Report No. 37
91. Section 4(2).-
In section 4(2), the portion referring to definitions 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.-
Section 6 is proposed to be shortened,1 so as to deal with Magistrates separately.
1. See sections 6 and 6A (as proposed).
93. Section 6 and Third Class Magistrates.-
It has been suggested,1 that Third Class Magistrates should be abolished. We are unable to accept it. The institution may be necessary for purposes of training.
1. F. 3(2)/55-L.C., Pt. I, S. No. 49, and F. 27/3/55 Judl. II (Home Ministry File), Appendix 1, Item No. 3.
94. Section 6A (New) and the pattern of Magistracy.-
At this stage, the question of the pattern of the Magistracy falls to be considered.1
1. See section 6A, as proposed.
95. In an earlier Report1 the Bombay pattern of separation 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 Mofussil and Presidency towns.
1. Cf. 14th Report, Vol. 2.
96. Judicial Magistrates in the Mofussil.-
In Bombay, (section 6A), the Judicial Magistrates of the three classes, as in the Code, are retained without a change of nomenclature. Judicial Magistrates appointed under section 14 are designated in Bombay as Special Judicial Magistrates. The District Magistrate is no longer a Judicial Magistrate, in Bombay.
In the Punjab scheme ('section 6A), the Chief Judicial Magistrate (who takes the place of the District Magistrate 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 retained as a Judicial Magistrate. The Sub-divisional Magistrate 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.
97. Executive Magistrates in the Mofussil.-
In Bombay (section 6A), the District Magistrate, the Sub-divisional Magistrate and the Taluka Magistrate 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 Magistrate 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, contemplated in the Punjab. There are no "Special Executive Magistrates" in the Punjab.
In the Madras scheme, the Collector, the revenue officers and many of the Tashildars are also designated as Executive Magistrates of the appropriate class. (The Collector retains some of the powers of the District Magistrate, 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 altering that nomenclature.1 (It is unnecessary to discuss, at this place, the provisions regarding subordination of Magistrates in each scheme).
1. Control over and subordination of Magistrates is a topic falling under section 17.
98. Magistrates in Presidency towns.-
In the Presidency towns, there are no District Magistrates, even now. Moreover, the Collector was never a Magistrate in the Presidency towns. Therefore, separation does not present the same problems in the Presidency towns as elsewhere.
In Bombay (section 6A), Presidency Magistrates have been retained under "Judicial Magistrates", without, however, prefixing the word "Judicial", and such Presidency Magistrates as are "specially empowered by the State Government" fall under the category "Executive Magistrates".
The Madras scheme contains no special provisions for Presidency towns (as regards separation).
99. Scheme recommended regarding Mofussil.-
Having considered the various patterns, we have come to the conclusion that a combination of the Bombay and Punjab Scheme is the best for being adopted as a model. The "District Magistrate", in practice, does not perform judicial functions himself at present, and therefore, 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.1
As far as possible, it is better to keep separate nomenclature for the two categories of Magistrates, in the Mufassil, 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 section 12 and is not covered by section 14 as amended in the Punjab.
1. As to control over Magistrates, see discussion regarding section 17.
100. Scheme recommended regarding Presidency towns.-
In the Presidency towns, the Bombay scheme furnishes a good example of a scheme which has worked well, and may be adopted. No doubt, that scheme uses the same expression, "Presidency Magistrate" for both the categories (with the addition of the words "specially empowered 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.