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Report No. 37

111. Section 10 and Mobile Courts.-

The following suggestion1 has been made by a State Government:-

"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 Report2 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.3

1. F. 3(2)/55-L.C., Pt. III, S. No. 49.

2. Cf 14th Report, Vol. 2.

3. Cf. Ram Dayal v. Corporation of Calcutta, AIR 1953 Cal 76 (78).

112. Section 11.- No changes are needed in section 11.

113. Section 12.-

Section 12 deals with the "appointment" of "subordinate Magistrates", and needs the following changes:-

(a) In view of separation, it becomes necessary to deal separately with Judicial and Executive Magistrates;

(b) Executive Magistrates will continue to be appointed 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 Government;

(c) Judicial Magistrates should be "appointed" by the High Court. If separation is to be introduced effectively, the conferment of Magisterial powers-which is the matter to which section 12 mainly pertains-must belong to the High Court. Compare section 12 as amended in the Punjab.

(d) The definition of the local area of Judicial Magistrates should be made by the High Court, or subject 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 scheme1 contemplates the appointment of a Chief Judicial Magistrate, 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 notification under Article 237 of the Constitution, be exercised subject to the terms of the said notification. The "appointment" to which Article 237 relates is recruitment and we do not think it necessary 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.2-3

(f) A provision regarding the transitional period may be made (Compare the Punjab Amendment).

Necessary changes are recommended.4

1. See discussion relating to sections 10 and 17.

2. See also the 32nd Report (Section 9 of the Code-Appointment etc. of Sessions Judges).

3. See also discussion relating to section 9.

4. See section 12, as proposed.

114. Section 12 and suggestion regarding appointment.-

With reference to section 12, the following suggestion1 has been made by a High Court Judge:-

"Section 12 may be amended to provide that the power of appointing Magistrates may be conferred upon the High Court instead of State Government."

This has already been covered, in substance.2

1. F. 3(2)/55-L.C., Pt. III, S. No. 49(a).

2. See para. 113, supra.

115. Section 13.-

Section 13 relates to Sub-divisional Magistrates. It will be necessary to add the word1 "Executive" 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 generis. Further, section 13 (as amended in Bombay), speaks of "Taluka Magistrates" also,- a provision which may not be needed in the whole of India.

1. See section 13, as proposed.

116. Section 13(2A) (To be added).-

We have accepted the suggestion of a State Government1 to provide for the appointment of an Additional Sub-divisional Magistrate.

Necessary provision be added.

We may note, that a similar suggestion has been made in the Report of the U.P. Committee for Investigation into corruption in subordinate courts.2 As it has been held3 that the present section does not contemplate an Additional Sub-divisional Magistrate, an amendment would be required.4

1. F. 3(2)/55-L.C., Pt. II, S. No. 33.

2. F. 3(2)/55-L.C., Pt. VII, S.No. 449 (Suggestion of the U.P. Committee for Investigation of Causes of Corruption in subordinate Courts in Uttar Pradesh) (1963), Report, pp. 37-38 (Bill at p. 223).

3. See Lakshmi v. State, AIR 1962 All 165, para. 5.

4. Compare section 10(2).

117. Section 14.-

Section 14 deals with Special Magistrates. In view of separation, special Magistrates can be of two categories- (i) Special Judicial Magistrates, and (ii) Special Executive Magistrates. The latter are dealt with separately.1 Section 14 can deal with Special Judicial Magistrates.

So far as Judicial Magistrates are concerned, the conferment of powers under section 14 should be by the High Court.2 And, if the High Court takes this action, then the provisions contained in section 14(3) and section 14(4) becomes unnecessary, and can be omitted.

Necessary changes are recommended.3

1. See section 14A (proposed), regarding special Executive Magistrates.

2. See discussion regarding section 12.

3. See section 14, as proposed.

118. Section 14A (New).-A new section should be inserted1 to deal with special Executive Magistrates.2

1. See section 14A, as proposed.

2. See discussion relating to section 6A and section 14.

119. Section 15.-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.1

1. See section 15, as proposed.

120. Section 16.-In section 16, the following changes are necessary:-

(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 separation.1

(ii) The word "Judicial" may be added before the word "Magistrate". Compare the Punjab amendment.

Necessary changes are recommended.2

1. cf. existing section 554.

2. See section 16, as proposed.

Code of Criminal Procedure, 1898 (Sections 1-176) Back

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