Report No. 37

121. Section 17(1).-

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 "subordination" is both judicial and executive.1

1. Cf. Gur Dayal, 1879 ILR 2 All 205 (207) (FB).

So far as Judicial Magistrates are concerned, it is obvious that they cannot (after separation) be made subordinate to the District Magistrate, unless the District Magistrate himself is a Judicial Magistrate. It becomes necessary to consider the principal patterns of separation, in this context.

According to the Madras pattern the District Magistrate, who is a Judicial Magistrate is the Principal Magisterial officer in the district and, as such, has general administrative superintendence and control over the other Judicial 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 Magistrate, but an Executive Magistrate.

The Punjab scheme contemplates the appointment of a Chief Judicial Magistrate, to whom all Judicial Magistrates are subordinate. The Chief Judicial Magistrate himself is subordinate to the Sessions Judge. In the Punjab, the District Magistrate is an Executive Magistrate.

122. Chief Judicial Magistrate-proposal regarding.-

In our opinion, if administrative control over Judicial Magistrates is to be effectively exercised, it can best be done by the creation of a post of Chief Judicial Magistrate as in the Punjab. In an earlier Report,1 the Law Commission 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.2

1. 14th Report, Vol. 2.

2. See section 17(1), as proposed.

123. Section 17(2).-

Section 17(2) deals with the subordination of Magistrates to the Sub-divisional Magistrates and has to be omitted, as the Sub-divisional Magistrate in our scheme is an Executive Magistrate.1 In place of the existing sub-section, a provision dealing with the subordination of the Chief Judicial Magistrate to the Sessions Judge may be inserted2 Compare section 17(2) as amended in Punjab.

1. See section 13, as proposed.

2. See Section 17(2), as proposed.

124. Section 17(3).- Section 17(3) needs no change.

125. Section 17(4).-

In section 17(4), instead of "District Magistrate", we have to substitute "Chief Judicial Magistrate", in view of separation. Compare the Punjab amendment.

126. Section 17(4)-suggestion regarding.-

With reference to section 17(4), it has been suggested1 that the limitation expressed by the words "unavoidably absent or incapable of acting should be removed. After some discussion, we have decided to retain these words, which have caused no serious difficulty.

1. F. 27/3/55-Judl. II (Home Ministry File), Appendix 1, Item No. 5.

127. Section 17(5).-

Section 17(5) is a negative provision, which provides that the District Magistrate, and the Magistrates and the Benches appointed under sections 12 to 15, shall not be subordinate to the Sessions Judge, except as expressly provided.1 This provision has to be omitted, in view of separation. (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 subordinate to the Sessions Judge, also disappears. Since the District Magistrate, in our scheme,2 is not a Judicial Magistrate, 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.3

1. An excellent discussion of the question how far Magistrates are subordinate to the Sessions Judge is found in the Judgment of Spankie J. in Gur Dayal, 1879 ILR 2 All 205 (210, 211).

2. See section 10, as proposed.

3. See section 17B, as proposed.

128. Section 17A (New)-

A new provision regarding subordination of Executive Magistrates may be inserted, on the lines of section 17A as inserted in the Bombay and Punjab Amendments.1

1. See section 17A, as proposed.

129. Section 17B (New).-

In view of separation, it is desirable to insert a provision as to the courts which shall be inferior to the High Court and the Court of Sessions. Such a provision has been inserted by section 17B under the Punjab and Bombay Amendments. In fact, the Explanation to section 435(1) already provides that all Magistrates, whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purpose of section 435(1) and section 437. The provision which we recommend, embodies the following propositions:-1

(a) Courts of Magistrates in Presidency towns will be inferior to the High Court, but not to the Court of Session;

(b) Courts of Magistrates elsewhere will be inferior to the High Court as well as to the Court of Session,2

(c) Courts of Session shall be inferior to the High Court.

1. See section 17B, (proposed).

2. See also para. 127, supra.

130. Section 18.-

Section 18, which deals with Magistrates in Presidency towns, requires amendment in so far as it deals with appointment to a particular court. Both in relation to the Chief Presidency Magistrates and in relation to Presidency Magistrates, appointment to the particular court should be made by the High Court. In view of the provisions of Articles 233 to 235 and 236(a) of the Constitution as interpreted by the Supreme Court1 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 Magistrates, it should not be different for other Presidency Magistrates, even though the constitutional provisions do not apply to them until a notification under Article 237 is issued.

1. See 32nd Report of the Law Commission (Section 9 of the Code-Appointment etc. of Sessions Judges).