P. S°°*i°¤ 155- Folice Commission (1960-1961), paragraph 138, is as fol- ows 2- "We are of the opinion that the Station Officer is vested with too much of discretion. There are also com- plaints of abuse of the powers of the S·tation Officers with a view to earning illegal gratification. Besides, of late goondaism and rioting has been on the increase. The bullies beat up people, who do not carry out their wishes. We have reason to believe that the law and order position in some parts of the State, especially in the country-side, has reached a perilous state. It has been common experience that multiplication of minor offences reduces respect for law and order and ultimate- ly leads to bigger disturbances. He would, therefore, recommend that whole the question of the discretion vested in the Station Oflicer should be carefully exa- mined and that cases which are now not normally in- vestigated, should be investigated. Thus, cases under sections 324, 325, 341, 344, 357, 457, cases of theft unless the value of property is less than Rs. 15/- and of cheat- ing unless it is a dispute of Civjil nature, should be investigated. "A proposal was made by Shri Shanti Prasad, now Inspector General of Poliee, that Government should have the power to declane certain type of non-cogni- zable offences as cognizable offences, when m any case the law and order situation exhibits ·a tendency to de- teriorate. The Magistrates are already empowered to direct the police to take cognizance of any particular non-cognizable case. We think that this power is not enough, and there should be a general power with the State Government to declare certain kinds of non-cog- nizable ofences as vcognizdble ojfenxs. We recommend that this matter may be fully examined." 418. We examined the suggestion. We felt, that it would be convienient to deal with the matter in a separate study, where the scheme of the Code as to cognisable offences can be examined} l. To be taken up for separate studv• 9—Z9 Law/68 114 S°°*1°“ 156 419. With reference to section 156, the power to order investigation in non—cognizab1e cases will be with Judicial Magistrates} But, since section 156 is to be read with sec- tion 155, no verbal change in section 156 is necessary on this point. S;°°1°é*156 420. It has been stated by the Markapur Bar Associa- glzgggmon tion, Andhra Pradeshz that section 157(3) is ambiguous. The as m parti- suggestion, further, says 1- _ cular police _ _ _ _ anim "In cases where a particular police oihcer investi- gates and refers to the case and thereupon a complaint is (preferred to any Magistrate, such magistrate may ' or er investigation by the same police officer; or if a different police officer higher in rank is entrusted with ‘ the investigation, he may direct the very same police ojicial to reinvestigate. Such instances having arisen, it is proposed that sub-section (3) of section 156 be suit- ably amended, to say— . "(3) Any Magistrate empowered under section 190 may order such investigation as above mention- ed and may also order such investigation by such other police ojicial, higher in ranl<=." Our view is, that since the suggestion refers to "com- pIaints", the proper section for the purpose is section 202(1), which is elastic enough“ to empower the Magistrate to specify a police officer of higher rank. Section 157 421. In section 157, it is desirable to substitute, for the words "police report", thevwords "report‘in writing made by a police oHicer"‘ - S¢cric>n157 422. With reference to section 157, a suggestion nas *=‘¤<11‘“Z°S“‘ been made for inserting a provisi-on regarding investigation §f;;°QfQ,hc, by a police oiiicer in the area of other police stations? We police think, however, that the provisions of sections 160, 161 and Stations 166 are adequate, and no further addition is required. . Section 158 423. It has been suggested° that a provision should be (2} inserted in section 158(2) to the effect that "instructions" under the section include instructions to investigate. No such verbal change is necessary, as the language of section 158(2) is wide enough. Section 159 424. No change is needed in section 159. , Section 160 425. In section 160, a provision for the payment of er- and expenses penses of witnesses ought, in our view, to be made. I 1. See discussion regarding 155. 2. F. 3(Z)/55-L.C. PartIII, S- No- 50(O)· (Page 218, correspondence). 3. To be noted under section 202. 4. Cf. discussion regarding section 4(1)—definition of "complaint". ` 5. F. 27(3)/55-]uId. II (Home Ministry File), Appendix I, Item No. 27. 6. F. 27(3)/55-]udl. II (Home Ministry Fihe), Appendix I, Item No. 28. 115 On principle, it is difficult to understand why witnesses who are asked by the State to help the administration of justice by attendance in a Court should be compensated by cost,‘ while those who are obliged, under penal sanction, to attend an investigation before the police for the same purpose should be treated differently. We recommend, that a suitable amendment be made in _ this respect. 426. It has been suggestedz that the proviso regarding $¢¢*i¤¤ 160 women should be removed from section 160. We are un- ;“d‘“°°f" • able to accept the suggestion, having regard to the fact that the proviso contains a salutary provision. We would, in this connection, refer to the observations _ made by the Calcutta High Court° while reversing the dis- missal of a complaint against certain police officers to the effect that they had mal-treated a number of women. "We would wish to point out that it seems to us an unusual course that the police should take a number of women away from their village to the police station on the pretext that they wished to examine them. It seems to us the examina- tion might have been as well conducted at the women’s own houses as at the police station, and have at the same time prevented the possibility of any such charges as have been now preferred against the Police." 427. It has been stated} that under section 160 a police Section 160 officer can require the attendance before himself of wit- and f¢q¤if· nesses acquainted with the circumstances of the case under hug ‘*“I$"; his investigation. The proviso to this section, however, states ifsfiggation that no male person under the age of 15 years or woman shall be required to attend at any place other than the place in which such male person or woman resides. The investigating officers in U.P., it is stated, were expressing difficulties, particularly in identification proceedings. The Inspector General of Police, Uttar Pradesh, appointed a De- partmental Committee to go into the whole matter. The Committee suggested to the U.P_ Government amendment of section 160. The U.P. Government has, accordingly re- commended, that the existing section 160 should be re-num- bered as sub—section (1), and the following sub-section (2) should be inserted in section 160. , "(2) Any police ogicer making aninvestigation under this Chapter may also, by order in writing, require the attendance of any person before a Magistrate conducting identijication proceeding of any property or person in con- • nection with the investigation of the case, on the date, time and place mentioned in the order." 1. Section 544- 2. F. 3(2)/55-L.C. Pr. I, S. No. 17. 5.)}-laladhar v. Sub-Inspector of Police, (1904) 9. C.\X/.N. 199, 201 (Harington Sn Pergi- "’*B!` . . , 4. F.3(Z)/55-L.C.PartVII,S.No. 429, Suggestion ofthe Governmcntof U.P.. 116 We have considered the suggestion. We may state here, that the proviso to section 160 was inserted in 1955. But, even under the section as it stood before 1955, a witness could not be forced by the police to appear before 0, Magisirratef The amendment of 1955 has not made any change 1n this respect. Nor are we inclined to amend the section as suggested. Section i60 428. With reference to section 160, it has been suggest- ;?gt‘;Pg}‘;"‘ ed’ that in the marginal note, the word "person" be subs- 160 to ,,1,; tituted for the word "witness". Th_e suggestion really raises accused a large question, namely, whether sections 160 and 161 apply to the accused. 429. The question (whether sections 160 and 161 apply to the accused) is an interesting one. Before answeriiig it will be desirable to point out three meanings of the word "accused", in this context. The word ‘€accused" may mean- (i) a person who is suspected, but not yet arrested; (ii) a person who is suspected, and about whom the police have reasonable grounads to believe that he has committed the odlence but w o is not yet arrested: and (iii) a person who has been arrested. 430. It has been held by the Privy Council} that section 162 applies to the accused. In the course of the discussion, the Privy Council referred to "group of sections" beginning with sections 160, 161. But the question whether sections 160 and 161 apply to the accused, was not directly in issue before the Privy Council. ln a Nagpur case,‘ it was held, that section 161 applies to a person who may subsequently become the accused, and also that police officers were fully authorised to require the personal attendance of the suspects during the investiga- tion and that absence of an order under section 160 was an irregularity, which would have justified the failure or re- fusal of the suspects to obey the order, but which could be waived by them. 1 1. Emp. v. Neni Sheikh, I.I..R- 29 Cal. 483. Z. 3(Z)/55-L.C. Part 1. S. No. 83 and F. 3(Z)/55-L.C. Part Il S.No.34(d) (Suggestion of a D.I.G. Police). 3• NOT5lHd$Wdmi V. ETTIIJCTOT. Q 4s Inu Dina Natha, A.I.R. 1940 Nag. 186, 189 (Niyogi ].). 117 431. There are, however, certain questions to be con- sidered before assuming that section 1.60 applies to person suspected but not arrested. Can they be described as persons "acquainted with the circumstances of the case ?" The dis- cussion in a Madras case` shows the difficulty of the subject- matter, because, so far as accused persons are concerned, the police can secure the presence of such person in other ways."‘ It was also pointed out by Waller J .‘ that the language of section 161 seemed to be quite irreconcilable with the idea that it could be concerned with accused per- sons. Persons examined under section 1:61 were bound to answer all questions other than questions which would ex- pose them to a criminal charge. "How can all this refer to an accused person ? He is already the subject of a criminal charge, in respect of which the quemons would be put to him." In fact, he pointed out, previousl the law went so far as to require that the questions shoulad be truly answer- ed-which showed that section 161 did not apply to the accused. While the actual decision in this Madras case has (so far as section 1627 is concerned) lost its value after the Privy Council decision,‘ the other points have not been settled by the Privy Council. 432. On the other hand, however,. a narrow construction of sections 160 and 161 leads to one practical difficulty, as there is no other section under which the police can exa- mine the accused. 433. The true position seems to be this-- (a) Section 160 cannot, obviously, cover the third category, namely, the accused in custody, nor perhaps a person in the second category, as he is about to be arrested. But it can cover the first category. (b) As regards section 161, it is, in our view, to be regarded as embracing all the three categories, (sub- ject, of course, to the limitation regarding incriminating questions). In a Bombay case] it was held that section 161 does not apply to the accused. We regret that, with great respect we are unable to agree with the view. In view of the above position, itgis unnecessary to dis- turb the language of sections 160-161 on this point. 1. Syamo Maha Patro v. Emp., A.I.R. 1932 Mad- 391, 393, 394, 398, 400, 402. 2. See the judgment of Reilly]. in Syamer Maha Patro, A.I.R. 1932 Mad. 391, 394 right-hand, and judgment oi Sundaram Chetty ]-. at page 400. 3. Sec Q.E. v. Saminada Chetti, (1883) I.L.R. 7 Mad. 274 (P.B.). _ 4. See also Emp. v. Ratan, (1902) 4 Bom. L.R. 644 (Crown and Ashton JJ.), agreeing with Saminada Chem I.L.R. 7 Mad- 274- S. A.I.R. 1932 Mad. 391, 403. 6. Narainaswami, A.l.R. 1939 P.C. 47. 7. Amrit v. State, A.I.R. 1960 Bom. 488 (Raju].). _ 118 434. Our view is, that the words "acquainted with the circumstances of the case" in sections 160 and 161 rx ply to suspected persons, though those words in section 170 do not cover the accused, because in section 170 the accused is separately mentioned. The view of Reilly, Sundaram Chetty and Waller JJ. in the Madras case‘ were considered by us. But, with great respect, we are not able to agree with the observations in that case that section 160 does not armly to the accused, since it excludes incriminating statements. No change in language in the text of the sections is neces- sary. Nor need the marginal notes be disturbed, as they cannot control the section. · $¤¤*i¤¤_161 435. We have considered the question whether the word Qglégzk "truly" should be inserted in section 161. We are of the ,h_,,,,.,,df° opinion that it should not be added, in view of the history of the section, and certain risks involved in it.” 436. The connected point, namely, that a refusal to answer questions under section 161 of the Code of Crimi- nal Procedure is, as the law stands now not punishable in view of the narrow language of section 179. Indian Penal Code, is more important. We recommend that the relevant sections of the Indian Penal Code} should be amended to cover such refusal, as there can be no two opinions about the need for penal sanctions for refusal to answer these questions. S°§'i°’} ifi 437. In an earlier Report,' several suggestions were made lgffn S regarding the manner of recording statements by the police Report and also regarding the need for recording the statement of every person whom the prosecution wishes to examine at the trial. With certain modifications, we are giving effect to them. Necessary amendment is recommended. The re- commendations made earlier and the modifications which we are suggesting, are detailed below. (a) The first suggestion was, that, instead of leaving it to the discretion of the policeroiiicer to record the state- ment into writing, it should be made obligatory upon him to record in writing the statement of every person who has been examined by him, under section 161(1). This recommendation is based on sound logic, inasmuch as the purpose and utility of a statement before the police oiiicer have been changed after the amendment of 1955. Prior to the amendment, the statement could be used for the limited purpose of contradiction under section 162. But now, it can (alongwith other materials) form the basis of a chargef and the accused, is as of right, entitled to a copy 1. A.I.R. 1932 Mad. 391. 2. For detailed discussion, see Appendix ll. 3. To be considered when the Indian Panel Code is revised. 4. 14th Report, Vol. Z, pages 752 to 755, paras. 45 to 47. • 5. Sections 207A(7). · 119 of the statement made before a police officer} The latter object would be rendered nugatory if the police does not record the statement at all. It is, therefore, absolutely essential in the- interest of justice, that changes should be made making lt obligatory for the officer to reduce into writing every statement made before him under section 161. _ _ (b) The next recommendation was, that "the law should . insist that the investigating officer should record the state- ment of the witnesses as far as possible in their own words". There is no doubt that the recording of the mere substance of a_ statement by a police oflicer may be useless or mis- • leading. We would, therefore, implement this recommendation. (c) The next recommendation in the earlier Report,. however, raises a highly controversial issue. It was stated, that the statement so recorded should be signed by the witness, where the witness is literate and can himself read out the recorded statements. The case of illiterate persons was left untouched, because the Commission felt helpless regarding them. But the question goes to the root of the matter. What are we going to do with the signed statement, and what strength does it add to the recorded statement ‘? It is patent, that with all the changes referred to, a statement before the police officer is not yet admissible as substantive evidence, and no court could ever sustain a conviction based on the statement before the police as a previous deposition record before a Court of law. Nor can it be overlooked, that the statement is recorded before a police officer, in whom the law has not so far placed the same confidence as in a judicial officer. The signature of the witness can, in these circums- tances, add very little to the strength of the statement recorded by the police oiiicer. It is true, that the statement can be used for contradicting the evidence in court of the witness, to the extent permitted by section 162. But, then, it can reasonably be envisaged that in every case where a witness is confronted with the statement before the police officer by showing him the signature to it he would in- variably take the plea that his signature was given under duress or without reading what was recorded. It is not a statement made on oath. The strength given by the signa- ° ture of the witness below such a statement would be very little. _ lt has been said, that a uterate person can read the signed statement himself, and see whether it is correct, whereas an illiterate person cannot read his statement and could be duped by the police officer. But there is no assurance that the literate persons will not be threatened by him. If a witness challenges a police officer that the 1. Sectionrl73(4)· 120 statement which has been- recorded is not correct according to his version, he cannot urge that an amendment should be made, by filing an affidavit. Upon a reconsideration. of the question, thus, we are unable to accept this recommendation of the 14th Report. Our reasons in this respect may be briefly re-stated- (i) the calibre of persons who are in the Police has not improved, and mal-practices in police investigation still continue to exist; (ii) the requirement that witnesses making state- ments before the police should sign the statements, will not serve any useful purpose; (iii) such requirementmay even deter the witnesses from making such statement. 438. The recommendation in the 14th Report‘ regarding sions admitting in evidence confessions made by the accused to senior police officers concerns the Evidence Act, and involves no change in the Code of Criminal Procedure. Section 1_61 439. With reference to section 161, it has been suggested *“t}d S°€‘d’“€ that for sub-section (3), the following shall be substituted, ° °°p"” namely:- "(3) The police officer shall reduce into writing any statement made to him in the course of an examina- tion under this section and he shall make a separate record of the statement, of each such person whose statement he records and shall forthwith send the copies of the statements so recorded to the Magistrate having jurisdiction to enquire into the case." The suggestion is contained in an Amendment Bill which was introduced in the Rajya Sabha? 440. The amendments proposed in the Bill were considered by us in detail? The proposed amendment seeks to put in section 16l(3) three propositions- (a) Every statement made to the police in the course of an examination under this section shall be reduced into writing; (b) Separate record shall be made of the statement of each such person whose statement is recorded; (c) The police ofiicer shall forthwith send copies of the statements so recorded to the Magistrate having jurisdiction to inquire into the case. 1. 14th Report, Vol. 2, page 749, para: 39- 2. F. 3(Z)/55-L.C. Pt. VII, S. No. 407 (Shri K. V. Raghunath Reddy’s Amendment Bil], 1963) (Rajya Sabha Bill 11 of 1963). 3-. On an assurance being given- by the Government that the matter would be referred to the Law Commission, the Bill had been withdrawn. See Rajya Sabha Debates, September, 1965, columns 207 to 211· 121 The first proposition would be covered by the amend- ment of section 161 which we have recommended} The second proposition re-states the existing law, in substance. The third proposition evoked lengthy discussion before us. The main object of the amendment proposed on this point“ appears to have been to prevent tampering by the investigating officer, particularly in respect of those criminal cases where factions are arrayed on either side. Various points were raised in the course of the discussion before us on this suggestion. First, it was urged that the Magistrate to whom the copies of statements are to be sent would not have the time and machinery to preserve, arrange and index them. Secondly, a doubt was raised whether tamper- ing was prevalent on a noticeable scale, and also, whether tampering would give any advantage to the police, as the statement cannot be used by the prosecution (except to the very limited extent provided for in section 162 as amended in 1955). As against these points, it was noted that in cases of factions, one group may have the desire to get the state- ments altered to its advantage, so as to face the witnesses of the opposite group with contradictions. It was also considered, that the difliculties of preserving and indexing may not be serious, as even now occurrence reports" are sent to the Magistrate empowered to take cognizancef In the course of our discussion, we were wllso asked to consider whether the proposed provision, (if at all it is to be insert- ed), should not be limited to offences ffecting the human body, and offences of rioting, and the l‘?ke—these being the usual cases where the aspect of "factions" was m-ost pro- minent. We were not, however, inclined to limit it like that. We found the amendment to be desirable and practicable. We recommend, that the proposed amendment may be accepted. The copies of the statements should be sent through the sperior police officer' (if any), appointed under section 158. 441, The following suggestion‘ has been made by the Section 161 Bar Council, Madras with reference to statements recorded mtld *°¤d*¤€ under section 161- }°;i;§’:f;t;‘;__ "In view of the 1955 amendments to section 162 whereunder these statements rank on par with evidence, 3,,,- Council there is likely to be a tendency fan the police to delay the recording of such statements till a complete picture emerges out, or to ante·dafe the statements so as to avoid any criticism that they were recorded in a belated manner. Moreover, if the high status given to these statements is to be maintained, it is suggested, that 1. Recommendation as to section 161. 2. See Rajya Sabha Debates, 3rd September, 1965, Columns 172-173, speech of Shri K. V. Raghunatha Reddy, mover of the Amendment Bill. 3. See section 157(1). 4. Compare section 173(2). 5. F. $(2)/55-L.c. P:. III, s. Ne. 52. 122 copies of such statements should be forwarded to the Magistrate having jurisdiction within 24 to 48 hours of the recording thereof. This procedure ensures the reliability to the statements as well as their fullness and accuracy". We have considered the suggestion carefully. We have already recommendedl some changes as to sending of copies, and we think that those changes would be enough. S¢¤¤i¤¤ Iéé 442. With reference to section 161, the following ;‘g;°“”‘ ‘ suggestion“ has been made by the Inspector General of pmdcs Police, Madras:- W "At present there is no provision in the Investiga- tion Chapter for holding identification parades. It is better to have some specific provisions regarding the holding of such parades during investigation.". We think that the existing law is adequate. As the holding of identification parades is a matter of daily occur- rence, we tried to study some aspects of the matter, and we record below some of the broad propositions which can be gathered from the case-law. 443. When identification parades are held before Magistrates, they record the statements under section 164. Whether section 164 applies to them was a matter left open by the Supreme Court} As the matter stands now,‘-‘-° we do not regard any provision as necessary. ’ The relevancy of evidence about such identifications is. of course, outside the scope of the Code. "An identification parade belongs to the stage of investigation by the police. The question whether a witness has or has not identified the accused during investigation is not one which is in itself relevant after trial} It is governed by various decisionss under section 9 of the Indian Evidence Act, 1872. Section 161 444. There are rules and instructions on the subject? In theory, the police can also hold identification parades. But since that would attract section 162, they have to be held before Magistrate. It is unnecessary to consider whether section 80, Evidence Act, applies to such statements.‘° l. See discussion under section 161 and sending of copies. 2. No, F. 3(Z)/55-L.C. Pc. III, S. No. 52. 3. State v. Shingara Singh, A-LR. 1964 S.C. 358, 363, para. 16. 4. Samiuddin v. Emp. A.I.R. 1928 Cal. 500, 502. · 5. Peare Lal v. State, A.I.R. 1961 Cal. 531 (Article 20, considered)- 6- In re Kamraj, A.I.R. 1960 Mad. 125, 129-130 (Somasundaram and Ramaswami ]].). 7. In re Sangiah, A.I.R. 1948 Mad. 113, para. 4 (Rajmannar ].). 8. Asharifi, I.L.R. (1960) 2 All. 488; A.1.R. 1961 All. 153 (Reviews case-law). 9. SeeAsh.arf`y v. State, A.1.R. 1961 A11. 153, 159, Para. 2. 10. Cf Sheo Raj, A.I.R. 1964 All. 290. . 123 445. As to the law in England, the discussion by Lord Denning in a recent case‘ relating to false imprisonment may be quoted :—— "When a constable has taken into custody a person reasonably suspected of felony, he can do what is reason- able to investigate the matter, and to see whether the suspicions are supported or not by further evidence. He can, for instance, take the person suspected to the place where he says he was working, for there he may find persons to confirm or refute his alibi. The constable can put him up on an identification parade to see if he is picked out by the witnesses. So long as such measures are taken reasonably, they are an important adjunct to the administration of justice. By which I mean, of course, justice not only to the man himself but also to the commmunity at large. The measures must, how- ever, be reasonable." 446. The Supreme Court had, in one case,* occasion to $°°°i°¤ I6! deal with the admissibility of statements made by persons §fQg;“d‘°s in custody with reference to section 27 of the Evidence Act. ' In the judgment of Mr. Justice Hidayatullah, in that case, attention has been drawn to the following recommendation of the Royal Commission on Police Powers and Procedure° :— "(48). A rigid instruction should be issued t-o the police that no questioning of a prisoner or a person in custody about any crime or offence with which he is or may be charged, should be permitted. This does not exclude questions to remove elementary and obvious ambiguities in voluntary statements under No. 7 of the Judges Rules, but the prohibition should cover all per- sons who, although not in custody, have been charged and are out on bail while awaiting trial. " Mr. Justice Hidayatullah also observed, that this was a matter for the legislature to consider. 447. It may be noted that in England the Revised Judges’ Rules framed in 1964 contain elaborate provisions as to questioning by police. Rules I and III (a) and (b) of these rules are quoted below :— "I. When a police officer is trying to discover whe- ther, or by whom, an offence has een commmitted. he is entitled to question any person, whether suspected or not, from whom he thinks that useful information may be obtained. This is so whether or not the person in question has been taken into custody so long as he has not been charged with the offence or informed that he may be prosecuted for it." 1. Dallison v. Cajfery, (1965) 1 K.B. 348; (1964) 3 V/.L.R. 385; (1964) 2 All. E.R. 610 (c.A.). 2. State of U.P. v. Deoman Upadhya (1961) 1 S.C.R. 4062, 4063; A.I.R. 1960 S.C. 1125, 1147, para. 73. 3. Royal Commission on Police powers and procedure, (1928-29), Cmd. 3297. 4. See (1964) IV/eekly Law Reports, 152,under "Practice Note". 124 "III. (a) Where a person is charged with or informed that he may be prosecuted for an offence he shall be cautioned in the following terms :— "Do· you wish to say anything? You are not obliged to say anythlin unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence." "(b) It is only in exceptional cases that questions relating to the ence should be put to the a cused person after he has been Charged or informed that he may be prosecuted; Suchlquestions may be put where they are necessary for the purpose of preventing or minimising nam or loss to some other person or to the public or for clearing up an ambiguity in a previous answer or statement. "Before any such questions are put,. the accused should be cautioned in these terms :— "l wish to put some questions to you about the offence with which you have been charged (or about the offence for which you may be prosecuted). You are not obliged to answer any of these questions and answers will be taken down in writing and may be given in evidence." "Any questions put and answers given relating to the offence must be contem raneously recorded in full and the record signed by gat person or if he refuses by interrogating officer". 448. We have considered the question whether any provision in the Code on the subject should be inserted. We also studied the Revised Judges Rules (1964), and the extensive‘ literature thereon. We come to the conclusion that it may not be convenient to make these elaborate provisions in our Code. We also found that even in England,. there is controversy as to the working and object 0 the Judges Rules, and also as to the precise object sought to be achieved by these Rules} Further, in India. the answers of the accused to the questions put by the police are not admissible in evidence except to the limited extent provided for by section 162. Hence the absenee of statutory provisions as to warning would not harm the accused at the stage of trial. 1. Literature on the subject is abundant. By way! of examples, the following may be re ferred to- (a) Hoifman, "The ]udges Rules", (1964), Lawyer 23, 25. (b) Cowen and Carter, “Essays on Evidence" (1956), page 46. (c) Lord Porter, **English Practice and Proced (1949) 2 Current Legal Problems 13, Z3. (d) Proceeding of the Commonwealth Law Conference (1965), Topic 2, Papers by ' Norman Skelhorn and Professor K. O. Shitwel. 125 449. In section 162(1), the words "if reduced into sF°'1°¤ 162 writing" have to be omitted, as it is now proposed} that the ( )‘ statement of every witness who is examined by the police shall be reduced to writing. 450. The question whether the prosecution should be S°§*g>¤ 162 allowed to cross-examine a defence witness by bringing out Qgamhtffon contradictions with his statement recorded in police investi- by the prose. gation, has been discussed before us at length, in view of curion of the suggestion to that effect made by a State Government? d*?f°¤°° The history and object of section 162, and the case-law on “’"°°”‘ the subject, were gone into by us} ‘ The suggestion is, that in section 162(1), in the proviso. for the portion beginning with, the words "Provided that" and ending with the words "by the prosecution", the follow- ing be substituted :— "Provided that, when any person is examined as a witness in such inquiry or trial whose statement has been reduced in writing as aforesaid, any part of his statement, if duly proved, may be used by the accused or the prosecution. ’ It has been suggested‘ that section 162. of the Code be amended so as to put on par the accused and the prosecu- tion in the matter of contradiction or cross-examination of the witness on the basis of the Statement 111Bde by before the police. At present, the accused can do so whereas the prosecution has to obtain the permission of the court before acting accordingly. A copy oi the Bill forwarded by the State Government (for the administrative approval of the Government of India before its introduction in the State Legislature) was sent to the Law Commission for considera- tion. The following proviso to sub—section (1) of section 162 has been suggested‘ in the Bill :— "Provided that, when any person is examined as a witness in such enquiry or trial whose statement has been reduced in writing as aforesaid, any part of his statement, if duly proved, may be used by the accused or the pr0secu.tion." The Statement of Objects and Reasons to the Bill is as follows :—— . "In view of sub-section (1) of section 162 of the Code of Criminal Procedure, 1898, no statement made by a person to a police officer in the course of an in- vestigation under Chapter 14 and reduced in writing 1. See section 161, as proposed to be amended; 2. F. 3(2)/55-L.C. Part VII, S. No. 459. 3. For detailed discussion, see Appendix 12. 4. F. 3(Z)/55-LC. Pt. VII, S. No. 459 (Suggestion ofa State Government,). 126 can be used at any inquiry or trial in respect of the offence under investigation. But, under the proviso, if such person is called as witness for the prosecution the accused has been given a right to use such person’s statement to contradict him, but the prosecution can use it for similar purpose only with the permission of the Court, which is generally given when the witness turns hostile. However, if the same person is examined as a defence witness, the statement cannot be used at ‘ all. When such persons come as defence witnesses. dificulty is experienced by the prosecution, particularly in identification parade cases. _ "As there are other safeguards, it is proposed to allow the use of a police statement to· contradict a wit- ness even when he is called by the defence. The High Court, which was consulted, is in favour of such amend- ment." We have considered the matter separately} 451. We are opposed to any such change, as it would practically take away the sub-stratum of section 162, which is based on the principle that these statements ought not to be admissible. That only the accused should have the right to use these statements, is a special and exceptional provision, which should not be extended. S¢°**<>¤ 162 452. It has been suggested’ in one Bill, that in section f;;i;gE°s' 162 of the principal Act, in the proviso to sub-section (1), Sub,,,,,;.., after the words "may be used by the accused", the words ··¤mss.ex¤. "to cross-examine such a witness" shall be inserted. minati0n" fl9"_‘°°}}"=·· This suggestion seeks to widen the scope from “c0n— ‘°“°“ ‘ tradiction" (which is at present mentioned) to "cross- examination" (which is wider). The main object of the amendment is to cover omissions? We considered the matter at length. In our view, no such change is necessary. The discussion in Tahsildar Singh’s case‘ ‘ itself shows, that it is not possible to boil down the question (how far . "omissions" are contradictions) to a short and neat formula. · Nor do we consider it necessary to make the scope of the section wider than has been interpreted by the Supreme Court in that case. 1. See discussion relating to section 162. ” Z. F. 3(Z)/55·L.C. Pt. VII, S. No. 407 (Shri K. V. Raghunath Reddy’s Amendment Bill) (Rajya Sabha Bill ll of 1963). 3. See Rajya Sabha Debates, 3rd September, 1965, cols. 207-2.11 (Speech of Shri K. V. Raghunatha Reddy). 4. Tahsildar Singh, (1959) Suppl. 2 S.C.R. 875; 1959 S.C. 1012. 5. See also Dahybhai, A.I.R. 1964 S.C. 1563, 1569. ` 127 453. With reference to section 162, the following sugges— $¢¤*i¤¤ 362 tionl has been made by the Public Prosecutor, West Goda— (l)dpé°"‘ft°’ vari, Andhra Pradesh. $Qmcg`Qs_ "ln the proviso to sub-section (1) of section 162, for the words "called for the prosecution", the words "examined in the Court" should be substituted." The reason given in support of the suggestion is this: A witness becomes hostile to the prosecution. lf the prose- cution gives up the witness and if he is examined as a Court witness, his statement cannot be put to him and con- tradicted. This amendment is intended to remove the anomaly. (The suggestion also says, that the decision of the Andhra Pradesh High Court may be seen). We have examined the suggestion. The Andhra Pradesh decision is noted below? The mat- te: was discussed in recent Bombay case} where also the same view was expressed, namely, that a court witness cannot be cross—examined under section l62(l), proviso. We do not, however see any need for extending the proviso as suggested. The suggested draft, moreover, goes much beyond the object in view, as it would cover defence wit- nesses also. No change is, in our opinion, necessary. 454. With reference to the proviso to section l62(l), we Section 162 have carefully considered the suggestion* of a High Court (1)P*°"i$_° Judge to clarify the question whether the expression "¥‘(?n;"““"s' "contradiction" includes omissions. The answer to the S1 ° question, we believe, depends on facts. It appears to us that it is not possible to lay down a rule one way or the other. 455. An ‘omission" can be regarded as a contradiction only where the omission, by necessary implication, can be deemed to be a part of the statement. The matter is dis- cussed at length in a Supreme ·Court Judgement} which, while laying down the law to that effect, made it clear that the examples which it gave were not intended to be exhaustive. 456. A High Court° has suggested the addition of a S¤¤¢i¤¤ 162 second proviso to section 162·(l) as follows :— glgglions "Provided further that when it is necessary for a'°€"di“g { police oflcer to examine an accused person during the ° course ogr investigation and he is oceeding to do so, he shall inform the accused that ifpthe accused desires, the examination will be conducted and any record made in the presence of the advocate of the accused; he shall 1. F. 3(2)/55-L.C. P:. III, S. No. 50(v). 2. In re Kotti Reddy, A.I.R. 1960 A.P. 76. 3. State v. Bhanuprasad, A.I.R. 1966 Bom. 378, 379, para. 8 (October issue). 4. F. 3(Z)/55-L.C. Part II, S. No. 33(a). 5. Tahsildm Singh v. State of U.P., A.I.R. 1959, S.c. 1012, 1026. __ 6. F. 3(Z)/55·L.C. Pt. III, S. No. 52 (Page 301, Corresponding). i . 128 be further bound to afford Ia reasonable opportunity to the accused to send for Jhis advocate and to have his presencef The reasons given by the Hi h Court for the r sed provision are stated below- g P QPO s (1) The above provision will put an end to the abuses connected with section 27 of the Indian Evidence Act, and to the unlawful detention of the accused person in police custody. In England, such reasonable oppor- tunity is given. "There is no reason why in India the members of the Bar should be credited with a double dose of the original sin and their presence be considered as polluting the investigation or hampering the investi- gation." (2) Many of the criticisms that have become the staple food of the Bar, will disappear. The accused persons will be able to set up proper defence, which if, investigated, might exculpa-te them. The investigation will become purer, and public cooperation will be in- oreasmg. 457. A somewhat similar suggestionl has been made by a Bar Council. The suggestion has been made under section 167, but really pertains to section 162. The Bar Council has suggested, that section 167 should contain a provision enabling the accused to have legal aid when he is in police custody. Comments of the State Government concerned. (on this suggestion) are as follows :-·, "In view of the specific provision in article 22(1) of the Constitution, it may not be in order to make specific provision refusing lawyers -to appear on behalf of arrested persons. There is, however, no sneéd either ·to specifically provide in the Code that the accused should be entitled to legal aid while in police custody, as even otherwise such legal pid cannot be shut out in view of the specific ·pro,vision insartiele 22(1)". 458. We considered carefully the above suggestion. and the comment of the State Government thereon. The following points wereurged before us- (a) Article 22(1) of the Constitution, no doubt, provides for the situation, in substance, but it appears desirable to put the matter emphatically in the Code. The proposed provision, if inserted, will supplement section 340 of the Code, which applies to a person accused of an ofence before a criminal court; .(.b) Relevant portion .of Article 22(1) is as follows :— "No person who is arrested, shall be denied the right to consult a legal practitioner of his choice and to be defended by a legal practitioner of his choice". 1. P. $(2)/55·L.C. Pt. lll, S. No. 52 (Inge 284, correspondence portion). r 129 It was urged before us, that the right to consult a legal practitioner would be ineffective if consultation is not available when the most important steps in investigation are being taken. It was stated, that the very fact that the Constitution gives the person arrested a right to legal advice before the trial and as soon as he is arrested, implies, or at least renders it desirable, that the assistance of counsel must be available at the stage in question. We are, however, in doubt if article 22 necessitates such a change. It is also our view, that it is against the principle of investigation to bring in counsel at this stage. We do not. therefore, recommended any change in this respect. 459. Various other suggestionsl it to amend section 162 Section 162 were considered by us, but have not been found acceptable V¤*i¤¤$ to us. It is unwise to make these statements corroborative °°l‘°;St. _ or contradictory evidence as has been suggested. If (as is Sugg l°n°° stated) cases fail because of witnesses retracting from their statement under section 162, that is nocground for changing - a very salutary provision. 460. Regarding section 16?»(2), the case—law reveals‘ a Section 163 discrepancy between section 163(2) and section 164. It (Zl- should, therefore, be made clear that section 163(2) is subject to the provisions of section 164(3). 461. The power to record statements as well as Section 264 confession under section 164(l) should in our opinion be (I)- gwen to Judicial Magistrates only. In Punjab? the power is vested exclusively in Judicial Magistrates. So also in Madras.“ In Bombay' (and in the Bengal Bill),“ the power is concurrent. 462. In our view, the act of recording a confession under this section is a solemn act with high responsibility, and it cannot be vested in an Executive Magistrate without prejudice to the principle of separation enjoined by Article 50 of the Constitution. A confession is a weighty piece of evidence, and its utility depends very much upon the question whether adequate safeguards to ensure that the confession was voluntary and properly recorded had been taken at the time when the confession was recorded. All this may be expected only from persons who have got not only the experience but also the frame of mind of a Judge. 1. P. Z7(3)/55·]udl. II (Home Ministry File), Appendix I, Item No. 31. 2. P. 27(5)/54-Judi. (Home Ministry File), Appendix II, Item No. 16. 3. F. 3(2)f55·L.C. Part I, S. Nos. 26,34. and 18. 4- For detailed discussion, see Appendix 'I3. 5. Section 164, as amended by the Punjab Amendment. 6. Government of Madras, G.O.Ms. No. 2304 dated the 24th September, 1952, para graph 2l(3) and Schedule item ZS- 7. Section 164, as amended by the Bombay Amendment- 8. First Schedule to the Code, as inserted by the West Bengal Separation of Judicial and Executive Functions Bill, 1967 (August, 1967). IO-29 Law]`68 150 463. It may be said, that so far as non-confessional. statements are concerned, it matters not much whether it is recorded by a Judicial officer or an executive ofiicer. But. whether a statement amounts to a confession or not ish it- self a legal question, which cannot always be determined before the statement is actually recorded so that it is not possible to send the person to an Executive or judicial Magistrate having regard to the nature of the statement proposed to be made. Moreover, in our opinion, it would be an impracticable proposal to divide the power under section 164 into two categories,—confessions and other statements, and to divide the function between the two classes of Magistrates. We, therefore, recommend, that the power should be confined to Judicial Magistrates alone. 464. The power under section 164 may be given to- (i) Presidency Magistrates; (ii) Judicial First Class Magistrates; (iii) Judicial Second Class Magistrates specially empowered. Since the power is to be confined to Judicial Magistrates, it is not necessary to retain the words "not being a olice oHicer" in section 164(1). These words may be omitted?) 5,,;,;.,,,164 465. It has been suggested} that the police should be and exclu· excluded while recording the statements of witnesses under *09 of section 164, In our opinion, a statutory provision on the *’°1‘°°· subject is not necessary. Smim,164 466. The position regarding administration of oath to (3) and a witness whose statement is recorded under section 164 ..ams¤as¤¤· has been considered by us. The conflict of decisions on the ‘*°¤ ef wth- subject has been discussed in detail in our Report on the Oaths Act? 'I`he question that now arises is, what ought to be the law. On the one hand, if a witness whose statement is recorded is to be encouraged to speak the truth, an oath is desirable. On the other hand, our attention was drawn to the view expressed by Mr. L. C. Crump“ (while the Bill which led to the 1923 Amendment was under consideration). Mr. Crump had pointed out, that, in favour of the view that the witness who is examined under section 164 should not be liable for perjury, was the consideration that the policewould (if he is to be made so liable) be able to com- pel a person to adhere to a statement which he may have made at their instance under compulsion, on pain of prose- cution for perjury. We however think, that on principle there I. F 27,3)f55·]udl.II (Home Ministry File),AppendixI,Ite1n No.3O (Comment ofthe Administration of a Union Territory on the suggestion of the I.G.P. of a State Additional point made in the comment). 2. 28th Report (Oaths Act), pages 29-30. _ 3. Mr. Crump was a District Sn Sessions ]udge at that time. He later became a judge of the Bombay_High Court. i 131 is something to be said for recording the statement on oath, to lend it some sanctity. We recommend an amendment of section 164 to provide that the statements of witnesses should be on oath. 467. We have received a suggestion from a High Court Section 164 (received through the State Government? to amend section =¤¤d ¢<>¤i’¢S· 164 so as to empower a Magistrate to record a confession iijns "f"d° made before commencement of the investigation. The sug- ,,ga‘Q;:n;nV€S' gestion is that the words "made to him in the course of an investigation under this Chapter" and the words "or at any time afterwards" be omitted. The object is to empower a Magistrate to record a confession made before the in- vestigation has started. The suggestion has been made in view of the fact that very often the accused, after com- mitting the offence, runs straight to the Magistrate and surrenders with the blood stained weapon etc. and tells him what he has done. A cleaner kind of evidence than this cannot (it is stated) be conceived. Yet the testimony of the Magistrate is inadmissible by reason of the words occurring in the section. We felt, that such a provision would throw on the Magistrates an unnecessary burden, and would also . not fit in with the scheme of Chapter 14, which is confined to steps taken during investigation. No change is, therefore, recommended on this point. 468. With reference to section 164(3), we should note Section 164 the view expressed by a High Court Judge, in his sugges- G) $“%€°S‘ tion} which is as follows :° ?I?;,°C;un "Section 164. The provisions in section 164 regard- ]“dg°· ing the magistrate’s being satisfied, before recording the confession, that it is being made voluntarily and about his certifying that the confession was made voluntarily are useless and do not serve an purpose in practice. If an accused is prepared to make a confession, there is hardly any magistrate who makes an honest effort to find out whether he is making the confession volun- tarily or not. There is hardly any magistrate who might have refused to record the confession of an accused per- son if he was prepared to make one, on the ground that he was not satisfied that it was being made voluntarily. Ordinarily, a magistrate puts certain stereotyped ques- tions without realising that the accused might have been tutored by the police to give particular answers to those questions and has no compunction in proceed- ing to record the confession, in certifying at the end of the confession that he satisfied himself "that it was made voluntarily and in deposing on oath in court that he had satisfied himself about its voluntary nature. The law should be practical, and if a certain provision can- not be enforced in practice it should not be allowed to remain on the statute book." 1. F. $(2)/55-L.C. P:. lll, s. N0. 52. 2. F. $(2)/55-LC. Part Il, S. No. 33(a). 3• The point relates to section 164(3). · 132 _ We have given our anxious consideration to this sugges- tion. We are, however, afraid that the defect lies neither in the law not in any inherent unenforceability of the law, but in non—compliance therewith. The situation described in the suggestion, wherever it exists, is due to the fact that the law is complied with only in its letter, and not in its spirit. If the provision is deleted, the question will again arise · whether the confession was voluntary. The provisions of section 164(3), if administered in the proper spirit, are most salutary. They should "not degenerate into idle formalities", but that can be secured by vigilant supervision. The dele- tion of the subsection, we venture to state, would be far more detrimental to the interests of justice than the existing position. We have, before coming to this conclusion, exa- mined some of the important judicial decisions relevant to the subject of recording of confessions particularly i.e. the safeguards to be observed} Section 164 469. It has been suggested} that a provision should be md }d¢¤¤i· inserted to the effect that a Magistrate may, at the request H°*‘“°“‘ of the investigation officer, hold an identification of persons or property and take finger prints etc. of the suspected person, and that the record by the Magistrate of these proceedings should be admissible in evidence. We think, that, so far as identification is concerned, section 164 is enough. Swim, 164 470. With reference to section 164, the following sugges- and retracted tioni has been made by a State Government. °°“f°ss’°"‘ "The rule of prudence requiring corroboration of re- tracted confessions should be given statutory recognition..}' · We studied in detail the position on the subject. The following broad propositions can be gathered from the case law-- (a) The rule in question is one of prudence. If the retracted confession is voluntary, it can still be made- the basis of a conviction} 5 As has been observed by the Privy Council‘——- Retraction of a confession by an accused is a common phenomenon in India. The weight to be attached to it must depend upon whether the Court thinks that it was induced by the consideration that the confession was un-- =true, or by realization that it had failed to secure the benefits the hope of which inspired vit." 1. For detailed discussion, see Appendix 14. 2. No, F. 3(2)/55-L.C. Part I, S. No. 72 (Suggestion of a District Prosecutor). 3. F. $(2)/55-L.C.Pt.111, S. No. 49. 4. Emp. v. Kutub, I.L·R. 57 Cal. 488; A.I.R. 1930. Cal. 633, 635 (Rankin C.]. and C.C., Ghose ].). 5. R. v. Gharya, I.L.R. 19 Bom. 728. 6. Bhuboni Sahu v. R., 76 LA. 147; A.I-R- 1949 P.C.257, 260, para. 9. 133 (b) It cannot be laid down as on inflexible rule of practice or prudence} (c) It may also be noted, that as to the burden of proof, our law differs slightly. As was observed in a Bombay case,"" it is true that in England when a doubt arises as to the admissibility of a confession, the Court has to decide whether it has been proved afiirmatively to be free and voluntary. This is the law laid down in the Queen v. Thompsorf by Mr. Justice Cave with the concurrence of Lord Coleridge, C.J., and Hawkins, Day, and Wills JJ. In India the law on the subject is contained in section 24 of the Evidence Act. The section must be fairly construed according to its language, and if this is done it seems to us impossible to contend that the law in India is identical with the law in England as explained in The Queen v. Thompsoni and the cases therein referred to. The question which a Court has to decide when determining on the admissibility of a con- fession is whether it appears to the Court to have been induced by the means mentioned in the section. "It may be that this section does not require positive proof, within the meaning of section 3, of improper inducement to justify rejection of the confession. The use of the words "appears" indicates" it may be argued, a lesser degree of probability than would be necessary if "proof" had been required. A court might perhaps in a particular case fairly hesitate to say that it was proved that the confession had been unlawfully obtained, and yet might be in a position to say that such appeared to it to have been the case. Still although we think that very probably a confession may be rejected on well-grounded conjecture, there must be some- thing before the Court on which such conjecture can rest. It does not seem possible to say that the mere subsequent retraction of a confession which has been duly recorded and certified by a Magistrate, is enough in all cases to make it appear to have been unlawfully induced. Without assuming the functions of the Legislature, we cannot lay down any general rule to meet the varying circumstances of different cases. To require, as the criterion of admissig _ bility, affirmative proof that a duly recorded and certified confession was free and voluntary, would not, in our opinion, be consistent with the terms of sections 21 and 24 of the Evidence Act, or with the interpretation given to these sections by Mr. Justice Nanabhai in Reg v. Balvant“ which appears to us to have been correctly decided and to be in harmony with the practice of the Courts. 1. See Pyarelal v. The State, A.1.R. 1963 S.C. 1094, 1096. 2. R. v. Basauanti, 1.L.R. 25 Bom. 168, 171,172.173. 3. See generally articles in (1900) Bom. LR. (journal) 157, 217. 4. Queen v. Thompson, (1893) 2 Q.B. 12. 5. Queen v. Thompson, (1893) 2 Q.B. 12. 6. Reg. v. Balcom, (1874) 11 Bom. H.C.R- T3}'- 134 "It may be thought that the law as it stands does not afford adequate protection to prisoners against illegal practices whereby confessions are extorted, but it is not permissible to us to amend it. What the Legislature doubt- less hoped and intended was that Magistrates would not record confessions unless they really believed that they were made voluntarily} In the case of Magistrates acting under section 164 of the Criminal Procedure Code, there can be no question that they must be affirmatively satisfied of the voluntariness of the confession, and that when in doubt on this point they ought not to record or give the certificate. The consideration which this question is at present receiving will, we hope, lead to the issue of such instructions as may help Magistrates in the diiiicult task of deciding what con- fessions are "voluntary"." In our view, there is no need for a rigid provision as suggested. §°§*;‘;“ 471. With reference to section 164, the following sug- -“ .°°, gestion“ has been made by the Bar Association, Adoni ing state _ memsat the (Andhra Pradesh). (The Judicial First Class Magistrate. igstuncc og Adoni, agrees with this). t ° a°°u°° ' "Provision should be made for recording statements under section 164 for witnesses produced on behalf of the accused? We examined the law on the subject. The accused seems to have no right at present, in this respect. In fact, the police also, have no such right. But, there is nothing to prevent the Magistrate from recording the statement at the instance of the accused.°" We do not, therefore, see the need for any amendment. ?l‘;°;?5’ 16* 472. The following suggestion has been made by a Bar suggciion Council? to H13 S . . . . . . . . · "(1) A dzscretzon is given to the police while investi- giggggisof gating an offence to produce witnesses before the Magis- bv Masis trate for the purpose of recording their statements on oath. “**‘° °bH‘ A statutory obligation may be imposed on the investigating g“‘°°"‘ officer to produce eye-witness before the Magistrate for recording their statements. (2) The role of the Magistrate at the investigating stage may be enlarged. (3) The Magistrate may be empowered to take the evidence of identifying witness on oath, when he presides over the identification parades. l. Cf. Queen v. Thompson (1893) 2 Q.B. 12. 2. F. No. F. 3(Z)/55-LC. Pc. lll, S. No. 50(n). 3. In re C. W. Casse, A.I.R. 1948 Mad, 489, 490. 4. Muhammad Sarfraz Khan, 52 Cr. L.]. 1425. 5. F. No. F. $(2)/55·L.C. Partlll, S. N0. 52. * l 135 (4) The right of taking advantage under section 27 of the Evidence Act (admission of statements from an accused person in police custody leading to the discovery of pro- perty) is denied to the police. The investigating oilicer may be empowered to resume his custody for the limited pur- pose and with the permission of the Magistrate who had remanded him to custody". The view of the State Government concerned on this suggestion is that Item 4 of the proposal of the Bar Council will not be necessary in view of section 167. We agree on this point with the State Government. The State Government also felt that the other proposals would not be practicable. We are of the same view as regards items (1) and (2). But, as regards item (3), we are already recommending a provision for recording the state- ment on oath} 473. Copies under section 165 should, we think, be given S°¤*i<>¤ 6$· free of cost. The section may be amended accordingly. 474. A State Government'·* has suggested the removal $<*¤*i<>¤ 165 from section 165(5) and section 166 of the obligation to (5)* furnish copies of reasons recorded under section 165(3). We are unable to accept the suggestion, having regard to the fact that the matter is one of protection of privacy of property. Section 165(5) was inserted in 1923, by means of an amendment in the Assembly. We may quote here the reasons advanced by Rao Bahadur T. who moved the amendment} "As Honourable Members will see. the object of this amendment is that, as soon as a search is made, an immediate report should be made to the nearest - Magistrate. That is one of the objects. The second object is that the person whose house is searched should have copies of the records made under sub·clauses (i) and (iii). Sub-clause (4). as it stands. enables the provisions of section 103 to apply, that is, the general rules re- latin to searches are made applicable. Under section 103 the occupier of the place where the search was made gets only a list of the articles taken, but what I want him to get is the reason for the search which has to be recorded in writing, which has to be sent to the Magistrate, and he gets a copy thereof. That is the object of this further sub-clause (5) which I move, Sir. as it stands". Government accepted the amendment, and no further debate seems to have taken place. l. See section 164, as proposed. 2. F. $(2)/55·I..C. S1. No. 13. l. Legislative Assembly Debates. 3lst january, 1923, Vol. III, No. 27- 136 §§§‘;‘;*;0{2Y 475. Anlnspector General of Police has suggested‘ that by police of power be given to the police to recover victims of abduc- abducted tion or kidnapping who are wrongfully confined, We are persons. not inclined to accept the suggestion. Section 100, is, in our view, enough for the purpose. As the matter involves personal liberty, it is better to confine it to Magistrates competent to act under section 100. S“°'°“ 166· 476. Copies under section 166 should be given free of cost. The section should be amended accordingly. $°§"°';_]‘g7 477. In relation to section 167, a point of great practical Q)'},cf°,;;j importance has to be considered. The remand under section ' 167 cannot be ordered for more than 15 days in the whole. Where the investigation is not completed within 15 days. the police (in some States) secure remand under section 344, without submitting a charge-sheet. in the prescribed form? Now, there is a conflict of decisions on the question whether a remand can be ordered under section 344 without taking cognizance? In this connection, we went at length into the history of sections 167 and 344. 478. The view expressed on the subject in an earlier Report,` and the recommendation made therein to the effect that the maximum period under section 167 should be extended to 60 days, were also considered at length by us. Our conclusions are as follows :—- (i) It is not proper to extend the maximum period in section 167, as the extended period is apt to become a routine, and is likely to be restored to in all cases. (ii) Section 344 is not at all intended to be used at a stage before the Court has taken cognizance. This is clear from its placing in the Chapter on Inquiries and Trials, and from the history of section 167 and also from the words "inquiry or trial" which occur in section 344(1). (iii) The real misunderstanding is caused by the Explanation to section 344, as its wide language obscures the object of the legislature that section 344, being a provision occurring in the Chapter dealing with in- quiries and trials. is intended to be used to only after cognizance has been taken. The Explanation to section 344 should be confined to the post cogniizance state, by way of clarification} l. F. 3(Z)/55·L.C. Part II, S. No. 32. 2. Cf. 14th Report, Vol. Z, page 758, paragraph 53. 3. For detailed discussion, see Appendix 15. 4- 14th Report, Vol. 2, pages 857-860, para. 55-56. 5. To be carried out under section 344- 137 479. With reference to section 167, the following sug- S¢¢¢i<>¤ 167 gest1on‘ has been made by a High Court. ?;‘l9t£‘;‘;‘“d "Section 167 may be amended to provide for detention than 15 days in judicial custody for more than 15 days at the stage cf investigation. If necessary, subject to a maximum period beyond which remand should not be granted. (This was also the recommendation of the Law Commission)"“. We have already expressed our views in the matter} 480. We had also to consider the question whether Section 167 powers under section 167 should be given to both classes *‘“d Mag? of Magistrates (as in Punjab) or to Judicial Magistrates Q:,;;?;,;;,,,? only (as in Bombay). In our view, these powers should be ` given only to Judicial Magistrates. The power is ancillary to the trial of offences, its exercise requires an approach different from that of mere maintenance of law and order. It may require, particularly where detention in police custody is to be ordered, a careful recording of reasons} for which Executive Magistrates may not have sufficient time. As has been pointed out,‘ a Magistrate acting under section 167 has to weigh the evidence with respect to the offence and does not act in a purely executive capacity. 481. A suggestion‘ of the Ministry of Defence may be Section 167 noted regarding custody under section 167. Under sections (2) and 167(2) and 344, a Magistrate is empowered to remand an “"l"";l‘V accused to any custody, that is to say, he can remand him °"°t° Y' to other than police custody. It is considered, that accused persons who are subject to military, naval or air force law may be permitted to be remanded to military, naval or air force custody. In fact, such custody has been ordered in some cases. In order that there may be no doubt left in the matter, the following additions should (it has been suggested) be made in the aforesaid sections after the word "custody" :— "including military, naval or air force custody where the accused belongs to any of these services? We have considered the suggestion. In section 167(2), the words used are "in such custody as the Magistrate thinks fit". These words are very side. In fact, it has been held' even under section 344, that the Magistrate can remand the accused to whatever custody 1. File No, ·F. 3(Z)/55»L.C. Pt. lll, S. No. 28. 2. The reference is to 14th Report, Vol. 2, pages 759-760- 3. Sec discussion regarding section 167. 4. See- (i) Amir Khan v. Emp. (1902), 7 C.W.N. 457, 459. (ii) Emp. v. Kampu Kuka (1906), ll C.W.N. 554, 551. · 5. Sundcr Singh v. Emp. I.L.R. 12 Lah. 16; A.I.R. 1930 Lab. 945, 946 (Bhide_].). 6. F. $(2)/55·L.C. Pt. VII, S. No. 457 (Suggestion of the Ministry of Defence). 7. In re M. R. Venkataraman, A.I.R. 1948 Mad. 100 (Accused remanded to Central jail, Trichinopoly, instead of Madura Iail), by the Madura lviagistrate. 138 he thinks fit. We are therefore of the view, that no change 1S necessary. Section 167 482. It has been suggested‘ that an accused person gggdgggsal should be physically produced before the Magistrate at the ofthe time when the police apply for remand, and that the 8ce,,,cd_ grounds on which they ask for remand should also be put up before the Magistrate in the presence of the accused, so that 1f the accused wanted to controvert those grounds he could do so. We examined the position on the subject. Even now, Magistrates are requested to insist on the “ physvcal production of the accused. The position may, perhaps, be different for a subsequent remand? In our view, production of the accused every time is necessary whenever remand is desired. But no change is call- ed for in the language. Section 167 483. Section 167(4) will require re-drafting, in view of (1)- separation. S¢¤*i<>¤ 168- 484. No change is needed in section 168. Section 169. 485, In section 169, the words "report in writing" etc. should be substituted for the words "police report"} S¢¢¢i<>¤ 170- 486. In section 170, the following amendments are need- ed— (a) The words "report of police officer" etc. should be substituted for the words "police report."‘ (b) In s. 170(3), the "Chief Judicial Magistrate" be substituted for the words "District Magistrate? S°°*1°¤ 171- 487. A suggestion to delete the first part of section 171 has been received} but we do not accept it. $¢°¤1¤¤ 171- 488. No change is needed in section 172. · Section 172. 489. With reference to section 172, the following sug- (1) md, gestion‘ has been made by the Markapur Bar Association, j;‘g§jg§;g* (Andhra Pradesh). §°;;`g;'£;‘°"° "Apart from section 172. the Police standing order in the Magi,. force in this State (vide P.S.O. 557) requires that the case nate. diary be sent to the Superintendent of Police to ensure that 1. F. 3(Z)/55»L.C. Part VII, S. No. 449, Suggestion ofthe U.P. Committee for Investi- gation of Causes of Corruption in Subordinate Courts in Uttar Pradesh (1963), Report, page 48, Bill at pages 234-235. 2. Cf. Niranjan v. Manipur Administration, A.I.R. 1958 Manipur 33, 34. 3. Cf. discussion as to s. 4(1)—definition of **comp1aint". 4. Cf. discussion regarding section 4(1)—*‘complaint". 5. P. 27(3)/55-]udl. II (Home lviinitry) Appendix I, Item No. 32. 6. F. 3(2){55-L.C.Partl1l, S. No. 50(o), (Page 219, correspondence). I 139 the case diary is not altered subsequently for any reason. it is also mandatory that the case diary is sent to the Magistrate along with the remand report. But if the accused is not arrested, the case diary recorded even up to that time is not sent to the Magistrate. The case diary recorded upto the time of remand is never complete. In the interests of justice, and to ensure a fair trial, it is not sufficient if the case diary is sent to the Superintendent of Police. It is also necessary that the case diary is sent to the Magistrate having jurisdiction to try the case, day to day, and such a course will be very much in the interest of justice." It has therefore been suggested, that after sub-section (1). sub-section (lA) may be inserted as follows ;—— "(1A) The proceedings so entered in the case diary shall day to day be communicated to the court having jurisdiction to try the case." 490. We are unable to accept the suggestion. As regards statements under section 161, we have considered the mat- ter' separately. But statements in a police diary stand on a special footing. We do not see any need for the provision in question. 491. The following suggestion" has been made by agmim, I1; District Munsif Cum Judicial First Class Magistrate, in (2) and Andhra Pradesh. ::g€3;<é¤ "Experience would have shown, specially in case ¤€¤<{*¤8_ involving a sentence of life imprisonment or death, that the gfgififn diary of police proceedings during the investigation is not ,m,,,_ made available for sufficiently long time. lnnumerable judicial decisions have pointed out that the case diaries in those cases were neither prepared on the date they are purported to have been prepared, or, if prepared, they were not in such condition as they appear to be. The section may be amended to provide the case diaries, at least in cases of serious nature involving capital punishment should be submitted to the nearest magistrate forthwith within 24 hours of making such diary. The amendment is essential at least in regard to capital oj‘ences." We do not think, that such a change should be madc, even for capital offences. 492. The following suggesti0n* has been made by aS¢ccio¤172 High COl1I‘lZ. phd discge "Experience shows that the accused is often handi- glgztnzoc capped in his defence by the restrictions now placed under Coun zo section 172. An amendment is suggested to enable him to i*U°“' e have a complete picture of the case against him, as revealed "'°p°°t'°“‘ by the investigation. This will help the accused to put up a proper defence? 1. See discussion regarding section 161. _ 2. F. $(2),:55-L.c. Pm III, s. No._50(q>. . 3. F. 3(2)}55-LC. Pt. III, S. No. 52. 140 The amendment proposed by the High Court is the addition of a new sub—section, as sub-section (3), to section 172, as follows:-— "(3) Notwithstanding what is contained in the above sub-section, the accused or his counsel may apply to the Court for inspection or scrutiny of any relevant portion or portions of the case diaries, in order to aid him in his defence, and the court may, in its discretion. grant such scrutiny of any portion or portions of the case diary if it is satisfied that it will be in the interests of the accused to do so, and will not be prejudicial to the public interest". . The State Government concerned has however, ex- pressed the view that section 172 has not caused any special difficulty. In its view the amendment suggested by the High Court may lead to complications and the question may be raised whether refusal by the Judge or Ma istrate to permit inspection was justified or not. The State (govern- ment, therefore, does not support the suggestion of the High Court. 493. It was urged before us, that the objection of the State Government is not convincing, and that even if no special difiiculty has been caused, the suggested change has other merits. It was stated that the merit of the suggestion is, that it will inspire confidence in police investigation, without at the same time impairing the public interest, No right is proposed to be conferred which would do damage to the general secrecy of police necords. A discretion it was emphasised is to be conferred on the Court. 494. As to the existing law, the undermentioned cases may be seen.""‘ The diary is to be used by the court alone? It cannot be used for contradicting defence wit- nesses} For the previous law, the undermentioned case’ may be consulted. As has been observed by Field J.,“ "the grounds upon which the opposite party is permitted to inspect a writing and to refresh the memory of a witness are threefold: (i) to secure the full benefit of the witness’s recollection as to the whole of the facts; (ii) to check the use of improper documents; and (iii) to compare his oral testimony with his written statement. The opposite party may look at the 1. In re Molagan, A.i.R. 1953 Mad. 179, 182, para. 17. 2. Habeeh Mohamed v. State, A.I.R. 1954 S. C. 60, para 13. 3. Emp. v. Ihubbu Mahcon, (1882) l.l..R. S Cal. 139, 744. H5 (Field j.) (discussed the reasons why opposite party is allowed inspection where a witness refreshes his memory). 4. Kali Charon, (1881) l.l..R. S Cal. 154-, 157 {Prinscp and Wilson _]].}. V 5. Emp. v. Dharam Vir. A.l.R. 1933 lah. 498, SOD (Dalip Singh Sv. Monrco J},). 6. Dal Singh, I.L.R. 44 Cal. 876, 888, A.l.R. 1917 BC. 75. 7. Q.E. v. Mannu, (1897) `LLR. 19 A11. 390 (F.B.). 8. Emp. v. fhubboc Mahmn. (1882} I.L.R. 8 Cal. 739,744, 745. 141 writing to see what kind of writing it is in order to check the use of improper documents; but I doubt whether he is entitled, except for this particular purpose, to question the witness as to other and independent matters contained in the same series of writings." 495. It was also urged before us, that on the one hand, every material in the diary is not of a secret nature} On the other hand, a wholesale inspection of the diary may be against public policy? The suggestion (it was stated) strikes a mean between these two extremes. 496. Perhaps the reason why the proposed change is suggested, is similar to that stated in the observations in a Madras case :8 "It is of comparatively little use for defending Counsel being permitted by the Sessions Judge to look into the case diary at the belated stage of the trial only when the learned Judge himself on a perusal of it finds something of great use to the accused. It is necessary for responsible defence from the start that in cases such as the present, defending counsel should know what the accused told Police in the first instance. We have not come across any more appropriate concrete case than the present in which this course should have been "0.binitw," adopted". 497. We have carefully considered the various aspects of the case as put forth above. We regret, however, that we are unable to accept the suggestion. We have an apprehen- sion that it might hamper free disclosure in investigation. 498. In section 173(l), for the words "police report", the $¤¢¤i<>¤ 173 words "report of a police Officer in writing" may be (ll (')· su,bstituted.‘ 499. Section 173(1)(a) is the provision under which the Section 173 "charge-sheet" or the "chalan" or fmal report is sent by 1l)(¤)_¤¤<} the police to the Magistrate empowered to take cognizanoe. The question has arisen whether, agftw the submission of t" the report, the police can submit a “supplementary" chalan. Ordinarily, chalans should not be submitted after comple- tion of the investigation piecemeal} Therefore, an incom- plete chalan is not contemplated." 500. But, if the police ofiicer, after he submits the chalan, gets further information, he can still investigate and submit a further chalanI'“ As has been pointed out? , 1. See Fatnaya Lalv. Emp. A.I.R. 1942 Lah. 89,91. 2. Emp. v. Dharam Vira, A.I.R. 1933 Lah- 498. 3. In re Molagan, A.I.R. 1953 Mad. 179, 182 paragraph 17- 4. Cf. discussion relating to section 4(1)—de£mition of "complaint". 5. Ranjit Singh v. State, A.I.R. 1952 Himachal Pradesh 81, 87, bottom, para. 15. 6. Kirpa v. State, A.I.R. 1952 H.P. 68, 71, para. 6. 7. A.I.R. 1952 (Orissa) 350. 8. Mangal Singh v. Ret, A.I.R. 1949 All. 599, 601, 602, para. 7 (Desai].). 9. In re Palaniswami, A.I.R· 1946 Mad. 502, 503. 142 there is no "finality" to the investigation or to laying a charge-sheet. The apparently contrary view taken in a Rajasthan? case may be distinguished, as, in that case, after the investigation was over, the police resumed investigation without sufficient reason. 501. It should be noted, that the "police report" has to state- (i) the names of the parties; (ii) the nature of the information; (iii) the names of the persons who appear to be acquainted with the circumstances of the case? 3 502. In view of the fact that the matter is of practical importance, it appears to be desirable to make suitable amendment to make the matter explicit. It may be useful to embody these prepositions, namely :— (1) If after forwarding the report to the Magistrate. the police-officer obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence, in the form prescribed} f (2) Copies of the documents not in the custody of the said officer at the time of the filing of the charge- sheet, and obtained after such filing or after commence- ment of the inquiry or trial, shall be furnished to the accused as and when they are obtained and before marking them as exhibits in the court.` t We may add, that a suggestions to insert a proviso to section 173(1), for requiring the police officer to forward to the Magistrate a further Report when he obtains further evidence, was made by a Conference of Special Police Establishment, and State Anti-Corruption Officers also. Swicn 173 503. The following suggestion° has been made by the (1) and, Bar Council, Madras. SUQQCSCICD b`?;"-;?! "Provision should be made preventing the police from gmgns " rc-opening an investigation which has terminated on the submission of a report to the Magistrate, under section 173." 1. Hanuman v. Raj, A.I.R. 1951 Rajasthan 131, 133. Z· Mchrab v. Crown, A.I.R. 1924 Sind 71 (F.B.). 3. In re Shivalingappa, A.I.R. 1930 Bom. 372. 4.Cf.th t' {M.] ` P.N.R a `(Md ,' hM ' Gm.,d....d°ii>‘1€.gi?i‘.£§’{‘9‘E8,..}..‘SZS€Z tm.p‘I.‘L`¤i"i£‘.Z`§.c..‘1,.T‘$..3‘3.§ 5. i..§‘LT§g$§lf§ sent to the Law Commission F. 3(Z)/55·I,.C. Part Ill, S. N0. 52 (page 244 of the corres- pO\’1d€l'lC0 p01'C1OTi)· 5. F. $(2)/55-L.C. Pauul S. No. 53. 6. P. 3(2)/55-LC. Pt. III S. No. 52 (Page 211 correspondence). 143 "Once a Magistrate has taken cognizance of an offence under section 190, the power of the police to file an addi- tional or supplemental chalan or charge-sheet should be withheld. They may, however be permitted to file an addi- tional list of witnesses who are not acquainted with the circumstances of the cases. They must be debarred from irnplicating new accused in a supplementary chalan. But, if necessary, power may be given to a Magistrate who has taken cognizance of the offence to direct re-investigation by a superior p·0lice officer." 504. We do not, however, think that any such restrictive provision is called for. Investigation is the process of collection of evidence. That process, temporarily closed for want of material, should yet be capable of being supplemented or re-stated, if the circumstances of the case so justify. 505. With reference to section 173, the suggestion of a gcmm,173 State Government‘ is as follows:——~ and "Sectio·ri 173: In complaint cases copies of all rele- mm vant documents on which the prosecution proposes to rely should be furnished to the accused by the date when the accused first appears before the court after the police report under section 173(1) (a) has been received in the Court." We are not, however, inclined to extend the provisions of section 173(4) to complaint cases—which would be the effect, in substance, of the suggested change. 506. With reference to section 173(4), certain points Semen 173 arise. G)- (a) The recommendations made in an earlier Reportf to transfer to the Court the obligation of the police to supply copies, was considered in detail by us. In practice, courts will, it is apprehended, find it difficult to supply the copies. The police officer can, while investigating the case and recording the state- ments, prepare extra copies for being furnished to the accused, and that is more convenient. No change is, therefore, needed on this point. (b) The recommendation in the 14th Reporta about substituting (in place of "copies") inspection in case of voluminous documents may be carried out, with this » modification that the police officer need not give copies, if the court dispenses with them, but the accused should be allowed to inspect them in Court, in such cases. 507. With reference to section 173(4), a suggestion made Section 173 by a State Government‘ makes these points. (4) ¤¤d_ (i) The court (and not the police) should be required to °;°§_g”`5`0?,€ supply copies of statements of witnesses, documents etc. ei-amen:. 1. F. 3(Z)/55·L.C. Part I· S. No. 33. ` 2. 14th Report Vol. 2· page 760-762· para. 57- 3. 14th Report Vol. 2 page 762, para. 58. 4. Fa No. F, 3(Z)/55-LC. Pt. III, S. No- 49_ (page 185, correspondence). 144 (ii) The court should have the discretion in regard to supply of copies 1n voluminous cases, and may permit the accused or_ his counsel to inspect them in court‘ instead of being required to supply copies. We have already considered the question? Sfction 173 508. The following suggestiona relevant to section 173(4) guggion has been made by a High Court Judge, while stating that of a High the pre-1955 procedure should be restored. C°“"J°dg°· "The_supply of copies to the accused at the beginning of the trial has not helped to reduce the duration of the trial, but has led to complications. The accused try to delay proceedings to gain time to win over the witnesses and cleverly plan their statements to keep them within the police statements and yet nullify the prosecution case. This has led to increase of perjury." We have given deep thought to the suggestion. In our view, it is too early to reverse the scheme introduced in 1955 and to restore the pre—1955 position. Section 173 509. At the Special Police Establishment and State Anti- (4) ¤¤d_ Corruption OHicer’s Conferencef held in November, 1960, it was decided that the following suggestion made in the pong.: Emp earlier Report of the Law Commission be implemented. blishment I`18I’1'l€1y‘— Ofncers. _ _ _ _ Section 173(4) should be amended suitably by vestmg discretion in the court that in the case of documents con- · sidered voluminous, the supply of copies might be adis- pensed with, the originals themselves being made available to the accused or his counsel for perusal/examination and taking notes in the court-house. We have already considered the matter} semen 173 510, Following suggestion' has been made under section · (‘*Q;¤3_ { 207A(4) by the Public tor, Madras. SU S IOD. 0 Public Prose- "There should be an amendment or clarification in the {::3; Code so that the prosecutor may examine witnesses who s' are discovered or whose evidence is found essential and whose statements under section 162 have not been taken before the filing ofthe report. · The following may therefore be added as a proviso to section 207-A (4), namely : — I. Cf. 14th Report, Vol. 2, pages 760-762, paras $7-58- 2. See discussion regarding section l73(4)- 3. F. N0. $(2)/55-L.C. Pt. lll, S. No. 49(a). (Page 189, correspondence). 4. F. $(2)/55-L.C. Pc.III, S. No. 53 (Page 307, correspondence). 5. See 14th Report, Vol. 2, page 760-62, paragraphs 57-58. 6. See section 173 as proposed. _ 7. F. No. P. $(2)/55-LC. Pt. lll, S, No. 52. _ _ _ 145 "Pr· Under section 251A(7), on the filing of a report under “°’ °£ P°H°° section 173, the Magistrate shall proceed to take such Madras' evidence as may be produced in support of the prosecution. It very often happens in cases of importance and compli- cated nature, like gang cases and criminal conspiracy, that the investigation cannot be completed within 15 days or within the period of expiry of the remand of the accused. The defence counsel press for the filing of the report under section 173 to know the nature of the offence made out against the accused. But, as important witnesses are not available, the prosecution is not able to present the full case against the accused. Section 251A(7) may therefore (it has been suggested) be suitably amended so as to provide that, in exceptional cases where the police officer is unable to examine some important witnesses by reason of non—availability, he may examine them subsequent to the filing of the report under section 173 and supplement the final chargesheet, of course, after giving copies of the relevant documents to the accused person". The suggestion has been made under section 251A, but pertains to section 173. We have already considered the matter} 6 512. The following suggestion’ has been made by the $~‘=¤¤i<>¤ 173 Chief Presidency Magistrate, Madras. g'g)?;‘s€ft,, , "The object of furnishing the accused with copies §;“t'£"°“¥b of documents in warrant cases is to give the accused S 3 °‘ person an opportunity to know in advance what exactly are the statements and documents against him. There should be a provision in the Code to furnish, at any 1. To be noted under section 207A(4). - Z. See discussion regarding section 173, and investigation after challan. 3. A somewhat similar suggestion was made by the I.G.Ps’ Conference held in 1960 See F. 3(2)/55-I..C. Partlll, S. No. 53 (page 307, correspondence). 4. F. 3(2)/S5-L.C. Pt. III, S. No. 52 (Pages 249 to 250, correspondence). S. See discussion regarding section 173 and investigation after challan. 6; The suggestion states that the police cmcer should file an adidavit. _ 7. F.3(2)/55-L.C. Pm III, S. NO. 52. ` ' . 11-29 Law/68 l 146 stage before the prosecution is over, copies of documents left out by mistake or on account of any other satisfac- tory reason. Suitable safeguards may be made to protect the accused from being taken by surprise. The accused cannot complain of any prejudice if a provision is made in the Code making it obligatory to give an adjourn- ment to the accused in such cases to meet the case in the light of the documents furnished to him during the course of the trial. "It may not be possible to furnish copies of docu- ments in all cases. It is impossible to give a copy of negative of a photo which is filed as a document and not as a material object. In cases of breach of trust and similar offences, the prosecution may rely on several day books _ and ledgers merely to show the absence of any entry. A provision should be made in such cases enabling an ac- cused to have an inspection of the file instead of getting a copy of the entire file." In our view, on the first point, no change is required. The existing law does not come in the way of copies being given subsequently, in cases of bona fide mistake or sufficient reason. Sections 173(4), 207A(1) and 251A(1) do not go to that length. ?;)°;§>§¤ 173 513. The following suggestion‘ has been made by the imme dm e Markapur Bar Assoc1at1on, (Andhra Pradesh). zggigof "Section 173 provides for the supply of the report after the same is forwarded to the court besides F.l.R. and such other documents which the prosecution proposes to rely upon. This latitude tends to cause delay in the further proceedings of the case as too many adjournments are taken for supplying the same with the result that disposal of cases is delayed, and the accused are inconvenienced. "Section 173(1) may be amended to say— "The officer in-charge of a police Station while forwarding a report under this section to court shall furnish or cause to be furnished to the accused..." We have considered the suggestion. but in our view no such change is necessary. Section 173 514. Various other suggestions’ to amend section 173 (4) V¤¥j<>¤¤ were considered by us. suggestions, Amongst these are views of several Inspectors General of Police to the effect that the provision for supply of copies has thrown immense labour on the police under section 173(4), they have suggested that the provision for supply of copies be removed. ` ' _ 1. F. Ne.3(2)/55·L.C. Partlll, S. No. 50(¤). . 2_ p_ 3(2)]55.]_.C. Part I, S. No- 83, and 17 and 7lA, and F. 3(2)/55-LC. Sr No. 2. 147 But the provision for supply of copies seems to be an essential part of the scheme of the Code as embodied in sections 207A and 251A et seq (as inserted in 1955) and if the obligation is removed, great injustice will result to the accused. 515. In respect of cases relating to corruption it has S"§**°‘} 173 { been su gested‘ that the provisions of section 173(4) regard- :f,`,,§;?;,,° ing supgly of copies should be deleted as they cause delay. ` We are unable to accept the suggestion as section 173(-1) is a part of the whole scheme introduced in 1955. 516. We have considered the question whether it is $¢¤¤i<>¤ 173 necessary to insert a provision as the supply of copies in (‘*)*"d S·2°2· cases investigated under section 202. We think, that no change in the law is required. 517. The following suggestion? has been made by a $¢¤¤i<>¤174 Bar Council, with reference to section 174. "?‘d S“gg°S‘ tion regard- (i) Section 176 should be amended“ to eliminate police l“lf°““h in investigation and to empower solely the Magistrate to hold EQSQQY the inquiry in the case of death of any person in police ` custody. (ii) Consequential amendment to section 174 is sug- gested, to give an optional power to a Magistrate to hold an inquest on receipt of information from the oiiicer in . charge regarding the death of a person under circums- tances mentioned in section 174(a), (b) or (c). The State Government concerned is in favour of this amendment. This point is connected with section 176, and will be dealt with under that section} 518. In section 174(5), the word "Executive" should be S°°*i°¤ 17** added before the words "Magistrate of the first class" and, (5* for the words "any Magistrate" the words "any other Executive Magistrate" should be substituted. 519. In section 175(1), the word "truly" should be $¤¢¤i<>¤ 175 omitted, to bring the section in line‘ with section 161. The (1)- person making the statement before a police officer should not be liable for perjurv. It will, in consequence, be neces- sary to amend the connected sections of the Indian Penal Code so as to ensure“ that refusal to answer the questions under section 175 is made punishable} 1. F. 3(Z)/55·L.C. Part VIII S. No. 549 (Special study procedure in corruption cases made by an expert and forwarded by the Ministry of Home Affairs). 2. No. F. 3(Z)/$5-LC. Pt. III, Sl. No. S2 (Pages 264-265, corresp0ndence)a 3. See discussion regarding section 176. 4. See discussion regarding section 176. 5. See discussion relating to section 161. _ 6. Compare discussion relating to section 161. I 7. To be summarised in Appendix for other Acts. 148 175 520. It has been .suggested‘ that in section 175, in sub- suggcsmm section (1), after the word "forfe1ture" the words "and the regarding police officer shall reduce into writing the statements of the wpws. witness so examined by him and shall send the copies of the _staternents_forthwith to the Magistrate having juris- diction to enquire into the case" should be inserted. Ilaving regard to the scope and nature of the pro- ceedings under section 175, we are not inclined to recommend such change. · g°g;°¤c;Z;1 521. It has been suggested that after section 175 of mgargfng )the principal Act, the following section may be inserted,-— "175A. If the police ojiicer fails to send the state- send eopieg ments; recorded under sub-section Failure to send written (3) of section 161, OT Sub-$€C1T‘lO1'Z St=~¤=m<‘=¤¤S· (1) of section 175, the Court shall presume that the statements were not in existence at the time when the statements were said to have been recorded, or, even if they were in existence they were not in the same forms as might , have been found later." In our view, the matter goes to the weight of the evidence. No change is required. S°§°€°;} 176 522. A suggestion to inform the relatives of the person as m °rm°' whose dead body is- the subject matter of the inquesti tion to , , ,ejmVcs_ under section 176 has beenfound worth accepting, and we recommend a provision to that effect} "Relatives" in this context would mean father, mother, son, daughter, wife, or husband as far as can be ascertained. The obligation will be to inform them, as far as practicable. Section 176 §i)=*gSC<;°¤*h 523. The following suggestion‘ has been made by a ' cugodw Bar Council. "In case of death of any person in the custody of the police, the power of holding inquest should be vested sole- ly with a Magistrate armed with the same powers as he has in holding an inquiry into an offence. . Sub—section (1) of section 176 may therefore be substi- tuted as follows:- "When any person dies while in the custody of the police, the nearest Magistrate empowered to old in-- quest should hold an inquiry into the cause oif death. The Magistrate holding such an inquiry shall have all 1. F. 3(Z)/55-I..C. Part VII, S. No. 407, (Shri K. V. Raghunath Reddy’s Amendment Bill Rajya Sabha ll of 1963). 2. P. No. 27(5)/54·]udl. (Home Ministry File), Appendix III, Item ll. 3. See section 176 as proposed. 4. P. 3(Z)/55·L.C. Pt. III, S. No. 52 page 264 of the correspondence. 149 the powers which he would have in holding an inquiry into an offence and shall record the evidence taken by him in a manner prescribed for taking evidence in a warrant case." The State Government concerned is in favour of this proposal, since the idea is to eliminate police investigation or even inquest by police in cases of death in police custody. (If this suggestion is accepted, then as a consequential { change, section 174 would also require amendment.)‘ ' 524. Our view on this suggestion is as follows:- (a) Sections 174 to 176 do not contemplate investi- gation by the police at all, where the death is in police custody, even where the case falls under s. 174(1)(A) (b) (c). In our view, this is already clear from the language of section 176, and needs no change. (b) As regards excluding even regular investigations (under s. 154 to s. 173) in such cases, that would not be practicable. 525. The sections of the Code after section 176 are §°?g*;¤ 177 proposed to be dealt with in later Reports. ° ‘ 526. In order to give a concrete picture of our recom- mendations, we have shown them in the form of draft amendments to the existing Code, in an Appendix The other Appendices contain detailed discussion of several points arising under some of the sections. We have thought it proper to put them in Appendices, to avoid interruption of the main thread of discussion. One of the Appendices summarises our recommenda- tions in respect of other Acts. 1. (J. L. Kapur) Chairman. 2. (K. G. Datar) 3. (S. S. Dulat) 4. (T. K. Tops _ 2 ? Mamm- 5. (Rama Prasad Mookerjee) J P. M. Bakshi, Joint Secretary and Legislative Counsel. New Delhi the 16th December, 1967. 1. See discussion regarding section l74· 2. Shri Mookerjee has signed the Report subject to the note appended. APPENDIX 1 Recommendations as shown in the form of draft amendments to the existing Code. (This is a tentative draft only). Section 3 5 ofl898• In section 3 of the Code of Criminal Procedure, 1898, (hereinafter referred to as the "princ\ipal Act"), the following sub-section shall be inserted at the end namely:- · "(3) In every enactment passed on or after the first day of July, 1898 and before the Code of Criminal Procedure (Amendment) Act 196...comes into force:- (a) references to a Magistrate of the first, second or third class shall be construed as references to a Judicial Magistrate of the first, second or third class respectively; (b) references to any other Magistrate, not being references to a Presidency Magistrate shall be con- strued as references to the corresponding Judicial or Executive Magistrate as the nature of the case may require. Section 4(1) In section 4 of the principal Act, in sub-section (1),—-· (i) in clause (h), insert the following Explanation at the end, namely:-- "Explanati0n—A report made by a police officer in a non-cognizable case investigated with- out conforming to the provisions of sub-section (2) of section 155 shall be deemed to be a complaint? (ii) for clause (i), substitute the following, namely:— "(1) "High Court" .................. in relation to any ...... local area, means the highest court of criminal appeal for that area (other than the Supreme Court) or, where no such court is esta- blished under any law for time being in force, such officer as the State Government may appoint in this behalf;" (iii) for clause (k), substittue the following, namely:- "(k) inquiry means every inquiry (other than a trial) conducted under this Code by a Magistrate or Court; _ (v) for clause (q), substitute the following, namely:- "(q) "place" includes also a house, build- ing, tent, vehicle and vessel;" 150 151 I (vi) for clause (r), substitute the following, namely:- "(r) "pleader", used with reference to any proceeding in any court, means a person authorised under any law for the time being in force to practise in such Court ......,.. , and includes any other person appointed with the permission of the Court to act in such pro- ceeding." Section 6 For section 6 of the principal Act, substitute the following section, namely :— "6. Besides the High Courts and the Courts cons- Classes of tituted under any law other than this Code for the °'*““¤*1 time being in force, there shall be two classes of °°“"S' _ Criminal Courts in India, namely:- gf S§°“‘°"g _ Om ay an E. Courts of Sessions; Punjab. II. Courts of Magistrates; Section GA (New) After section 6 of the principal Act, insert the follow- ing new section, namely:-— "6A. (1) There shall be the following classes of S/i"i?°" °*` Magistrates, namely:- a°‘s"at°s‘ I. Judicial Magistrates Cf: s_ 6A ( 1) Presidency Magistrates; 1§§:‘};°;Y and (2) Chief Judicial Magistrates; J ` (3) Judicial Magistrates of the first class; (4) Judicial Magistrates of the second class; (5) Judicial Magistrates of the third class. (6) Special Judicial Magistrates. II. Executive Magistrates (1) District Magistrates; (2) Sub-divisional Magistrates; 4 (3) Executive Magistrates of the first class; (4) Executive Magistrates of the second class; i (5) Presidency Magistrate specially empowered by . the State Government: (6) Special Executive Magistrates. - (2) The expression "a Magistrate" or "any Magistrate", Cf3S¤¤ als when occurring in this Code without any qualifying words, gcggi ‘ shall be construed as including Judicial as well as Execu- Clauses Ac, tive Magistrates. 1897. Section 7 In section 7 of the principal Act, for sub-section (2), substitute the following sub—section, namely:- "(2) The State Government. in consultation with the High Court, may alter the limits or the number of such ,m,,,,dm,,,,t_ divisions and d1str1cts." 152 Section 9 For section 9 of the principal Act, substitute the following section, namely:- Compare "9. (1) The State Government shall establish a g2§cPf_;€,,‘?“ Court of Session for every sessions division ............ gg3'·r¤;¤§Fi¤¤ (1A) The High Court shall appointl a judge of such Session. Court. . _ (Z) The High Court may, by general or special order in the Official Gazette, direct at what place or places the Court of Session shall ordinarily hold its sitting but it, in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sitting at any other place in the sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein. (3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exer- cise jurisdiction in one or more such courts. (4) A Sessions Judge of one Sessions division may be appointed by the High Court to be also an Additional Sessions Judge of another division, and in such case, he may sit for the disposal of cases at such place or places in either division as the High Court may direct. (5) All Courts of Session existing when this Code comes into force shall be deemed to have been estab- lished under this Act. Section 10 In section 10 of the principal Act, for sub-sections (1) and (2), substitute the following sub-sections, namely:- Diszrict "10. (1) In every district outside the presidency- Magistrate towns the State Government shall appoint an and Chief Executive Magistrate of the first class, who shall be lfijgjgilatc called the District Magistrate. Cf.s.10(1) (A) In every district outside the presidency-towns the P¤¤J¤b· High Court shall invest a Judicial Magistrate of the jirst class with the powers of a Chief Judicial Magistrate under this Code or any other law for the time being in force Cf.s. 10(2) (2) The State Government may appoint any Executipe P¤¤i¤b- Magistrate of the first class to be an Additional District Magistrate, and such Additional District Magistrate shall have all or any of the powers of a District Magistrate under this Code or under any other law for the time being in force, as the State Government may d1rect‘ 1. The draft proceeds on the assumption that "appointment"· and "posting" and "promotion" in article 233 ofthe Constitution are confined to appointment to thecadres and do not cover what may be called allotment or assignment to a particular Court or area. 7.. lt may be necessary to make certain further amendments in section IO (Compare section lO(2A) and section 10(3), Bombay amendment), after amendments in sections 192, 406A, 528 etc. are decided upon on the lines of the Bomnay amendment to those sections. 153 Section 12 For section 12 of the principal Act, substitute the following section, namely : — "12. (1) The State Government may appoint as E¤¢¤•=¤¤iY<=_ many persons as it thinks nt, besides the District =¤¤dI¤d¤¤·¤* Magistrate, to be Executive Magistrates of the first, or Mag”°m°°‘ second...class in any district outside the presidency- gfiéz towns and the State Government, or the District uma ‘ Magistrate, subject to the control of the State Govern- ment, may from time to time define local areas within which such persons may exercise all or any of the - powers with which they may respectively be invested under this Code. _(2) The High Court may appoint any person to be a Judicial Magistrate of the first, second or third class in any district outside the presidency-towns, and the High Court ori the Chief Judicial Magistrate subject to the con- trol of the High Court may, from time to time, define the local areas within which he may exercise all or any of the powers with which he may be invested under this Code. (3) The State Government, in consultation with the High Court, may for such period not exceeding six months from the commencement of the Code of Criminal Proce-N R f dure (Amendment) Act, 196 ...... as it may think fit, appoint m;;is°t°; as many PQTSOWS CS may be considered 7Z€C€SSaTy to be the presgnf Judicial Magistrates of the first or second or third class in Amendment any district outside the presidency-towns, and the State Bm- Government, in consultation with the High Court, may define local areas within which such persons may exercise all or any of the powers with which they may respectively be invested under this Code. (4) Except as otherwise provided by such definition the juri_sdiction and powers of such persons shall extend throughout such district"- Section 13(1) In section 13 of the principal Act, for sub-section (1), substitute the following sub-section, namely:- "(1) The State Government may place any Execu- tive Magistrate of the first or second class in charge of a sub-division and relieve him of the charge as occasion requires. Section 13(2A) and (2B) (New) In section 13 of the principal Act,. after sub-section (2), insert the following sub-section, namely:- (2A) The State Government may appoint any swim, 13 Executive Magistrate of the first or second class to be (ZA) and an Additional Sub-divisional Magistrate, and such OB)- Additional Sub-divisional Magistrate shall have all or any of the powers of a Sub-divisional Magstrate under this Crode or under any other law for the time being in force, as the State Government may direct; N0·r1z.—Section l2(lA), Bombay and section l2(5), Punjab, relate to "app0intment” in the sense of recruitment. V 154 (2B) For the purposes of sub—section (1) of section g92b a)nd_sub-siacltgon (72) of sxtlignb 528, such Additional u _- ivisiona agis rates s · l e deemed to be sub-- ordinate to the Sub-Divisional Magistrate " Section 14 f H For sectign 14 of lthe principal Act, substitute the 0 owing sec ion, name y:— Special Judi- "14. (1) The High Court may confer upon any pjerson who holds or has held any judicial post under the mm 14 BOm_ mon or a State or possesses such other qualifications as pig, and pummayi ....... .......... be Epaxified in this behag by the Ja . ig ou ...... a or any o t e powers conferre or con- ferrable by or under this ·Code on a Judicial Magistrate... in respect to particular cases or to a particular class or particular classes of cases, or in regard to cases generally, in any local area outside the presidency-towns. (2) Such Magistrates shall be called Special Judicial Magistrates, and shall be appointed for such term as the High Court may by general or special order direct. Section 14A (New) After section 14 of the principal Act, insert the follow- ing section, namely:— Special "14A. (1) The State Government may also appoint Executive Magistrates for particular areas or for the · performance of particular functions and confer upon g°“1P“*;4 them such powers conferred or conferrable by or under °°°`°" this Code on an Executive Magistrate of the yirst or all Bombay second class as it deems fit an existing _ · Section 14. (1) (2) Such Magistrates shall be called Special Exe- cutive Magistrates, and shall be appointed for such term as the State Government may by general or special order direct: CL s" W4)- Provided that no powers shall be conferred under this section on any police officer below the grade of Assistant or Deputy Superintendent, and no power shall be conferred on a police officer except so far_ as may be negesgary for preserviggnghe peacmei préeiienting crime an etecting appre e ing a e aining ' offenders in order to their being brought before a Magistrate and for the performance by the officer of any other duties imposed upon him by any law for the time being in force. (3) The State Government may delegate, with such limitations as it thinks fit, to any officer under its control the powers conferred by sub-section (1) or (2). 155 Section 15 In section15 of the principal Act, for sub-section (1), substitute the following section, namely :——— "(1) The High Court may direct any two or more cr. semen Judicial Magistrates in any place outside the presi-15»Puni¤b. dency-towns to sit together as a Bench, and may by order invest such Bench with any of the powers con- ferred or conferrable by or under this Code on a Judicial Magistrate of the first, second or third class, and direct it to exercise such powers in such cases, or such classes of cases only and within such limits. as the High court thinks iit." Section 16 In section 16 of the principal Act, for the words "The C-f· §- 16 State Government may, or, subject to the control of the P“m“b· State Government the District Magistrate may make rules _ consistent with this Code for the guidance of Magistrates’ g;,°°°'*°¤ Benches in any district" substitute the words "The High ‘ Court, with the previous sanction of the State Government may, from time to time, make rules consistent with this Code for the guidance of Judicial Magistrates Benches in ’ any district outside the Presidency-towns." Section 17 For section 17 of the principal Act, substitute the following, namely:- "l7(1). All Judicial Magistrates appointed under Subordina- sub-section (2) and (3) of section 12 and section 14 g°*{°f and all Benches constituted under section 15, shall, subject to the control of the Sessions Judge be sub- Judgc and ordinate to the Chief Judicial Magistrate, and the Judicial Chief Judicial Magistrate may, from time to time, M¤€¤S¤¤*¢$· make rules or give special orders consistent with this Cf. s. 17 Code as to the distribution of business among such P‘;}7'J§b ***,;*1 Magistrates and Benches. °‘ °m "' (2) All Chief Judicial Magistrates shall be sub- ordinate to the Sessions Judge. ••• ••• •••1 I ;2i,i;n,t£,’ subordina- tion to S.D. M. omitted CIC, (3) All Assistant Sessions Judges shall be subordi- nate to the Sessions Judge in whose court they exercise jurisdiction, and he may, from time to time, make rules consistent with this Code as to the distribution of business among such Assistant Sessions Judges. 1. Existing section 17(2) relating to subordination to Sub·divison Magistrates is omitted here. See section 17A (proposed)- 156 _ (4) The Sessions Judge may also, when he himself IS unavoidably absent or incapable of acting, make provisionfor the disposal of any urgent application by an Additional or Assistant Sessions Judge, or, if there be _no Additional or Assistant Sessions Judges, by the Chief Judicial Magistrate, and such Judge or Magis- trate shall have jurisdiction to deal with any such application. Existing section l7(5) is omitted, Section 17A (New) After section 17 of the principal Act, insert the follow- ing new sections, namely:- $}¤b<>*<;]i¤=*· "17A(1). All Executive Magistrates axppointed "°“ °. under sub-section (1) o section 12 and section 13 shall Executive . . Mmmm, be subordinate _to the District Magistrate, and every cf. s. 17A. Executive Magistrate (other than a Sub-divisional Bombav and Magistrate) exercising powers in a Sub·division shall P““l"b· also be subordinate to the Sub-divisional Magistrate, subject, however, to the general control of the District Magistrate. (2) The District Magistrate may, from time to time, make rules or give special orders consistent with this 3 Code as to the distribution of business among the l Executive Magistrates subordinate to him and as to ‘ allocation of business to an Additional District Magis- trate. Section 17B (New) Courtsinfc- "17B. (1) Courts of Session shall be criminal courts gpghfgjfhit inferior to the High Court. 1 OLI ¤¤d ¤h<= (2) Courts of Presidency Magistrates shall be criminal i C°“T‘ °f courts inferior to the High Court. A Session _ g17E(1)·and (3) Courts of Judwial and Executing Magistrates out- pggliagy side the presidency-towns shall be criminal courts inferior ( Cr, S. 435(1), to the Court of Session andto the High Court." 2 E l ` c’§?§‘l“?é°“ Bombay. Cf. section l7B,Punjab. Section 18 For section 18 of the principal Act, substitute the following section, namely:- Appoint- "18(1) The High Court shall, from time to time, ijwfg °;Y appoint a sufficient number of persons (hereinafter 1'S1 CII Magistrates. 157 called Presidency Magistrates) to be Magistrates for each of the Presidency—towns, and shall appoint one of such persons to be Chief Presidency Magistrate for each town. _ (2) The powers of a Presidency Magistrate under this _Code shall be exercised by the Chief Presidency 4 Magistrate, or by a salaried Presidency Magistrate or by any other Presidency Magistrate empowered by the High Court to sit singly, or by any Bench of Pre- sidency Magistrates. (3) A Presidency Magistrate may be appointed under this section for such term as the High Court may, by general or special order, direct. (4) The High Court may appoint any person to be Nom swim, an Additional Chief Presidency Magistrate, and such 18(5),B<>¤¤- Additional Chief Presidency Magistrate shall have all b§Yl;‘§f°lS , or any of the powers of a Chief Presidency M3giSt1'8t€ x;,,,,,;??;? as the High Ccrurt may direct." the Sense of recruitment, It has not; been adopted, Section 21 For section 21 of the principal Act, substitute the following section, namely : — "21. (1) Every Chief Presidency Magistrate shall Ower of ChierP:m· exercise within the local limits of his d<=¤¤v M¤siS¤¤¤¢· jurisdiction all the p0wers— (8) when are conferred on him by this Code, cr, s. ZW) OY pat'!. (b) which by any law or rule in force imme- diately before the first day of July, 1898, are re- ouired to be exercised by any Senior or Chief Presidency Magistrate (2) The Chief Presidency Magistrate, with the pre- . vious sanction of the High Court may, from time to Cglg, time make rules consistent with the C0de+- ‘ (a) to regulate the conduct and distribution of Cr; S, 16, business and the practice in the courts of Presi- dency Magistrates. (b) for the guidance of Benches of such Magis- trates respecting the following subjects, namely :— (i) the classes of cases to be tried; (ii) the times and places of sitting: _ (iii) the constitution of the Benches for con-. ducting trials; and 158 _(iv) the mode of settling differences of opinion may arise between the Magistrates in on Cf. s. 21(Z), (3) The High Court may, for the u ses f th` Pa"- Code, declare what ........................... igdclltionalo Chief Presidency Magistrates are subordinate to the Chief Presidency Magistrate and may define the extent of their subordination. contrast _(4) Every Presidency Magistrate appointed under s.21(2),pa1·t section 18, and all Benches constituted under section ;’¤{l7°{>mP¤f° 19, shall be subordinate to the Chief Presidency Magis- ‘ ()‘ irate and the Chief Presidency Magistrate from time to time, make rules or give special orders consistent with this Code as to the Distribution of business among such Magistrate and benches." Section 22 For section 22 of the principal Act, substitute the 4 following section, namely:-—— {,‘;“;;° °f*h° "22. Every State Government ...... may, by notification ' is the Official Gazette, in consultation with the High Court, appoint such persons, being citizens of India, as it thinks tit, to be Justices of the Peace within and for the local area mentioned in such notification. Section 22A (New) After section 22 of the principal Act, insert the follow- in sections,. namely:- "22A. A Justice of the Peace for any local area the p,,,,c,,_ shall, for the purpose of making arrest, have within such area all the powers of a police-Officer referred tain section 54 and of an oificer-in-charge of a police station referred to in section 55. (2) A Justice of the Peace making an arrest in exercise of any powers under sub-section (1) shall forthwith take or caruse to be taken the person arrested before the officer in-charge of the nearest police-station and furnish such ojicer with a report as to the cir- cumstances of the arrest. C (3) Such officer shall, thereupon, re-arrest the person. (4) A Justice of the Peace for any local area shall have power, within such area, to call upon any mem— ber of the police force on duty or any volunteer to aid him- (a) in taking or preventing the escape of any person who has participated in the commission of 159 any cognizable offence or against whom a reason- able complaint has been made or credible infor- mation has been received or a reasonable suspicion exists of his having so participated; (b) in the prevention of crime in general and, in particular, in the prevention of a breach of the peace or a disturbance of the public tranquility. (5) Where a member of the police force on duty or volunteer has been called upon to render aid unde·r sub-section (3), such call shall be deemed to have been made by an authority competent to make the call. (6) A Justice of the Peace for any local area, not being a legal practitioner, may, in accordance with suh rules as may be made by the State Govern·ment.— (a) issue certificate as to the identity of any person residing within such area, or (b) verify any document brought before him by any such person, or (c) attest any such document required by or under any law for the time being in force to be attested by a Magistrate, and until the contrary is proved, any certificate so issued shall be presumed to be correct and an docu- ment so verified shall be deemed to be dulgy veri- fied and any document so attested shall be deemed to have been as fully attested as if he had been a Magis- trate. E:cplanation:—In this section, the expression "volunteer" means a volunteer a pointed under the West Bengal National Volunteer lgorce Act, 1949, as in force in the State of West Bengal or a person with similar duties appointed under a similar law in force in any other State. Section 22B "22B(1) Subject to such rules as may be made by the R¤¤¤¢dip2 State Government, every Justice of the Peace for any local if ;°“;‘f area may, when so requested in writing by a police-officer §;]ur;ig,;0; making an investigation under this Code in respect of any peace ofence committed within such local area, record any state- ment made by a person in respect of whom an ojience affecting the human body is believed to have been com- mitted, being a statement relating to the circumstances of the offence or of the transaction which resulted in the offence. (2) The provisions of sub-section (2) of section 164 relating to the manner of recording statements shall, as far as may be, apply to the recording of a statement under sub-section (1) as if the statements were recorded by a Presidency Magistrate or a Magistrate of the first class. 160 Section 25 For section 25 of the principal Act, substitute the following section, namely :—— ?;,;°£;i;’f _ "25. In virtue of their respective offices,- the Peace. (a) the Judges of the Supreme Court and of the High Courts are Justices of the Peace within and for the whole of India; (b) Sessions Judges, Chief Judical Magistrates and District Magistrates are Justices of the Peace within and for the whole of the territories, ad- mlmistered by the Sitate Government under which ey are servmg;¤an ` (c) Presidency Magistrates are Justices of the Peace within and for the towns of which they are respectively Magistrates. Section 29B For section 29B of the Principal Act, substitute the following section, namely :— J¤*_j;d;¤*}¤¤ "29B. Any offence, other than one punishable with }EV€§,1c°;_ death or imprisonment for life, committed by any per- son who at the date when he appears or is brought before the Court is under the age of fifteen years may be tried- (a) by a Chief Presidency Magistrate, h (b) by a Chief Judicial Magistrate, or , (c) by any other Judical Magistrate specially empowered by the High Court} to exercise the powers conferred by sub-section (1) of section 8 of 2 of 1897 the Reformatory Schools Act, 1897, or (d) in any area in which the said Act has been wholly or in part repealed by any other law pro- viding for the custody, trial or punishment or youthful offenders, or in which the said Act does not extend and there is in force any other law providing for the custody, trial_or punishment of youthful offenders, by any Magistrate empowered by or under such law to exercise all or any of the powers conferred thereby. ` Section 30 For section 30 of the principal Act. substitute the following section namely:- , Offence "30. Notwithstanding anything contained in section 28 punishable or section 29, the High Court may invest any Presidency “’*'h imP”lS‘ Maistrate, Chief Judicial Magistrate or Judicial Magistrate ;’;‘;Q;Q;ng"°t of the first class with power to try as a Magistrate all S€V€I'l YCRIS. l. The mention of "High Court" is on the assumption that section S(l) ofthe Refor- matoty Schools Act, 1897, will also be amended. 161 offences not punishablewith death or with imprisonment for life or with imprisonment for a term exceeding ten years. (Proviso omitted.) Section 36 For section 36 of the principal Act, substitute the following section, namely:- "36. All District Magistrates, Chief Judicial Magis- trates, Sub-divisional Magistrates and Judicial and Ordinary powers Executive Magistrates other than of Magistrates- Special Judicial Magistrates and Special _ Executive Magistrates have the powers hereinafter respectively conferred upon them and specified in the ’ J ' third schedule. Such powers are called their ‘ordinary powers’. Section 37 For section 37 of the principal Act. substitute the following section, namely : — "37. In addition to his ordinary powers,-(i) the Cf_s_ 37, Additional powers High Court may invest any Judicial pu,,jab_ conferable on Ms Magistrate with any of the powers as €***"”°$· specified in Part I of the Fourth Schedule; (ii) a Chief Judicial Magistrate may invest any other Judicial Magistrate within his local jurisdiction with the powers specified in Part I of the Fourth Schedule; (iii) the State Government may invest any Exe- cutive Magistrate with any of the powers as specified in Part II of the Fourth Schedule; and (iv) a District Magistrate may invest any Execu- tive Magistrate within his local jurisdiction with the powers specified in Part II of the Fourth Schedule? Section 38 For section 38 of the principal Act, substitute the following section, namely :— "38. The power conferred by clause (ii) of section Cf-$.38, C I { _ t 37 shall be exercised subject to the P““J“b· ,,,Q“,§f,§’,,,,‘§ ‘““‘”' control of the High Court, and me ' power under clause (iv) of that sec- tion shall be exercised subject to the control of the State Government." 12-29 Law/68 162 Section 38A (New) _ After section 38 of the principal Act, insert the follow- ing section, namely:- "38A. Whenever, under any provisions of this powers 0,, judicial Code or of any law for the time being Magistrates to be 1.71. fO1‘C€ Téldfifig to any of the 'm.0,ifI€T$ ginkfécd bv ¤h·= specified in lists II and 111 of the ‘gh °“"· Seventh Schedule to the Constitution, any judicial powers are to be conferred on a Sessions Judge, an Additional or Assistant Sessions Judge, Chief Judicial Magistrate or any other Judicial Magistrate or any such Magistrate is to be specially empowered to exercise such powers, the orders conferring such powers shall be made by the High Court notwithstanding that such provision may not expressly so provide. Explanation.—For the purposes of this section, the question whether any powers are judicial shall be decided by the High Court, and such decision shall be final." Section 39 In section 39 of the principal Act, for sub-section (1). substitute the following sub-section, namely :—— "(1) In conferring powers under this Code the State Government or the High Court as the case may be may by order empower persons specially by name or in virtue of their office or classes of officials generally by their oiiicial titles." Section 40 In section 40 of the principal Act, for the words "the 'State Government", occurring for the second time, substi- tute the words "the State Government or the High Court, as the case may be". Section 41 For section 41 of the principal Act, substitute the following section, name1y:— "41 (1) The State Government or the High Court, Wiehdmwai of as the case may be, may wit draw all powers- or any of the powers conferred under this Code on any person by it or by any officer sub- ordinate to it. (2) Any powers conferred by the Chief Judicial Magistrate or the District Magistrate may be with- drawn by him." Section 44 In section 44 of the principal Act, for the figures "435, r436" substitute the words, brackets and figures "431 to 439 (both inclusive)". 163 Section 45 In section 45 of the principal Act, in sub-section (1), for clause (a) substitute the following clause namely:- (a) the permanent or temporary residence of any notorious receiver or vendor of stolen property in any village of which he is headman, accountant, watchman, or police-officer or in any village in which he owns or occupies land, or is agent of any such owner or occupier, or is a member of such village panchayat, or collects revenue or rent ; Section 52A (New) After section 52 of the principal Act, insert the follow- ing new section, namely :— "52A. (a) When a person is in lawful custody upon Examination a charge of committing any ofence of of person such a nature and alleged to have bv ]¤}¢di¤¤l been committed under such circums- ¥"“°““°"°'· tances that there are reasonable grounds for believing that an examination of his per- son will afford evidence as to the commission of the offence, it shall be lawful for a legally qualified medi- cal practioner, acting at the request of a police officer not below the rank of Sub-Inspector, and for any per- son acting in good faith in his aid and under his direc- Compare ,,_ tion, to make such an examination of the person so in 259, Crimi- custody as is reasonably necessary in order to ascertain Ml C<>d¢ the facts which may afford such evidence and to use ;;°;‘;f§"l‘“)· . p31'3- such force as is reasonably necessary for that purpose. ginnin (2) Whenever the examination of the person of ac:'. S. 129A, woman is to be carried out under this section, such B¤ml9¤y_ examination shall be carried out only by, or under the &`gh‘€’;Q;’“ supervision of, a female legally qualified medical ’ ‘ practitioner? Section 54 In section 54 of the principal Act, in sub-section (1), in clause Ninthly, after the words "any person for whose arrest a requisition has been received from another police ofHcer", insert the words "whether such requisition is in writing or not". Section 55(I) (a) In section 55 of the principal Act, in sub-section (1),, Cf. amend- in cluase (a), for the words "any person found taking pre- m°¤* pfv- cautions to conceal his presence within the limits of such Qsxgn 153 station" substitute the words "any person within the limits (,)_ of such station found taking precautions to conceal his presence ......... " 164 Section 55(1) (c) _ In section 55 of the principal Act, in sub-section (1), in clause (c), for the words "fear for injury" substitute the words "fear of injury". Section 56 In section 56 of the principal Act, insert the following sub-section at the end, namely:- "(3) Nothing in this section shall affect the powers of a police-ojhcer to arrest a person under section 54". Section 57 In section 57 of the principal Act. in sub-section (2), for the words "a Magistrate" substitute the words "a Magis- trate having jurisdiction". Section 59 In section 59 of the principal Act, for sub-section (1), substitute the following sub-section, namely : —— ; "(1) Any private person may arrest or cause to be arrested any person who in his view commits a non- bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police-officer, or in the absence of a police oincer take such person or cause him to be taken in custody to the nearest police—station." Sections 59A and 59B (New) After section 59 of the principal Act, insert the follow- ing sections, namely:-- "59A. Every police ojjicer or other person arresting P¢*S<>¤ ;¤?S· any person without warrant shall com- ;;‘3m;°d ° municate to him full particulars of the grounds 0; ojfence for which he is arrested or other mes:. grounds for such arrest." Section 59B Compare "59B. Where a police-ojicer arrests without warrant sections 60, P°li°¢·<>6i¢¤* any person other than a person ac- 496.499 of '<;;*;3’;mS_ cused of a non-bailable ojence, he *h° C°d°- Fed of right shall inform the person arrested that to bail he is entitled to be released on bail and that he may arrange for sureties to offer bail on his behalf." Section 61 In section 61 of the principal Act, for the words "No police-officer shall detain in custody a person arrested with- · out warrant", substitute the words "No person who has been arrested without warrant shall be detained, in custody." 165 ` Section 63 B ln section 63 of the principal Act, for the words "a gf- if 63· Magistrate", substitute the words "a Magistrate having Pgglagy and jurisdiction". J ’ Section 68 ln section 68 of the principal Act, for sub-section (1). substitute the following sub-section, namely:— "(1) Every summons issued by a Court under this Ci S· 75- Code shall be in writing, in duplicate, signed by the presiding ofhcer of such Court (or, in the case of a Bench of Magistrates, by any Member of such Bench), or by such other officer as the High Court may, from time to time, by rule, direct, and shall bear the seal of the Court. Section 68(4) (New) In section 68 of the principal Act, insert the following sub-section at the end, namely :— "(4) Nothing in this section shall affect the provi- sions of section 74A." Section 70 ` For section 70 of the principal Act, substitute the following section, namely:- "70. Where the person summoned cannot by the Service exercise of the due diligence be found, the summons may Wh¤¤ v¢¤S<>¤ be served by leaving one of the duplicates for him with :;':_‘;‘Q“°dbc some adult male member of his family; ......... the person {°und_ with whom the summons is so left, shall, if so required Cf O 5 R b the servin omcer, sign a receipt therefore on the I5` CQ, Q of Y 3 _ , d back of the other duplicate. Civillgggco- I0 . Explanation: A servant is not a member of the family u within the meaning of this section." Section 71 For section 71 of the principal Act, substitute the following section, namely :— "71. If service in the manner mentioned in sections p,Oged,m, 69 and 70 cannot by the exercise of due diligence be when service effected, the serving ofiicer shall affix one of the dupli— ¤;,¤¤<>*d b° cates of the summons to some conspicuous part of the foe?;;; prf: house or homestead in which the person summoned Vid¢d_ ordinarily resides; and the Court, after making such Cf O 5 inauiry as it thinks fit, may either declare that the sum- 19· Cédé R- ‘ ' · · » of mons has been duly served, or order fresh service in CM] p,°cc_ such manner as it considers proper. du1·e‘1908_ 166 Section 744 (New) contd. After section 74 of the principal Act, insert the follow- ing section namely:— Issue of _ "74A. (1) In the case of witnesses the court may, summons {O, in addition to and simultaneously with the issue of a service by summons for service in the manner provided in sections post. 68 to 74 (both inclusive) also direct the summons be served by registered post addressed to the witness at the place where the witness ordinarily resides or carries on business or personally works for gain:‘ Cf. Order 5, (2) When an acknowledgement purporting to be rule ZOA 2 · ~ ‘ · Code (3% signed by the witness or an endorsement purporting CM] prow to be made by postal employee that the witness refused dure,1908. to take delivery has been received, the Court issuing the summons may declare that there has been valid service." Section 78 In section 78 of the principal Act, for sub-section (1), substitute the following sub-section, namely:- "(1) A District Magistrate or a sub-divisional Magistrate or a Chief Judicial Magistrate or a Judicial Cf S 78(D Magistrate of the first class may direct a warrant to pu},jgb_ ’ any landholder, farmer or manager of land within the area of his jurisdiction for the arrest of any escaped convict, proclaimed offender or person who has been ac- cused of a non-bailable offence, and who has eluded pursuit." Section 87(Z) In section 87 of the principal Act, in sub-section (2), insert the following clause at the end, namely :— "(d) if the Court so directs, a copy thereof shall also be published in a daily new§Paper circulating in the place in which such person or inarily resides." Section 88 In section 88 of the principal Act, in sub-section (a) in sub-section (2), for the words “District Cf- F· 88(2)· Ma `strate or Chief Presidency Magistrate", substitute Pu b g1 "’° ‘ the words "Chief Presidency Magistrate, District _ Magistrate or Chief Judical Magistrate"; (b) in sub-section (6), for the words and figures "Chapter XXXV I of the Code of Civil Procedure", subs- 5 °f 19°8· titute the words and figures "Code of Civil Proce- dure, 1908"; 1. Cf. 27th Report (Code of Civil Procedure) Pages 46-47, Order 5, Rule 19A, as proposed in that Report. 167 (c) in sub-section (6B), for the words "District Magistrate or Chief Presidency Magistrate", substitute Cf,s.88(6B), the words "Chief Presidency Magistrate, District Punjab- Magistrate or Chief Judicial Magistrate". (d) in sub-section (6C). in the proviso, for the words C t t "District Magistrate or Chief Presidency Magistrate", 8§2éisP,,:j substitute the words "Chief Presidency Magistrate, jab_ District Magistrate or Chief Judicial Magistrate." Section 91 In section 91 of the Principal Act, after the words "for his appearance in such court", insert the words "or in any other court to which the case may be transferred for trial." Section 94 In section 94 of the principal Act, after the words and 18 of 1gg1_ Hgures "the Indian Evidence Act, 1872, sections 123 and 124", insert the words and figures "of the Banker’s Books Evi- dence Act, 1891". Section. 95 In section 95 of the principal Act, after the w ords Cf. _$- 95., "District Magistrate", wherever they occur, insert the words Fumb- "Chief Judicial Magistrate". Section 96 In section 96 of the principal Act, in sub-section (2), Ci`- S-96(2)· for the words "District Magistrate or Chief Presidency P““J°b· Magistrate," substitute the words "Chief Presidency Magis- trate. District Magistrate or Chief Judicial Magistrate." Section 98 In section 98 of the principal Act,- (a) in sub-section (1), after the words "District Magistrate" wherever they occur, insert the words "Chief Judicial Magist·rate". (b) in sub-section (2), for the words and figures "section 19 of the Sea Customs Act, 1878" substitute the 5z gf [96Z_ words and figures "sectiW¢¤lb if _ "125 (1) The Chief Presidency Magistrate, the °“““° °“ · D1str1ct Magistrate or the Chief Judicial Magistrate rnay at any time, for sufficient reasons, to be recorded in writing, cancel any bond for keeping the peace or for good behaviour executed under this Chapter by order of any Court in his District not superior to his Court. V (2) The Chief Judicial Magistrate shall not exercise any power under this section except in cases where the security was ordered under section 106; and the District Magistrate shall not exercise any power under this section except in other cases". Section 126 For section 126 of the principal Act, substitute the following section namely :— Discharge of "126(1) _Any surety for the peaceable conduct or sureties, good behaviour of another person may at any time apply to the Court by which an order was mode to give security to cancel any bond executed under this Chapter within the local limits of its jurisdiction. (2) On such application being made, the Court shall issue a summons, or warrant as it may think fit, re- quiring the person for whom such surety is bound to appear or to be brought before it. Section 12611 In section 126A of the principal Act, after the words "the lVIagis'trate" insert the words "0r Court". Sections 127 to 132 In sections 127 to 132 of the principal Act {both in— clusive), for the word "Magistrate" wherever it occurs substitute the words "Executive Magistrate". E 171 Section 133(1) In section 133 of the principal Act, in sub-section (I)- _ _(a) for the words "a District Magistrate, a Sub- divisional Magistrate or a Magistrate of the first class", Cf S D30 substitute the words "a Presidency Magistrate special- BO},,i,ay_ )’ ly empowered by the State Government in this behalf or a District Magistrate or a Sub-divisional Magistrate or an Executive Magistrate of the first class"; (b) for the words "to appear before himself or some other Magistrate of the first or second class at a Cf 136 time and place to be fixed by the order, and move to ana $$*1370; have the order set aside or modified in the manner ,,,d,_`13g(1)_ hereinafter provided", substitute the words "t0 appear before himself or some other Executive Magistrate of the first or second class at a time and place to be fixed by the order, and show cause why the order should not be made absolute, inthe manner hereinafter pro- vided." Section 135 In section 135 of the principal Act, in clause (b), after the words "appear in accordance with such order and" insert the words and figures "subject to the provisions of section 139A". Section 137 For section 137 of the principal Act, substitute the following section, namely:- "137. (1) If such person appears and shows cause Pffwdufcch against the order, the Magistrate shall take evidence Wcgfn ““ in the matter as in a summons-case. 5,,,,,.5 cmsq (2) If the Magistrate is satisfied that the order is Cf·S·l37(1)· reasonable and proper as originally made, or as Cf·¤·i37(3)· subject to such modification as the Magistrate consi- ders necessary, the Magistrate shall make the order absolute. subject to such modification (if any). (3) In other cases, no further proceedings shall be Cf·S·137(2)· taken in the case. Section 137A (New) After section 137 of the principal Act, insert the follow- ing section namely:- Cgmpagae 0_ , R 9. "137A. (1) The Magistrate may, for the purposes ggdcuc gf _ of an inquiry under this Chapter- Civil Proce- Powcr of Magistrate to dmc, 1908, direct a local inquiry or and sections summon and examine an 148 and 5393 €> ed by the State Government in this behalf or a Dis- P“¥h‘b" '°‘ trict Ma istrate or a Sub-divisional Magistrate or any etitxon or g E0n,i,,uancc other Executive Magistrate empowered by the State of public Government or the District Magistrate in this behalf nuisance. may order any person not to repeat or continue a Compare public nuisance, as defined in the Indian Penal Code §¤;p;iY143. or any special or local law". 0 . Section 144(1) In section 144 of the principal Act, in sub—section (1). for the words "a District Magistrate, a Chief Presidency Magistrate, Sub-divisional Magistrate or of any other Magis- trate (not being a Magistrate of the third class) specially empowered by the State Goverxplnent or the ghief Prelii- dency Magistrate or the District agistrate" su stitute t e words "a Chief Presidency Magistrate, a District Magis- trate, a Sub—divisional Magistrate or of any other Execu- tive Magistrate specially empowered by the State Govern- ment or the Chief Presidency Magistrate or the District Magistrate". Section 144(3) In section 144 of the principal Act, for sub-section (3), substitute the following sub—sect1on, namely : — to a particular individual or to the public generally to a particular individual or to the public generally when frequenting or visiting a particular place or area or residing in a particular place or area. 173 Section 144(7) (New) In section 144 of the principal Act, insert the following sub-section at the end, namely :— "(7) Where the State Government issues a direc- tion under sub-section (6), any person aggrieved may make a representation to the State Government against such direction; and the State Government may, after giving such person a reasonable opportunity of being heard, rescind or alter the direction." Section 145(1) In section 145 of the principal Act, for sub-section (1). substitute the following sub-section, namely : — "(1) Whenever a Chief Presidency Magistrate, District Magistrate, Sub-divisional Magistrate, or any other Executive Magistrate of the first class specially empowered by the State Government in this behalf, is satisfied from a police-report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries there- of, within the local limits of his jurisdiction, he shall. make an order in writing,- (a) stating the grounds of his being so satished; (b) mentioning the date of receipt of the police-report or other information; (c) requiring the parties concerned in such dispute to attend his court in person or by pleader, on a date and at a time to be specified in the order, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute; and (d) further requiring them to put in such documents, or to adduce, by putting in affidavits, the evidence of such persons as they rely upon in support of such claims." Section 145(4) In section 145 of the principal Act,’ in sub-section (4),- (a) in the main paragraph, forthe words "the date of the order before mentioned" substitute the words "the date of the police-report or other information on which the order under sub-section (1) was passed"; (b) in the second proviso, for the words "date of such order" substitute the`words "date of such police- report or other inf0rmation;" (c) in the third proviso, after the words "at any time", insert the words, brackets and figure "after the passing of the order under sub-section (1)". 1. Where there were numerous sub-sections in a particular section, thélaincndments to each SU.b·S€CtIOIl IIZS b€€1’). put SBPSIRICIY, for convenience. • 174 Seetion 145(4A)- (New) In section 145 of the principal Act, after sub-section (4), insert the following sub-section, namely:- ~ "(4A) Where the Magistrate attaches the subject of dispute under the third proviso to sub-section (4), he shall make such arrangements as he considers proper for looking after the property which is the subject of the dispute, including w ere necessary, an order for the appointment of a receiver, and where he makes an order for the appointment of a receiver, the provisions of sub-section (2) of section 146 shall, so far as may be, apply as they apply in relation to the appointment of a receiver under that section". Section 145(5A) (New) In section 145 of the principal Act, after such section (5), insert the following sub-section, namely :—— "(5A) where the Magistrate cancels the said order under sub-section (5), he shall also make an order with- drawing the attachment, if any, ordered under the third proviso to sub-section (4), and may, in a proper case, restore to possession the party who was in posses- sion at the time of attachment." Section 145(6A) (New) In section 145 of the principal Act, after sub-section (6), insert the following sub-section, namely :—- "(6A) The order under sub-section (6) shall be served and published in the manner laid down in sub- sub-section (1)". Section 145 (9) In section 145 of the principal Act, in sub-section (9), insert the following words at the end, namely :— "and nothing in the {irst proviso to sub-section (4) shall be construed as lmiting the discretion; of the Magistrate to issue under this sub-section a summons to a person whose affidavit has not been put in-under sub-section (I)". Section 146 For section 146 of the principal Act, substitute the following section, namely:- Power to "146.(1) If the Magistrate decides that none of the parties F‘“"°h $‘{b‘ was then in such possession, or is unable to satisfy him- Jw °f d‘°’° self as to which of them was then in such possessionof the uw` subject of dispute, he may attach it until a competent Court 175 has determined the rights of the parties thereto. or the person entitled to possession thereof : Provided that the District Magistrate or the Magis- trate who has attached the subject of dispute may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of a breach of the peace in regard to the subject of dispute. _ (2) When the Magistrate attaches the subject of dispute, he may, if he thinks fit, and if no receiver of property, the subject of dispute, has been appointed by any Civil Court, appoint a receiver thereof, who, subject to the control of the Magistrate, shall have all { 1908 the powers of a receiver appointed under the Code of! ° ' Civil Procedure, 1908: Provided that in the event of a receiver of the property, the subject of dispute, being subsequently appointed by any Civil Court, possession shall be made over to him by the receiver appointed by the Maois- trate who shall thereupon be discharged? Section 147 (1) In section 147 of the principal Act, for sub-section (1), substitute the following sub-section, namely 1 — "(l) Whenever a Chief Presidency Magistrate, District Magistrate, Sub—divisional Magistrate or any Executive Magistrate, of the first class is satisfied, from a police-report or other information, that a dispute like- ly to cause a breach of the peace exists regarding any alleged right of user of any land or water as explain- ed in sub-section (2) of section 145, whether such right be claimed as an easement or otherwise, within the local limits of his jurisdiction. he may make an order in writing- (a) stating the grounds of his being so satis- fied; (b) mentioning the date of receipt of the police-report or other information; (c) requiring the parties concerned in such dispute to attend his court in person or by pleader, on a date and at a time to be specified in the order, and to put in written statements of their respective claims; and shall thereafter inquire into matter in the manner hereinafter provided. Section 147(2) In section 147 of the principal Act, for sub-section (2), substitute the following sub-section, namely :— "(2) If it appears to such Magistrate that such right exists, he may make an order prohibiting any inter- ference with the exercise of such right, including, in a 176 proper case, an order for the removal of any obstruc- tion inthe exercise of any such right : Pfrovided that no such order shall be made where the right is exercisable at all times of the year, unless such right has been exercised within three months next before the receipt of the police-report or otherinfor- mation leading to the institution of the inquiry, or where the right is exercisable only at particular sea— sons or on particular occasions, unless the right has been exercised during the last of such occasion before- such receipt? Section 147A (New) After section 147 of the principal Act, insert the follow- ing new section, namely:- Cenvembi- "147A. Whenever proceedings are commenced liw _¤f Pro- under sub-section (1) of section 145 or under sub-section °°°d'“g‘· (1) of section 147(1), the Magistrate muy, if he finds that the matter is one which should be dealt with under sub-section (1) of section 147 or under sub-sec- tion (1) of section 145, respectively, record an order to that effect; and may thereafter deal with it accord-- ingly". Section 148 In section 148 of the principal Act, in sub-section (1), Cf H8 for the words "any District Magistrate or Sub-divisional Bgmliéy substitute the words "any Chief Presidency ' Magistrate, District Magistrate or Sub-divisional Magis-· trate". Section 155(1) _ In section 155 of the principal Act, in sub-section (1), for the words "the Magi-strate" substitute the following words, namely:— "the Magistrate having jurisdiction to try such. cases or commit the same for trial". Section 155, Explanation (New) In section 155 of the principal Act insert the following explanation at the end, namely : —— "Explanation.—Where a case relates to two or more offences of which at least one is cognizable, the case is a cognizable case, notwithstanding that the rest of the offences are non-cog*nizable". Section 157 In section 157 of the principal Act, in sub-section (1), for the words "upon a police report", substitute the words "upon a report in writing made by a police off`ccer". 177 Section 160. Section 160 of the principal Act, shall be renumbered as sub—section (1) thereof, and after sub—section (1) as so re—numbered, the following sub-section shall be inserted, namelyz- "(2) Subject to such rules as the State Government may make in this behalf, the Government shall pay the reasonable expenses of every person attending under sub-secti·on (1) at any place other than his resi- dence". Section 161(3) In section 161 of the principal Act, for sub-section, (3), substitute the following sub-section, namely:- "(3) The police—oH·icer shall reduce into writing every statement made to him by a person examined under this section, as far as possible in the words of such person, and ......... shall make a separate record of the statement of each such person ............ " Section 161(4) and (5) (New) In section 161 of the principal Act, after sub-section (3), insert the following sub-sections, namely:- "(4) The police oyjicer shall forthwith send copies Compare of the statements so recorded to the Magistrate cm- S¢¤*i<>¤ powered to take cognizance of the offence on the report Um)- of a police-ojicer. (5) Where a superior ojicer of police has been Compare appointed under section 158, the copies of the state- sectionj ments shall, in any cases in which the State Govern- 173(Z)-1 ment by general or s ecial order so directs, be submit- ted through that ojflber, and he may give such ins- tructions to the officer submitting the copies as he g2g,;?" thinks fit, and shall, after recording such instructions 157(2)- on such copies, transmit the same without delay to the Magistrate} Section 162(1) In section 162 of the principal Act, in sub-section (1), omit the words "if reduced into writing". Section 163(2) In section 163 of the principal Act, to sub-section (2)`, add the following proviso, namely : — "Provided that nothing in the sub-section shall affect the provision: of sub-section (3) of section 164". 13-29 Lw;68 178 Section 164(`1) In section 164 of the principal Act, in sub-section (1), for the words "Any Presidency Magistrate, any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by the State Govern- ment may, _1f he is not a police oHicer" substitute the words "Any Presidency Magistrate, any Judicial Magistrate of first class and any judicial Magistrate of the second class specially empowered in this behalf by the State Govern- ment may ............... ". Section 164(2) _ In section 164 of the principal Act, in sub-section (2), after the words "Such statements shall be recorded" insert the words "on Oath". Section 165(5) In section 165 of the principal Act, in sub-section (5),— (a) after the words "a copy of the same" insert the words "free of cost". (b) omit the proviso. Section l66(b) In section 166 of the principal Act, in sub-section (5),- (a) after the words "a copy of any record sent to the Magistrate" insert the words "free of cost". (b) omit the proviso. Section 167 (1) In section 167 of the principal Act, in sub-section (1), for the words "nearest Magistrate" substitute the words "nearest Judicial Magistrate". Section 167 (4) In section 167 of the principal Act, for sub-section, namelyz- "(4) Any Magistrate other than the Chief Judi- cial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Magistrate to whom he is immediately subordinate. Section 169 In section 169 of the principal Act, for the words “police report", substitute the words "rep0rt in writing * made by a police officer". ~ Section 170(1) In section 170 of the principal Act, in sub-section (1), for the words "police report", substitute the words "report in writing made by a police o;(fice·r". A ii Section 101 e e e ·- - ·~ — In section 157 of the principal Act, in sub-section (1), for the words "upon a police report", substitute the words- "upon a report in writing made by a police officer". 3 179 Section 170(3) In section 170 of the principal Act, in sub-section (3), for the words "District Magistrate or Sub-divisional Magistrate" substitute the words "Chief Judicial Magis- trate". Section 173(1)(a) In section 173 of the principal Act, in sub-section (1), in clause (a), for the words "a police report", substitute the words "report in writing made by a police officer". Section 173(1), Proviso (New) In section 173 of the principal Act, in sub-section (1), insert the following proviso at the end, namelyz- "Provided that if, after forwarding the said report to the Magistrate, the said oficer obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed." Section 173(4), Proviso (New) In section 173 of the principal Act, in sub-section (4), "insert the following proviso at the end, namely :— "Provided that copies of the documents not in the custody of the said officer at the time of the filing of the report, and obtained after such filing or after commencement of the inquiry or trial, shall be fur- nished to the accused as and when they are obtained and before marking them as exhibits in the court". Section 173(6) (New) In section 173 of the principal Act, insert the following -sub-section at the end, namely:- "(6) Notwithstanding anything contained in sub- section (4), where the documents referred to in sub- section (4), are voluminous, the Magistrate to whom the report under clause (a) of the sub-section (1) is ............ forwarded may at the request of the police officer direct that the accused may instead of being furnished with a copy thereof, be allowed to inspect it in court free of cost, either personally or through pleader". Section 174(5) In section 174 of the principal Act, in sub-section (5), for the words "or Magistrate of the first class and any Magistrate especially empowered", substitute the words "or Executive Magistrate of the first class and any Executive ` Magistrate especially empowered." ‘ 180 Section 175(1) In section 175 of the principal Act, in sub—section (1), omit the word "tru1y". Section 176 (3) (New) In section 176 of the principal Act, insert the follow- ing sub—section at the end, namely :— "(3) Where an inquiry is to be held under this section, the Magistrate shall, wherever practicable, inform the relatives of the deceased whose names and addresses are known, and shall allow them to remain present at the inquiry. Explanation :- In this sub-section, the expression "relatives” means parents, children, brothers, sisters and spouse." APPENDIX 2 Note on section 1, Code of Criminal Procedure, 1898 Section 1(2) (which defines the territorial extent of the Code) provides for an exception in these words:- " ......... in the absence of any specific provision to the contrary, nothing herein contained ...... shall apply to- (a) the Commissioners of Police in the towns V of Calcutta, Madras and Bombay, or the police in the towns of Calcutta and Bombay; (b) heads of villages in the State of Madras, as it existed immediately before the 1st November, 1956; (c) village dpolice-officers in the State of Bom- bay as it existe immediately before the lst Novem- ber, 1956. Provided that the State Government may, if it thinks fit, by notification in the Onicial Gazette, extend any of the provisions of this Code, with any necessary modi- fications, to such excepted persons." The present position regarding each of the "excepted persons" may be dealt with. (a)(i) Commissioner of Police in Calcutta- The Commissioner of Police in Calcutta has certain powers under the Calcutta Police Act} For example, he can prohibit processions or public assemblies? 1. The Calcutta Police Act (Bengal Act 4 of 1866) and the Calcutta Suburban Police Act (Bengal Act 2 of 1866). Z. See Leakat Hossen v. Emp., (1913) I.L.R- 40 Cal- 470, 472. 181 (a) (iii) Commissioner of Police in Madras _ The Code does not apply to the Commissioner of Police ln Madras. This is apparently because the powers of the Commissioner of Police in the city of Madras are governed by a local Act.‘“ Thus, section 51A(3) of the Madras Act tcorégeri mia thcedCpmmissioner the powers under sections 75 0· 0 e. (a) (ii) Commissioner of Police in Bombay- The position up to 1951 was, that the Code did not extend to the Commissioner of Police, Bo·mbay nor to the police in Bombay. By the Bombay Police Act,‘ the mention of Bombay at both the places is deleted, and the ·Code now applies to the whole State of Maharashtra including the town of Bombay, both as regards the Commissioner of Police and as regards police generally. (a) (iv) Police in the town of Calcutta- The police in the town of Calcutta are governed by the Calcutta City Police Act}-° The Code does not apply to the Calcuta Police.’—“ (a) (v) Police in the town of Bombay- See above, under "Commissioner of Police in Bombay". (b) Heads of villages in the State of Madras Under certain local regulationsf-‘" heads of villages in Madras are empowered to try cases of a trivial nature, such as abusive language and inconsiderate assault or aiirays and petty thefts. not attended with aggravating circumstances and not committed by persons of notoriously bad character. In their official capacity as village head- men in proceedings as village Magistrates, they are not governed by the Code."-*3 The provisions of sections 480 and 482 of the Code do not apply to village Magistrates in I. The Madras City Police Act (3 of 1888)- 2. See Nilamadhob v. Emp., l.L.R. 5 Pat. 171 ; A.I.R. 1926 Pat. 279,283. 3. Cf. Ramanath, A.l.R. 1953 Mad. 953, 954- 4. '1`hzBambiy Police Act, 1951 (Bornbiy Act 22 of 1951), section l67(3); see Ram· lcislnan, A.1.R. 1955 S.C· 104, 110, para. 9. 5. The Calcutta City Police Act (4 0f 1866). 6. The Manickchand, A.1.R. 1958 Cal. 324; Islmq, A.l-R. 1958 Cal- 341. , 7. A number of provisions of the Cod: have, however, been extended, under the proviso to section 1(2), to the Calcutta Police. 8. Natabarjana v. State, A.l.R. 1955 Cal. 135. . 9. Madras Regulation 11 of 1816. . 10. Madras Regulation 4 of l821. 11. Viziramutha, 2 Weir 1. 12. See also P. P. v. Mari Mudali, A.I.R. 1924 Mad- 730. . 13. In re Mutliukarunga, A.I.R. 1959 Mad. 175, 178, para. 24. 14. Q.E. v. Venkataswami, (1891) I.L.R- 15 Mad. 131, 132- 15. Q.E. v. Venkayya, 1.L.R. 11 Mad. 375. 182 (c) Village p0lice·oj‘lcers in the State of Bombay Under the Bombay Village Police Act,‘ the "Police Patel" has manifold duties relating to prevention of crime (sections 6_to 9 of the Act), and these duties extend not only to assisting the police and giving information, but in certain cases, he is bound to proceed to investigate the matter, procuring all evidence relating to a crime com- mitted in the limits of his village (section 10). He has also certain duties by way of holding an inquest in cases of sudden deaths, and apprehension of any person, who he may have reason to be ieve has committed serious offences- (sections 11 and 12). He can call and examine witnesses, and record their statement, and search for concealed arti-» cles (section 12). The Code is not applicable to proceeding before village police oiiicers.’ The High Court could, how- ever, under the general power of superintendence, confer- red by the Letters Patent, deal with such proceedings? Section 1 (2) means that the procedure laid down by the Code is not to govern the actions of such village police officers} APPENDIX 3 Note on section 4—Dej‘inition of "complaint". According to the definition of "complaint", in section 4(h), a complaint does not include a report of a police officer. Now, the Code uses different expressions re ating to reports of police ofhcers, as follows :- (i) ‘Police report," _ (ii) ‘Report of a Police Oi’ficer,’“ (iii) ‘Report in writing made by any police oHicer," (iv) "report" simpliciteif (Sometimes, the expression "information"’-‘° or "inti- mation" is used also.)“ Certain questions have arisen as to the meaning of some of these expressions, with reference to section 4(1) (h), section 190(1) (b), and sections 207A and 251A, in relation to reports made under various sections of the Code or under other enactments. The questions are interlinked with each other. .1. The Bombay Village Police Act, 1867 (8 of 1867). `— 2. Q. E. v. Ragho, I.L.R. 19 Bom. 612. 3. In re Vasudev, A.I.R- 1919 Bom. 79. 4. Emp. v. Shankar Sayaji, A.I.R. 1938 Bom. 489. 5. Sections 133(1), 145(1), 147, 157, 170, 173, 207, 207A, 208, 251 and 251A. 6. Sections 4(I) (I1) and 114. See also sections 62, 157 and 168. 7. Section 190(1)(b). 8. Section 62 and section l74(1). 9. Section 153(2);sec Bansidhar v. State, A.l.R. 1959 Raj. 191, 193, para. 8. 10- Section 250; see Muhammad Hashim v. Emp., A.l.R. 1940 Sind 134, 135 (FB.), 11. Section 174(1). 183 (1) With reference to section 190(1) (b) which em- powers the Magistrate concerned to take cognizance of an offence upon a "report in writing" of such facts of any police officer), the main question that is to be considered is, whether, a reportmade by the police in a non-c0gni- zable case investigated without obtaining the orders of a Magistrate as is required by section 155(2) does or does not fall under clause (b) of section 190(1). Before the amendment of 1923, the wording in section 190(1) (b) was "upon a police report of such facts". On these words, the question arose whether a communication by a police officer in respect of an oifence which is non- cognizable, made of his own motion, fell under clause (b). The leading case answering the question in the negative was a Bombay one} In one Patna case,“ before the 1923 amendment, it was stated that the police report mentioned in section 190(1) (b) is a police report under section 173, i.e. a report in course of the investigation of a cognizable offence. In another Patna case} the failure to examine a com- plainant on oath was regarded as fatal. In yet another Patna case,‘ section 24 of the Police Act‘ whereunder it shall be lawful for any police oflicer to lay any information "before a Magistrate and to apply for a summons, warrant ...... against any person committing an oH’ence" was consi- dered. An application of the Sub-Inspector of Police to the Magistrate stating that a riot had taken place for the bene- fit of certain persons who claimed interest in the subject matter of the dispute, it seems, had led to the issue of a summons against those persons under section 155, I.P.C.. (liability of a person for whose benefit riot is committed). The complainant was not examined on oath, and the ques- tion arose under which clause of section 190 the cognizance has been taken. It was held, that while a complaint by a private person comes under clause (a), and information by a private party comes under clause (c), a report to a magistrate by the police comes under clause (b). The only limitation laid upon the report is, that it must state facts which constitute an offence. Now, when a police officer acts under section 24 of the Police Act and submits his information regarding the com- mission of the offence to the Magistrate and applies for . _ action to be taken thereon, it becomes a "report" of that officer within section 190(1) (b), as the definition of com- plaint does not say that the report must be a report under Chapter 14 or report only of a cognizable offence. The deci- sion in Ram Lal v. Emp." was disented from. 1. K.E.v.Sada (l902)I.L.R.26Bcm. 150 (F.B.). 2. Ram Lal v. Emp., A.l.R. 1920 Pat. 614 (Das].). 3. Mangu v. Emp., A.I.R. 1920 Pat. 670 (Das _].). (Case-law discussed). 4· Abdul Ali v. Emp., A.l.R. 1920 Pat. 700, 702 (jwala Prasad ].) (Case-law reviewed) (relied on section 24, Police Act). 5. Section 24, Police Act, 1861 (S of 1861). · 6. Ram Lal v. Emp., A.I.R. 1920 Pat. 614 (Das I,). 184 In a Lahore case} decided before the 1923 Amendment a challan was sent up by the police in an onence for which rule 25(2) of the Defence of India Rules, 1915 required a complaint. The challan was regarded as a complaint by the High_Court. (The Punjab Government had empowered all District Magistrates to order or authorise complaints for the offence in question, and accordingly, the District Magistrate had directed the Superintendent of Police to make an "inquiry", complete the case and send it up for trial, and in due course the police put up a ‘ch1lan' be- fore the District Magistrate). It was held, that this was a "compIaint", following the Bombay case? The history of section 190(l) (b) (upto 1898) was thus traced in a Bombay case} where a police constable had filed a complaint for a non-cognizable offence} "Under Act 10 of 1872, section 140, a Magistrate might take cognizance of an alleged offence:- (a) upon a police report under Chapter 10 (powers of the police to investigate, answering to Chapter 14 of the present Code); ` (b) upon information mr report by a Police oificer as to non-cognizable offence: such information or report was to be regarded as a complaint; ' ’ (c) upon complaint; (d) upon suspicion; and under Chapter 16 the Magistrate might in a summons case dismiss the complaint as frivolous or vexatious and award compensation. 1 "There was no definition of "complaint", but it is clear that whether a police officer made a formal complaint or a report of a non-cognizable summons case, his report. was to be regarded as a complaint which could be dismissed as frivolous or vexatious, compensation being awarded.,The Code of 1882 did away with the "report of a Police officer in a non-cognizable case, except by the order of a Magis- trate. Under the Code of 1882, as also under the present Code, in the case of a non-cognizable offence the informant is referred to a Magistrate. There is no section empowering a Police officer to make a report in such a case without the orders of a Magistrate. If there is no informant, and the Police officer has himself-seexrthe alleged offence being committed, there is no obstacle to his making a complaint in the court of law, and askingfor the issue of prdcess. But there is no provision by which he can in such a gcase make a police report, and it has become necessary since 1. Khushall Singh v. Emp.,A.I.R. 1921 hh. 345. 2. K. E. v. Sade, (1902)I.L.R. 26 Bam. 150 (F-B) 3. K.E.v.Sad¤,(1902),l.L.R.Z6Bom.150, 156,157. 4. Offence under section 61(j), Bombay;Districr Police Act, 1890 (4 of 1890) (obeying a cal] of nature in a street). 185 §1882 to exclude from the definition of "complaint" the report of a police officer. There is an intimate connection between- (a) "the report of a Police officer" which is by sec- tion 4(1) (h) of the Code excluded from the definition of "complaint"; (b) the report of a cognizable offence, which a police officer is to send to a Magistrate empowered to take cognizance of such offence upon a Police report (sections 157, 173); and (c) the cognizance of any offence, which a Magis- trate may take upon a police report of the same (section 190(1) (b) ). "If the alleged offence is a non-cognizable one, there is no section in the Code which empowers a police officer of his own motion to make any report to a Magistrate; and therefore there is no ground for holding that when he does file a formal complaint he is, in fact, making a report, and so what purports to be complaint is by the definition not .a complaint at all." It would be desirable to state the reasons for the 1923 Amendment. The Amendment Bill o-f 1914 proposed a change in section 190(1) (b), and then gave the reasons for the change as follows:' A "24. In sub-section (1) of section 155 of the said Code, A;°°¤d¤;*?¤* the following shall be added after the words "to the Magis— j’55,CS;§Q°;l} ·trate", namely:- cramim.1 "and may if he thinks fit send a report of such ¥g‘;g°d“'°* information to a Magistrate empowered to take cogni- ‘ zance of offences under section 190(1) (b), and such Magistrate may thereupon take cognizance of such offence. Such report shall, if the Local Government so directs, be submitted through such superior officer as the Local Government by general or special order appoints in this behalf." . (Objects and reas-ons) "Clause 24—The amendment is intended to make it clear that the words ‘police report’ -quoted in section 190 include reports in cognizable and non-cognizable cases. There is some conflict of judicial opinion on the point." 1. See Gazette oflndia, March 28, 194 (Part V) pages 104 and 121. 2. The Statement of Objects and Reasons cites no cases. The cases relevant to the ·period would seem to be- ` (i) K. E. v. Sada, (1902) I.L.R. 26 Bom. 150. . (ii) Dilan Singh, (1912) I.L.R. 50 Cal. 360, 364 (report of non-cognizable offence nota "comp1aint" within the definition). (iii) Chidambaran, (1909) l.L.R. 32 Mad- 3 (narrow view). (iv) Sarferaz, (1913) 19 I.C. 314; 14 Cr. L.]. 218 (Calcutta). (v) Nga Sen Ke, A.I.R· 1914 Upper Burma 31. (vi) Ahmad Khan v. Emp. 12 .L.]. 92, overrule A.1.R. 1924 Sind 71 (Police report is confined to section 173). 186 The Lowndes Committee‘ (which examined the 1914 Bill) made these observations- ’ "Clause 24—-We are not prepared to accept the a.mend· ment proposed by this clause. The difficulty suggested by I.L.R. XXVI Bombay at page 157 will, we think, be met by the amendment which we propose in section 190(1) (b) (see clause 34B)." "Clause 34B-—See our note to clause 24. We do not think that the term "police—report" in section 190(1) (b) was in- tended to be a technical expression, but was used to cover any report made by a police-officer, and our amendment will make this clear." According to the amendment proposed by the Lowndes Committeef section 190(1) (b) was to read:- "(b) upon atreport of such facts made by any police o1Ticer". The joint Committee on the 1921 Billi said,- "Clause 45--We approve the amendment made in section 190 by this clause, but we think that courts should take cognizance under section 190(1) (b) only upon reports in writing". Thus, in 1923 the present wording was substituted‘ in section 190(1) (b). But the controversy seems to survive. One view is, that the present wording does not cover non-cognizable cases investigated without the orders of a Magistrate.5-“-'—B-9-‘"-“ A contrary view, however, has been taken in certain cases."-*3 1. See Appendix B (Notes on clauses) to Report of the Lowndes Committee, Ele relating to Bill which was enacted as the Code of Criminal Procedure (Amendment) Act, 1923 (16 of 1923) (National Archives, Government of India), Legislative Department, Assembly and Council-A, Proceedings, October 1923, No. 1-54· 2. See Appendix C to Report to Lowndes Committee. 3. Repoit of the joint Committee on the Code of Criminal Procedure (Amendment)- Bill (26th]une. 1923). Secthe file relarirgtoxhe 1921 Bill,Gove1r.mentoflndia, Legislative Department, Assembly and Council-A, Proceedings, October, 1923, No- 1-54 (Nltional Archives). 4. For review of pre-1923 cases, see Abdullah v. Emp., A.I.R. 1933 Sind 188 (D.B.). 5. State of Kerala v. Ali Meerankully, A.I.R. 1965 Ker. 59 (Reviews case—law). 6. A.I.R. 1961 A11. 377, 378. 7. CandriBawee v. Emp., A.I.R. 1935 Bom. 131, 134 (Fawcett].). 8. Emp. v. Shivaswami, I.l..R. 51 Bom.}198; A.I.R. 1927 Bom. 440, 443 (Fawcett]-)- 9. P. P. v. Ramiah, A.l.R· 1958 Andhra Pradesh 392, 393 para. 18. J 10. Raghunath v. Emp., A.I.R. 1932 Bom. 610, 612, 613 (Beaument C.}- and Broomfield ) ll. Abdul Hakim v. State, A.I.R. 1961 Cal. 257, 258, para. 3, referring tola Division Bench ruling. I2. P. P. v. Ramavclu, A.I.R. 1926 Mad. 865, 871 (F.B.). (Police investigating a d¤coity·· case and found that the complaint was false-—sending charge sheet against the accused. under section 211, I.P.C. 13. Trilolly Debates, Vol.lll, N0. 19, dated 18]anuary, 1923. 3. Legislative Assembly Debates, Vol. IlI,No.. 32, dated 7th February, 1923- 4. Examples ofjutlicinl opinion on the subject would bc found in Shcbalalc Singh V. Kizmcruddin A.l.R. 1922 Put. 4?5 (FB.); in z\.l.R. 1921 Cul.30; 3l;in l(l882)1.L.R.8Ca1· 580. 582 : and in C;OU1T1deI(.llC11\'. Pa’lU1TldlC;l1EIllA·I.R. 1916 lxiad. 662. 5. Sec l_.l.R. 7 Cul. 121 and l(‘ Cul. 405- 220 rough notes, as the police officer is not trained in taking evidence, and the notes are often faired out by another officer. They bear no resemblance to depositions and ought to have no weight as such attached to them. We are aware that there are inconveniences in abolishing the direct liability for giving false evidence to the police, but the balance of expediency seems to us to be in favour of the old law. The provisions of sections 202 and 203, I.P.C. appear to us to afford a sufficient safeguard against false information." As to section 161 as it stood in 1872 and 1882. the under- . mentioned cases“ * ' may be seen. There was a case* of smuggling of gold from the Persian Gulf to Bombay by sea. The accused were prosecuted for offences punishable under section 120-B, Indian Penal Code read with section 167(2) of the Sea Customs Act, 1878 and section 8(1) of the Foreign Exchange Regulation Act, 1947. Some of the accused had made incriminating statements to the Customs Officer, having been summoned and inter- rogated by him under section 17lA of the Sea Customs Act, 1878. Under section 171A(3), all persons so summon- ed are bound to tell the truth upon any subject respecting which they are examined or make statements. The point involved was. whether the said confessional statements recorded by the Customs Officer were hit by section 24 of the Indian Evidence Act, and, as such, were inadmissible in evidence. It was held, that these statements were not hit by section 24 of the Indian Evidence Act. The question whether these statements fell under section 161(2) Criminal Procedure Code or not, was not in dispute. The following observations of Tambe J. are. however. relevant:- "That a person should always tell truth is a moral principle, but it cannot be said to be a legal principle as such. Whenever, the Legislature requires a person to tell truth it has so enacted in various enactments. It is only when it has so enacted and a person fails to tell truth that he comes within the mischief of the provisions of the Indian Penal Code." When the deletion was made in 1898, the implications of the deletion on punishment for refusal to answer a question put by the police officer were not, it seems, con- sidered. Since the person examined under section 161 is not bound to state the truth, a refusal to answer the ques- . tions. it has been held, is not punishable under sections 1. Report of the Select Committee dated 16-2·189S· 2. K¢usimAIi,I.l..R. 7 Cul, 121 (FEB.) (Code of 1872). - 3. Q. E. v. lsmail,I.L.R. ll Bom. 659, 661 (1882 Code). 4- Q- E. v. Sankarlingce, (1900) I.I.·R· 23 Mad. 544, 546- 5. Laxman Padma Bhagat cmd others v. State, A.I.`R. 1965 Bona. l95, 208. 221 176, 179 and 187 of the Indian Penal Code} In fact, the section (as it stands now) restores the law under section 119 of the Code of 1872, whereunder the wording was "shall be bound to answer all questions"; this provision, it was held, did not constitute an express provision of the law to "state the truth" within the meaning of section 191 of the Indian Penal C0de.“ A similar view has been taken by the High Court of I·1angoon," holding that such refusal is not punishable under section 179 Indian Penal Code. Now, this leaves a very curious situation. because Suggestion section 161(2) imposes an obligation to answer which is ¤=B¤Fdi¤~S not enforceable by any penal sanction. At present, its only §°f,€‘°“P179i . . . . . K1 1811 ¢¤I impact IS to confer an absolute privilege} This lacuna C(,d,,_ should be removed. The proper place, however, for a pro- vision on the subject would be the Indian Penal Code, and it might be desirable to make a provision in section 179, Indian Penal Code, by adding after the words "to state the truth" the words "or to answer any questi0n."5 Proposals are made from time to time to add the word "truly" in section 161 (2). The matter was considered in connection with the Law Commission’s report on Judicial Administration. The Commission did not favour the pro- posal.” In section 175, the word "truly" has not been omitted, S“!€?F1°“ when section 161 was altered in 1898. The word "truly";;§t°;m:°g,75 should be omitted in section 175** of the Code of Criminal god., cfg,-{Z PI‘OC€duI‘€. minal Proce- ure. Another question which has arisen under section 161(2) is. whether a person giving a false answer under section 161 is guilty of an offence under section 182, Indian Penal Code. The view of most of the High Courts seems to be, that the expression "gives information" in section 182, I.P.C. cannot apply to information which is supplied not voluntarily but in answer to a question? A contrary view was taken in Patna'" and Sind cases}! There are also obser- vations in a Bombay case" which throw a doubt on the subject, by taking a wide view of section 182, Indian Penal Code. l. Q. E. v. Sankarlinga, (1900) I.L.R. 23 Mud. Sj14, 545. 2. Empress v. Kassim Khan, 1890 I.L.R. 7 Cal, 121 (RB.), 3. Mauzanagyi v. Emp.,l.L.R. 8Rang, 511;A.l.R. 1931 Rang 26. - 4. Sanjivi v. Koneri, A.I.R. 1926 Mad. 521 (for section 179, Indian Penn] C0de)._ 5. To be summarised in the Appendix relating to amendment of other laws. 6. 14th Report, Vol. 2, page 752. 7. To be considered under section 175, Code of Criminal Procedure, 1898. 8. Cf. Sarkar on Code of Criminal Procedure, (1966), page 257. _ 9. U. Hlaing v. R. P.Abigail, A.I.R. 1937 Rangoon 232, 233 (Reviews case»law). 10. Bodhau v. Emp., I.L.R. 7 Pac. 715 ; A.I.R. 1933 Pat. 555(1). ` 11. A.I.R. 1936 Sind 90. 12. Q. E. v. Ramji, (1886)l.L.R. 10 Bom. 124, 125 (earlier order of30]une,188S, paced without appearance of parties). - 222 There is a conflict of authorities on the point as to whether a person giving a false reply under section 161, Criminal Procedure Code is guilty of an offence under section 182, Indian Penal Code or not as pointed out by the Joint Secretary and Legislative Counsel on page 5 of his note. The question as to how far there is need to amend section 182, Indian Penal Code in order to resolve this con- iiict may be considered. The majority view has been, that the expression "gives information" in section 182, cannot apply to information which is supplied not voluntarily but in answer to a question put by a public servant. One of the ways to resolve this conflict may be to insert the word "volantarily" in between the opening word "wh—oever" and the second word "gives" occurring in section 182, Indian Penal Code. This will ensure that a person making a state- ment under section 161(2), Cr. P. C. will not be made punishable under section 182, I.P.C. [ln case, it is consi- dered desirable that such a person should be made pun- ishable under section 182, IPC. for giving false informa- tion, the following words may be inserted after the word information :-—— "Whether voluntarily or in reply to questions pat to him by any public se·rvant". Answers under section 161, Code of Criminal Proce- dure, cannot be made the basis of a prosecution under sec- tion 211, Indian Penal Code. because such answers do not amount to a "charge".‘ As has been observed, "It would make criminal investigation very difficult if any person who gave voice to a suspicion were liable to criminal pro- secution."“ There is, of course, one matter on which the anticipa- tions of the 1898 committee have not been realised. That committee assumed that a person making false statement would be guilty under section 203, Indian Penal Code. But it has been held,°" that such a person does not volun- teer the information and therefore section 203, Indian Penal Code does not apply. If this view is correct, sections 202, Indian Penal Code, (relating to omission to give informa- tion) would also be inapplicable to an omission to answer a question under section 161(2) of the Code of Criminal Procedure. suggestion In addition to the amendment to section 179, Indian wzarding Penal Code which is now recommended} a clarification of “°°**°¤S 20} the scope of sections 201 to 203, Indian Penal Code is also to 203, Im]1- desirabqe 1 an Penal ‘ ' Code. 1- Chirma Romana Gowd v. Emp., (1908),1.1..R. 31 Mad. 506. 2. Kodcmgi v. Emp., A.l.R.1932 Mad. 24(]ac1f section 162. In a Bombay case Beman J. made these ibservations 2 —‘ "The section plainly constitutes an exception to the ordinary rule of evidence. The proviso again endrafts an exception upon the exception. And in giving effect to the section and the proviso together it is necessary to keep carefully in sight what the Legislature really means. About this the language and the policy of the section, combined, leave, I think, no reasonable doubt. Before the last amendment, statements made by wit- nesses to the Police, and recorded by the Police might not be used as evidence against the accused. But there was nothing to prevent them being used in favour of the accused. They were often so valuable for that pur- pose, that in almost every case, the accused sought to know what they contained, with the object of using them if suitable, to his own advantage. In order to curtail to some extent that liberty, the section was amended in its present form. The effect of the amend- ment is to restrict the privilege of the accused. He can now only obtain access to written statements made by prosecution witnesses to the police, at the discretion of the Court. It is no longer a matter of right. "The proviso is clearly limited to the purpose of this single concession, in derogation of the universal prohibition contained in the body of the section, to the accused. This is so plain on the face of the section and proviso, that I should have thought there could have been no doubt about it. The proviso deals with one case and one case only, the case of witnesses "called for the prosecution" whose statements have been taken clown "in writing as aforesaid". And the only concession it makes to the accused is to allow him, upon his request, and subject to the Court’s discretion, to have access to a "copy thereof", namely, of the recorded statement, land thereupon to use it for one purpose and one purpose only, namely, to break down the evidence of the prose- cution witness already standing against him. On the face of it the proviso does not cover the case of a wit- ness for the defence, whose statement may have been recorded by a policeman, nor allows the prosecution to impeach the credit of such a witness by examining him upon any written statements he may have made to the police. A fortiori the proviso could never have been intended (and I think that its terms are plain enough to the contrary) to allow the prosecution to impeach the credit of its own witnesses for itsown purposes,_ and; against the wish of the accused, by reference to police testimony. That view presents, on the face of it, these two startling difficulties. (I) That the Legislature has in this important matter given the prosecution a marked advantage over the accused. And this is opposed to the 1. Emp. v. Narayan Raghunath Patki, (1907), I-LR. 32 Bom. 110, 142, 143, ·1·i4·· · V 230 first principles of our criminal jurisprudence. (2) That in effect it works out to this, that the prosecution would be empowered indirectly and under the pretence of shaking the credit of its own witnesses, to substitute in the record, as evidence against the accused person, not what those witnesses have said on oath at the trial but what they have said or may have said in circums- tances altogether unknown and uncontrolled, to its own police officers. That is in fact what has happened in this case, and underlies, as I understand, the Advo- cate General’s certihed objection to Shankar’s state- ment to Narayanrao. I think it too plain to need fur- ther argument that if the prosecution is preciuded from using these statements to impeach the credit of witnesses for the defence, it is for much better reasons precluded from using them to impeach the credit of its own witnesses. Nor indeed is that in any case the real object, though it may be plausibly advanced as the nominal object which the prosecution has in view, when it seeks this indulgence. For ex hypothesis when a Crown witness has saidnothing against the accused "no question in impeaching his credit properly arises. The only person interested in shaking the credit of a witness is the person against whom he has said some- thing. What has really happened is this. A witness, who has said things to the police, which the prosecu- tion strongly relies on, refuses at the trial to repeat those things. The prosecution, pretending to wish to impeach his credit, then tries to bring on the record through the police officer, all that matter upon which it intended to rely, not of course to contradict the witness, out as substantive evidence. It wants in other words to substitute for what the witness has said at the trial, what it believes he ought to have said. Apart then from the use to which Exhibit N was put on this occasion I go further. I think, than any of my learned colleagues and say that it ought not to have been ad- mitted at all, or its contents to have been allowed to be used by the rosecution for the nominal purpose of contradicting S¥hankar." Observations of Knox J. in ·Ncsir-ud-di·n’s case should also be borne in mind. He observed} such state·ments;are recorded by police officers in the most haphazard manner. Officers conducting an investigation not unnaturally record what seems in their opinion material to the case at that stage and omit many matters equally material, and, it may be, of supreme importance as the case develops. Besides that, in most cases they are not experts of what is -and what is not evidence. The statements are recorded often hurriedly in the midst of a crowd and confusion, subject to frequent interruption and suggestions from bystandards. Over and above all, they cannot be in any sense termed depositions, for they are not prepared in the way of a deposition, they are not read over to, nor are they l. Q. E. v. Nusirwtd-din, (1894} l.l..R. 16 All. 207. 208- 231 signed by, the deponents. There is no guarantee that they oo not contain much more or much less than what the witness has said. The law has safeguarded the use of them, and it never can have been the intention of_ the Legisla- ture that, as in this case, copies of them should have been without question and as a matter of course made over to the accused or their counsel. "It is obvious that such statements, if used at all, should only be used after proper proof of them and of the circumstances under which they were recorded, and under the direct sanction of the presiding Judge."‘ The observations of Knox J. were cited again in a Madras case? The object of the section was thus explained in a; Supreme Court case—·“ "(l6) The object of the main section as the history of its legislation shows and the decided cases indicate is to impose a general bar against the use of statement made before the police and the enacting clause in clear terms says that no statement made by any person to a police officer or any record thereof, or any part of such statement or record shall be used for any pur- pose. The words are clear and unambiguous. The pro· viso engrafts an exception on the general prohibition and that is, the said statement in writing may be used to contradict a witness in the manner provided by section 145 of the Evidence Act. We have already n-oticed from the history of the section that the en- acting clause was mainly intended to protect the interests of accused} At the stage of investigation, statements of witnesses are taken in a haphazard manner. The police-omcer in the course of his investi- gation fmds himself more often in the midst of an excited crowd and babel voices raised all round. In such an atmosphere, unlike that in a Court of Law, he is expected to bear the statements of witnesses and record separately the statement of each one of theme Generally he records only a summary of the state- ments which appear to him to be relevant. These state- ments are, therefore, only a summary of what a wit- ness says and very often perfunctory. Indeed, in view of the aforesaid facts, there is a statutory prohibition against police ohicers taking the signature of the per- son making the statement, indicating thereby that the statement is not intended to be binding on the witness or an assurance by him that it is a correct statement. 1- See also Isab, I.L.R. 28 Cal. 348- · 2. In re Cjuruva Vcmnan, A.I.R. 1942 Mad. 385, 386 (Mockett and H0rwill]].)• 3. Tahsildar, Singh v. State of U.P., (1959) Supp. 2 S.C.R. 875; A.I.R. 1959 S.C.'lOI2, 1020, 1021, para. ll, pages 1022, 1023, paras. 16, 17 (object of section) and pages 10l8, 1019 (history). 4. Emphasis added. 232 "(17) At the same time, it being the earliest re- cord of statement of a witness soon after the incident, any contradiction found therein would be of immense help to an accused to discredit the testimony of a witness making the statement. The section was, there- fore, conceived in an attempt to find a happy ‘via media’, namely while it enacts an absolute bar against the statement made before a police—ofiicer being used for any purpose whatsoever, it enables the accused to rely upon it for a "limited purpose of contradicting a witness in the manner provided by section 145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction. It cannot be used for corroboration of a prosecution or a defence witness or even a Court witness. Nor can it be used for contradicting a defence or a Court witness. Short- Lly stated, there is a general bar against its use subject to a limited exception in the interest of the accused, .and the exception cannot obviously be used to cross the bar." Section 162 is designed to protect the accused against over zealous police ofiicer and untruthful witnesses. lt also recognises the danger of placing implicit confidence in a record made more or less imperfectly by a plolice officer who may not necessarily be competent to ma e an exactly correct record with due regard to the provisions of the law of evidence} It has been pointed out by Beaumont C.J.,’ that sec- tion 162 was intended to prevent user of statementsmade by the accused to the police, and questions designed to show, by process of elimination, that the matters subse- quently mentioned by the accused were omitted from such statement, are within the mischief aimed at by the section. The object of the section is (i) to protect accused persons from being prejudiced by a statement made to the police oiiicer who, by reason of the fact that an in- vestigation is known to be on foot at the time when the statement is made, may be in a position to influence the maker, and (ii) to protect the accused persons from pre- judice at the hands of those who, knowing that an investi- gation has started already, are prepared to tell untruths.3 Section 162 renders the statements inadmissible for the obvious reason, that a suspicion about their voluntari- ness would attach to them} 1. Yusufali v. State, A.l.R. l965jBom. 3, 5, para. 19 (Dealing with tape recorded state- ments) (G0il< * * Enquiry into the system of judical administration will be comprehensive and thorough including in its scope:- (a) the operation and effect of laws, substan-— tive as well as procedural, with a view to elimina- ting unnecessary litigation, speeding up the dis-~ posal of cases and making justice less expensive; (b)‘the organisation of courts, both civil andl criminal; (c) recruitment of the judiciary; and (d) level of the Bar and of legal education." In the 14th Report of the Law Commission on ther Reforms of Judicial Administration certain amendments among others as regards both the Civil Procedure Code and the Criminal Procedure Code were made. As pointed out in that Report for obvious reasons it could not enter into· detailed examination of either of the Procedure Codes or the law of Evidence. It was then observed that the Com-A- mission would later on make recommendations in a com-—— prehensive manner. It was further considered that before final consideration full implications of the amendments should be circulated to the State Governments for expres- sion of opinion. The Commission had then also considered that it would be advantageous to take up the revision of the Criminal Procedure Code and the relevant sections of the Evidence Act also simultaneously. The normal practice in the Commission also in the past had been that either on a proposal for revision of an Act or of a particular topic referred to the Commission for opinion, the research staff under the Commission investi- gated the points, placed relevant materials properly arranged by the Secretary to the Commission and the Draftsman as a Draft Report. That Draft Reportalong with the mate-- rials on which such Draft was prepared were considered by the Commission as a whole in successive meetings. The Draft Report was then circulated amongst the Govern-- ments, High Courts and certain other bodies for expression of opinion on the Draft. Replies as received were tabulated and a final Report was drawn up on a consideration of the opinions received and further materials, as might be col-- lected by the Commission staff and the whole-time Members;. 242 _ In certain cases questionnaires were circulated for elici- ftmg public opinion _and such information was considered in etail before arriving at the final decision. So far as procedure is concerned on the Criminal side, the Criminal Procedure Code is rightly considered to be tone of the most important pieces of statutory provisions effecting the country as a whole in which not only the administration, different branches of public opinion, but ordinary citizens also are concerned. The procedure stated above was not followed in this case. III. Consideration of Procedure followed in other countries and Systems. In my view, when we have to approach the problem of reform of Criminal Procedure in India, we ought not to be bound by the frame or contents of the law as had been ·enunciated under the Anglo-Indian Code but also try to improve the same after examining experiments and modi- fication in Criminal administration as had been made in other countries and systems. No doubt, difficulties that have been felt in the administration of criminal `ustice by the different High Courts and by the Supreme Court of India fhave to be considered to resolve the divergent opinions. For persons who have been trained and brought up under the Anglo-Indian system are not always responsive to other systems of procedure and legal institutions, the Continental System is an anathema to many. But need I refer to recent American Codiiication as in Wisconsin and Illinois in 1955 and 1961 respectively ? If reference be made to the above and to the 1964 draft of the New York Crimi- nal Code—which is more comprehensive and systematic than its predecessor, one will notice "the influence of the Model Penal Code of the American Law Institute which is patterned after Eu ean Criminal Codes", "Many of the basic concepts of thetgoviet Criminal Law and Procedure are in the "continental" traditions". All the more it is desirable and necessary to know more =·of the Continental System and examine whether any as in that System can or should be introduced for the better- ment and improvement of our System. IV. Separation of Executive from the Judicial. Another important factor which cannot, and has not to 'be omitted from the scope of our investigation is the effect of the Directive Principles contained in Article 50 of our Constitution about the separation of executive from the judicial. This has not been overlooked altogether-but considered in a limited way. . It should not be overlooked that attempts are being made in different States for the separation of the judicial and executive functions. In certain States, separation has ’been effected by introducing local amendments of the Code 243 of Criminal Procedure and in a large number by issuing. Executive Orders without making any alteration in the Code itself. As far as, I have been able to gather, such separation has been introduced by amendment of the Code of Crimi-» nal Procedure in Bombay which has now been enforced in the new States of Maharashtra and Gujarat, also in the· Punjab which has also now after separation been effective in Chandigarh and Harayana. Recently in 1965 separation has been introduced in Mysore by an amending Act. It had not been possible to consider in detail the provi- sions as introduced in the different States--as a matter of fact all the relevant literature and copies of all the Execu- tive Orders could not be obtained. I had in my personal capacity occasion to visit during the last few months a large number of States both in the Eastern and Western· parts of India in addition to some in the North. From the discussions that I could have with Judges or Executive officers-in my private capacity-I found that discussion with the persons in direct authority threw greater light on the effect of articular provisions than a mere reading of the text of the provisions in the Amending Acts and Executive Orders could aiford. The Com-- mission could not have advantage of meeting representa- tives from the States-—could not even obtain the written views from the different States about the provisions as proposed in the Report for a portion ofthe Code. It will be noticed from Annexure ‘A’ how far attempts have been made in the different States for separation of' Executive from the Judicial. As noticed already in a large number of cases copies: of the Executive Orders were not before us. According to the Law Commission as expressed in the 14th Report, preference was made on many of the impor- tant topi-cs and the policy and details as introduced in Bombay. In the present Report to be submitted by the Law Commission, on many of such points the recommendation. made is based upon the Punjab view. As stated above, for a proper appreciation and the effect of separation of executive from the judicial, merej examination of the texts of the statutes or directions issued will not be sufficient. Reference has to. be made to the res- ponsible officers who had to apply these provisions to ascer—. tain whether such provisions were salutary and practical. For this purpose, reference is essential to the State Gov- ernments, as such, and to examine representative witnesses, or in my view, obtain from questionnaire or memoranda the eifect of such provisions. The provisions. as we have found, in the three States to which references were made by the 244 Commission on the present occasion differed in material particulars, and that by itself makes it more necessary to ·evaluate the elfect of such rules as in the different States. _ lt cannot also be overlooked that some are very often influenced by notions of maintenance of Peace and order and whether one should have greater importance attached on maintenance of peace and order and rely more on police and the executive branch of the administration or em- phasise the independence of the judiciary and rely more on the courts than on the Police. My view is definitely the latter one. Before the Commission arrives at a decision reference must be made as to how the Rules and procedure followed in different parts of India produced the desired effect and result. As indicated already, we had not the time or opportu- nity even to discuss the details of the system and policy in vogue in the majority of the States, as we had not even copies of all the Executive Orders issued. With a view to appreciate the implications of Article 50 of the Constitution "the States shall take steps to separate the judiciary from the executive in the public services of the State" divergent views have been expressed as noticed in the different Amending Acts and the Executive Orders issued by the majority of the State Governments. To resolve these divergent view points, there is no other provision in the Constitution to interpret the implications of Article 50. But, it may perhaps be possible to refer to the provisions of Article 237 which is a consequential corol- lary to Article 50. Under Article 236 what categories of judicial officers would come under the purview of the ex- pression "of District Judge" finds mention. There can, there- fore, be no scope for any controversy that these func- - tionaries are purely Judicial Courts. It may be noticed that under Article 236(al) under the expression "District Judge", magistracy as a whole does not find mention except Presi- dency Magistracy. This is so because both executive and judicial functions are now combined in the same func- tionary from which judiciary has to be separated. To what extent, the judicial magistracy would be separated from the existing Executive pattern may be stated to have been in a way suggested under Article 237. In order that these separated judicial magistracy would be brought under the effective and complete control of the High Court under Article 237, the Governor may have to fix a date by public notification from which date any class or classes of Magis- trates in the State may be brought within the category of "judicial service" as finds mention under Article 236(b) sub- ject to such exceptions and modifications as may be speci- fied in the notification. Article 237, therefore, which may provide the clue to understand the implications under Arti- ·cle 50 may have to be stretched to its legal consequences so as to deduce the logical and lawful inference of the - scope under Article 50. 245 "Any class or classes of Magistrates" as is mentioned und_er Article 237 can be properly construed if we would be in a position to appreciate the dictum of the classifica- tion of magistracy which in the absence of any clarifica- tion in our Constitution has to be referred to the relevant provisions under the Criminal Procedure Code by virtue of which the class or classes of Magistrates have been created. ` Though, therefore, under section 6 in Chapter II of the Code of Criminal Procedure, different classes of Criminal Courts in India are mentioned_ difficulties arise in laying down the position and the powers of such Courts unless we ` travel into the latter parts of the Code of Criminal Proce- dure which in the present Report we are not discussing. In my view, there is no escape from the conclusion that under the Directive Principles of the Constitution, in any matter in which evidence has to be taken by a tribunal or authority and decision has to be reached on appreciation of such evidence that must be by a judicial authority which is to be independent of the Executive control in the fullest significance of their term. It is not possible in this short note to discuss in detail the effect of such a principle on the different sections of the Criminal Procedure Code. I refrain from, therefore, at this stage to discuss even these sections which are dealt with in the present Report-like section 144 or sections 108 to 110 and many others. V. General questions which need consideration before parti- cular sections are considered. I had expressed the view that it is not by tinkering amendments of particular sections of the Code of Criminal Procedure that the ideals which had been laid down by the Government when the Law Commission was appointed or the manner in which reform in procedure can be effect- ed, can be fully implemented, For a proper and satisfactory criminal administration topics which require serious consi- derations are- (i) the type of men who should be incharge of ad- ministration of criminal justice. (ii) The terms and conditions under which the per- sons responsible should be holding their appointments. (iii) Can the investigation and enquiry as in force be made more rational so as to reduce harassment of innocent persons and expedite bringing to justice per- sons really accused of commission of such offence. (iv) How far and to what extent the method of trial can be modified or reformed keeping in view the trust of the general public in the judiciary and if possible, reducing the number of appeals after ensuring that the original trial is more satisfactory, expeditious and less , expensive as at present. » , 246 One cannot overlook the fact that the higher appoint- ments which are made on the executive and administrative side are after All-India competitive examination where the best intellectmay be represented. The terms and conditions. of such services are more attractive than what can be or offered to the State Judicial Service. It is common know-— ledge, for all those who are intimately connected with the Judicial administration in the States are aware of the fact that because of such comparatively lower grades of pay and other terms of appointments, very few are attracted who have attained high academic attainments and are of high intellectual calibre. During the last few years, appointments of Munsifs had been very diilicult in Bengal because of paucity of very competent candidates. Mere separation of executive from judicial will be of little assistance or ensure improvement unless the terms and conditions of service are brought at par with those for the Executive and Adminis- trative side. Persons are also not attracted to the State Judicial Service because those who go in for the Executive Branch have chances of promotions in diverse departments of ad- ministration which one joins the Judicial Service cannot have. As regards the improvement of investigation, there is the possibility of improvement if we turn our to the procedure which is in vogue in- the "Continental System"-t keeping in view, no doubt, always that we must not divert, from the Rule of Law. As the Report does not deal with the latter sections and Schedules of the Code, it is not necessary to refer to the method of trial now in vogue and the various provi- sions for Appeals and Revisions. Reference need be made to the observations as appear- ing in the 14th Reportthat sufficient time had not e apsed at that stage in 1962 after the various amendments of 1955 had been introduced. The Commission had not at that stage considered "revision of the Code in toto". The positidnis, however, altogether diderent in 1967 when we are revising the Code in its entirety and with the wider terms of refer- ence for introducing such changes as are deemed necessary and appropriate. CONCLUSION In view of the very short time available, it is not possible for me at this stage to deal exhaustively with all the points that arise or with the different sections. Sd]- (Rama Prasad Mookerjee). G1PN`9e¤;•c.-29 M, or Lsw;6s·12-9»69-1.900